Opinion
DOCKET NO. A-4595-14T4
10-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NELSON H. PATTERSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Kayla E. Rowe, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Fasciale and Gilson. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-01-0048. Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Kayla E. Rowe, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from his convictions for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f). We affirm.
Defendant filed a motion to suppress marijuana and a loaded handgun seized from his automobile. The judge conducted a hearing and took testimony from a detective, an officer, and defendant. We discern the following facts from the evidence adduced at the hearing.
Defendant was not wearing his seat belt and disregarded a stop sign. A detective and an officer were patrolling the area, saw the infractions, and conducted a traffic stop. The detective approached the driver's side door and observed defendant fumbling around inside the vehicle, as if defendant was trying to hide something. The detective smelled a strong odor of marijuana emanating from the vehicle and saw in plain view a Ziploc bag of marijuana on the floor of the passenger side.
As defendant exited the vehicle, the detective smelled marijuana on defendant's clothes. The officer detained defendant at the back of the vehicle while the detective walked around the passenger side to retrieve the bag of marijuana on the passenger floor. In doing so, the detective saw in plain view a digital scale and another Ziploc bag of marijuana sticking out of a blue fanny pack on the back seat. As the detective reached down to retrieve the marijuana he initially saw on the front passenger side, he observed the butt of a handgun sticking out from underneath the center console of the vehicle. The gun was later determined to be loaded.
Defendant testified that the detective removed him from the automobile after asking if he had ever been arrested. Defendant said the officers told him they would search his vehicle and then release him if they did not find anything. Defendant stated the officers searched the interior, under the hood, and the trunk. Defendant admitted he had a gun and marijuana in the car.
The judge found the detective and officer more credible than defendant, and he denied the motion relying on the plain view exception to the warrant requirement. After defendant pled guilty, the court sentenced him to five years in prison with forty-two months of parole ineligibility.
On appeal, defendant raises the following points:
POINT I
BECAUSE THE TRIAL COURT'S FACTUAL FINDINGS WERE NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE, AND BECAUSE THE DISCOVERY OF THE EVIDENCE WAS NOT JUSTIFIED UNDER EITHER THE PLAIN VIEW OR AUTOMOBILE EXCEPTIONS TO THE WARRANT REQUIREMENT, THE TRIAL COURT ERRED
IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.
A. The Lower Court's Factual Findings Were Not Supported By Sufficient Credible Evidence.
B. The Contraband Found In Defendant's Car Was Not Discovered Appropriately Under The [Plain View] Or Automobile Exceptions To The Warrant Requirement.
Defendant filed a pro se supplemental brief essentially arguing the same points. --------
When reviewing a trial court's decision on a motion to suppress evidence, we defer to the judge'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 judge 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). "An 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 judge'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). Applying this standard, we reject defendant's contention that the judge erred by denying the motion to suppress.
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 detective and officer did not have a search warrant for the vehicle, so an exception to the warrant requirement must apply. State v. Mann, 203 N.J. 328, 337-38 (2010).
In denying defendant's motion, the judge did not rely on the automobile exception to the warrant requirement. Therefore, we need not reach defendant's contention as to the applicability of such an exception. Instead, we focus on the plain view exception, which applies when (1) an 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).
We have considered defendant's contentions as to the plain view exception and conclude they are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). There is sufficient credible evidence in the record to support the judge's findings that all three prongs of the exception have been met. We add the following brief remarks.
As to the first prong, there is no question that the officers conducted a valid motor vehicle stop. The detective was therefore lawfully in the viewing area when he made his observations. Standing outside defendant's vehicle, the detective saw the bag of marijuana resting on the passenger floor, and he was lawfully in the viewing area when he observed the butt of the handgun sticking out from under the center console.
As to the second prong, there is no evidence in this record showing that the officers knew beforehand the location of the gun and marijuana. And there is no evidence that they intended to seize those items. Rather, the credible evidence demonstrates that they discovered the gun and marijuana inadvertently.
As to the third prong, it was immediately apparent to the officers that the items were illegal. The detective testified that he recognized that the bag on the floor of the car was marijuana. And he stated that he knew that the object he observed under the center console was a gun.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION