STATE OF NEW JERSEY v. WOOJIN HWANG

NOT FOR PUBLICATION WITHOUT THE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.

WOOJIN HWANG,

Defendant-Appellant.

_______________________________________

November 19, 2015

Argued September 30, 2015 Decided

Before Judges Alvarez, Haas and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-02-0367.

Jason A. Coe, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Coe, of counsel and on the brief).

CatherineA. Foddai,Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; AnnMarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Woojin Hwang, appeals from his conviction and sentence after a trial by jury. Defendant also contests the legality of his arrest and the subsequent warrantless search of his backpack, which was seized by law enforcement when he was arrested. Having carefully reviewed the record and arguments on appeal, we conclude that the warrantless search of defendant's backpack was unlawful. We reverse and remand.

The following facts are derived from the hearing on defendant's motion to suppress. On September 11, 2010, a Customs and Border Protection Officer in San Francisco x-rayed two packages, sent from Vancouver for delivery to New Jersey, which contained pills marked with "alien heads." The packages were opened and tested, revealing the ecstasy compound. The packages contained approximately 990 pills.

On September 12, 2010, United States Homeland Security Special Agent Celia Texidor, based in Newark Airport, received an email regarding the two packages. Texidor contacted an Assistant United States Attorney in New Jersey and asked if that office would be interested in prosecuting any case that developed from the ensuing investigation. The office declined to prosecute, as the quantum of the drugs flowing from Canada did not meet the federal threshold for prosecution. Texidor then contacted the Bergen County Prosecutor's Office (BCPO) and inquired whether that office would be interested in conducting a controlled delivery of the packages, which were addressed to co-defendant, Marcelo Castillo, at a post office box in Ridgewood. BCPO Sergeant Anthony Martino agreed to participate in a controlled delivery.

Texidor then contacted Officer Eddie Gonzalez at the United States Postal Service (USPS) Inspector s Office, as well as Ada Corasco of the United States Drug Enforcement Agency (DEA), and asked them to assist with the controlled delivery.

On September 16, 2010, Texidor received the two packages from California. A plan was developed between Texidor and the BCPO for postal inspector James Foley to assume the position of Ridgewood Postmaster in an undercover capacity. BCPO Detective Jason Hornstra was assigned as the case detective, and was to accompany Foley into the Ridgewood Post Office.

Gonzalez received a phone call from the Ridgewood Post Office on the morning of September 16, 2010, advising that a person identifying himself as Castillo had just called inquiring about a package delivery to his post office box. In response, law enforcement officers from the agencies involved assembled at the Ridgewood Post Office. There, the Ridgewood Postmaster advised that three additional packages had been delivered to the same post office box, all addressed to Castillo with individual return addresses in Arizona, West Virginia, and Kansas. At 11:15 a.m., Martino informed Hornstra and Foley that a Hispanic male and an Asian male exited a taxicab in front of the post office; entered the building and walked to the main counter. A clerk told Hornstra and Foley that the people at the front desk asked to speak with the postmaster.

The postmaster laid out five parcels in front of them. At first Castillo said two of the packages (the packages from Canada containing ecstasy) were not his, as he was only expecting three packages. Castillo initially only took the three packages, but after a brief exchange of words away from the postmaster Castillo signed for the two packages from Canada. Castillo carried the two packages from Canada, while defendant placed the other three packages into his backpack.

Both men were arrested outside the post office. Defendant s backpack and the remaining two packages were seized. However, the backpack and packages were not searched at the scene, instead, Detective Hornstra brought the backpack containing the three unknown packages to the BCPO, where they were opened and searched.

Inside the three packages were marijuana, a DVD case containing $1635 in U.S. currency, and labels bearing names and addresses of numerous individuals. Twenty pills and a tan-colored powder, ultimately determined to be more ecstasy, were also recovered from the three packages in the backpack.

Defendant and Castillo were indicted in Bergen County for first-degree possession of a controlled dangerous substance (methlendioxymethamphetamine (MDMA)) ("ecstasy"), with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (count one); third-degree possession of a controlled dangerous substance (marijuana) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count two); third-degree possession of a controlled dangerous substance (MDMA/ecstasy) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count three); and second-degree possession of a controlled dangerous substance (MDMA/ecstasy) with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four). Castillo was also charged with fourth-degree unlawful possession of credit cards, N.J.S.A. 2:21-6(c)(2) (count five).

In December 2011, Castillo pled guilty to counts one and two of the indictment. In exchange for the guilty plea, the State agreed to recommend that Castillo receive a five-year prison term with a two-year period of parole ineligibility. The agreement was premised upon the condition that Castillo would testify against defendant.

Defendant filed a motion to suppress the evidence seized from his person at the time of his arrest. After hearing testimony, the judge denied the motion. Defendant also filed a motion to preclude the State from presenting an expert regarding narcotics trafficking, which was denied.

While deliberating at the close of the trial, the jury sent two notes indicating that it was unable to reach a verdict. Following the first note, the judge read the Czachor1 charge to the jurors and instructed them to continue deliberations. After the second note, the defense moved for a mistrial, which the judge denied. The parties and the court then discussed a juror s prepaid vacation commencing the following day, which had been disclosed to the judge at the time of the jury selection. The judge substituted the juror with an alternate and instructed the jurors to begin their deliberations anew. The jury found defendant guilty on counts one through three and not guilty of count four. Defendant filed a motion for a new trial based on the juror substitution, which was denied.

Defendant was sentenced to a twelve-year prison term with six years of parole ineligibility on count one. The judge imposed a consecutive term of four years on count two, and a term of four years on count three (concurrent to count two), constituting a sixteen-year aggregate.

After we granted defendant's motion to file his notice of appeal as within time, defendant, through counsel, raised the following points

POINT I

the evidence seized from hwang's backpack at the time of his arrest must be suppressed because he was arrested without probable cause and because the ensuing search was not a proper search incident to arrest.

A. Hwang's arrest was unlawful because [the] police did not have probable cause.

B. The search of Hwang's backpack was illegal because it exceeded the scope of any available exception to the warrant requirement.

point ii

hwang's constitutional right to confrontation was violated when the trial court precluded his attorney from cross-examining his co-defendant on critical issues in the case.

point iii

it was error, under state v. banks, for the trial court to substitute a deliberating juror with an alternate juror after the jury had twice indicated that it was deadlocked.

point iv

the trial court failed to adequately set forth the reasons for its sentencing decision, leading to the imposition of an excessive parole disqualifier and the improper imposition of consecutive terms.

Defendant submitted a pro se brief supplementing the above arguments and seeking to "reserve[] the right to request by motion to the trial court the correction of any issue not raised" by counsel if his conviction is reversed.

With respect to the search of defendant's backpack, the State argues that the search was lawful because it was incident to defendant's arrest, and was otherwise appropriately carried out as a routine administrative procedure for inventory purposes.

When reviewing an order granting or denying a motion to suppress evidence, we accept those of the trial court's findings of fact that are supported by sufficient credible evidence in the record. State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). Deference should be afforded to a trial judge's findings when they are "substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964) (citations omitted). If the trial court's decision is based upon a legal conclusion, "we conduct a de novo, plenary review." State v. Rockford, 213 N.J. 424, 440 (2013) (citations omitted). "A trial court's interpretation of the law . . . and the consequences that flow from established facts are not entitled to any special deference." Gamble, supra, 218 N.J. at 425.

The Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution guarantee the right "of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures[.]" U.S. Const. amend. IV; N.J. Const. art. I, 7. The Fourth Amendment and Article 1, paragraph 7 of the New Jersey Constitution both "require[] the approval of an impartial judicial officer based on probable cause before most searches may be undertaken." State v. Patino, 83 N.J. 1, 7 (1980). Warrantless searches are presumed invalid. Gamble, supra, 218 N.J. at 425; State v. Cooke, 163 N.J. 657, 664 (2000). "Any warrantless search is prima facie invalid, and the invalidity may be overcome only if the search falls within one of the specific exceptions created by the United States Supreme Court." State v. Hill, 115 N.J. 169, 173 (1989) (citing Patino, supra, 83 N.J. at 7). The State carries the burden of proving the existence of an exception by a preponderance of the evidence. State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009).

Among the exceptions created by the United States Supreme Court is the "search incident to arrest" exception. Hill, supra, 115 N.J. at 173. "Under the search incident to arrest exception, the legal seizure of the arrestee automatically justifies the warrantless search of his person and the area within his immediate grasp." State v. Pena-Flores, 198 N.J. 6, 19 (quoting Chimel v. Cal., 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969)) (overruled on other grounds in State v. Witt, ___ N.J. ___, (Sept. 24, 2015)). "The purpose of such a search is (1) to protect the arresting officer[s] from any potential danger and (2) to prevent the destruction or concealment of evidence." State v. Dangerfield, 171 N.J. 446, 461 (2002). "[T]he ensuing search is valid even if there is no particular reason to believe that it will reveal evidence, contraband, or weapons." Pena-Flores, supra, 198 N.J. at 19.

A search incident to arrest, however, does not authorize a limitless search of the surroundings. An officer is permitted to conduct "a search of the arrestee's person and the area 'within his immediate control'" meaning "the area from within which he might gain possession of a weapon or destructible evidence." Chimel, supra, 395 U.S. at 763, 89 S. Ct. at 2040, 23 L. Ed. 2d at 694; see also State v. Henry, 133 N.J. 104, 118, cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993). "The only limitation upon a search of an arrestee's person and the area within his immediate control is that the search may not be 'remote in time or place from the arrest[.]'" State v. Oyenusi, 387 N.J. Super. 146, 154 (App. Div. 2006) (quoting U.S. v. Chadwick, 433 U.S. 1, 15, 97 S. Ct. 2476, 2485, 53 L. Ed. 2d 538, 550-51 (1977)), certif. denied, 189 N.J. 426 (2007). "The requirement of substantial contemporaneity of the arrest and search is ordinarily satisfied if the search . . . is made at the location of the arrest while the arrestee is still on the scene." Id. at 155.

In New Jersey, after the defendant "has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception is inapplicable." State v. Eckel, 185 N.J. 523, 541 (2006). Therefore, Chimel only applies where the officer arrests the defendant, but has yet to remove and secure him. Ibid. In such a case, the reviewing court must "determine, on a case-by-case basis whether [the defendant] was in a position to compromise police safety or to carry out the destruction of evidence, thus justifying resort to the search incident to arrest exception." Ibid. Therefore,

the arrestee's freedom of movement and the passage of time become the controlling factors. . . .

The relevant facts, then, appear to be those which disclose what places the person under arrest presently could reach at the time the arrest is undertaken and how likely it is that he would attempt resistance or escape or destruction of evidence. Important considerations are whether the arrestee has been placed under some form of restraint, the positions of defendant and the arresting officer . . . and the number of officers present as compared with the number of persons arrested or bystanders in the immediate vicinity.

[State v. Welsh, 84 N.J. 346, 355 (1980).]

Here, defendant was handcuffed and placed in the back of a police vehicle. There were a number of officers on the scene. His backpack was then seized and transported to the BCPO, where it was searched. Given this undisputed factual scenario, defendant did not have access to the backpack after it was seized and the likelihood of the destruction of evidence was non-existent.

The State argues the backpack was not searched at the scene of the arrest due to the time of day (mid-day) and the location of the post office (in a public location). While that rationale might justify the bag's removal to the BCPO, it is not a rationale that satisfies the recognized basis for the search incident to arrest exception; potential for resistance or escape and destruction of evidence. For similar reasons, we reject the State's argument that since the backpack was searched at the BCPO five minutes after arrest, the search was incident to arrest as "substantially contemporaneous." We disagree as the temporality of the search was no longer a factor in the calculus of the exception's application based upon the defendant's arrest and restraint. See Eckel, supra, 185 N.J. at 541 (holding that once a suspect "has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception is inapplicable.").

The State also argues that the inventory exception is applicable as a basis for the warrantless search. Again, we disagree. First, there is no indication that defendant was afforded the opportunity to consent to the search or "make arrangements for the disposition of the personal property." State v. Padilla, 321 N.J. Super. 96, 111 (App. Div.), certif. denied, 162 N.J. 198 (1999). Moreover, the backpack was not "immediately associated" with defendant's "person," and the circumstances were not such that inventory was required prior to booking and jailing. Oyenusi, 387 N.J. Super. at 156 n.3; Illinois v. Lafayette, 462 U.S. 640, 643-44, 103 S. Ct. 2605, 2608, 77 L. Ed. 2d 65, 69-70 (1983). Stated succinctly, the record is devoid of any facts supporting a search of the backpack's enclosed packages for administrative inventory purposes.

Finally, we reject the State's argument, raised in a footnote in its brief, that defendant's conviction on count one (possession with intent to distribute) should stand regardless of the outcome of his appeal on the motion to suppress. The argument ignores the evidence adduced at trial that presumptively led to defendant's conviction on that count. It was not disputed that defendant did not "actually possess" the ecstasy which was the subject of the charge. Therefore, it can be reasonably inferred that the guilty verdict was grounded in a finding by the jurors that defendant "constructively possessed" the ecstasy pills delivered from Canada based upon the State's evidence that other ecstasy pills were located in his backpack. As such, we can have no confidence that the evidence, which we now suppress, did not play a role in the trial's outcome. See,e.g., State v. Camacho, 218 N.J. 533, 548 (2014); Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967) (holding that before a constitutional error can be held harmless, the State must prove beyond a reasonable doubt that the error complained of did not contribute to the conviction).

Given our decision on the motion to suppress, we do not need to address the remaining points raised by defendant.

Reversed and remanded for a new trial.

1 State v. Czachor, 82 N.J. 392 (1980).