STATE OF NEW JERSEY v. DARREN RICHARDSON

NOT FOR PUBLICATION WITHOUT THE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.

DARREN RICHARDSON,

Defendant-Appellant.

July 15, 2015

Submitted September 10, 2014 Decided

Before Judges Ashrafi and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-04-00426.

Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals his conviction following a plea of guilty to various controlled dangerous substance (CDS) offenses. Defendant argues that the Law Division erred in denying his motion to suppress evidence, which had preceded his entry of a retraxit plea of guilty, and his sentence to "time served" in accordance with the plea agreement. Defendant raises the following arguments on appeal

POINT I

THE EVIDENCE SEIZED FROM THE RED COUGAR SHOULD HAVE BEEN SUPPRESSED BECAUSE THE WARRANTLESS SEARCH OF THE VEHICLE AND SEIZURE OF EVIDENCE THEREFROM WAS UNLAWFUL.

POINT II

THE EVIDENCE RECOVERED FROM THE "CAT-CARRYING BAG" IN THE GARAGE SHOULD HAVE BEEN SUPPRESSED BECAUSE THE WARRANTLESS SEARCH OF THE GARAGE WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES.

POINT III

THE SEARCH WARRANT FOR MS. SARAVIA'S APARTMENT WAS INVALID BECAUSE OF A LACK OF PROBABLE CAUSE.

We have carefully considered these arguments in light of the facts and the law, and we affirm.

I.

We derive the following facts from the record developed at the suppression hearings which were held over the course of five days.

On August 20, 2005, at approximately 10:40 p.m., Sergeant Ciro Chimento of the Butler Police Department was on routine patrol in a police vehicle in an apartment complex parking lot. While driving through the lot, he saw three men standing near the rear of a red Mercury Cougar with its trunk open. Upon noticing the officer, the men ran into an open garage and shut the door behind them, leaving the Cougar unattended.

At the same time, the police sergeant saw a green Honda parked at an "awkward angle" near the red Cougar. The Honda was occupied by three individuals. The officer stopped behind the two cars and got out of his car with a flashlight in order to "investigate." Approaching the red Cougar, he saw a bottle of beer on its roof, and a handgun, a box of ammunition and a bulletproof vest plainly visible within the open trunk. He then closed the trunk lid as a safety precaution.

Sergeant Chimento thereafter approached the three individuals sitting in the green Honda, asked them to produce identification, and conducted a pat-down of each individual for weapons. They told the officer that they were in the lot to meet a person they only identified as "T.J." A Butler police officer and another detective, who were the only officers on duty that night, arrived on the scene to assist.

At this point, a woman later identified as Joanne Saravia approached Sergeant Chimento and asked if there was a problem. She said she lived in the apartment building and the red Cougar was hers, adding that she had just parked it there a few minutes earlier. Because the officer had been on the scene for over ten minutes, and because Saravia did not have keys to the Cougar, Sergeant Chimento was troubled by her statements, and he asked her if there was anything "dangerous" in the car. She replied that there was nothing dangerous in the car.

During the course of this conversation, Sergeant Chimento could see seven green plastic baggies containing a white powder on the floor in the front passenger area of the red Cougar, and he asked Saravia to step aside so he could continue to investigate. She replied that no one should have been in her car or in her garage, and that she did not have a key for the garage.

Believing he had come upon a burglary in progress, Sergeant Chimento contacted the Butler Police Dispatcher, and asked that the apartment manager be notified to come to the scene. He also asked for a K-9 Unit from a neighboring municipality to respond. The apartment manager arrived shortly thereafter with a key to the garage, apparently angering Saravia, who began spewing obscenities and told the officers, "Go ahead, open it up, you won't find anybody in there."

A K-9 Unit from the Riverdale Police Department arrived on the scene, and, upon approaching the Red Cougar, indicated that CDS was in the trunk of the car. The dog also leapt upon the open passenger side window and indicated the presence of CDS in the glove compartment. The Riverdale K-9 officer then opened the glove compartment, and a large plastic bag containing CDS and green vegetation fell into the passenger area. The officer also saw additional CDS on the passenger-side floor.

After knocking on the garage door and announcing their presence, the Butler officers and two other officers from neighboring municipalities, entered the garage with the key provided by the manager and found three males, including defendant, huddled on the floor in a back room. The three were then patted-down for weapons and read their Miranda rights.1

Upon being placed into a police vehicle, one of the men volunteered that the others had three guns, which might have been tossed over a fence. The officers then re-entered the garage with the police dog. The dog immediately fixed upon a small animal carrier the so-called "Cat-Carrying Bag" - which the K-9 officer opened, revealing CDS and a handgun.

Saravia, defendant, and the two others were then arrested and Sergeant Chimento requested that the red Cougar be impounded. Fearing that the weapon in the trunk might accidently discharge during the towing process,2 Sergeant Chimento and another officer pried open the trunk of the Red Cougar and secured the weapon.

A search warrant was subsequently issued by a municipal court judge, authorizing a search of Saravia's apartment, the garage and the Red Cougar. During the search of the apartment, police recovered CDS, drug paraphernalia, electronic scales and packaging materials. The garage yielded a notebook containing suspected drug transaction records and the vehicle was found to contain two knives.

Saravia testified at the suppression hearing, and stated that defendant lived with her at the time of the incident. She said the trunk of her car was not open at the time she spoke with Sergeant Chimento, and denied ever consenting to his search of the car or the garage. John Silva, one of the occupants of the green Honda, testified that they had driven to the apartment building that evening because "T.J." wanted to buy marijuana. He added that the trunk of the red Cougar was not open. Paul Singh, the driver of the green Honda, testified he was not sure whether the trunk had been open or closed when the officer arrived.

The motion judge found the testimony of Sergeant Chimento to be credible, and he determined the testimony of the defense witnesses not to be credible. Among other things, the motion judge based his credibility determinations upon the fact that the witnesses had been on the scene to purchase CDS. With respect to the police decision to enter the Red Cougar and undertake a limited search, the motion judge stated, in pertinent part

There are similarities from the Cook case to the situation before this Court. Defendants take the position that at the time the Mercury was searched all the suspects were arrested under police custody and no longer posed a threat for the safety or destruction of evidence. Defense also argues that one of the six officers on the scene could have been posted to watch the Mercury while they applied for a warrant. According to the police report only Ms. Saravia had been arrested at this time and there were still three unknown males hiding in the garage in an area that is known for drug trafficking. The Sergeant, Sergeant Tremento [sic] had already observed a handgun and a bulletproof vest in the trunk of the car. And the three males who had been standing by the trunk had run rapidly into the garage, closed the door, and these males may have been armed and dangerous. Couple that with statements attributable to Ms. Saravia at the time, namely that she rented garage number 12 and that nobody should be in there, led the officers to conclude reasonably that a burglary was in progress. As mentioned earlier by the prosecutor considering the totality of the circumstances it was quite possible that the men in the garage were armed. Sergeant Tremento was apparently aware of these dangers because he, himself, sought backup and indeed other officers arrived to assist. It arguably can be concluded that both police safety and the possible destruction of evidence were clear at that point. Not to be lost is the fact that at that time there was still three suspects sitting in the green Honda. So at this point in time there were six suspects at the scene, a few of whom were possibly armed, and six officers. Given these facts and circumstances I believe the officers acted reasonably in searching the Mercury to secure evidence as well as to protect themselves from any possible dangers.

Further, the motion judge held that the police decision to re-enter the garage and open the "cat-carrying bag" transgressed no constitutional principle and was justified by the circumstances. He stated

But the record is clear initially Ms. Saravia was, or that she arrived at the scene and stated that it was she who rented the garage number 12 and that no one should be in there during the night in question. The Sergeant knew, he saw it with his own eyes, that three males ran into that garage, closed it behind them, and now there was some other type of offense ongoing. Perhaps a burglary, perhaps something else. Furthermore, from this record, Ms. Saravia either explicitly or impliedly at least gave consent to enter that garage when she said, nobody should be in it and stated, "Go ahead open it up. Nobody is in there." Arguably the possible burglary justified the warrantless search. But more importantly as I said, what were the police supposed to do in these circumstances? Nothing? Didn't they have some obligation to do some follow-up based on the facts and circumstances presented to them at the moment? They don't know what's going on in that garage. They don't know who is in there for sure, except three males. They don't know if they're armed. They don't know much about them. I believe in these circumstances the officers had an obligation to at least gain entry to the garage to further investigate. And what did they find? Three males, three. I said three went in. Guess what I find, three. How interesting. Coincidence? I doubt it. And, of course, we have the third gentleman, . . . who said repeating that he was there only buying a little weed. And he, , did not want to get into trouble for the other items in the garage. He also stated, as noted earlier, that it was Richardson, Morton and Ms. Saravia who were selling drugs. And that the drugs were located in the canvas cat carrying bag.

The motion judge entered an order denying the suppression motion, and defendant subsequently entered his retraxit plea of guilty and was sentenced. This appeal followed.

II.

When reviewing a trial court's decision on a motion to suppress evidence, we defer to the trial court's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation and internal quotation marks omitted). This is because the trial court has the "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (citation and internal quotation marks omitted). Where the evidence is mostly testimonial and involves questions of credibility, deference to a trial court's findings of fact is particularly appropriate. In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Therefore, "[a]n appellate court cannot substitute its own findings merely because it would have drawn different inferences from the evidence." State v. Brown, 216 N.J. 508, 538 (2014). The trial court's legal conclusions, however, are subject to de novo review. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution guarantee "[t]he 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. Warrantless searches and seizures are presumptively invalid under Article I, paragraph 7 of the New Jersey Constitution and the Fourth Amendment of the United States Constitution. State v. Bruzzese, 94 N.J. 210, 218 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). It is the burden of the State to show by a preponderance of the evidence that the search falls within a recognized exception to the warrant requirement and that the search was permissible. State v. Brown, supra, 216 N.J. at 527.

A. The Red Cougar.

Defendant argues that the motion judge erred when he held that Sergeant Chimento's seizure of evidence from the trunk and the floor of the passenger area of the red Cougar was justified under the "plain view" exception to the warrant requirement.3 Initially, defendant claims that the officer's assertion that the trunk lid was open when he first arrived on the scene was not credible because two defense witnesses testified otherwise at the suppression hearing. Defendant further argues that even if the trunk lid were open, the "search" of the trunk cannot be justified under the plain view exception because it was not inadvertent. Defendant asserts that the officer's actions were "deliberate and purposeful" and thus could not be inadvertent.

These arguments are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2). We note only that we see no basis to ignore the motion judge's credibility findings, and that defendant's argument regarding the officer's "purposeful" decision to look at the interior of the trunk patently misconstrues the plain view exception. See State v. Damplias, 282 N.J. Super. 471, 478-79 (App. Div. 1995) (explaining that the plain view exception has traditionally required that the discovery of contraband be inadvertent, in order to prevent police from relying on the exception when they know in advance that contraband items will be present). Nothing in this record suggests that the officer's actions were pretextual in any way.

Next, defendant argues that irrespective of whether the trunk lid had been open initially, providing the police with a plain-view justification for looking into the trunk and seeing the weapon, that lawful observation did not justify the subsequent police action of prying the lid open and seizing the gun. Defendant relies on State v. O'Herron, 153 N.J. Super. 570 (App. Div. 1977) cert. denied, 439 U.S. 1032, 99 S. Ct. 637, 58 L. Ed. 2d 695 (1978), for the proposition that the plain view observations gave police probable cause to search, but they still needed a warrant or exigent circumstances to justify the later entry into the vehicle to make the seizure. See State v. Cooke, 163 N.J. 657, 664 (2004) (explaining that the warrantless search of an automobile is permissible if the stop is unexpected; there is probable cause to believe the car contains contraband or evidence of a crime; and exigent circumstances exist). Defendant extends this argument to the CDS found on the floor and in the glove compartment of the car.

In our view, the motion judge properly concluded that exigent circumstances existed at the time police seized the CDS from the passenger area and the glove compartment in the vehicle. "[E]xigent circumstances will be present when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene." State v. Johnson, 193 N.J. 528, 553 (2008), certif. denied, 201 N.J. 272 (2010); see also State v. Cassidy, 179 N.J. 150, 160 (2004) (stating "circumstances have been found to be exigent when they preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both") (internal quotation marks omitted).

Further, exigent circumstances existed at the time the vehicle was being prepared for towing to an impound lot. Sergeant Chimento had seen the weapon in the trunk, but could not remember if the handgun had been primed for discharge. He was properly concerned, therefore, that if the weapon were primed and loaded, the physical disturbance caused during the towing process might be sufficient to cause the weapon to fire, thereby posing a deadly threat to those nearby. We have held that "[a] deadly weapon poses a special threat to both the public and police, and its presence is a significant factor in evaluating whether there are exigent circumstances which justify a warrantless search." State v. Wilson, 362 N.J. Super. 319, 333 (App. Div. 2003), certif. denied, 178 N.J. 250 (2003).

Guided by these principles, we are satisfied the record supports the motion judge's finding of both probable cause and exigent circumstances for the warrantless seizure of the CDS, the weapon, and the other items from the red Cougar.

B. The "Cat-Carrying" Bag.

Defendant next argues that the search of the "cat-carrying bag" was not supported by any exigency because defendant and the others had been arrested at the time police re-entered the garage, and the scene was therefore secured. Defendant, however, overlooks the fact that one of the men told the officers prior to their re-entry into the garage that the others had three handguns which they "might" have tossed over a fence. This alone justifies police concern that the garage area might contain a dangerous weapon, and, given the other circumstances of the case which we have set forth above, justified the seizure of the bag which drew the attention of the police dog.4

C. The Search Warrant.

Finally, defendant challenges the search warrant which granted police the right to search Saravia's apartment, and argues that the warrant was based largely upon statements made by the co-defendant, whose veracity and reliability had not been established. We find this argument to be so wanting in merit that discussion in a written opinion is unnecessary. R. 2:11-3(e)(2). We add only that the information underlying the warrant came from the personal observations of the officer at the scene, Saravia's statements to the officers, and the statements made by a co-defendant not a confidential informant. Given the co-defendant's familiarity with defendant, and the officers' discovery of CDS and other contraband items in Saravia's car and garage, we discern no basis to quash this warrant.

In State v. Mosner, 407 N.J. Super. 40, 61 (App. Div. 2009), we observed that "[a] search warrant is presumed to be valid, and defendant bears the burden of demonstrating that the warrant was issued without probable cause[.]" Therefore, a reviewing court must give substantial deference to a judge's determination that probable cause existed to issue a search warrant. Ibid. When reviewing the validity of a search warrant the court must look to the totality of the circumstances to see if there was probable cause. State v. Chippero, 201 N.J. 14, 26 (2009); see also State v. Novembrino, 105 N.J. 95, 122-23 (1987). Hewing to these standards, we reject defendant's argument respecting the validity of the search warrant.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 Sergeant Chimento could not recall at that time whether the handgun was in a "cocked" position and thus primed for discharge.

3 The plain view exception applies when (1) the officer is lawfully in the viewing area; (2) the officer discovers evidence "inadvertently," without knowing "in advance where evidence was located nor intend[ing] beforehand to seize it[;]" and (3) it is "immediately apparent to the officer that items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002) (citations and internal quotation marks omitted).

4 Even if, hypothetically, exigent circumstances were deemed lacking, the police seizure and examination of the bag and its contents were arguably justifiable under the inevitable discovery doctrine. See State v. Smith, supra, 212 N.J. at 365, cert. denied, ___ U.S. at ___, 133 S. Ct. at 1504, 185 L. Ed. 2d at 558.