Opinion
DOCKET NO. A-0857-14T1
03-24-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DEREK MILLER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fuentes, Kennedy and Gilson. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-10-2497. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by FUENTES, P.J.A.D.
An Essex County grand jury returned Indictment No. 13-10-2497, charging defendant Derek Miller with one count of third degree possession of cocaine, N.J.S.A. 2C:35-10a(1), and one count of third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3). Defendant moved to suppress the physical evidence seized by the State. After conducting an N.J.R.E. 104 evidentiary hearing, the trial judge denied defendant's motion.
Defendant thereafter entered into a negotiated agreement with the State through which he pleaded guilty to third degree possession of cocaine. As a condition of the plea, the State agreed to recommend that the court sentence defendant to a term of three years, to run concurrently with an unrelated term of imprisonment defendant was serving at the time. Pursuant to Rule 3:5-7(d), defendant reserved the right to appeal the denial of his motion to suppress. On July 17, 2014, the court sentenced defendant to a term of three years in accordance with the plea agreement.
We derive the following facts from the record developed at the evidentiary hearing.
At approximately 5:15 p.m. on July 16, 2013, Irvington Police Detective William Gatling and his partner were patrolling Grove Street and Nye Avenue, a high-crime area known for robberies, homicides, gang activity, and illicit drug sales. The detectives were wearing civilian clothes and driving an unmarked police car. Their orders were "[t]o check [the] area for high drug trafficking as well as homicides." They were not instructed to look for any particular individual, but rather for "gang members, drug dealers[,] . . . and . . . suspicious activity."
As the detectives were heading east on Nye Avenue, they noticed two men on the corner of Nye and Grove. The Irvington Police Department had received numerous complaints regarding the presence of gang members and drug transactions in this area. The two men were later identified as Terrel Kohli and defendant Derek Miller. Gatling testified he and his partner initially intended "[t]o get [defendant] off the corner . . . [because] he [was] blocking public passage." When asked to elaborate, Gatling explained this is a particularly small sidewalk. Where defendant and his companion were standing, they were blocking pedestrian traffic. Gatling saw an individual walk around them and into the street in order to continue on his way.
Gatling testified that as the detectives approached defendant, he began walking away. When the detectives were "approximately within ten yards[,]" Gatling saw defendant holding a plastic bag containing multicolor vials, which he stuffed in his "right cargo pocket[]" upon seeing the detectives. Gatling made this observation through the windshield of his unmarked police car; he had a direct line of sight with nothing obstructing his view.
Detective Gatling gave the following account of what occurred next:
A. I then alerted my partner to stop Mr. Miller and his partner. . . . [O]nce they got to the door, my partner jumped out and ordered both of [them] to stop. Mr. Miller . . . didn't stop right away[;] he was hesitant. He started . . . to complain[] [and] snatched away from my partner. My partner was able to actually grab him and put him up on the car for officer safety.
. . . .
Q. And what did Mr. Miller and his partner do[,] in terms of their positions on the sidewalk, when they observed you?
A. Well, . . . my partner ordered [Mr. Miller] to stop. Mr. Miller actually went around Mr. Kohli, I guess because he didn't want to stop. So when my partner ordered him to stop, he actually snatched away, [and] my partner had to grab him. He passed him to me, [and] I . . . told him to put his hands on the back of [the] car. And that's when I recovered the 31 vials out of his pocket.
Gatling testified that based on his training and experience, he believed the vials contained "[s]uspected crack-cocaine." Initial field testing indicated Gatling was correct. Subsequent laboratory analysis confirmed the vials contained cocaine.
Defendant also testified at the suppression hearing. His account of events varied greatly from Detective Gatling's testimony. According to defendant, he and Kohli were walking to defendant's home when they decided to go to a convenience store on the corner of Grove Street and Nye Avenue. This was the first time defendant had visited the store. After purchasing cigarettes and gum, defendant placed the items in his pocket. Defendant and Kohli left the store without incident and continued to walk towards defendant's home.
Defendant testified that as they walked, a "blue SUV pulled up and [the passenger] said: '[W]hat are you doing[?] . . . I don't know you.'" Defendant testified that he told Kohli to "just keep walking." Defendant did not recognize the passenger in the SUV. Defendant also testified that the vehicle had tinted windows. Thus, the only description of the passenger he could give was that the passenger wore black clothes on his upper body. Defendant did not see a badge or any other law enforcement insignia.
In response to his attorney's questions, defendant gave the following account of what occurred next:
Q. At some point after you kept walking[,] what happened at that point?
A. They called out again[;] we kept walking. They stopped, . . . both of the officers hopped out, and that's when I realized they were officers, because they said, ["][S]top, we're
the police.["] So I said, ["][W]hoa, we ain't doing nothing.["]
Q. When they told you to stop, they were the police, what observations did you make about their appearance that led you to believe that they were the police?
A. They had vests -- I mean vests, like bullet-vests, but they had badges like . . . in between the stomach area and the waistline.
Q. Was that was the first time you saw . . . the badges in the vest area?
A. Yes.
Defendant claimed the detectives arrested him and Kohli and transported them to the police station when they were unable to produce identification. Although defendant admitted to having cocaine concealed on his person, he denied having the bag containing thirty-one vials in his hands at any time before his arrest.
After considering the testimonial evidence presented, the motion judge denied defendant's motion to suppress. The judge found Detective Gatling's testimony credible and rejected defendant's account of events as not credible. The judge explained his decision in a well-reasoned oral opinion delivered from the bench on April 7, 2014. The judge made the following key findings:
[I]nterestingly enough, Mr. Miller did admit that he possessed the cocaine; [he] also admitted that he refused to stop[] when ordered to do so by police officers [who
identified] themselves as police officers. And in addition, [defendant] instruct[ed] his friend or companion not to stop and to keep walking, [notwithstanding] the specific orders of the police to stop.
Defendant also admits that Detective Gatling, immediately upon the stop, reached into his pocket where the cocaine was located and was able to retrieve the same. Defendant provides no indication that prior to the date in question he had any interaction, or was acquainted with either of the two police officers, or that he was previously stopped or confronted by either officer.
Against this record, the judge concluded the detectives had reasonable suspicion to conduct an investigative stop at the time they first encountered defendant. The judge relied on State v. Nishina, 175 N.J. 502 (2003), in which our Supreme Court reaffirmed the following definition of an "investigatory stop[:]"
An investigatory stop is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.
[Id. at 511 (quoting State v. Davis, 104 N.J. 490, 504 (1986)).]
Once the propriety of the initial stop was established, the motion judge accepted Detective Gatling's testimony explaining how he first saw the multicolored vials in defendant's possession. The judge held Gatling was thereafter lawfully entitled to arrest defendant for possession of cocaine under the plain view doctrine.
Defendant now appeals raising the following arguments:
POINT I
THE COURT BELOW COMMITTED REVERSIBLE ERROR IN DENYING THE MOTION TO SUPPRESS EVIDENCE.
A. The Detective's Intrusion Into Mr. Miller's Cargo Pocket Cannot Be Justified as Part of a Terry Stop.
B. The Plain View Exception is Inapplicable to this Case Because It Does Not Justify the Detective's Intrusion Into Mr. Miller's Pocket, and the State Failed to Establish that the Incriminating Nature of the Evidence Was Immediately Apparent.
We reject these arguments and affirm substantially for the reasons expressed by the motion judge. We add only the following brief comments. At the time the judge decided this motion on April 7, 2014, he properly relied on and applied the plain view exception to the warrant requirement as explained in State v. Bruzzese, 94 N.J. 210, 236-38 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Under the three-prong approach adopted by our Supreme Court in Bruzzese, the plain view doctrine required the State to show: (1) the police officer was lawfully in the area where he or she observed the evidence; (2) the discovery of the evidence was inadvertent; and (3) the contraband nature of the evidence was "immediately apparent[.]" Id. at 236.
In State v. Gonzalez, 227 N.J. 77, 81-82 (2016), our Supreme Court adopted the United States Supreme Court's holding in Horton v. California, 496 U.S. 128, 130, 138-39, 110 S. Ct. 2301, 2304, 2308-09, 110 L. Ed. 2d 112, 118-19, 124 (1990), which rejected the inadvertence prong of the plain-view exception. The Court thus held as follows:
[T]he inadvertence requirement for a plain-view seizure is at odds with the objective-reasonableness standard that governs our state-law constitutional jurisprudence. Accordingly, like the United States Supreme Court in Horton, and most other state courts, we now hold that an inadvertent discovery of contraband or evidence of a crime is no longer a predicate for a plain-view seizure. Provided that a police officer is lawfully in the viewing area and the nature of the evidence is immediately apparent (and other constitutional prerequisites are met), the evidence may be seized. This holding is a new rule of law and therefore must be applied prospectively.
[Gonzalez, supra, 227 N.J. at 82 (emphasis added).]
We make these comments in the interest of clarity. In our view, the motion judge correctly applied the Bruzzese version of the plain view doctrine to deny defendant's motion to suppress. The Supreme Court's elimination of the "inadvertence" requirement in Gonzalez only strengthens the motion judge's reasoning.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION