STATE OF NEW JERSEY v. RICKY RICHARDSON

NOT FOR PUBLICATION WITHOUT THE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-1866-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RICKY RICHARDSON, a/k/a
MARK RICHARDSON,

     Defendant-Appellant.
_____________________________

              Argued January 23, 2018 – Decided March 22, 2018

              Before Judges Fisher and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              15-08-0899.

              Peter T. Blum, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Peter T. Blum, of counsel and on the brief).

              Lila B. Leonard, Deputy Attorney General,
              argued the cause for respondent (Gurbir S.
              Grewal, Attorney General, attorney; Lila B.
              Leonard, of counsel and on the brief).

PER CURIAM
     Defendant Ricky Richardson appeals from the denial of his

motion to suppress controlled dangerous substances that Detective

Keith Walcott of the New Brunswick Police Department found inside

an opaque plastic bag defendant allegedly tossed out a window just

after police entered the house, in which he was located, to execute

an arrest warrant for unrelated individuals.     He argues:

          POINT I

          THE CONTENTS OF RICHARDSON'S BAG SHOULD BE
          SUPPRESSED BECAUSE THE OFFICER SEARCHED IT
          WITHOUT A WARRANT, AND THE STATE FAILED TO
          PROVE THAT AN EXCEPTION WAS APPLICABLE. U.S.
          CONST. AMENDS. IV, XIV; N.J. CONST. ART. I,
          [¶] 7.

               A. THE PLAIN VIEW EXCEPTION DID NOT
               PERMIT THE DETECTIVE TO OPEN THE BAG
               BECAUSE THE STATE FAILED TO PROVE THAT
               THE BAG'S EXTERIOR APPEARANCE INDICATED
               THAT CONTRABAND WAS INSIDE.

               B.   THE   ABANDONMENT  EXCEPTION  WAS
               INAPPLICABLE BECAUSE THE OFFICER SAW
               RICHARDSON DROP THE BAG, YET DID NOT
               QUESTION RICHARDSON TO DETERMINE IF HE
               RELINQUISHED IT.

We agree the bag was impermissibly searched without a warrant, but

remand the case for consideration of the abandonment issue.

     The motion judge ruled the search and seizure was justified

under the plain view doctrine.       Our "review of a motion judge's

factual findings in a suppression hearing is highly deferential."

State v. Gonzales, 
227 N.J. 77, 101 (2016) (citing State v.



                                 2                            A-1866-16T2
Hubbard, 
222 N.J. 249, 262 (2015)).    We are obliged to uphold a

motion judge's factual findings so long as there is sufficient

credible evidence in the record to support the judge's findings.

State v. Elders, 
192 N.J. 224, 243 (2007).   We will reverse only

when the trial court's findings "are so clearly mistaken 'that the

interests of justice demand intervention and correction.'"        Id.

at 244 (quoting State v. Johnson, 
42 N.J. 146, 162 (1964)).          A

court's conclusions of law, however, are reviewed de novo.     State

v. Gamble, 
218 N.J. 412, 425 (2014).

     The plain view doctrine permits law enforcement to seize

contraband without a warrant under the following conditions:

               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.

          [State v. Bruzesse, 
94 N.J. 210, 236 (1983)
          (citation omitted) (quoting Coolidge v. New
          Hampshire, 
403 U.S. 443, 470, 466 (1971)).1]




1
 In Gonzales, 
227 N.J. at 82, our Supreme Court held prospectively
"that an inadvertent discovery of contraband or evidence of a
crime is no longer a predicate for a plain view seizure." This


                                3                            A-1866-16T2
       Defendant does not challenge the propriety of the bag's

seizure, conceding "[p]robable cause might have permitted" the

detective to seize Richardson's bag.      As the motion judge found,2

the detective was lawfully in the viewing area; he "was standing

beneath the elevated porch [of the home occupied by defendant] in

order to secure the back entrance . . . while multiple arrest

warrants were being effectuated inside."     The judge also credited

the detective's testimony that while he was monitoring the back

windows and doors of the home, "he heard the window directly above

him open.      Immediately after hearing that noise, a bag dropped

from the window [and landed] two to three feet from" the detective.

The judge thus found the seizure of the bag was inadvertent.        The

record amply supports the judge's findings.

       The    third   factor   deserves   close   attention.    "[T]he

'immediate[ly] apparent' prong requires the [c]ourt to determine

whether probable cause existed to associate the . . . object that

was in plain view with criminal activity," depending on "what the

police officer reasonably knew at the time of the seizure."      State

v. Johnson, 
171 N.J. 192, 213 (2002) (quoting Bruzzese, 
94 N.J.

at 237).     The judge considered the detective's knowledge, training


suppression motion pre-dated Gonzales; the officer's discovery
therefore had to have been inadvertent.
2
    The judge found the detective "was a credible witness."

                                   4                           A-1866-16T2
and experience in the identification, packaging and concealment

of controlled dangerous substances, and the circumstances known

to him at the time of his discovery: he saw defendant "in the

window of his bedroom engaging in what [the detective] concluded

was drug-dealing"; the bag was thrown from defendant's window

close in time to the police entry to the house; he saw defendant

in the window immediately after the bag was dropped, a location

from which he could see where the bag landed.              We agree with the

judge's conclusion that this information, factoring the timing of

the drop and the time of day as established at the motion hearing

– four o'clock in the morning –             made it "immediately apparent"

that the bag was "evidence of a crime, contraband, or otherwise

subject to seizure."

      Although we find just cause for the seizure of the bag, we

part company with the motion judge and conclude the search of the

bag was not justified.       Indeed, the Court in Johnson – the case

chiefly relied on by the motion judge – held only that "the conduct

of   the   police   in   seizing"   a   bag   found   to   contain   CDS    "was

reasonable under the plain view doctrine," id. at 220; the Court

did not address the propriety of searching the bag.

      Our Supreme Court has determined, "[t]he requisite cause for

the search of effects can differ from the cause needed to seize

them," and that separate consideration of each is required.                State

                                        5                             A-1866-16T2
v. Hempele, 
120 N.J. 182, 216 (1990); see also Texas v. Brown, 
460 U.S. 730, 749 (1983) (Stevens, J., concurring) (recognizing "the

constitutionality       of   a   container   search   is    not   automatically

determined   by   the    constitutionality      of    the   prior   seizure").

Apropos of this case is our Supreme Court's observation that

          although the Fourth Amendment of the United
          States Constitution and Article I, paragraph
          7 of the New Jersey Constitution protect
          against   both   unreasonable  searches   and
          seizures, there are important differences
          between the interests of citizens protected
          from unlawful searches and those protected
          from unlawful seizures that are relevant to
          the plain view doctrine. A search threatens
          a citizen's personal privacy interest while a
          seizure threatens a citizen's interest in
          retaining possession of his or her property.
          Segura v. United States, 
468 U.S. 796, 810
          (1984). Frequently, a seizure is preceded by
          a search. But when containers are involved,
          the converse is often the case. An object is
          considered to be in plain view if it can be
          seized without compromising any interest in
          personal privacy.     Because seizure of an
          object in plain view threatens the possessory
          interest, surrounding circumstances, such as
          when a suspect abandons property, may make it
          unnecessary to obtain a warrant to justify a
          seizure.

          [Johnson, 
171 N.J. at 206.]

     The object's seizure, as the Court noted, is only half of the

equation and an analysis of only the seizure is, as Justice Stevens




                                       6                                A-1866-16T2
opined in Brown,3 "incomplete" because "[i]t gives inadequate

consideration to . . . cases holding that a closed container may

not be opened without a warrant, even when the container is in

plain view and the officer has probable cause to believe contraband

is concealed within." 
460 U.S.  at 747 (Stevens, J., concurring)

(citing United States v. Chadwick, 
433 U.S. 1 (1977); Arkansas v.

Sanders, 
442 U.S. 753 (1979); United States v. Ross, 
456 U.S. 798,

811-812 (1982)).

     We conclude, although the detective properly seized the bag,

the search was impermissible without a warrant.     In the context

of determining if a warrant was required to search opaque garbage

bags placed on the curb, the Hempele Court held:

               Once the protections of article I,
          paragraph 7 apply, a lower expectation of
          privacy is not a sufficient basis on which to
          carve out an exception to the warrant and
          probable-cause requirement. We can dispense
          with that requirement "[o]nly in those
          exceptional circumstances in which special
          needs, beyond the normal need for law
          enforcement, make the warrant and probable
          cause requirement impracticable." . . .

               Thus, even if garbage searches are only
          "minimally intrusive" of a person's privacy,
          the warrant and probable-cause requirement for
          garbage searches can be scrapped only if a
          special government interest significantly

3
  The Supreme Court in Brown issued four separate opinions; none
garnered a majority of the Court but all agreed in the judgment.
Justice Stevens's concurrence was joined by Justices Brennan and
Marshall.

                                 7                          A-1866-16T2
          outweighs those privacy interests. The State
          does   not  identify   any  such  government
          interest.

          [Hempele, 
120 N.J. at 218-19 (first quoting
          New Jersey v. T.L.O., 
469 U.S. 325, 351 (1985)
          (Blackmun, J., concurring), and then quoting
          United States v. Place, 
462 U.S. 696, 703
          (1983)).]

The State in this case doesn't identify any such interest.       The

bag could have been easily secured while police applied for a

search warrant.   See Hempele, 
120 N.J. at 219 ("If the police fear

that the bag will disappear before they are able to secure a search

warrant, they can seize it for the interim.").      The plain view

doctrine did not justify the warrantless search of the bag.

     The motion judge, after finding the plain view exception

justified the seizure and search, said she would "not address the

additional arguments raised by counsel in support of this motion,"

including the State's contention that the search and seizure was

proper because defendant abandoned the bag.      We remand the case

for the judge's consideration of that theory.4



4
  For the first time on appeal the State contends the search was
justified under the exigent circumstances exception. "Generally,
issues not raised below, even constitutional issues, will not
ordinarily be considered on appeal unless they are jurisdictional
in nature or substantially implicate public interest." State v.
Walker, 
385 N.J. Super. 388, 410 (App. Div. 2006). The State's
exigency argument is neither jurisdictional in nature nor does it
implicate the public interest; the State does not argue either
ground. We will not consider the issue.

                                 8                          A-1866-16T2
Reversed and remanded.   We do not retain jurisdiction.




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