STATE OF NEW JERSEY v. JORGE ROQUE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JORGE ROQUE,

Defendant-Appellant.

____________________________________

May 21, 2014

 

Submitted January 6, 2014 Decided

 

Before Judges St. John and Leone.

 

On appeal from the Superior Court of New Jersey, Criminal Division, Camden County, Indictment No. 11-06-1465.

 

Afonso Baker & Archie, attorneys for appellant (Troy A. Archie, on the brief).

 

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Jorge Roque appeals the denial of his motion to suppress a gun seized during a traffic stop. We uphold the seizure and affirm his judgment of conviction.

 

 

I.

On January 12, 2011, Camden police arrested defendant after a 9mm semi-automatic handgun was discovered in the vehicle he was driving. The grand jury indicted defendant in Count One with second-degree unlawful possession of a firearm without a permit, N.J.S.A. 2C:39-5(b), and in Count Two with the second-degree possession of a weapon by certain previously-convicted persons, N.J.S.A. 2C:39-7(b)(1), based on a prior drug trafficking conviction.

On February 16, 2012, the trial court denied defendant's motion to suppress evidence. Pursuant to a plea agreement, defendant pled guilty to Count Two, Count One was dismissed, and defendant waived his right to appeal any issue other than the suppression ruling. On June 19, 2012, the trial court imposed the recommended sentence of eight years in prison with five years of parole ineligibility. The court ordered that sentence to run concurrently to sentences under other indictments.

Defendant appeals, raising the following issues:

POINT I

 

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO SUP[P]RESS EVIDENCE BECAUSE THE FACTS OF THIS CASE DO[] NOT MEET THE PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT.

 

 

 

POINT II

 

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO SUP[P]RESS EVIDENCE BECAUSE THE FACTS OF THIS CASE DO[] NOT SUPPORT [THE] AUTOMOBILE EXCEPTION TO THE WARRANT REQUIR[E]MENT.

 

POINT III

 

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO SUP[P]RESS EVIDENCE BECAUSE LAW ENFORCEMENT LACKED PROBABLE CAUSE TO ARREST.

 

II.

We consider whether the motion to suppress was properly decided based on the evidence presented at the suppression hearing. State v. Robinson, 200 N.J. 1, 15 (2009).

Officer John Kelly, a police officer with fourteen years of experience, testified as follows. At approximately 10:00 a.m. on January 12, 2011, Kelly and his partner were patrolling Sixth Street in Camden in a marked vehicle. A heavy snowstorm had just ended, and the roads were still unplowed. Kelly observed a Mercury Grand Marquis passing them at an unsafe speed of 35-40 m.p.h., swerving and sliding on the snow and ice. As the officers were turning to pursue, the car turned on a side street, and reentered Sixth Street, still moving at an elevated speed and losing control on the roadway. The officers made a traffic stop.

Officer Kelly approached the driver's window. Defendant, the driver, rolled the window partially down. Kelly asked defendant for his driver's license, vehicle registration, and insurance card. Defendant instead handed the officer his County identification card.

For a second time, Officer Kelly asked defendant if he had a valid driver's license, registration, and insurance card. Defendant did not produce those documents. Instead, defendant said it was for Kelly to find out if he had a valid driver's license or not.1

At this time, a man on the other side of the street started yelling profanities and threats at the officers. The man shouted that they should find something better to do than harass people in Camden, or a Camden cop was going to get killed. The Camden police, including Officer Kelly, had previously had problems with people on the streets interfering with the police, starting fights and trying to release detained persons. Kelly was concerned about the man, particularly as there were several other persons on the street who could become involved in the situation. Kelly called for backup.

Because the scene felt unsafe, Kelly ordered defendant out of the car, temporarily handcuffed him, and began escorting him to the police vehicle. Kelly again asked defendant about his insurance card and registration for the car. Defendant said they were in the car.

After placing defendant in the police vehicle, Kelly returned to the car to look for proof of registration and insurance, and to determine if the car was stolen. Meanwhile, Kelly's partner inputted defendant's name to see if he had a valid driver's license. Kelly entered the car and checked two places where drivers routinely keep their registration and insurance card, namely the visors and the glovebox. When he opened the glovebox, he observed a 9mm handgun.

Officer Kelly terminated the search, secured the gun, and alerted his partner that he recovered a "32," the police code for a weapon. Defendant interjected that the gun was a 9mm, not a .32. The officers arrested defendant.

Defendant testified at the suppression hearing as follows. It was snowing, slick and icy, and his "car did fishtail a little bit" as he drove by police, but he was not speeding. As he "came back around," the police pulled him over. When the officer asked for his license and registration, he gave only his County ID, even though he had his registration and insurance card in the car. The officer asked if he had any warrants, and defendant told the officer "to do his job." The officer immediately took defendant out of the car, handcuffed him, and put him in the police car, without again asking him for his license or registration or giving him a chance to retrieve them. The officer searched the car and found the gun in the glovebox.

The trial court credited the officer's testimony regarding his observations of the vehicle. The court specifically found that defendant was "traveling at an unsafe rate of speed in snowy conditions and swerving somewhat." The court was satisfied that the motor vehicle stop was valid because Kelly had a reasonable suspicion he had observed defendant commit a moving violation such as reckless or careless driving.

The court also credited the officer's rendition of the events of the stop. The court specifically found that the officer twice asked defendant to produce his license, registration, and insurance card, and defendant twice failed to produce them, telling the officer "that's for you to find out." The court also credited the officer's testimony that, after being removed from the car, defendant said the registration and insurance card were in the car.

The court ruled that the officer's requests for defendant's license, registration, and insurance were proper. The court then ruled that the officer appropriately removed defendant from the car and made a properly limited search for those documents on the visors and the glovebox. The court concluded that the officer legally seized the gun in plain view.

III.

Defendant first quarrels with the trial court's credibility rulings and factual findings concerning the stop. He argues it was implausible that defendant drove recklessly by a police vehicle and then sped past them again. However, defendant admitted that he fishtailed while driving by the police vehicle, and that he then "came back around" and passed the police again. In any event, the court credited the officer's testimony, which clearly established that defendant drove past the police twice at an excessive speed, causing him to slide unsafely on the snowy street.

We must hew to our "deferential standard of review" of the court's factual findings. State v. Rockford, 213 N.J. 424, 440 (2013).

[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record. Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.

 

[Ibid. (alterations in original) (citations and quotation marks omitted).]

Here, the court's factual findings were supported by sufficient evidence. Its credibility findings were properly based on observation of the testimony given by Kelly and defendant.

As the trial court found, the officers had reasonable suspicion to stop defendant for a moving violation, such as reckless or careless driving. See N.J.S.A. 39:4-96, -97. "'It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense.'" State v. Locurto, 157 N.J. 463, 470 (1999).

It is equally well-established that an officer conducting a traffic stop may request a driver to produce his driver's license, vehicle registration, and proof of insurance. E.g., State v. Baum, 393 N.J. Super. 275, 286 (App. Div. 2007), aff'd as modified, 199 N.J. 407, 424 (2009); see Delaware v. Prouse, 440 U.S. 648, 659, 99 S. Ct. 1391, 1399, 59 L. Ed. 2d 660, 671 (1979) (emphasizing that in "[v]ehicle stops for traffic violations[,] . . . licenses and registration papers are subject to inspection"). Under N.J.S.A. 39:3-29, defendant was required both to have these documents in his possession and to produce them when requested by a police officer performing his duties. State v. Perlstein, 206 N.J. Super. 246, 253 (App. Div. 1985).2

Furthermore, "established precedent . . . permits officers in the course of a legal [traffic] stop to order the driver out of the vehicle." State v. Pena-Flores, 198 N.J. 6, 31 n.7 (2009) (citing State v. Smith, 134 N.J. 599, 611 (1994)); accord Pennsylvania v. Mimms, 434 U.S. 106, 111 & n.6, 54 L. Ed. 2d 331, 337, 98 S. Ct. 330, 333 (1977) (holding that a driver stopped for a motor vehicle violation may be ordered out of the vehicle and detained). Defendant was detained for less than three minutes before the gun was found.

Whether handcuffing or confining a detainee in a police car exceeds the bounds of a proper traffic stop depends on the circumstances. State v. Dickey, 152 N.J. 468, 478-79, 483 (1998). Here, the officer faced not only defendant's defiance, but also the possibility of interference by the threatening man on the street and the other bystanders in a part of North Camden that both counsel agreed was a high-crime area. We cannot say the officers acted unreasonably. See id. at 478-79.

In any event, the opening of the glovebox and discovery of the gun was not the "product" of defendant's brief handcuffing or detention inside the police vehicle rather than on the street. See State v. Shaw, 213 N.J. 398, 413 (2012); State v. Bell, 388 N.J. Super. 629, 638 (App. Div. 2006), certif. denied, 189 N.J. 647 (2007). As the trial court correctly noted: "Whether at that moment the defendant is [detained] on the side of the road or in the back of the police car is of no import" to the propriety of the limited search here.

IV.

We next consider whether the police search of the glovebox was improper, given defendant's refusal to produce the registration and insurance card and his statement that those documents were in the car. Our Supreme Court stated in State v. Boykins, 50 N.J. 73 (1967), that "[a] traffic violation as such will justify a search for things related to it. So, for example, if the operator is unable to produce proof of registration, the officer may search the car for evidence of ownership[.]" Id. at 77; see, e.g., State v. Hock, 54 N.J. 526, 533 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970); State v. Campbell, 53 N.J. 230, 236-37 (1969); State v. Jones, 195 N.J. Super. 119, 122 (App. Div. 1984); State v. Gammons, 113 N.J. Super. 434, 437 (App. Div.), aff d o.b., 59 N.J. 451 (1971).

In State v. Patino, 83 N.J. 1 (1980), the Court reaffirmed that "a finding that a traffic violation has occurred will permit a search of the vehicle for evidence connected with that violation," and "'a search to find the registration would be permissible if confined to the glove compartment or other area where a registration might normally be kept in a vehicle.'" Id. at 12. After Patino, we noted it is "now well established that while conducting an investigation of a traffic offense, a policeman may conduct a limited search of the vehicle for evidence of ownership when the operator is unable or unwilling to produce evidence of ownership." State v. Hill, 217 N.J. Super. 624, 628 (App. Div. 1987), rev d on other grounds, 115 N.J. 169 (1989); see, e.g., State v. Holmgren, 282 N.J. Super. 212, 215 (App. Div. 1995).

Recently, in State v. Pena-Flores, 198 N.J. 6 (2009), the Court applied Boykins to the appeal of defendant Fuller. When a trooper stopped Fuller for a traffic violation, he apparently did not produce the registration or insurance card. Instead, Fuller produced only a bill of sale for another vehicle. Id. at 15-16. The Court held that the trooper was entitled

to look into the areas in the vehicle in which evidence of ownership might be expected to be found. State v. Boykins, 50 N.J. 73, 77 (1967) (citations omitted); State v. Jones, 195 N.J. Super. 119, 122-23 (App. Div. 1984) ("[W]here there has been a traffic violation and the operator of the motor vehicle is unable to produce proof of registration, a police officer may [conduct a] search [of] the car for evidence of ownership . . . . confined to the glove compartment or other area where a registration might normally be kept in a vehicle." (quotation marks and citation omitted)). See also United States v. Kelly, 267 F. Supp. 2d 5, 14 (D.D.C. 2003) ("[I]t is reasonable for [an] officer to conduct a limited search for the registration in those areas where the registration would likely be located."); 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, 7.4(d) (4th ed. 2004) ("[I]t is reasonable for the police to make a limited search of a vehicle in an effort to determine ownership.").

 

[Id. at 31.]

Accordingly, the Court ruled that the gun and drugs found in plain view during the trooper's limited search for evidence of ownership in the vehicle's center console "were not subject to suppression." Id. at 31-32. By contrast, "the evidence that was uncovered in areas of the vehicle in which credentials would not normally be kept (under and behind the backseat and in the radio compartment) was subject to suppression." Id. at 32-33.

The Court in Pena-Flores thus reaffirmed limited searches under Boykins for evidence of ownership. The Court permitted such a search "separate and apart from the automobile exception," and even though the limited search occurred prior to the development of probable cause and in the absence of any exigency. Id. at 31-32. This reaffirmation is particularly notable given the Court's emphasis that probable cause and exigency were otherwise required for a warrantless search of a vehicle, and that New Jersey's automobile exception was less broad than its federal counterpart. Id. at 11, 19, 28. Accordingly, we reject defendant's arguments that the limited search authorized by Pena-Flores must fall within the automobile exception, or be supported by probable cause or exigent circumstances.

All of the authority relied on by the Court in Pena-Flores permitted a limited search for evidence of ownership based solely on the driver's inability to provide the registration. Id. at 31. However, the Court also noted that "the license plate and the bill of sale did not correspond to Fuller's vehicle." Ibid.3 Even assuming that the Court viewed these additional facts as necessary to justify the limited search, the additional facts here similarly raised the level of suspicion that the car was stolen. The mere "fact that the driver of a vehicle cannot immediately produce the vehicle's registration or proof of insurance supports a reasonable suspicion that the vehicle is stolen." Holmgren, supra, 282 N.J. Super. at 215. Here, there was not mere inability, but adamant unwillingness to produce those documents. Defendant defiantly refused to provide the registration or insurance card, even though he admitted they were in the car. This created an increased basis to suspect that the documents would show the car was stolen. Defendant thus cannot distinguish this case from Pena-Flores.4

Defendant argues he was not given a "reasonable opportunity to obtain [the registration, and insurance card] from the vehicle himself." Jones, supra, 195 N.J. Super. at 122. At the suppression hearing, defendant acknowledged that his argument depended on his testimony that the officer only asked him once and then immediately handcuffed and removed him. The trial court disbelieved defendant's testimony. The court instead expressly credited Officer Kelly's testimony that "the officer did ask the defendant twice," that defendant had the opportunity to retrieve his documentation after both the first and second requests, that defendant failed to produce those credentials even though they were in the car, and that defendant told Kelly after the second request that it was for the officer to find if he had valid driving documents. The court's well-supported credibility and factual findings plainly were not "'so clearly mistaken that the interests of justice demand intervention and correction.'" Robinson, supra, 200 N.J. at 15.

Thus, this was not a situation where no "attempts were made by the police to allow defendant to obtain his registration and insurance identification card from the motor vehicle." Jones, supra, 195 N.J. Super. at 123. The officer was not required to give defendant a third opportunity, particularly after defendant admitted he had refused to produce the documents even though they were in the car.

At the suppression hearing, defense counsel agreed that if the officer asked the operator of a vehicle for his license, registration, and insurance card, and if the operator was given an opportunity to produce them and does not do so, then the officer has a right to conduct a limited search for those credentials in the car under Pena-Flores. Defendant takes a contrary position on appeal. At the very least, defendant must show plain error. R. 2:10-2. He does not show error.

Defendant claims the limited search was contrary to State v. Lark, 319 N.J. Super. 618 (App. Div. 1999), aff'd o.b., 163 N.J. 294 (2000). There, the driver said he did not have a license with him, but the passenger provided "a valid registration, insurance card, and his own driver's license." Id. at 621. The officer also knew that the registration was valid and the car had not been reported stolen. Ibid. The officer still searched the car for papers to identify the defendant, and found drugs. Id. at 622. We reversed the denial of suppression. Id. at 631.

Lark noted that the language in Boykins was dictum, and that no Supreme Court case to that point had "allowed a search based solely on a driver's inability to present driving credentials." Id. at 625 & n.1. We stated, however, that "because this case does not involve a registration search, we need not determine the full import of the Boykins dictum here." Id. at 626. Because "the passenger produced a valid registration for the vehicle[,] . . . the officer could not reasonably conclude that the [vehicle] was stolen." Ibid. In affirming, the Supreme Court similarly noted that, "because the passenger produced valid credentials indicating ownership of the vehicle, the police officer had no reasonable basis to believe that the vehicle had been stolen." State v. Lark, 163 N.J. 294, 297 (2000).

In Lark, we distinguished a search for a driver's identification from the search for a registration under Boykins. We noted that the absence of a driver's license would "not establish probable cause to believe there was 'criminal activity afoot.'" Lark, supra, 319 N.J. Super. at 626. Further, "[t]he offense of driving without a license is complete upon the driver's inability to present his license to the police upon request," making unnecessary any search for it. Id. at 626-27.5

Here, like Pena-Flores and unlike Lark, the officer's requests did not result in the production of the registration, giving rise to at least a reasonable suspicion that the car was stolen. A registration search under Boykins thus could produce evidence of crime, namely a registration indicating that the car was stolen. In any event, the Court's post-Lark ruling in Pena-Flores reaffirmed that in this situation an officer is entitled "to look into the areas in the vehicle in which evidence of ownership might be expected to be found." Pena-Flores, supra, 198 N.J. at 31.

Accordingly, the trial court did not err, let alone plainly err, in following Pena-Flores's endorsement of this long-standing rule. See 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, 7.4(d) (5th ed. 2012); Kevin G. Byrnes, New Jersey Arrest, Search & Seizure, 17:3-2(a) at p. 475 (2013-2014 ed.) ("if the driver has the opportunity [to produce the requisite vehicle credentials] and is either unwilling or unable to do so," the police may search the "usual repositions for such credentials such as the glove compartment"); Kelly, supra, 267 F. Supp. 2d at 13 (stating that "[t]he state courts of New Jersey have adopted a sagacious approach to the issue").

V.

Defendant next contends that the seizure of the handgun was not justified by the plain view exception to the warrant requirement. The plain view exception authorizes the police to seize contraband or evidence of crime discovered during their otherwise lawful activities, including traffic stops and limited searches for evidence of ownership. E.g., State v. Mai, 202 N.J. 12, 25 (2010). Three elements must be satisfied:

"First, the police officer must be lawfully in the viewing area. Second, the officer has to discover the evidence 'inadvertently,' meaning that he did not know in advance where evidence was located nor intend beforehand to seize it. Third, it has to be 'immediately apparent' to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." Under the third requirement, "in order to seize evidence in plain view a police officer must have probable cause to associate the [item] with criminal activity."

 

[State v. Mann, 203 N.J. 328, 340-41 (2010) (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).]

 

The trial court found that the officer had no reason to know that the gun would be in the glovebox, and thus discovered it inadvertently: "the officer simply opened the glovebox looking for credentials and the gun was there." The court also found that seeing the gun in the glovebox made it immediately apparent that the gun was contraband or evidence of crime. See Mai, supra, 202 N.J. at 25; see also N.J.S.A. 2C:39-2(b), -5(b). Defendant does not dispute that these elements were satisfied.

Defendant instead argues that the officer was not lawfully in the viewing area. See Jones, supra, 195 N.J. Super. at 123. This claim fails because we have concluded the officer had the right under Pena-Flores to enter the car to perform a limited search for evidence of ownership. There is no question that that limited search properly included opening the glove compartment. Patino, supra, 83 N.J. at 12; Jones, supra, 195 N.J. Super. at 122-23; see Pena-Flores, supra, 198 N.J. at 31. Discovery of the gun was thus justified by the plain view exception, and gave probable cause to arrest defendant. Mai, supra, 202 N.J. at 26. We thus uphold the court's denial of suppression.

Affirmed.

 

1 The officer recorded in his report that defendant stated: "Well that's for you to find out, ain't it?"

2 Indeed, "[w]hen the defendant failed to produce his driver's license and a registration certificate, the officers were empowered to arrest him." State v. Gray, 59 N.J. 563, 568 (1971) (citing N.J.S.A. 39:5-25); Perlstein, supra, 206 N.J. Super. at 256.

3 The Court's opinion pointedly did not rely on the dissent's assertion that "the trooper already had probable cause to arrest the defendant for possession of a stolen car." Id. at 46 (Albin, J., dissenting).

4 Accordingly, we need not determine whether defendant's recalcitrant refusal to produce the registration and insurance card he admitted were in the car gave rise to probable cause that the car was stolen, or whether the hostile atmosphere created exigent circumstances. Cf. Holmgren, supra, 282 N.J. Super. at 216 (finding mere inability to produce driving credentials "does not constitute probable cause to believe that the vehicle was stolen" because "[i]t is not rare that a person stopped for a traffic violation does not have proof of ownership and insurance immediately at hand").

5 The Lark court cited Knowles v. Iowa, 525 U.S. 113, 118, 119 S. Ct. 484, 488, 142 L. Ed. 2d 492, 499 (1998), which invalidated a full search incident to a citation for speeding because "[n]o further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car." Like Lark, Knowles did not address or invalidate a limited search for evidence of ownership when a driver cannot produce the registration. See In re Arturo D., 38 P.3d 433, 442-44 (Cal. 2002).