STATEOF NEW JERSEY v. MODESTO ALVAREZ
Annotate this CaseNOT 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-5300-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MODESTO ALVAREZ,
Defendant-Appellant.
Submitted October 25, 2017 – Decided February 22, 2018
Before Judges Alvarez and Currier
(Judge Nugent concurring).
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
14-12-2869.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alyssa Aiello, Assistant Deputy
Public Defender, of counsel and on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Tiffany
M. Russo, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Modesto Alvarez appeals the denial of his motion
to suppress evidence, after which he entered guilty pleas to
controlled dangerous substance (CDS) offenses. He also appeals
the sentence, which the State concedes included an illegal term
of parole ineligibility on two counts of simple possession. We
vacate the decision denying the motion, remand for a suppression
hearing to be conducted, and vacate defendant's guilty plea.
The sequence of events that resulted in defendant's arrest
are undisputed and described by the arresting officer in the police
incident report. That report was the only proof presented to the
Law Division judge, who decided the matter based solely on the
police report and the parties' written briefs, because she
concluded there were no material facts in dispute. See R.
3:5-7(c).
At approximately 3:30 in the afternoon on May 2, 2014, Newark
police stopped a Honda Accord with heavily tinted windows for
speeding. The report states that the officers were present in
order to "address the increase in open air narcotics complaints,
which have increased in recent days. The unit was further
instructed to address all quality of life offenses." When asked
2 A-5300-15T1
for his credentials, defendant, the driver, was unable to produce
his driver's license.1
The report further states:
DETECTIVES APPROACHED THIS VEHICLE FROM ALL
SIDES WITH CAUTION DUE TO THE HEAVILY TINTED
WINDOWS. ONCE AT THE DRIVER SIDE DOOR I MET
WITH A VERY NERVOUS HISPANIC MALE. I NOW ASKED
THE DRIVER LATER IDENTIFIED AS MODESTO ALVAREZ
FOR HIS DRIVER CREDENTIALS, AFTER A FEW
MINUTES NERVOUSLY LOOKING AROUND HE INFORMED
ME THAT HE IS UNABLE TO FIND HIS DRIVER
LICENSE. I NOW ASKED MR. MODESTO TO STEP OUT
OF THE VEHICLE UNTIL HE WAS PROPERLY
IDENTIFIED, AS HE STEPPED OUT OF THE VEHICLE
I NOTICED HE HAD HIS LEFT HAND CLINCHED. AT
THIS TIME FOR OFFICERS SAFETY I ASKED HIM TO
OPEN HIS HAND AND HE COMPLIED, WHICH REVEALED
A WHITE PLASTIC BAG WITH SEVERAL SMALL WHITE
PILLS.
Defendant was charged with third-degree possession of a CDS,
N.J.S.A. 2C:35-10(a), third-degree possession with intent to
distribute CDS,
N.J.S.A. 2C:35-5(a)(1) and (b)(5), third-degree
possession with intent to distribute a CDS on school property,
N.J.S.A. 2C:35-7, and second-degree possession with intent to
distribute a CDS on a public housing complex,
N.J.S.A. 2C:35-7.1.
Rule 3:5-7(c) begins simply with the word "[h]earing," and
says that "[i]f material facts are disputed, testimony thereon
1
The report omits any mention of any request for either proof of
insurance or a motor vehicle registration. We cannot discern if
the omissions stem from the officer having failed to request them
or the defendant's failure to produce them.
3 A-5300-15T1
shall be taken in open court." In his trial brief, defendant's
counsel requested "that a hearing be scheduled to resolve the
Fourth Amendment issues flowing from the stop of the vehicle, the
removal of the defendant from the vehicle and the warrantless
search of the defendant."
We have been provided with only one motion transcript, dated
September 21, 2015. It is titled "TRANSCRIPT OF MOTION DECISION."
The proceedings begin with the judge stating:
Thank you, okay. I have reviewed the
submissions of counsel. In the present case
it is the facts as I've determined them to be.
The officers observed Mr. Alvarez speeding in
his car. That car had heavily tinted windows.
As such the officers had an articulable and
reasonable suspicion that the driver was in
violation of motor vehicle laws of the State.
Once the stop occurred the officers noticed
that Mr. Alvarez was acting nervously. And
due to the heavily tinted windows they could
not properly observe[] his movements. As a
result he was asked to exit the vehicle. The
defense does not -- in their offering of fact
does not raise any material issues of fact,
but puts forth particular fact -- put forth
argument that ask for that inquiry as to more
detail that is included in the police report.
The judge did not ask if counsel wished to comment on her
decision to address the matter without a hearing. No objection
was made by defense counsel. The judge did not refer to any off-
the-record discussions that would have put counsel on notice that
no testimony would be elicited from the officer, and that defendant
4 A-5300-15T1
would not be afforded the opportunity to challenge the officer's
version, through cross-examination, by his own testimony, or any
other means. The judge did not mention any correspondence that
would have alerted counsel to the fact the judge intended to decide
the matter solely on the facts set forth in the police report, and
the legal arguments found in the briefs. The judge summarily
found that no material facts were in dispute, and she therefore
proceeded without a hearing.
The judge, after canvassing the relevant caselaw, then says:
"In the present matter the traffic stop was conducted in a high
crime area and the officer could not adequately observe Mr. Alvarez
in his car. There was a potential that criminal activity was
afoot."
The judge added:
In general there seems to be no dispute as to
the facts in this case. A motion to suppress
is not to be used as just another discovery
device. State v. Hewins,
166 N.J. Super. 210
at 214 (Law Div. 1979) and the defense does
not provide any counter facts.
However, the defense seeks answers to
specific questions regarding the nervousness
of Mr. Alvarez. Details of the conversation,
which took place between the officers and the
defendant and details regarding the clenched
fist. All of these issues pertain to
discovery. Based upon the lack of material,
facts in dispute, and evidentiary hearing I
do not find is warranted pursuant to Rule 3:5-
7.
5 A-5300-15T1
It is only when a defendant's
counterstatement places material facts in
dispute than [sic] an evidentiary hearing is
required. Here there are no facts of material
dispute which warrant an evidentiary hearing.
For the aforementioned reasons the evidentiary
hearing is not going to be allowed in this
case.
Next, the judge asked counsel if an order had been provided
and about the status of the plea negotiations. Some days later,
on October 19, 2015, the judge issued a written order denying the
motion.
On April 22, 2016, defendant entered guilty pleas to two
counts of third-degree possession of a CDS and one count of third-
degree possession with intent to distribute a CDS in a school
zone. The recommended sentence was an aggregate five years
imprisonment subject to three years of parole ineligibility as
required by the school zone statute. Through oversight, the same
term of parole ineligibility was imposed on the two concurrent
five-year terms for simple possession.
On appeal, defendant raises the following point for our
consideration:2
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION TO SUPPRESS EVIDENCE. . . . IN THE
2
The second point addresses the sentence, therefore we will not
repeat it.
6 A-5300-15T1
ALTERNATIVE, THE COURT ERRED IN FAILING TO
HOLD AN EVIDENTIARY HEARING ON THE MATTER.
Ordinarily we uphold a trial court's factual findings so long
as they are supported by sufficient credible evidence. State v.
Hinton,
216 N.J. 211, 228 (2013); see also State v. Elders,
192 N.J. 224, 243 (2007). "When . . . we consider a ruling that
applies legal principles to the factual findings of the trial
court, we defer to those findings but review de novo the
application of those principles to the factual findings." Hinton,
216 N.J. at 228 (citing State v. Harris,
191 N.J. 391, 416 (2004).
It is well-established that a police stop of a moving vehicle
constitutes a seizure of the occupant, and therefore falls within
the purview of the Fourth Amendment and Article I, Paragraph 7,
of the New Jersey Constitution. State v. Baum,
199 N.J. 407, 423
(2009). Directing a driver to step out of his or her vehicle
constitutes a seizure within the meaning of the Fourth Amendment
because the person's liberty has been restricted. See State v.
Davis,
104 N.J. 490, 498 (1986).
New Jersey has adopted the per se rule announced in
Pennsylvania v. Mimms,
434 U.S. 106 (1977), authorizing officers
to order drivers out of a vehicle incident to a lawful stop for a
traffic violation. See State v. Smith,
134 N.J. 599, 618 (1994).
7 A-5300-15T1
Thus, the officer's order that defendant step out of his
vehicle, in light of the unchallenged motor vehicle stop, is
unobjectionable. No impropriety occurred in the initial stop of
the speeding vehicle, or the request that defendant step out of
the car since he was unable to produce his driver's license.
The order that defendant open his hand, however, is a separate
event which must be subjected to Fourth Amendment scrutiny. Such
scrutiny is not possible absent the officer's testimony regarding
his observations of defendant's "nervousness."
The rationale behind our deferential review of a trial court's
findings of fact as a result of a suppression hearing is that only
the trial judge has the benefit of hearing and seeing the witnesses
and to have a "feel" for the case. Elders,
223 N.J. at 516. That
enhanced opportunity did not occur here. Not only was defendant
denied the means by which to meaningfully challenge through cross-
examination the officer's statement regarding defendant's
nervousness, defendant was not afforded the opportunity to argue
the legal points he raised in his brief.
The officer's characterization of defendant as nervous was
the subjective underpinning for his decision to order defendant
to open his hand, and for the judge's finding that he was justified
in doing so. Nothing in the incident report states this was a
high crime area. We do not know where the stop occurred in
8 A-5300-15T1
relation to the area that engendered the "open air narcotics
complaints."
Nothing in the report connects defendant's nervousness —
which might have been the result of the obvious, his inability to
produce a valid driver's license — to concerns about officer
safety. A clenched hand is not the same, for example, as a bulge
in the waistband or pocket that might indicate the presence of a
firearm.
The State contends that the directive that defendant open his
hand was permissible based on the "realities" faced by law
enforcement officers on a daily basis. That generality is not a
legally sufficient justification for the search.
We give "appropriate deference . . . to an officer's
experience in evaluating suspicious conduct and circumstances."
State v. Love,
338 N.J. Super. 504, 507 (App. Div. 2001) (citation
omitted). That deference is not equivalent to untested acceptance
of an officer's judgments.
In Love, for example, security officers observed defendant
riding his bicycle, parking it outside a casino, and entering the
building. Id. at 505. There had been a number of purse snatchings
in that area of the boardwalk a few months earlier. Ibid. One
of the officers thought the purse snatcher's description matched
Love's appearance. Id. at 505-06. As a result, when he returned
9 A-5300-15T1
to his bicycle, Love was surrounded by security officers. Id. at
506. Shortly thereafter, police moved in, intending to detain the
defendant until he "answered questions as to what he was doing and
where he lived," although nothing untoward happened while he was
in the casino. Ibid. When an officer told Love that he fit the
description of someone wanted for a series of purse snatchings,
he began to look nervous. Ibid.
The officer directed Love to place his hands on top of his
head so he could be frisked for weapons. Ibid. He started to
comply, but kept bringing his hands down despite being told
repeatedly to keep them on top of his head. Ibid. The officers
patted a belly bag around Love's waist, and Love brought his hands
down. Ibid. The officer grabbed the handle of a gun in the belly
bag and announced that he had seized a weapon, and Love began to
struggle. Ibid.
As we said in Love, "[w]hile citizens must be assured that
their personal integrity will not be violated by overzealous or
unreasoned police actions, law enforcement officers must not be
held to inflexible, unrealistic standards which compromise their
safety or the safety of the general citizenry." Id. at 507. But
that Love appeared "nervous" was of little consequence, because
he was suddenly and without warning surrounded by a number of
officers. Id. at 508. Love's nervousness was simply not connected
10 A-5300-15T1
to officer safety. Ibid. Officer safety was the only reason the
State proffered to justify the frisk. Ibid. The concern did not
justify the pat down search. Ibid.
The police report in this case does not connect defendant's
nervousness to any threat, or criminal activity, or even describe
it. Only an evidentiary hearing would have definitively answered
the question of whether directing defendant to open his clenched
fist was indeed justified for officer safety or for any other
reason. Decisions regarding the lawfulness of unwarranted
searches, which are presumptively unreasonable, require a fact-
sensitive inquiry. See State v. Shaw,
213 N.J. 398, 409 (2012).
Such an inquiry was necessary here.
Vacated and remanded for a hearing.
11 A-5300-15T1
Nugent, J.A.D., concurring.
Indicted for various CDS offenses, defendant moved before the
trial court to suppress CDS police seized from his person after
stopping him for speeding in a car with tinted windows. The issue
presented on the suppression motion was whether police violated
defendant's right to be free from unlawful searches and seizures
by ordering him to open his clenched fist when he exited the car
after failing to produce credentials. The State took the position
that it was unnecessary for the court to take testimony because
the material facts in the police report were undisputed. The
trial court agreed and, based on the facts in the police report,
denied defendant's motion.
On appeal, defendant argues, among other things, he was
entitled to a hearing on his suppression motion. I disagree with
the majority that the trial court erred in determining a hearing
was unnecessary. In my view, we should decide this case on its
merits on the record before us. My disagreement notwithstanding,
defendant has requested a remand as alternative relief, and there
is some precedent that supports a remand in cases – and I do not
suggest this is such a case – where the State has not fully
developed proofs that establish an exception to the warrant
requirement. For these reasons, I concur with the decision to
remand this matter.
The procedural requirements concerning suppression motions
are clear. If a defendant moves to suppress evidence seized
without a warrant, "the State shall, within 15 days of the filing
of the motion, file a brief, including a statement of the facts
as it alleges them to be, and the movant shall file a brief and
counter-statement of facts no later than three days before the
hearing." R. 3:5-7(b). "If material facts are disputed, testimony
thereon shall be taken in open court." R. 3:5-7(c); accord, State
v. Kadonsky,
288 N.J. Super. 41, 45-46 (App. Div. 1996).
Thus, "[i]t is only when the defendant's counter-statement
places material facts in dispute that an evidentiary hearing is
required." State v. Green,
346 N.J. Super. 87, 90 (App. Div.
2001) (citing State v. Hewins,
166 N.J. Super. 210, 213-15 (Law
Div. 1979), aff'd,
178 N.J. Super. 360 (App. Div. 1981)). "The
mere allegation of a warrantless search, with the attendant burden
of proof on the State to justify same, does not place material
issues in dispute, nor does defendant's assertion that he denies
the truth of the State's allegations." Id. at 91 (citing Hewins,
166 N.J. Super. at 214).
Here, in response to the State's brief, defendant asserted:
The issues before this [c]ourt can be found
within two paragraphs of the Incident Report:
DETECTIVES APPROACHED THIS VEHICLE
FROM ALL SIDES WITH CAUTION DUE TO
2 A-5300-15T1
THE HEAVILY TINTED WINDOWS. ONCE AT
THE DRIVER SIDE DOOR I MET WITH A
VERY NERVOUS HISPANIC MALE. I NOW
ASKED THE DRIVER LATER IDENTIFIED AS
MODESTO ALVAREZ FOR HIS DRIVER
CREDENTIALS. AFTER A FEW MINUTES
NERVOUSLY LOOKING AROUND HE
INFORMED ME THAT HE IS UNABLE TO
FIND HIS DRIVER LICENSE. I NOW
ASKED MR. MODESTO TO STEP OUT OF THE
VEHICLE UNTIL HE WAS PROPERLY
IDENTIFIED. AS HE STEPPED OUT OF
THE VEHICLE I NOTICED HE HAD HIS
LEFT HAND CLINCHED. AT THIS TIME
FOR OFFICERS SAFETY I ASKED HIM TO
OPEN HIS HAND AND HE COMPLIED, WHICH
REVEALED A WHITE PLASTIC BAG WITH
SEVERAL SMALL WHITE PILLS.
ACTOR MODESTO ALVAREZ IMMEDIATELY
BLURTED "IT'S ONLY ROXIES" WHICH IS
THE STREET TERM FOR OXYCODONE. HE
WAS ASKED IF HAD A PRESCRIPTION FOR
THESE PILLS HE STATED "NO", HE WAS
IMMEDIATELY ADVISED OF HIS MIRANDA
RIGHTS AND PLACED UNDER ARREST.
DETECTIVE J. RUSA COMPLETED
SECONDARY SEARCH OF THIS ACTOR FOR
FURTHER POSSIBLE CONTRABAND, AND
DISCOVERED MR. ALVAREZ HAD A LARGE
ADDITIONAL AMOUNT OF PRESCRIPTION
LEGEND PILLS THAT HE ATTEMPTED [TO]
CONCEAL INSIDE OF A BLACK GLOVE
WHICH WAS FOUND IN HIS REAR LEFT
PANTS POCKET. MR. ALVAREZ WAS
PLACED INTO REAR OF POLICE VEHICLE
AND HIS VEHICLE WAS PARKED AT THIS
LOCATION AT HIS REQUEST. MR.
ALVAREZ WAS TRANSPORTED TO THE 2ND
PRECINCT COMMAND WHERE HE WAS SLATED
ACCORDINGLY.
In his trial brief, defendant asserted a hearing was necessary
because the police report stated merely that defendant appeared
3 A-5300-15T1
to be "very nervous." Defendant further asserted there was no
indication of how the driver appeared nervous, or whether he was
sweating profusely, twitching or shaking, pale or flush. Defendant
asked rhetorically, "[d]id the defendant refuse to look the officer
in the eyes." Defendant argued that without more detail as to
what constituted nervousness, "the reliability and validity of the
observation cannot be tested and is in question."
When defendant's motion came before the court for argument,
the court noted it had received the parties' briefs and asked
counsel, "Is there any additional information or arguments that
you wish to put on the record pertaining to this matter?" Defense
counsel replied that "anything . . . I would argue would . . .
already be in the brief. So I will spare the [c]ourt . . .
repeating what's already been set forth[.]"
The prosecutor stated he too would rely upon the State's
moving papers. He then informed the court: "The only thing I
would add was that there . . . is no - - there is no[] fact issue
here, Your Honor." Defense counsel remained silent, not disputing
the State's assertion. The court then decided the motion based
upon the facts in the police report, and denied it.
On appeal, defendant asserts the State failed to sustain its
burden of proving the constitutionality of the officer's order to
defendant to open his hand. The majority declines to address this
4 A-5300-15T1
issue. Alternatively, defendant argues that a hearing was
necessary because his counter-statement of the case raised
contested issues of fact, namely, "that 'a left hand clenched'
resulted in the officer fearing for his safety." Contrary to
defendant's assertion, this legal issue is not a disputed fact.
Defendant does not dispute that he exited the car with his left
hand clenched.
The majority states defendant was "denied the means by which
to meaningfully challenge through cross-examination the officer's
statement regarding defendant's nervousness," and was "not
afforded the opportunity to argue the legal points he raised in
his brief." I disagree that suppression motions exist to afford
defendants the opportunity to challenge through cross-examination
statements in a police report. That concept appears contrary to
our holding in Green, namely, a "defendant's assertion that he
denies the truth of the State's allegations" does not place
material issues in dispute.
346 N.J. Super. at 91. Moreover, the
record reveals the trial court afforded defendant the opportunity
to argue the legal points he raised in his brief, but defendant
declined to do so.
The majority emphasizes, "[t]he police report in this case
does not connect defendant's nervousness to any threat, or criminal
activity, or even describe it. Only an evidentiary hearing would
5 A-5300-15T1
have definitively answered the question of whether directing
defendant to open his clenched fist was indeed justified for
officer's safety or for any other reason." Ante at 10-11. I fail
to discern how the officer's testimony at an evidentiary hearing,
either that he cannot recall the specifics of defendant's
nervousness, or, for example, defendant was sweating profusely,
would shed additional light on the issue of the officer's safety
or somehow connect defendant's nervousness to a threat to the
officer's safety. If, as the majority intimates, defendant's
nervousness was not a pertinent factor in the analysis of the
officer's safety, then this matter should be decided on the
remaining totality of circumstances, including the car's tinted
windows and defendant's inability to produce credentials; and
whether given those circumstances, the officer's order was
unreasonable.
The State was willing to rest its case on the police report.
The majority concludes that only an evidentiary hearing would have
definitively answered the question of whether directing defendant
to open his clenched fist was indeed justified for officer's safety
or for any other reason. The State's decision to rest its case
on the police report and the majority's implicit determination the
current record does not justify the "search" raise another, albeit
subtler issue. Warrantless searches are presumed invalid. State
6 A-5300-15T1
v. Gamble,
218 N.J. 412, 425 (2014). The presumption of invalidity
of a warrantless search "is overcome only if the search falls
within one of the specific exceptions created by the United States
Supreme Court." State v. Patino,
83 N.J. 1, 7 (1980).
These exceptions may be found in such Supreme
Court decisions as New Jersey v. T.L.O., 469 U.S. 325 (1985) (the 'regulatory authority'
exception); United States v. Jacobsen, 466 U.S. 109 (1984) (the 'third party
intervention' exception); Thompson v.
Louisiana,
469 U.S. 17 (1984) (the 'emergency'
exception); Texas v. Brown,
460 U.S. 730
(1983) (the 'plain view' exception); South
Dakota v. Opperman,
428 U.S. 364 (1976) (the
'inventory search' exception); United States
v. Santana,
427 U.S. 38 (1976) (the 'hot
pursuit' exception); Cady v. Dombrowski, 413 U.S. 433 (1973) (the 'community caretaking'
exception); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (the 'consent search'
exception); Chimel v. California,
395 U.S. 752
(1969) (the 'search incident to arrest'
exception); Lewis v. United States,
385 U.S. 206 (1967) (the 'deceptive guest' exception);
Carroll v. United States,
267 U.S. 132 (1925)
(the 'automobile' exception).
[State v. Hill,
115 N.J. 169, 173-74 (1989).]
"The State bears the burden of proving that the warrantless search
is justified by one of those exceptions." Gamble,
218 N.J. at 425
(citing State v. Bogan,
200 N.J. 61, 73 (2009)).
We presume that when reviewing police investigative material
in preparation for presenting evidence at a suppression hearing,
prosecutors will run through a mental checklist of the warrant
7 A-5300-15T1
exceptions in order to make the best record possible for the trial
court and appellate courts. But assuming for purposes of argument
a prosecutor overlooks either pertinent evidence or a viable
exception, and thus fails to sustain the burden of proving an
exception to the warrant requirement, should the State be permitted
to proceed at a second hearing and fill in the gaps? Stated
differently, should the State have more than one opportunity to
sustain its burden of establishing an exception to the warrant
requirement? If, as the majority intimates, the current record
is inadequate to establish the State has carried its burden of
sustaining the warrantless search – a proposition with which I do
not necessarily agree – then is it appropriate to provide the
State with a second opportunity to do so?
There is some authority that suggests it is not inappropriate
to remand under such circumstances. See State v. Robinson,
228 N.J. 529, 551-53 (2017) (determining that a police officer's
seizure of a handgun from an automobile did not fall within the
protective sweep or community-caretaking exceptions, but due to
an inadequate suppression hearing record, remanding for the trial
court to afford the State an opportunity to meet its burden to
prove the weapon inevitably would have been discovered by lawful
means). Although the Robinson Court did not discuss its decision
to remand in the context of the State getting a second chance to
8 A-5300-15T1
sustain its burden of proving an exception to the warrant
requirement, the decision appears to provide support for a remand
in such instances. For that reason, and because defendant has
requested a remand as alternative relief — not for the reasons
discussed by the majority — I concur with the decision to remand
for the purpose of expanding and clarifying the motion record.
9 A-5300-15T1
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