Opinion
DOCKET NO. A-4285-12T2
03-11-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMEEL MADISON, a/k/a MEEL, LEE BROWN, MADISON JAMAEL, and JAMAL PATTERSON, Defendant-Appellant.
Mark H. Friedman, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Friedman, of counsel and on the brief). Jennifer Pinales, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Ms. Pinales, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-12-2191. Mark H. Friedman, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Friedman, of counsel and on the brief). Jennifer Pinales, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Ms. Pinales, on the brief). PER CURIAM
Following the denial of his motion to suppress, defendant Jameel Madison pled guilty to third-degree possession of a controlled dangerous substance (CDS) with intent to distribute within 1,000 feet of a public school, N.J.S.A. 2C:35-7. Defendant also pled guilty under a separate indictment to third-degree burglary, N.J.S.A. 2C:18-2. The trial judge sentenced defendant on the CDS conviction to a four-year term of imprisonment with a two-year period of parole ineligibility, and a concurrent four-year term of imprisonment on the burglary conviction.
Defendant had also been charged with third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1); second-degree possession of a CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1; fourth-degree tampering with or fabricating physical evidence, N.J.S.A. 2C:28-6(1); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a). These charges were dismissed pursuant to the plea agreement.
Defendant had also been charged under the second indictment with the disorderly persons offenses of possession of burglary tools, N.J.S.A. 2C:5-5; theft by unlawful taking, N.J.S.A. 2C:20-3; resisting arrest, N.J.S.A. 2C:29-2; and obstructing the administration of law, N.J.S.A. 2C:29-1. These charges were dismissed pursuant to the plea agreement.
On appeal, defendant raises the following contentions:
POINT I
ALL OF THE ITEMS SEIZED FROM DEFENDANT'S CAR SHOULD HAVE BEEN
We reject these contentions and affirm.SUPPRESSED AS FRUITS OF AN ILLEGAL WARRANTLESS SEARCH. BECAUSE NO EXIGENT CIRCUMSTANCES EXISTED THAT COULD JUSTIFY NOT OBTAINING A WARRANT, THE ENTRY INTO AND SEARCH OF THE VEHICLE AND ITS CONTENTS WAS UNCONSTITUTIONAL.
POINT II
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
We derive the following facts from the evidence presented at the motion hearing. At approximately 10:45 a.m. on July 28, 2010, Police Officer Ray Weber of the Jersey City Police Department was conducting surveillance in the area of Martin Luther King Drive and Oak Street. He was parked in an unmarked van with tinted windows on Oak Street approximately fifteen to twenty car lengths from the corner of Martin Luther King Drive. From his unobstructed vantage point, he saw defendant standing at the southeast corner of Oak Street and Martin Luther King Drive. Two individuals approached defendant and handed him green currency. Defendant quickly walked east on Oak Street, crossed the street, walked through a parking lot to Union Street, and entered the driver's side of a parked Pontiac Grand Prix. Based on his observation, training and experience, Officer R. Weber believed that defendant was retrieving CDS from the Pontiac.
Because Police Officer David Weber was also involved in this matter, we shall refer to him as Officer D. Weber and refer to Officer Ray Weber as Officer R. Weber.
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After approximately one minute, defendant exited the Pontiac and was examining a small white envelope as he walked back through the parking lot toward Oak Street. Based on his training and experience, the officer recognized the small white envelope as being consistent with bags of heroin. Believing that a narcotics transaction was about to occur, he notified police officers in a nearby perimeter unit to respond to the scene.
When the other officers arrived, defendant and the two individuals dispersed. Defendant quickly walked eastbound from the corner of Martin Luther King Drive and Oak Street. As officers approached him, he put the small white envelope in his mouth and resisted arrest. After defendant was arrested, Officer R. Weber directed Officer D. Weber to the Pontiac, indicating there could possibly be narcotics inside the vehicle.
Office D. Weber testified that regardless of whether there were narcotics in the Pontiac, because it was involved in a narcotics investigation, he had to enter it to obtain "paperwork" to determine ownership. He was advised that defendant said the "paperwork" was either in the center console or glove compartment.
Officer D. Weber approached the Pontiac and saw it was locked and its windows, which were not tinted, were closed. As he was standing outside the driver-side door waiting for the keys, he looked inside the vehicle and saw part of a white rectangular package "sticking out" from the right side of the driver-side sun visor between the visor and the roof. The package was two inches long, one inch wide, one-half inch high, and wrapped in white paper that is commonly used to package bundles of heroin. Based on his training and experience, Officer D. Weber believed the package was consistent with the shape and size of a "brick of heroin." He had to look at the package completely before he could confirm this.
After receiving the keys to the Pontiac from another police officer, Officer D. Weber opened the driver-side door and entered the vehicle. He retrieved and opened the package and found five "bundles" stamped with the logo "MBA." He testified that although a "brick of heroin" usually contains five "bundles," with each "bundle" containing ten bags of heroin, he only found forty-six bags in this "brick of heroin." He also looked into the center console for the vehicle's "paperwork" and found eight bags of heroin stamped with the logo "Boss."
Based on the evidence presented, the motion judge denied the motion pursuant to the plain view exception to the warrant requirement as to the forty-six bags of heroin. Because the State did not argue, and the evidence did not show, there were exigent circumstances to justify searching the center console, the judge granted the motion as to eight bags of heroin found in the center console. This appeal followed.
I.
Relying on State v. Pena-Flores, 198 N.J. 6 (2009), defendant contends in Point I that because there were no exigent circumstances to justify immediate entry into the Pontiac, the judge erred in denying his motion to suppress the forty-six bags of heroin. Defendant also contends the judge erred in applying the plain view exception to justify the search and seizure. Defendant argues it was not immediately apparent to Officer D. Weber that the package in the visor contained heroin, the officer was not legally in the area from which the package could be seized and searched, and the officer did not discover the evidence inadvertently.
Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, "so long as those findings are supported by sufficient credible evidence in the record." State v. Lamb, 218 N.J. 300, 313 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). In addition, we defer to a trial judge's findings that are "'substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Rockford, 213 N.J. 424, 440 (2013) (alteration in original) (quoting Robinson, supra, 200 N.J. at 15). We do not, however, defer to a trial judge's legal conclusions, which we review de novo. State v. K.W., 214 N.J. 499, 507 (2013) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). We review de novo mixed questions of law and fact. In re Malone, 381 N.J. Super. 344, 349 (App. Div. 2005). Applying these standards, we discern no reason to disturb the judge's ruling.
Because the warrantless seizure of the package from the vehicle was independently justified under the plain view exception, we need not address defendant's contention that there were no exigent circumstances to justify the immediate entry into the Pontiac under the automobile exception set forth in Pena-Flores. See State v. Reininger, 430 N.J. Super. 517, 537 (App. Div.) (holding that because the seizure of the item from inside a parked vehicle was proper under the plain view exception, it was not necessary for the State to establish exigent circumstances under the automobile exception), certif. denied, 216 N.J. 367 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1947, 188 L. Ed. 2d 962 (2014). We thus focus on the plain view exception.
Under the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000). Here, the plain view exception is the "recognized exception" that justified the police seizure of the package inside the Pontiac.
The rationale for the plain view doctrine is that "'a police officer lawfully in the viewing area'" need not "'close his eyes to suspicious evidence in plain view.'" State v. Johnson, 171 N.J. 192, 207 (2002) (quoting State v. Bruzzese, 94 N.J. 210, 237 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). For the plain view exception to apply, the State must show that
(1) the officer was lawfully in the viewing area, (2) the officer discovered the evidence inadvertently, meaning that he did not know in advance where evidence was located nor intend beforehand to seize it, and (3) it was immediately apparent that the items were evidence of a crime, contraband, or otherwise subject to seizure.
[State v. Earls, 214 N.J. 564, 592 (2013) (quoting State v. Mann, 203 N.J. 328, 341 (2010)) (internal quotation marks omitted).]
"The Bruzzese Court clarified the third requirement 'to mean that in order to seize evidence in plain view a police officer must have probable cause to associate the [item] with criminal activity.'" Reininger, supra, 430 N.J. Super. at 536 (quoting Bruzzese, supra, 94 N.J. at 237).
All the officer needs to meet the third requirement is [a] practical, nontechnical probability that incriminating evidence is involved. In determining whether the officer has probable cause to associate the item with criminal activity, the court looks to what the police officer reasonably knew at the time of the seizure.
[Ibid. (quoting Bruzzese, supra, 94 N.J. at 237)].
We are satisfied the plain view exception applies in this case. Officer D. Weber was lawfully conducting a narcotics investigation while standing outside the Pontiac when he observed the package. Once at the vehicle, there was no impediment to him looking inside. "[A] simple observation into the interior of an automobile by a police officer located outside the automobile is not a 'search' within the meaning of the Fourth Amendment" because there is no reasonable expectation of privacy in those areas of a car which may be readily observed through the windows. Id. at 534 (quoting State v. Foley, 218 N.J. Super. 210, 215 (App. Div. 1987)). Moreover, our Supreme Court has held that an officer is "lawfully in the viewing area" if he is "lawfully standing outside the [vehicle] when he looked inside the open window and observed the suspected drugs." State v. Mann, 203 N.J. 328, 314 (2010). Based on that reasoning, the Court found the officer could open the vehicle door and seize the drugs. Id. at 334-35. Therefore, the first requirement — that the officer be lawfully present when contraband is observed — was met here.
The second and third requirements were also met. Although Officer D. Weber had some information that there might be narcotics inside the Pontiac, the record does not support the conclusion he knew in advance that narcotics would be located in the visor or that he intended beforehand to seize them. See Johnson, supra, 171 N.J. at 212. In addition, the officer testified that based on his training and experience, he believed the package was consistent with the shape and size of a "brick of heroin." Thus, it was "immediately apparent" that he had probable cause to associate the object seized with criminal activity. See Bruzzese, supra, 94 N.J. at 236-37. Accordingly, Officer D. Weber could open the Pontiac door and seize the package. The motion to suppress the forty-six bags of heroin was properly denied.
II.
Citing State v. Fuentes, 217 N.J. 57 (2014), defendant argues in Point II that we should vacate his sentence and remand for re-sentencing because the judge insufficiently explained his reasons for applying aggravating factor nine, "[t]he need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(9). We disagree.
We review a judge's sentencing decision under an abuse of discretion standard. See Fuentes, supra, 217 N.J. at 70. As directed by the Court, we must determine whether:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)) (internal quotation marks omitted).]
We discern no abuse of discretion in defendant's sentence. As the judge explained, defendant has an "extensive criminal history" that includes numerous CDS convictions. This warranted application of aggravating factor nine. We are satisfied that the judge did not violate the sentencing guidelines and the record amply supports his findings on aggravating and mitigating factors. The sentence is clearly reasonable and does not shock our judicial conscience.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION