Opinion
DOCKET NO. A-4578-11T4
03-19-2013
STATE OF NEW JERSEY, Plaintiff-Appellant, v. PERRY WILCOX, Defendant-Respondent.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Haas.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 11-09-0774.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
We granted leave to the State to review the interlocutory order entered by the trial court suppressing evidence seized following the warrantless seizure of evidence from defendant, Perry Wilcox's vehicle, which had been stopped by police following defendant's trespass onto a public housing project. We affirm.
At the suppression hearing conducted before Judge Darrell M. Fineman, the State presented three witnesses: Officers Joseph Cooper and Lewis Joseph Platania, IV, of the Vineland Police Department, and a civilian witness, Eve Rodriguez. Defendant did not testify and presented no witnesses.
Officer Cooper testified that on May 25, 2011, he was a member of the Street Crimes Unit that targeted problem areas in Vineland where low levels of suspected drug activity and weapons offenses were occurring. Around 10:20 a.m., while traveling in an unmarked vehicle, he was advised by Officer Platania, also a member of the Street Crimes Unit, that Officer Platania was following a black Mazda Millennium that Amber Karpuck had just entered. Both officers knew Karpuck, whom they had arrested on a number of occasions in connection with drug-related offenses. The black Mazda turned into the Park Towne Apartment Complex and Karpuck exited the vehicle, which then pulled off at an accelerated speed.
Officer Cooper, in response to Officer Platania's call, proceeded to the area where the Mazada was traveling. At one point, he observed the driver, who was later identified as defendant, operating the vehicle carelessly. When Officer Cooper signaled defendant to pull over, he cooperated, stopping his vehicle in front of a driveway to a residential property. Defendant produced his credentials. Officer Cooper asked defendant why he had been at the Parke Town Apartments. He responded that he had dropped off Fatima Roll at the complex. Officer Cooper knew Roll, a black female, because of her past involvement with drugs and drug paraphernalia. Consequently, he knew that Roll did not meet the description of Karpuck, who is a white female.
Meanwhile, after observing the black Mazda drop Karpuck off at the Park Towne Apartment Complex, Officer Platania approached Karpuck and asked her why she was on the premises. She told the officer she was there to visit someone and pointed to the apartment where she intended to go. Officer Platania knocked on the apartment door. He received no response. He arrested Karpuck for trespassing. He radioed Officer Cooper, who had stopped the black Mazda. Officer Cooper relayed to Officer Platania that defendant told him he had dropped off Fatima Roll at the Park Towne Apartment Complex. Officer Platania instructed Officer Cooper to arrest defendant for trespassing. He then proceeded, along with his partner, to the location where defendant had stopped.
After arresting Wilcox, the officers requested defendant's consent to search his vehicle, but he refused. Next, police brought a canine dog to the scene to alert for narcotics, but there was no positive alert exhibited by the dog. Police then transported defendant to the police station for processing.
Following defendant's departure from the scene, the property owner, Eve Rodriguez, whose driveway was being partially or completely blocked by defendant's vehicle, approached the scene and asked that the vehicle be removed. Officer Plantania testified he believed, at that point, he had two options, to "have the vehicle towed" from the homeowner's driveway at defendant's expense or move it himself. He elected to move it himself. When he entered the vehicle and placed his right foot on the floorboard, he felt a hard object that restricted his foot from going up on the brake pedal. When he looked down, he observed a magazine from a handgun sticking out from underneath the floor mat. After photographs were taken, the weapon was removed.
Following the hearing, Judge Fineman issued a written opinion in which he first found the officers had probable cause to arrest defendant for defiant trespassing. However, he rejected the State's claim that the evidence was observed in plain view after police entered the vehicle to move it at the request of the homeowner.
The judge first found that Officer Platania's entry into defendant's vehicle "because it was minimally blocking a driveway" by two or three feet "and the owner of the property wanted the driveway clear" did not "create exigent circumstances which allow[ed] the police to dispense with the [warrant] requirement." The court likewise found the State failed to demonstrate that leaving the vehicle in its location "would have created a danger." The judge distinguished the factual circumstances surrounding the position of defendant's vehicle from the circumstances found in State v. Mangold, 82 N.J. 575, 585 (1980), and State v. Burr, 178 N.J. Super. 531, 614 (App. Div. 1981), where the vehicles in those cases were inoperable after the accident and were blocking major portions of the traveled portions of the roadways.
Next, Judge Fineman found that after stopping defendant's vehicle, the State engaged in three discrete actions in an effort to search defendant's vehicle:
They sought his consent to search, which was declined. Next, the police[,] believing the defendant was engaged in narcotics activity because of his false answer as to his passenger and his nervousness, called for a narcotics canine to detect the odor of controlled dangerous substances. . . .
After the failure to find any evidence to warrant entry into the car, Officer Platania testifies that he wished to save the defendant money by moving the vehicle, so that a tow-truck would not be needed. This court has difficulty finding this reason credible. First, Officer Platania waited to make this decision until after the defendant was being driven to the police station. The defendant could easily have been asked how he wished to handle his vehicle before the left. The testimony indicates the police communicated that day with a walkie-talkie device, which allowed instant communication. If one assumes that Officer Platania thought it necessary to move the vehicle immediately after the defendant was being driven to the scene, he could have used the walkie-talkie to request defendant's permission or allowed the defendant to make alternate arrangements. Instead, the officer enters the vehicle to move it [two] or [three] feet to avoid an inconvenience to the homeowner.
Judge Fineman additionally concluded the impoundment and inventory search were unreasonable, unconnected to any public safety concerns, such as the possibility that there could be tampering with evidence or private property, and a mere pretext to search the vehicle. Further, the judge noted that "the police here did not bother to summon a tow truck and tow the vehicle prior to searching it." He also referenced the Court's statement in State v. Ercolano that
if the circumstances that bring a vehicle properly to the attention of the police are such that its driver, even though arrested, is able to make his own arrangements for its custody, or if the vehicle can be
conveniently parked and locked without constituting an obstruction of traffic or other public danger, the police should permit that action to be taken rather than impound it against the will of the driver and thereafter search it routinely.
[State v. Ercolano, 79 N.J. 25, 33-34 (1979) (internal quotation and citation omitted).]
Judge Fineman also rejected the inevitable discovery doctrine as a basis to justify the warrantless seizure. Citing State v. Sugar (II), the judge found the State could not satisfy the first requirement under Sugar, that seizure resulted from police utilizing "proper, normal and specific investigatory procedures . . . in order to complete the investigation of the case." 100 N.J. 214, 238 (1985). Specifically, he concluded:
First, a tow truck driver's entry into a car to tow it because it partially blocked a residential driveway is not an "investigatory procedure" under Sugar. The purpose of the tow truck driver's action in such a scenario is not to investigate for evidence of a crime. Nor does the State attempt to explain how entry into the motor vehicle here would have revealed evidence related to the defiant trespassing, the offense for which the defendant was initially arrested. Second, even if such an entry were an "investigatory procedure," it would not have been "proper," because the police were required under Ercolano to give the defendant the opportunity to make his own arrangements for the custody of the vehicle.
On appeal, the State urges Judge Fineman (1) "improperly found that the officer's entry into the vehicle was pretextual"; (2) "inappropriately found that defendant's vehicle was impounded and subjected to an inventory search"; (3) the weapon seized from defendant's vehicle was in plain view; and (4) the inevitable discovery doctrine is applicable here. We reject each of these contentions.
In State v. Elders, we reiterated that as a reviewing court, we must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." 192 N.J. 224, 243 (2007) (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also Slockbower, supra, 79 N.J. at 13 (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
The State contends the warrantless seizure of the gun was justified based upon plain view and the inevitable discovery doctrine. We find no merit to either contention.
"Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions. Both constitutional standards require that such seizures or searches be conducted pursuant to a warrant issued upon a showing of probable cause." State v. Pineiro, 181 N.J. 13, 19 (2004) (internal citations omitted). "Because our constitutional jurisprudence evinces a strong preference for judicially issued warrants, the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure falls within one of the few well-delineated exceptions to the warrant requirement." Elders, supra, 192 N.J. at 246 (internal citation and quotation omitted).
That the object seized was in plain view is one of the recognized exceptions to the warrant requirement. State v. Johnson, 171 N.J. 192, 205-06 (2002). Under the plain view exception, three requirements must be satisfied:
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. Mann, 203 N.J. 328, 341 (2010) (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).]
When Officer Platania peered into the window from outside defendant's vehicle, he did not observe the weapon. It was only after the officer entered the vehicle to, ostensibly, move defendant's vehicle as a favor to defendant, that he observed the weapon. Although the State, in its brief, urges that Officer Platania's entry into defendant's vehicle "for the convenience of the homeowner and the Defendant did not constitute an unlawful search[,]" it offers no authority to support this proposition. The officer's motive, however well-intentioned, is insufficient to overcome the presumption of invalidity attached to a warrantless search and seizure. State v. O'Neal, 190 N.J. 601, 613-14 (2007).
Nor may the seizure here be justified by the inevitable discovery doctrine. Under the inevitable discovery doctrine, illegally seized evidence may nonetheless be admissible if the evidence would inevitably have been discovered irrespective of police error or misconduct. State v. Sugar (III), 108 N.J. 151, 156 (1987). To prevail under this exception, the State bears the burden, by clear and convincing evidence, to demonstrate:
1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case;
(2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.
[Id. at 156-57 (quoting Sugar (II), supra, 100 N.J. at 235).]
The trial judge concluded the State failed to satisfy the first prong. We agree.
Proper, normal and specific investigatory procedures may have led the officers to stop defendant's vehicle for careless driving, which, according to Officer Cooper's testimony, was the reason for the stop. However, a violation of the careless driving statute, N.J.S.A. 39:4-97, would not have yielded discovery of the weapon, especially since defendant did not consent to the search of his vehicle and the weapon was not visible from an exterior view into the vehicle. Nor was defendant's subsequent arrest for trespassing a basis to enter the vehicle premised upon a search incident to arrest. State v. Pena-Flores, 198 N.J. 6, 19-20 (2009).
We disagree with the trial judge's conclusion that there was probable cause to arrest defendant for trespassing. The fact that he lied about who he dropped off at the apartment complex does not provide a basis to charge defendant with trespassing. Nor does the fact that police arrested Karpuck provide a basis to arrest defendant for trespassing. Finally, there was no evidence presented establishing that defendant knew that he was not licensed or privileged to drop anyone off at the apartment complex. See N.J.S.A. 2C:18-3(6) (requiring notice).
At the time police entered his vehicle, defendant had been removed from the vehicle and was being transported back to the police station. Thus, there was no danger that defendant could grasp a weapon or attempt to destroy contraband that might be found in the vehicle. See ibid. Further, the State concedes probable cause to search the vehicle did not exist. Hence the question of whether the combination of probable cause and exigent circumstances arose while police were employing or pursuing "proper, normal and specific investigatory procedures" is not an issue here. Sugar (II), supra, 100 N.J. at 238; see also Pena-Flores, supra, 198 N.J. at 23-24 (reaffirming that what is dispositive in determining whether the warrantless search of an automobile is justified is the impracticality of delaying the search of the automobile until a warrant is secured when police have probable cause to believe that evidence of criminal activity may be found in the vehicle). Finally, the partial blocking of the homeowner's driveway may have resulted in defendant's vehicle being towed, but that would not result in the inevitable discovery of the weapon by police.
In view of the foregoing, we are satisfied the trial judge's factual findings are supported by substantial credible evidence in the record and are entitled to our deference. Elders, supra, 192 N.J. at 243. Moreover, other than the legal conclusion reached regarding the trespassing offense, we are equally satisfied the trial judge properly applied the legal principles governing the warrantless seizure of the weapon in granting defendant's suppression motion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION