STATE OF NEW JERSEY v. DOUGLAS T. SHORTER

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0202-17T4

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

DOUGLAS T. SHORTER,

        Defendant-Respondent.


              Submitted March 21, 2018 – Decided June 15, 2018

              Before Judges Alvarez and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              17-01-0022.

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for appellant (Carey J.
              Huff, Assistant Prosecutor, of counsel and on
              the brief).

              Hobbie, Corrigan & Bertucio, PC, attorneys for
              respondent (Edward C. Bertucio, of counsel and
              on the brief; Elyse S. Schindel, on the
              brief).

PER CURIAM

        The State of New Jersey, on leave granted, appeals a Law

Division judge's July 26, 2017 decision granting a motion to
suppress evidence.             After our review of the relevant                   motion

testimony     and   precedents,     we     reverse       and    remand    for   further

proceedings.

       Officers Sean DeShader and Joe Leon of the Asbury Park Police

were on patrol the afternoon of July 9, 2016, in an unmarked

vehicle in a high-crime area. DeShader was a thirteen-year veteran

of the department who had participated in hundreds of heroin

investigations over the course of his career.                      The officers saw

a   car    bearing       Massachusetts         license     plates,       and    DeShader

immediately recognized one of the occupants, defendant Douglas

Shorter, from an arrest days earlier on a drug paraphernalia

offense.       DeShader     knew   defendant         had   an   outstanding       arrest

warrant.

       Once   the   officers     stopped       the   vehicle,     DeShader      noticed

defendant repeatedly looking backwards towards the officers and

leaning towards the center console, the floor, and the passenger's

side   door.        As   the    officers       approached,      defendant       appeared

extremely nervous.         DeShader asked defendant to step out of the

car and noticed defendant anxiously looking around while his chest

visibly rose and fell.           While patting down and cuffing defendant

under the authority of the warrant, DeShader asked him if he had

anything that would "poke [him], prick [him], or stick [him]."

Defendant responded that he had "a little bit of Molly," which

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DeShader understood to mean ecstasy based on his training and

experience.     When he searched defendant, DeShader found sixty-

eight   white   glassine   bags   stamped   "Black   Ink,"   containing

suspected heroin, as well as a knotted white plastic bag, which

DeShader believed contained ecstasy.        DeShader also found two

folds of money totaling $799.

     As the officers awaited the arrival of a marked patrol

vehicle, Leon drew DeShader's attention to a brown-colored box

protruding from the open front passenger's side door.         The box,

located inside the front passenger door pocket, was approximately

the size of a bible and could fit into a cargo pocket.          On the

box, DeShader could see a red stamp with the word "Empire."            He

testified:

          [r]ed stamp is commonly used to be put on boxes
          or bags in reference [to] an indication of
          heroin. Brown box is commonly known to [him]
          to contain 600 white [glassine] bags which is
          used in the production and packaging of heroin
          for street ready drug sales.

     Leon handed the box to DeShader, which contained ten bricks

of heroin.    Each of the 499 bags inside the box were stamped with

the word "Empire" in red.    The driver consented to a search of the

vehicle and identified a Samsung smart phone as belonging to

defendant.




                                   3                            A-0202-17T4
     The judge found the officer to have been "an honest and candid

witness."   However, he concluded that seizing the Empire cardboard

box and opening it was based on more than a hunch but "far shy of

the probable cause necessary to justify that seizure under the

plain view exception to the warrant requirement."

     On appeal, the State contends:

            POINT I
            SUPPRESSION OF THE EVIDENCE RECOVERED FROM THE
            CAR WAS ERROR BECAUSE THERE WAS PROBABLE CAUSE
            TO SEARCH THE CAR.

            POINT II
            THERE WAS PROBABLE CAUSE TO ASSOCIATE THE BOX
            WITH CRIMINAL ACTIVITY, THUS, THE SUPPRESSION
            WAS IN ERROR.

                                   I.

     In reviewing a motion to suppress, this court defers to the

trial court's fact and credibility findings so long as those

findings are "supported by sufficient credible evidence in the

record."    State v. Handy, 
206 N.J. 39, 44 (2011) (quoting State

v. Elders, 
192 N.J. 224, 243 (2007)).        We review such decisions

deferentially because the "findings of the trial judge . . . are

substantially influenced by his [or her] opportunity to hear and

see the witnesses and to have the 'feel' of the case, which a

reviewing court cannot enjoy."     State v. Reece, 
222 N.J. 154, 166

(2015) (quoting State v. Locurto, 
157 N.J. 463, 471 (1999)).              An

appellate   court   should   disregard   those   findings   only   upon    a

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"showing of an abuse of discretion, i.e. [that] there has been a

clear error of judgment."       State v. Nantambu, 
221 N.J. 390, 402

(2015) (quoting State v. Harris, 
209 N.J. 431, 439 (2012)).

"Although   the   ordinary    'abuse   of   discretion'    standard    defies

precise definition, it arises when a decision is made without a

rational    explanation,     inexplicably    departed     from    established

policies, or rested on an impermissible basis."                Flagg v. Essex

Cty. Prosecutor, 
171 N.J. 561, 571 (2002) (citations omitted).

     No deference is given to the trial court's legal conclusions.

Nantambu, 
221 N.J. at 402.      The legal conclusions of a trial court

are reviewed de novo.      State v. Hubbard, 
222 N.J. 249, 263 (2015).

     We conclude that the State's proofs established an exception

to the warrant requirement by a preponderance of the evidence.

See State v. Minitee, 
210 N.J. 307 (2012) (citations omitted).

That exception is a police officer's right to lawfully "seize

evidence or contraband that is in plain view."          State v. Gonzales,


227 N.J. 77, 90 (2016) (citing State v. Bruzzese, 
94 N.J. 210,

235-36 (1983)).

     An officer may seize evidence in plain view if the following

three requirements are 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

                                       5                              A-0202-17T4
            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.

            [State v. Mann, 
203 N.J. 328, 341 (quoting
            Bruzzese, 
94 N.J. at 236)].

     In Gonzalez, the Supreme Court "reject[ed] the inadvertence

prong of the plain-view doctrine because it requires an inquiry

into a police officer's motives and therefore is at odds with the

standard of objective reasonableness that governs [the Court's]

analysis of a police officer's conduct."       
227 N.J. at 99.          Since

the motor vehicle stop in this case occurred before the Gonzalez

decision, we assess the lawfulness of the seizure pursuant to the

three-prong   standard   that    existed   prior    to   the    decision     in

Gonzalez.      
227 N.J.   at    101   (applying    the       new   standard

"prospectively").

     The first requirement of the plain-view exception requires

little discussion.    The officers were executing an arrest warrant

upon the passenger of the vehicle and were therefore in the area

lawfully.

     The second prong also merits very brief discussion.                   The

purpose of this stop was to take defendant into custody on an




                                    6                                 A-0202-17T4
unrelated matter, not for any reason related to the advancement

of a drug investigation.

       In our view, the State met the third prong as well. DeShader,

whom the court found credible, testified that in his experience,

stamped cardboard boxes like the one in this case would at a

minimum contain drug paraphernalia.           The officer had charged

defendant with possession of similar items days earlier.

       It has been consistently held "that a principal component of

. . . probable cause . . . 'is a well-grounded suspicion that a

crime has been or is being committed.'"        State v. Moore, 
181 N.J.
 40, 45 (2004) (quoting State v. Nishina, 
175 N.J. 502, 515 (2003)).

This officer's familiarity with similar boxes containing drugs and

drug paraphernalia gave rise to his "well-grounded suspicion" that

a drug offense had been or was being committed.            See ibid.   The

totality of the circumstances gave rise to probable cause to seize

the box.     DeShader knew defendant, found drugs on his person, saw

the box, and recognized the likely nature of its contents.         In the

context of the plain-view exception, "[a]ll [an] officer needs to

meet   the   third   requirement   is   [a]   practical,    nontechnical,

probability that incriminating evidence is involved."            State v.

Reininger, 
430 N.J. Super. 517, 536 (App. Div. 2013) (third

alteration in original) (citations omitted) (quoting Bruzzese, 
94 N.J. at 237).     The probability existed here.

                                    7                             A-0202-17T4
     The    judge   seemed   concerned   that   despite   the   officer's

description of the Empire stamp as very consequential in that

context, the testimony was not enough because the item was an

opaque cardboard box.    "[T]he Fourth Amendment provides protection

to the owner of every container that conceals its contents from

plain view," Johnson, 
171 N.J. at 213 (quoting United States v.

Ross, 
456 U.S. 798, 822-23 (1982)).

     But on the other hand, "[i]t cannot be denied that 'a police

officer lawfully in the viewing area [is not required to] close

his eyes to suspicious evidence in plain view."             Id. at 208

(alteration in original) (quoting Bruzzese, 
94 N.J. at 237).

"Whether the [container] . . . concealed its contents from plain

view is a factor to be considered when determining whether the

State established probable cause before seizing and opening the

container."    Id. at 214.

     Defendant made furtive movements as the officers approached.

He was extremely anxious.       DeShader knew defendant from a prior

arrest.     Defendant had drugs on his person when arrested on the

scene.     In this context, DeShader's training and experience gave

him the unique familiarity with drug-related items that signaled

the contents of the box even though he obviously could not see

through it.    See State v. Evans, 
449 N.J. Super. 66, 78-79 (App.

Div. 2017) (holding probable cause existed to conduct a strip

                                    8                             A-0202-17T4
search when a search incident revealed the defendant had crack

cocaine on his person); State v. Rosario, 
229 N.J. 263, 276-77

(2017) (quoting State v. Lund, 
119 N.J. 35, 48 (1990)) (restating

the principle that "there are some cases in which 'furtive'

movements or gestures . . . accompanied by other circumstances,

will ripen into . . . probable cause to believe that the person

possesses criminal contraband"); Moore, 
181 N.J. at 46 (finding

the court may consider any evidence concerning the high crime

reputation of an area in the totality of the circumstances); State

v. Hayes, 
327 N.J. Super. 373, 380 (App. Div. 2000) (holding police

may rely on their knowledge of a suspect's "prior arrest [and

conviction]    record");     Johnson,       
171 N.J.   at   219    (holding    the

criminal   nature   of   a   container       is   immediately       apparent    when

"outward appearance of the [container] gave the officer a degree

of certainty that was functionally equivalent to the plain view

of crack-cocaine itself").       Thus, DeShader had probable cause to

seize the box, and its contents should not have been suppressed.

     We do not reach the parties' other arguments and legal

contentions.    They are moot in light of this decision.

     Reversed and remanded for further proceedings.




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