Opinion
DOCKET NO. A-6256-12T1
07-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVON DELOACH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen Nazaire, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Kevin J. Murray, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 09-11-1998, 09-12-2050 and 12-10-1791. Joseph E. Krakora, Public Defender, attorney for appellant (Karen Nazaire, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Kevin J. Murray, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Following the denial of his motion to suppress evidence seized in a warrantless search, defendant Davon DeLoach entered a negotiated plea to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and was sentenced to State prison for five years, with a mandatory three-year period of parole ineligibility. Defendant appeals from the denial of his motion to suppress the handgun found in a box inside a bag on the floor of a taxicab, contending, among other things, that the trial judge's ruling was based on factual findings unsupported by the record. We agree and reverse.
Defendant was a passenger in a taxicab traveling in Jersey City shortly after midnight when the driver was stopped for not signaling a left turn. The police activated their overhead lights just as the cab arrived as its destination, defendant's apartment building. Defendant paid the fare and was getting out of the backseat when two uniformed police officers approached the car.
Officer Viviera testified at the suppression hearing that the cab was in a high-crime area, and the cabbie repeatedly tapped his brakes as the officers followed it around the corner before it stopped when the police activated their overhead light. As the officer approached the cab, which was double-parked on a two-way street, he observed defendant "bending down over at the waist in the backseat moving his arms around." When the officer stepped to the rear passenger door, the door opened. Defendant, carrying a red nylon plastic bag in his left hand, started to get out of the cab, saying he was going home.
The officer testified he "advised him to close the door until my partner was done retrieving the driver license, insurance, registration from the driver." After nodding to his partner to signify all was fine, the officer "looked down and observed [defendant] reaching his hand [into] his . . . waistband, adjusting, moving around." He then immediately ordered defendant out of the cab "so [he] could pat him down for our safety."
Defendant had his back to Officer Viviera as he got out of the cab. The officer "told him to turn around due to the fact that he was digging inside his waistband." When defendant turned toward him, the officer immediately saw "a plastic bag with a vial of coke sticking out." Realizing that the officer had spotted the drugs, defendant turned and started running. Officer Viviera explained what happened next.
I was able to reach out and grab his left arm and pull him back to me and put him into a compliance hold. At that point — you know — my partner, seeing what — what just occurred, he walked around the driver side from the front to the rear towards my end only due to oncoming traffic since it's a two way street.
As he was approaching me[,] my partner looked into the car and observed the . . . silver 357 magnum that was inside the bag.
It was — in plain view. He gave me a heads up [by saying their code word for gun].
Officer Viviera testified that when his partner used the code word, "he was basically within a foot from me after he just saw what was inside the backseat of the vehicle." In response to the prosecutor's question as to whether the other officer had gone into the car before using the code word, Officer Viviera testified:
No he did not — he did not go into the vehicle. He just — yes — he just walked by it, saw it, said [the code word]. I had — I had [defendant] in a compliance hold. My partner came over and placed handcuffs on [defendant] at that point since I was holding him.
The officer was questioned more closely on cross-examination about the discovery of the gun. Because the testimony is critical, we quote the pertinent questions as well as the officer's responses.
Defense counsel: Did you find [the gun] or . . . did your partner find it?
Officer: [M]y partner. He observed it. He didn't find it. He saw it in plain view when he was coming around the vehicle to assist me in placing [defendant] under arrest.
Defense counsel: And, where was the gun?
Officer: The gun was inside the bag that [defendant] was originally trying to exit the vehicle with.
. . . .
Defense counsel: Wasn't the gun actually in a box in the bag?
Officer: Yes, but the gun was protruding from the box and the bag as well. Because, what happened was when [defendant] was actually exiting the vehicle for the pat down he — he kicked the bag. And that's what gave my partner the ability to see it.
Defense counsel: How do you know this?
Officer: My partner told me.
Defense counsel: Okay. And, I'll show you, once again, [your police report]. Does it say anywhere that the gun is protruding from the box?
Officer: No. I did not write in the — in the report.
Defense counsel: Didn't you actually write in the report that it's in the box in a bag?
Officer: Yes. And, it was out — it was in plain view when the bag was kicked over by [defendant].
Defense counsel: Anything about plain view in your police report?
Officer: I did not write plain view in the police report.
Defense Counsel: And, you didn't write protruding in the police report either?
Officer: No, I did not.
Defense Counsel: You actually said, "In a box?"
Officer: That is correct.
Defense Counsel: So, is the plain meaning of in a box to your knowledge in a box? Or, protruding from a box?
Officer: The handle was seen by my partner.
The police report is not included in the appendix on appeal.
As the exchange became more pointed and the two began to cut one another off, the judge intervened.
The court: Describe what your partner saw. And, did you actually see it?
Officer: I personally myself didn't see the gun. When my partner was approaching to help me out as he walked by the vehicle — as I wrote in the report, as he walked by the vehicle to assist me he observed the handgun.
The court: He told you before he even got into the vehicle or anything else he saw a handgun?
Officer: That's correct, Your Honor.
The court: - in the vehicle?
Officer: That's correct.
The court: Okay.
Officer: Before he even came over and helped — and assisted me in handcuffing him he told me.
Defense counsel: What I was asking, Officer, is you wrote in your report, "In the box," right?
Officer: Yes.
Defense counsel: You did not write protruding from the box in your police report; right?
Officer: That's correct.
Defense counsel: Okay. So wouldn't plain meaning of, "In the box," mean just that? That it's actually in the box, not protruding from the box?
Officer: And, the weapon can be in the — can be in the box as well as seen from the box if it's in the box.
Defense counsel: But —
Officer: Just because it's inside the box or the bag does not mean that you cannot see a silver colored handgun.
Defense counsel: - so, in the box in your language means protruding from the box?
The court: That's not what he said.
Officer: That's not what I'm saying at all. I don't know where you're going with that.
The court: I can — I can put an item in a box and not seal the box or close the box and still see it in the box. That's what he's saying.
Defense counsel: I'll save it for my oral argument.
The court: Okay.
Officer Viviera further testified that as his partner bent down to retrieve the bag after handcuffing defendant, defendant said, "That's not my gun." The officer continued: "when my partner brought the gun over to me in the bag[,] I took the gun out. I rendered it safe by removing the rounds. At that point I looked over at [defendant] and I was like, 'Really?' And then, [defendant] said, 'I found it in Pennsylvania.' That's all he said."
Defendant told a vastly different story. He testified that the cab pulled over across the street from his apartment building, and that he paid the driver and was getting out of the cab when Officer Viviera yelled at him to get back in the car and closed the cab door. According to defendant, as soon as the officer closed the door, he pulled it back open, ordered defendant out of the car and saw the drugs in his waistband. When defendant turned to run, the officer grabbed him. Defendant was handcuffed and placed in the back of the police car. In response to questions from the court, defendant testified that he paid the cabbie the eight-dollar fare by reaching over the front seat and handing it to him.
As for the red bag, defendant claimed it was not his. He testified he noticed it on the floor behind the driver when he got into the backseat on the passenger side. Defendant described it "as one of them bags with a drawstring. The drawstring was pulled up tight and it was sitting right there on the floor" behind the driver's seat. Defendant claimed the bag was never between his legs, and he never tried to take it out of the car. According to defendant, the first time he realized there was a gun in the car was "[w]hen the officer pulled the bag out of the backseat and put it on the trunk of the car and opened it and pulled the gun out of the shoe box."
After Officer Viviera was excused, the judge asked if the State had any other witnesses. When the prosecutor said no, the following colloquy ensued.
Defense counsel: Judge, I would like — if the State's not going to call [him,] I'd like to call the officer who actually —
The court: And, what proffer of proof are you going to — are you going to elicit?
Defense counsel: Because he's — he's just telling us what the officer told him. I'd like to —
The court: You may like to. But, is he subpoenaed?
Defense counsel: - well, I —
The court: And, do you know he's going to say anything different? This is not a discovery motion.
Defense counsel: - I know that.
The court: This is a probable cause hearing.
Defense counsel: Well, Judge. First off, I was never given a witness list as to who was
going to testify. I assumed that the person who actually retrieved the gun, observed exactly how it was packaged and all of that was going to be called.
The court: Well, if you can — if you can tell me now what proffer of proof you're going to have I'm — I'm not going to adjourn it — that officer's testimony. However, if you have any other witnesses that you want to call[,] I will take that into consideration.
Defense counsel: I want to call that witness — that — Judge
The court: Unless you give me a proffer of proof exactly what he's going to say[,] I'm not letting you go into a fishing expedition.
Defense counsel: - it's — the proffer of proof is that it's the — it's the total basis of the motion. My — my reason for this motion is that it's a warrantless search of a box. I'm — our contention and my client's contention is that the gun is in a box concealed. And that box is inside a bag.
The court: Then — then your client can testify to that. You know what he's going to say. You know what the officer's going to say based upon the previous testimony. And, unless you can give me a proffer of proof that he's going to say something different[,] I'm not going to adjourn for that reason.
Defense counsel: The police report says he found it in a box. To me, "In a box," means it's in a box and it's not protruding.
The court: And — in a box doesn't' mean that the box was sealed and you couldn't see inside the box. So —
Defense counsel: I think it's a legitimate reason for that — for that reason alone, Judge —
The court: - well, I — I
Defense counsel: - to find out what he means by in a box.
The court: - I — I
Defense counsel: Because, in a box —
The court: - I disagree. Okay?
Defense counsel: - I note my objection for the record.
The prosecutor never contradicted defense counsel on that point.
Following the proofs and after allowing the parties the opportunity to brief the issues, the court rendered the following oral opinion on the record.
I find that the [o]fficer's testimony indicated that his partner alerted him immediately to the gun so that the only way it could have been announced was if the officer that did not testify saw something. Obviously the weapon was eventually seen by the officer who testified.
So, the gun was in plain view. The officers had a — a reason and a necessity to have the defendant remain there because there was no indication that this defendant had paid a fare and was exiting the vehicle at that time. And, for their own safety they want to keep everybody contained until the traffic stop was completed.
They did not know if there was going to be a dispute or if payment had already been made. So, there was a reason to leave — to have defendant remain there. Once the gun was observed[,] the defendant — they had probable cause to arrest the defendant. And, anything found on the defendant after that would have been incident to a lawful arrest.
So, I do find that the — there was probable cause to arrest the defendant, that the weapon was in plain view. And I'm going to deny the motion to suppress. I would point out that there was an — an opportunity to give [a] proffer of proof as to what other fact the officer would have testified to.
And, there was no proffer of proof given for something that would have been different than the previous — the — the testifying officer testified to. So, with that can we set down a plea cutoff date?
Defense counsel: And Judge, just for the record[,] my proffer was that the officer that I wanted to testify was the only [one] who witnessed what supposedly was in plain view which was the subject of the motion.
The court: And — and basically I said that it had to be in plain view because he announced openly to his partner in the nature of an excited utterance, there was a weapon. So, that is suspicion enough. And, it's duplicat[ive] of testimony. So, for that reason[,] I deny it.
When reviewing an order granting or denying a motion to suppress evidence, we are required to accept those of the trial court's findings of fact that are supported by sufficient credible evidence in the record, State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)), for the obvious reason that "those findings 'are substantially influenced by [an] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 424-25 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Here, however, the court did not have before it a witness who testified that he saw the gun in plain view. The only witness the State presented could not explain what that officer saw or how it was possible he could see it. Because we conclude the trial court's finding that Officer Viviera's partner saw the gun in plain view is not supported by sufficient credible evidence in the record and, indeed, could not reasonably have been reached on the State's proofs, we reverse.
The State offered no direct evidence on the critical question of how Officer Viviera's partner saw the gun in the dark, which the State concedes was inside a box in a bag on the floor of the backseat of the cab, as the officer "walked" from the front of the car past the back door, which the record does not disclose was open or closed, on his way to assist Officer Viviera who had defendant in a compliance hold. The State may of course, as a general matter, offer evidence at a suppression hearing that would constitute inadmissible hearsay if offered at trial. See e.g., State v. Wright, 431 N.J. Super. 558, 565 n.3 (App. Div. 2013), certif. granted on other grounds, 217 N.J. 2 83 (2014); N.J.R.E. 101(a)(2)(E). But facts must exist which give the evidence an appearance of trustworthiness. See State v. DiRienzo, 53 N.J. 360, 385 (1969). And because a warrantless search is presumptively unlawful, it was the State's burden to prove that the plain-view exception applied. State v. Minitee, 210 N.J. 307, 318 (2012).
Officer Viviera first testified that his partner saw the handle of the gun protruding from the box and the bag in plain view. When defense counsel pointedly asked why, were that the case, had the officer failed to note that the handle was protruding from the box in his report, the officer appeared to backtrack. Instead of explaining why he had neglected to note that his partner had seen the handle protruding from the box in his report, the officer asserted that "the weapon can be in the — can be in the box as well as seen from the box, if it's in the box."
In an apparent attempt to clarify his meaning, the witness offered that "[j]ust because it's inside the box or the bag does not mean that you cannot see a silver colored handgun." He did not, however, explain whether his partner told him he saw the handle protruding from the box and the bag as he first testified, or whether his partner said he could see into the bag and the box to view the gun. When defense counsel attempted to ask whether the witness by saying "in the box" meant "protruding from the box," the court interrupted saying, "That's not what he said." The witness thereafter disavowed any claim that the handle was protruding, asserting, "That's not what I'm saying at all. I don't know where you're going with that." The court then expressed its understanding of the testimony by stating, "I can put an item in a box and not seal the box or close the box and still see it in a box. That's what [the witness is] saying."
The witness, however, never said that his partner told him that the box was not closed or sealed which allowed the officer to see inside the box. And he never explained how his partner could have seen the contents of the box through the red plastic bag. The trial judge was apparently satisfied that such was hypothetically possible because he based his finding on the officer's testimony that his partner alerted him to the gun before he went into the cab. The court reasoned "that the only way it could have been announced was if the officer that did not testify saw something."
The only evidence marked at the hearing was a copy of the police report, neither the box nor the bag was identified on the record.
The problem is that the testifying officer obviously could not explain how it was that the officer managed to see the gun in plain view. He testified he only knew defendant kicked the bag over in such a way as to allow his partner to see the gun because his partner told him so. The witness never saw the gun at all until his partner handed it to him to make safe. In a case in which the police report states that the gun was found inside a box in a bag, and defendant testified that the gun was in a shoebox inside a red plastic bag with the drawstring drawn tight, a description not challenged by the State even though the prosecutor recalled the officer after defendant testified, we cannot conclude that the court's finding that the gun "had to be in plain view" based on the non-testifying witness using the code word was supported by sufficient credible evidence in the record.
We note the State has never asserted that the officer who actually claimed to have seen the gun in plain view was unavailable to testify. The State nowhere explains its choice to present a witness who could provide no direct testimony on the critical issue in dispute. In light of the State's apparent failure to alert defendant that it would not call the only witness alleged to have seen the gun in plain view and the testifying witness's inability to explain either what his partner told him or what it was his partner actually saw, we conclude the court misapplied its discretion in not allowing defendant to call the officer in defendant's own case. Cf. State v. Fort, 101 N.J. 123, 128 (1985) (acknowledging in the trial context that as a defendant has a right to confront the prosecution's witnesses for the purpose of challenging their testimony, he also has the right to call his own witnesses to establish a defense).
Although we have elsewhere observed in reviewing a suppression motion that "we are not so quick [in other contexts] to assume the Confrontation Clause may not be violated when the admission of damning evidence turns on inadmissible hearsay — frustrating or precluding the accused's right to cross-examine the absent declarant — because the prosecution decided to present certain critical facts through a witness who only received the critical information from someone the State chose not to call," State v. Bacome, 440 N.J. Super. 228, 239-40 n. 7 (App. Div. 2015), defendant has not raised a Confrontation Clause issue here. Accordingly, we do not consider it.
We do not agree that defendant by his request was seeking delay or embarking on a fishing expedition. As counsel asserted on the record, he was seeking only to have the circumstances of the officer's discovery of the weapon presented to the court. Requiring defendant to make a proffer of proof when defendant cannot reasonably have known what the officer would say in light of the discovery would appear to have advantaged the State unfairly. We cannot fault defense counsel for assuming in the absence of a witness list that the State would call the only witness to have claimed to have seen the gun in plain view.
Although our conclusion that there was not sufficient credible evidence in the record to support the court's finding that the gun was in plain view is dispositive of defendant's appeal, we briefly address his further contention that the police did not have reasonable suspicion to detain him when he expressed a desire to leave, or to order him out of the cab to be frisked. He contends that the plain-view exception to the warrant requirement does not apply because it was only as a result of those illegal acts that defendant is said to have kicked over the bag, allegedly allowing Officer Viviera's partner to see its contents.
The State concedes that defendant was seized when the officers stopped the driver of the cab. It rejects defendant's argument, however, that Officer Viviera needed reasonable suspicion that defendant was engaged in wrongdoing or was armed and dangerous when the officer prevented defendant from "going home" as he desired. The State, citing United States v. Bonner, 363 F.3d 213, 216 (3d. Cir. 2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 868, 160 L. Ed. 2d 783 (2005), argues that defendant "was not subject to an investigative detention that would require reasonable suspicion," but only to "brief incidental detainment" as was reasonably necessary to permit the officers "to achieve control over the scene during . . . a routine traffic stop."
"In this case there is no question that [defendant], as a passenger in the stopped vehicle was seized. Brendlin v. California, 551 U.S. 249, [251,] 127 S. Ct. 2400, 2403, 168 L. Ed. 2d 132, 136 (2007)." --------
We do not agree with either party's position and are more inclined to the view that the officer needed to point to "some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner" to justify ordering defendant back into the cab when he tried to depart. State v. Smith, 134 N.J. 599, 618 (1994). Applying that standard to the facts, we believe, would present a close question.
The trial judge, however, did not address the issue in any detail and did not articulate the standard he was applying. While the judge noted that the police "for their own safety . . . want[ed] to keep everybody contained until the traffic stop was completed," he did not make specific findings to support a need for the officers to secure the scene more effectively. The specific findings he did make, that there was "a reason and a necessity to have the defendant remain there because there was no indication that this defendant had paid a fare" and the officers "did not know if there was going to be a dispute or if payment had already been made," are based on facts not in the record. Officer Viviera did not testify to any such concerns.
Because we conclude there was not sufficient credible evidence in the record to support the court's finding that the gun was in plain view and no evidence to support its conclusion that detaining defendant was justified because there was no indication he had paid his fare, we reverse.
The order denying defendant's suppression motion is reversed, the judgment of conviction vacated, and the matter remanded for further proceedings. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION