Opinion
DOCKET NO. A-3677-12T4
06-19-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RONALD E. HAYWOOD, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the briefs). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-06-2016. Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the briefs). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his conviction, subsequent to a guilty plea, for second-degree attempting to lure or entice a minor, N.J.S.A. 2C:13-6. We affirm.
We discern the following facts from the record. In late 2008, the Pennsauken Police Department received a report of an attempted luring of a thirteen-year-old girl by a male reported to be in his twenties. The minor reported that a male she knew as "Junior" had approached her in December while she was wearing her middle school uniform. The minor identified Junior from his MySpace profile and told police he approached her several times in person and commented on how "cute she was." The minor also reported that Junior told her she looked "a little too young" but he wanted to get to know her. Junior had communicated with the minor over her MySpace page and had given her his telephone number.
After the police identified Junior as defendant through internet subscriber information, the minor's mother signed a third-party consent form to allow a detective, pretending to be the minor, to intercept and record electronic communications from the minor's MySpace page. From December 29, 2008, until February 2, 2009, the detective, acting as the minor, communicated with defendant. Defendant expressed a desire to meet with the minor, and on February 2, 2009, a meeting was arranged. The detective, pretending to be the minor, told defendant to bring liquor and condoms to the meeting at a local pond.
The detective observed defendant's car enter the parking lot of the meeting place, wait for a few minutes, and then exit the parking lot. Aware that there was an open warrant for defendant on an unrelated matter, the detective radioed for a marked vehicle with lights and sirens to stop defendant's car. Defendant's car was stopped, and, a few seconds later, the detective arrived. The detective called police headquarters and obtained permission from a police sergeant to impound the car.
The detective then drove the car less than a mile to the police station. Police searched defendant's home on the night of his arrest, but it was not until nine days later, on February 11, 2009, that the detective obtained a search warrant for defendant's car. The search warrant authorized the police to seize "[t]he alcohol and condoms that were discussed during a conversation between [Junior] and [the detective] on MySpace. The items were seen in plain view inside the car . . . belonging to [defendant] after he was arrested."
However, during a Miranda hearing the detective testified that he did not see the items until the car was parked in the back lot of the police station after it had been impounded. He said that at the scene someone told him what was in the car and "then it was brought back to the police station, that is when I asked - - to look in there."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)
Defendant moved to suppress the evidence found in the car based on the detective's testimony. At the suppression hearing that followed, the detective testified again. This time, he testified that while defendant was being arrested by the other officer, the detective used his flashlight to look inside his car and saw two bottles of alcohol on the floor in front of the passenger seat and a condom on the console. The motion judge considered the detective's testimony incredible due to what he perceived as previous contradictory testimony, ruled that the State had failed to demonstrate the applicability of the independent source or inevitable discovery doctrines, and suppressed the physical evidence.
We granted the State's motion for leave to appeal. Finding that the detective's testimony was subject to an alternate interpretation, we reversed and remanded in order for the trial court "to determine whether the police saw the evidence in plain view through defendant's car window when defendant's car was parked on the side of the road[,]" because "[s]uch a police observation would have justified a seizure of the evidence at that time." State v. Haywood, Jr., No. A-4374-09 (App. Div. April 29, 2011) (slip op. at 19). "We added, the fact that the police chose instead to drive the car to the police station and leave it for nine days before obtaining a search warrant" might have indicated "some confusion on the part of the police as to New Jersey search and seizure law," but did "not constitute an unreasonable unlawful trespass on the defendant's rights." Ibid.
After argument on remand, the trial court addressed the question of whether the detective observed the condom and liquor in plain view, saying:
There's not enough evidence there, credible trustworthy evidence, from [the detective] for me to make a determination that he saw it in plain view at the scene . . . I don't find there to be credible trustworthy evidence that he saw it at the time of the initial stop, nor did I find any other officer saw it.However, the court then determined that probable cause existed for the search warrant, notwithstanding the fact that the plain view exception did not apply, and found that the evidence was lawfully seized pursuant to a valid search warrant.
Following the denial of his motion to suppress, defendant pled guilty to count one of the indictment, second-degree luring or enticing a minor, N.J.S.A. 2C:13-6. The court sentenced defendant to a four-year term of imprisonment, ordered defendant to comply with Megan's Law requirements, N.J.S.A. 2C:7-1 to -11, and imposed parole supervision for life, N.J.S.A. 2C:43-6.4. The remaining counts of the indictment were dismissed.
On appeal, defendant raises the following argument:
POINT I
THE INDEPENDENT SOURCE DOCTRINE DOES NOT REVIVE THE ILLEGAL SEIZURE BECAUSE THE MISCONDUCT AT ISSUE WAS FLAGRANT. THE POLICE EMPLOYED A "SEARCH FIRST, WARRANT LATER" TACTIC, PURPOSELY CIRCUMVENTING THE WARRANT REQUIREMENT.
Ordinarily, a challenge to denial of suppression of evidence obtained pursuant to a search warrant requires a review of the factual underpinnings contained in the affidavit in support of the warrant. State v. Evers, 175 N.J. 355, 380 (2003). Here, the trial court rejected the portion of the affidavit that purported to establish the evidence was in plain view, but accepted that the search warrant was otherwise valid. Defendant argues that the trial court erred in its application of the independent source doctrine under State v. Holland, 176 N.J. 344 (2003), but does not challenge the factual underpinnings of the search warrant other than the assertion of plain view.
Defendant's brief argues that the police illegally searched the vehicle prior to obtaining a warrant, but the record does not support this assertion. --------
The independent source exception allows evidence to be admitted if knowledge of the evidence is gained from a separate, or independent source, completely unrelated to the illegality at hand. Id. at 354. When the challenged evidence has an independent source, exclusion of such evidence would put police in a worse position than they would have been in the absence of any error or violation. Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 2509, 81 L. Ed. 2d 377, 387 (1984).
Under Holland, supra, the State must 1) "demonstrate that probable cause existed to conduct the challenged search without the unlawfully obtained information . . . by relying on factors wholly independent from the knowledge, evidence, or other information acquired as a result of the prior illegal search[;]" 2) prove, "by clear and convincing evidence, that the police would have sought a warrant without the tainted knowledge or evidence that they previously had acquired or viewed[;]" and 3) show "that the initial impermissible search was not the product of flagrant police misconduct." Holland, supra, 176 N.J. at 360-61. Applying the Holland standard here, we conclude the trial court did not err in validating the warrant without reliance upon any assertions of plain view.
First, the State had probable cause to conduct a search based upon defendant's actions in approaching the minor, complimenting her on her appearance, initiating contact via Myspace and telephone, communicating with the detective posing as the minor for over a month, expressing a desire to meet the minor, and driving to meet the minor after the detective posing as her asked defendant to bring liquor and condoms.
Next, the State proved by clear and convincing evidence that it sought a warrant based upon the aforementioned conduct by defendant regardless of the assertion of plain view. The State otherwise acted properly, and clearly sought a warrant based on defendant's prior conduct in order to search the vehicle.
Finally, the State established that the search was not the result of flagrant police misconduct. In fact, the only misconduct in this case was the assertion of plain view in support of the search warrant. It was an otherwise proper investigation in which the police obtained consent from the minor's mother to impersonate the minor to defendant, arranged to meet with defendant, stopped defendant on another warrant, performed other searches after obtaining warrants, and followed established impound procedure in seizing the car.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION