Opinion
DOCKET NO. A-4998-13T3
04-21-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHARLES BRYANT, JR., Defendant-Appellant.
H. Lee Wearing, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent (Sara M. Fedorczyk, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 13-03-36 and 13-03-363. H. Lee Wearing, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent (Sara M. Fedorczyk, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant appeals from his convictions for third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11); second-degree possession of a firearm while possessing CDS with intent to distribute, N.J.S.A. 2C:35-5 and N.J.S.A. 39-4.1; and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b(1). We affirm.
I.
We discern the following facts adduced at the suppression hearing. Defendant's girlfriend (the "girlfriend") made a domestic violence call and police responded to defendant's apartment. Corporal Thomas Newbon spoke with the girlfriend, who was sitting in her car in the parking lot, intoxicated, visibly upset, and with scratches on her neck and face. Officer Kevin Schroek and another officer (the "officers") knocked on defendant's door, defendant answered, and the officers entered the apartment instructing defendant to sit on the couch in the living room while Officer Schroek conducted a protective sweep of the apartment.
Upon entering the bedroom, Officer Schroek detected a strong odor of marijuana coming from the walk-in closet and observed a portion of a plastic bag containing greenish vegetation protruding from a hole on the side of a shoebox located on a shelf in the closet. Officer Schroek alerted Corporal Newbon, who instructed him to seize the marijuana. The police arrested defendant, obtained a search warrant, searched defendant's apartment, and recovered a firearm, additional marijuana, and other evidence.
A grand jury indicted defendant for fourth-degree possession of CDS, N.J.S.A. 2C:35-10a(3) (Count One); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11) (Count Two); second-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5f (Count Three); and second-degree possession of a firearm while possessing CDS with intent to distribute, N.J.S.A. 2C:35-5 and N.J.S.A. 39-4.1 (Count Four), under indictment number 13-03-361. Defendant was indicted for second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b(1) (Count Five), under indictment number 13-03-363. Defendant was also charged with three disorderly persons offenses for attempting to purposely/knowingly cause bodily injury to another, offensive touching, and use of paraphernalia.
Defendant subsequently moved to suppress all evidence seized from his apartment. The judge held a suppression hearing, rendered a written decision, and denied defendant's motion. Defendant then pled guilty to Counts Two, Four, and Five.
The judge dismissed Counts One and Three and the disorderly persons offenses, and sentenced defendant to three years in prison on Count Two, with a consecutive sentence of five years in prison with three years of parole ineligibility on Count Four, and five years in prison and five years of parole ineligibility on Count Five, consecutive to Count Two but concurrent to Count Four.
On appeal, defendant argues:
POINT I
THE WARRANTLESS ENTRY AND SEARCH OF DEFENDANT'S RESIDENCE WAS ILLEGAL, THUS REQUIRING THE SUPPRESSION OF ALL EVIDENCE SEIZED FROM THE RESIDENCE.
A. A Protective Sweep Exception Is Not Applicable.
B. Plain View Exception Is Not Applicable.
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, 216 N.J. 508, 527 (2014).
A.
We conclude that Officer Schroek's search of defendant's apartment was lawful under the protective sweep exception. We reject defendant's contentions that the police lacked probable cause or exigent circumstances to enter defendant's apartment, and that the police did not have a reasonable articulable suspicion that there was another person in the apartment to conduct the protective sweep.
A protective sweep of the home may only occur when
(1) police officers are lawfully within private premises for a legitimate purpose, which may include consent to enter; and (2) the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger. Where those substantive conditions are met, as a matter of procedure, the sweep will be upheld only if (1) it is conducted quickly; and (2) it is restricted to places or areas where the person posing a danger could hide.When the sweep is performed in the non-arrest setting, and "not due to the execution of an arrest warrant, the legitimacy of the police presence must be probed." Id. at 126.
[State v. Davila, 203 N.J. 97, 102 (2010).]
Here, the judge concluded that the protective sweep was lawful because the police were
[c]onfronted with an intoxicated victim who would not give them the necessary information about the domestic disturbance to safely approach the apartment and locate the individual who struck her . . . . They did not know who the perpetrator was, what his intentions were, or whether he had a weapon. However, given the state of frenzy that [the girlfriend] was in when officers talked to her, and seeing visible signs of injury, it was reasonable to suspect that a dangerous individual could still be in the apartment.
. . . .
[W]hen [the officers] approached the apartment and [d]efendant answered the door, they had a legitimate reason for entering the premises — namely, they were looking for the individual who struck [the girlfriend] and they didn't know if it was the man who answered the door or somebody else inside. Once inside, the officers had reasonable articulable suspicion that the area to be swept could be harboring an individual posing danger — the person responsible for the domestic assault. Finally, it is clear that Officer Schroeck conducted the protective sweep in accordance with the legal restrictions on protective sweeps — he did a brief, minute-long, cursory inspection of the places in the apartment in which a person could be hiding: the kitchen, the bedroom, and the closet, where he ultimately smelled the odor of marijuana and discovered the zip lock bag.
In reaching this conclusion, the judge found the testimony from Officer Schroeck and Corporal Newbon "highly consistent," and that they "did not appear to embellish their testimony." Corporal Newbon testified that he had "trouble getting information" from the girlfriend because she was "intoxicated" and "crying." He stated that he was "able to ascertain" that at least an individual named "Charles Bryant" was in the apartment, but not "if anyone else was there" or "how many people were inside the apartment" and if there were "any weapons." Officer Schroeck testified that he did not know "who or what might be inside" the apartment when he approached defendant's apartment. He testified that when defendant answered the door, he did not know if defendant was "the male actor in the domestic violence" or "if anybody else was in the" apartment.
Conversely, the judge found that the girlfriend's testimony was inconsistent with her prior statements and that defendant's testimony was not believable. The judge noted that the girlfriend gave a videotaped statement to police in which she stated that "[d]efendant choked her, struck her, and flipped her over the couch." However, at the suppression hearing the girlfriend testified that "she was the one hitting [d]efendant, and then when [d]efendant pushed her off of him, she tripped and fell over the sofa, hitting her head on the ottoman." The judge concluded that
[h]aving watched the video, . . . [the girlfriend's] statements to [police] had the ring of truth. When talking to [police], she appeared to be worried and upset about the events of that evening . . . and it appeared that [the girlfriend] was being forthcoming and honest. However, when [the girlfriend] testified before this [c]ourt, her demeanor was evasive and she refused to give straightforward answers to questions, especially on cross-examination. [The girlfriend's] statements to [police] were credible, her testimony in [c]ourt was not.
Moreover, defendant testified that the girlfriend "hit" him, he "pushed her off" of him, she "stumbled backwards," "flipped over the couch" and "hit her head on the side of the ottoman." He further testified that he identified himself to the police when he answered the door and that the police entered his apartment without his permission.
The judge found it "highly suspicious that both [d]efendant and [the girlfriend] gave practically the same account of what happened, describing her injury as 'tripping over the couch and hitting her head on the ottoman.' It appeared that their statements were rehearsed for the [c]ourt." The judge also found defendant's testimony that "he told the officers at the door who he was and explained the situation to them" to be incredible because defendant "gave various inconsistent statements during his testimony, particularly on cross-examination[.]"
Deferring to the judge's credibility assessments, and thus accepting Officer Schroeck's and Corporal Newbon's version of events, we are convinced that the judge correctly concluded that the protective sweep was lawful. The police had a legitimate purpose in entering defendant's apartment because they were responding to a domestic violence call and needed to locate and identify the persons involved. There is sufficient evidence in the record to support the judge's findings that the police did not know who the assailant was and whether he was hiding, and that the police therefore had to conduct the protective sweep for their safety.
B.
We also conclude that there is sufficient evidence in the record to support the findings that the marijuana was in plain view, Officer Schroeck was lawfully in the viewing area when he inadvertently found the marijuana, and that it was immediately apparent that the shoebox contained marijuana.
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).
Here, the judge found that
[w]hile conducting the protective sweep, Officer Schroeck testified that he smelled a strong odor of marijuana when he entered the bedroom, emanating from the closet. Corporal Newbon confirmed that the closet smelled like marijuana during his testimony. Both Officer Schroeck and Corporal Newbon testified that they observed, in plain view, a corner of a ziplock bag containing marijuana poking out of a hole in a shoebox on the top shelf of the closet. When coupled with the fact that the closet smelled strongly of marijuana, . . . viewing a portion of a ziplock bag could have easily drawn the [o]fficers' attention. According to both officers, vegetation could plainly
be seen inside the portion of the bag that was protruding from the shoebox.
Given the credible testimony of Officer Schroeck and Corporal Newbon, the State has met the requirements of the plain view exception. First, Officer Schroeck was lawfully in the viewing area, as he was conducting a valid protective sweep. Second, he inadvertently discerned the bag of marijuana, because he did not know that the bag was there before conducting the sweep. Finally, it was "immediately apparent" that the bag contained marijuana, due to the vegetation inside and the strong odor of marijuana.
Defendant's argument that Officer Schroeck's testimony establishes that he expanded his protective sweep beyond its permissible scope is unpersuasive. Officer Schroeck testified that he "smelled marijuana coming from the closet," and that he stood "in the doorway" and "looked for anything [he] might be able to observe in plain view." Officer Schroeck maintained that he did not "venture" into the closet, but stood in the doorway and was able to immediately identify the marijuana through a hole in the shoebox.
Defendant's argument that it was not immediately apparent that the shoebox contained marijuana is equally unconvincing. "Immediately apparent" means that the officers have "probable cause to associate the property with criminal activity." Bruzzese, supra, 94 N.J. at 237 (citation and internal quotation marks omitted). Officer Schroeck testified that he "could see a [z]iplock bag with green vegetation inside" and within a "couple seconds" he "believed it to be marijuana." Defendant testified, however, that the marijuana was "wrapped up inside of a T-shirt" which was wrapped with wax paper, placed inside the shoebox, that was on the "very top of the closet." The judge credited Officer Schroeck's testimony over that of defendant, and deferring to the judge's credibility assessments, Officer Schroeck's testimony supports the conclusion that it was immediately apparent that there was marijuana inside the shoebox.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION