STATE OF NEW JERSEY v. TIMOTHY DAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3511-13T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY DAVIS,

Defendant-Appellant.

______________________________

July 17, 2015

Submitted July 7, 2015 Decided

Before Judges Fisher and Fasciale.

On appeal from Superior Court New Jersey, Law Division, Mercer County, Indictment Nos. 12-08-0748 and 10-04-0430.

Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

After pleading guilty, defendant appeals from his convictions for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (the "weapons offense"); and third-degree violation of the New Jersey Anti-Piracy Act, N.J.S.A. 2C:21-21c(4) (the "DVD offense").1 We affirm.

An officer (the "officer") and his partner (the "partner") (collectively "the officers") were patrolling in a police vehicle and noticed a Dodge Caravan (the "van"), driven by defendant, traveling forty-five miles per hour in a twenty-five miles per hour zone. The officer then noticed the van make a left turn without signaling. The officer activated the lights and siren on the patrol car and made a motor vehicle stop.

The officers approached the van and noticed that the windows were slightly tinted. The officer looked inside the van with a flashlight and observed on the backseat four large open boxes filled with multiple copies of various DVDs. The officer suspected that defendant had pirated the DVDs because some of the DVD titles, visible from outside the van, were not yet available to the public.

When asked by the officer for credentials, defendant stated that he was a suspended driver and had no license. As another police vehicle arrived at the scene, defendant stepped out of the van, left its engine running, and fled on foot. The police apprehended defendant, arrested him, and seized bags of marijuana from his person.

The officer returned to the van, which still had its engine running, to retrieve the keys from its ignition. He leaned into the van to grab the keys and saw the grip of a handgun protruding from underneath the driver's seat. The officer removed the gun and noticed that it was loaded with seven rounds of ammunition.

Defendant moved to suppress the gun and DVDs. The judge conducted a hearing and took testimony from the officer and defendant. The judge rejected defendant's testimony, found the officer credible, and denied the motion in an oral opinion finding that the officer discovered the physical evidence in the van pursuant to the plain view exception to the warrant requirement.

Defendant then pled guilty to the weapons offense and to violating probation on the DVD offense. As part of his guilty plea on the weapons offense, defendant admitted that he possessed the gun, a semi-automatic .32 caliber. The judge followed the plea agreement and sentenced defendant to five years in prison with three years of parole ineligibility on the weapons offense, concurrent to a three-year prison term for violating probation on the DVD offense.

On appeal, defendant raises the following points

POINT I

BECAUSE THE EVIDENCE RETRIEVED FROM [DEFENDANT'S] VEHICLE DURING A WARRANTLESS SEARCH WAS NOT IN PLAIN VIEW, THE EVIDENCE SHOULD HAVE BEEN SUPPRESSED. U.S. Const. Amends. [I]V AND XIV; N.J. CONST. (1947), Article I, Par. 7.

A. The Court's Determination That The DVD's Seized From The Rear Of The Defendant's Vehicle Were In Plain View Was Erroneous Because The Officer Was Not Legally In A Place Where He Could Retrieve The Items.

B. The Court's Determination That Any Of The Physical Evidence Was In Plain View Was Erroneous Because It Was Based Upon A Fact Found By The Court But Not Supported By Any Evidence In The Record, As Well As Improper Credibility Findings.

1. The Court Made a Faulty Factual Determination.

2. The Court's Credibility Determinations Were Based Upon Improper Criteria.

After carefully considering the record and the briefs, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion," R. 2:11-3(e)(2), and affirm substantially for the reasons expressed by the judge in his oral opinion. We add the following remarks.

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). The trial court's legal conclusions 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). Against this standard, we have no reason to disturb the judge's factual findings.

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). The State met all three prongs.

Under the first prong of the analysis, the investigatory stop was lawful and the officer was lawfully in the viewing area of the van. As to the officer's observations of the DVDs from outside the van, we note that "[a] simple observation into the interior of an automobile by a police officer located outside the automobile is not a 'search' within the meaning of the Fourth Amendment." State v. Foley, 218 N.J. Super. 210, 215 (App. Div. 1987) (quoting Texas v. Brown, 460 U.S. 730, 739-40, 103 S. Ct. 1535, 1541-42, 75 L. Ed. 2d 502, 512 (1983)). Nevertheless, the officer was lawfully in the viewing area when he seized the evidence.

Under the second prong, we conclude that the officer discovered the evidence "inadvertently," without knowing "in advance where evidence was located nor intend[ing] beforehand to seize it." Johnson, supra, 171 N.J. at 206.

As to the third prong, the officer must have probable cause to associate the items with criminal activity before seizing them, meaning that "'there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Johnson, supra, 171 N.J. at 214 (quoting State v. Demeter, 124 N.J. 374, 380-81 (1991). At the time the officer seized the gun and DVDs, it was immediately apparent to him that items in plain view were evidence of a crime, contraband, or otherwise subject to seizure. Under these circumstances, there was probable cause to associate the items with criminal activity.

Affirmed.

1 Defendant previously pled guilty to violating the Anti-Piracy Act, under indictment number 10-04-0430, and was on probation at the time he committed the weapons offense. Defendant subsequently pled guilty to the weapons offense and then to violating probation for committing the DVD offense.