Opinion
DOCKET NO. A-1631-14T3
10-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUKE A. ATWELL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-01-0127. Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, on the brief). PER CURIAM
In the aftermath of pleading guilty, defendant appeals from his conviction for third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10(a)(1). We affirm.
Defendant's former girlfriend (the girlfriend) applied for a temporary restraining order (TRO) against defendant. The girlfriend testified defendant had stolen her computer, threatened her, and was in possession of multiple weapons. A Family-Part judge entered the TRO and issued a domestic violence search warrant (DVSW).
Defendant does not challenge the validity of the DVSW.
Two police officers executed the DVSW and searched defendant's person and vehicle for weapons. In the center console of the vehicle, one officer found a plastic bag of cocaine and a bag filled with ecstasy pills. The officer searched that area because he thought it was a likely place to keep a weapon. He recognized the items in the bag as cocaine and ecstasy pills. The officers also seized an ecstasy pill on his person. They found no weapons.
Defendant filed a motion to suppress evidence seized during the execution of the DVSW. The judge held hearings on the motion on two separate days. Pursuant to the plain view exception to the warrant requirement, the court denied the motion to suppress the cocaine and ecstasy found in defendant's car, but suppressed the ecstasy pill found on his person. The court imposed a three-year probationary sentence.
The cocaine found in the vehicle is the primary evidence relevant to defendant's appeal from his conviction for possession of cocaine. We note that the judge did not suppress evidence of other criminality found in defendant's residence, such as marijuana, computers, and a digital scale. The court suppressed other CDS found during a second search of defendant's residence. --------
On appeal, defendant argues the following point:
[POINT I]We conclude that this contention is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following brief remarks.
THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED UNDER THE PRETEXT THAT LAW ENFORCEMENT WAS EXECUTING A DOMESTIC VIOLENCE SEARCH WARRANT BECAUSE NONE OF THE EVIDENCE RESEMBLED WEAPONS AND THE ILLEGAL NATURE OF THE EVIDENCE WAS NOT IMMEDIATELY APPARENT, CONTRARY TO THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
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). 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). In applying this standard, we reject defendant's contention that the trial judge erred by denying the motion to suppress.
The DVSW was issued pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, which provides various forms of relief, including the search and seizure of weapons when a person obtains a restraining order. N.J.S.A. 2C:25-28(j) provides:
Emergency relief may include forbidding the defendant from returning to the scene of the domestic violence, forbidding the defendant from possessing any firearm or other weapon enumerated in subsection r. of [N.J.S.A 2C:39-1], ordering the search for and seizure of any such weapon at any location where the judge has reasonable cause to believe the weapon is located and the seizure of any firearms purchaser identification card or permit to purchase a handgun issued to the defendant and any other appropriate relief. . . .
The Fourth Amendment to the United States Constitution guarantees "[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. In addition, the New Jersey Constitution provides that a warrant authorizing law enforcement officers to conduct a search may not issue "except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized." N.J. Const. art. I, ¶ 7.
Here, the DVSW was for weapons and the officers seized cocaine, so an exception to the warrant requirement must apply. State v. Mann, 203 N.J. 328, 337-38 (2010). The judge heard extensive testimony from one of the officers conducting the search, who he found credible, and the judge's findings are owed deference accordingly. We conclude that there exists sufficient credible evidence in the record to support the judge's finding that the cocaine found in defendant's vehicle was properly seized pursuant to the plain view exception to the warrant requirement.
The plain view exception to the warrant requirement 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).
As to the first prong of the test, the DVSW gave the officers the right to search inside defendant's vehicle. Because the DVSW authorized the officers to search for weapons, they could search any area where a weapon could reasonably be hidden. The officer testified that his experience led him to believe a weapon would likely be hidden in a center console, and that he himself had kept his weapon there. Thus, the officer was lawfully in the viewing area when he opened the center console.
As to the second prong, there is no credible evidence that the officers were searching for anything other than weapons. The officer discovered the cocaine inadvertently while searching for weapons. Therefore, we reject defendant's argument that the officers used the DVSW as a pretext to search for anything other than weapons.
As to the third prong, it was immediately apparent to the officer that the items seized were evidence of a crime, contraband, or otherwise subject to seizure. Under the third prong of the analysis, the officer must have probable cause to associate the item with criminal activity before seizing the item, meaning that "'there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Id. at 214 (quoting State v. Demeter, 124 N.J. 374, 380-81 (1991)). The officer testified he knew immediately that the cocaine found in the car was cocaine. Therefore, he could associate this evidence with criminal activity.
After carefully considering the record and the briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION