Opinion
DOCKET NO. A-3055-11T3
04-10-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JUAN ROJAS, JR., Defendant-Appellant.
Edward C. Bertucio argued the cause for appellant (Hobbie, Corrigan & Bertucio, P.C., attorneys; Mr. Bertucio, of counsel and on the briefs; Justin Lee Klein, on the brief). Hillary Horton, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Horton, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Alvarez and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-10-2078.
Edward C. Bertucio argued the cause for appellant (Hobbie, Corrigan & Bertucio, P.C., attorneys; Mr. Bertucio, of counsel and on the briefs; Justin Lee Klein, on the brief).
Hillary Horton, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Horton, of counsel and on the brief). PER CURIAM
After the denial of his motion to suppress, defendant Juan Rojas, Jr., entered a guilty plea to two of the offenses charged in a multi-count indictment. On January 27, 2012, pursuant to the plea agreement, defendant was sentenced to fourteen years imprisonment subject to eighty-five percent parole ineligibility in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), (d)(1), on count one, first-degree attempted murder, N.J.S.A. 2C:5-1, :11-3, and to a concurrent ten years imprisonment on count six, second-degree eluding an officer, N.J.S.A. 2C:29-2(b).
Defendant now appeals and we remand for further proceedings to be conducted regarding the search of the contents of defendant's cell phone and the legal consequence of a related consent order between the State and defense counsel. Once a record is developed regarding the messages and draft messages retrieved from defendant's cell phone and the related consent order, the trial court will then be able to make a factually supported decision on the motion to suppress. Should the court grant the motion, even if in part, the court may also at its discretion allow defendant to withdraw his guilty plea, should he wish to do so. If after a more comprehensive hearing, the motion is again denied, the status quo shall remain, and defendant at that point, should he wish to do so, may file an appeal from the decision. As to the seizure of defendant's clothing and blood samples, we affirm.
The victim was defendant's estranged wife who was stabbed a dozen or more times by defendant. In his Mirandized confession, defendant admitted breaking through a window to gain entry into the former marital residence where the victim lived with their children. Immediately upon seeing defendant enter the premises, she called 911. The 911 dispatcher heard the victim pleading with defendant as the attack began. Defendant later confessed that after he broke into the home, he seized a knife or knives from the kitchen, and, despite knowing she had called police, stabbed the victim because he "lost [his] mind."
When the Freehold Township police arrived, the victim told the officers that defendant fled through the rear of the house. The police gave chase, assisted by a second police department and the state police.
While driving away, pursued by the authorities, defendant called his wife's cell phone, which was answered by an officer at the scene; he also called his then-girlfriend, Karol Quintero. Eventually, defendant pulled over and was arrested. His clothes and hands were covered with his wife's blood. After being interviewed at the Freehold police station, defendant's clothes were taken and his hands swabbed.
The vehicle he was driving, a 2002 Acura MDX sports utility vehicle owned by Quintero, was "impounded and subsequently placed in the sallyport . . . for processing." Police knew that defendant's cell phone rested in the center console of the vehicle, but did not remove it.
At the suppression hearing, Detective William Peace of the Freehold Township Police Department testified that after interviewing defendant, who deliberately misidentified the owner of the car as Edith Bermao, not Quintero, he learned the car was registered to Quintero. Peace took defendant's cell phone from the SUV to "ascertain what number was dialed on it," in order to advance his efforts in obtaining the owner's written consent to a search, and to arrange for the Acura's removal after police had completed their investigation. Although the officer had uncovered the true identity of the owner from a records search, he could not locate the owner's phone number through regular channels, as Quintero resided in New York where the car was registered.
In any event, Peace went to the sallyport, opened the vehicle, and removed the phone, scrolling through defendant's contact list until he located Quintero's name and number. He made no further examination of the phone's contents. Peace said he did not believe that the phone contained anything of evidential value.
Peace also testified that he was under the impression that a court order issued later allowed defendant access to the phone, which had been bagged and stored, in order to attempt to retrieve messages. He was present when the phone was examined by the assistant prosecutor, defense counsel, and a defense investigator.
No copy of that order, which may have been a consent order, was included in the record on appeal. Other than Peace's fleeting mention of the phone being examined in the presence of counsel, his testimony makes no reference to any examination of the phone other than Peace's scrolling for Quintero's number.
The prosecutor, during oral argument following the testimonial portion of the suppression hearing, did mention that as a result of a search of the contents of the phone, "certain text messages" were obtained. She went on to state that "what's at issue . . . [is whether] the texts would have been the fruit of the poisonous tree, so to speak. That is why the phone is at issue. . . . It has to do now with these contents of the phone that would not have been discovered because they were in a draft box."
As we have said, however, no actual testimony was presented regarding the search of the phone's contents, or of the consent order that enabled defense counsel to see the texts which may or may not have already been examined by the State. Additionally, the prosecutor stated that the State "had no intention of using that phone." Towards the end of argument on the issue, the trial judge engaged in the following exchange with the assistant prosecutor:
THE COURT: You do need the phone to get the texts in, yeah?
[ASSISTANT PROSECUTOR]: And that was done by a consent search. And that, it's that that then created this issue. Otherwise, there wouldn't have -- been no reason to even have this motion to suppress. There was nothing in that phone that the State would have used or needed.
The court denied suppression of the cell phone and blood exemplars taken from defendant's clothing and person. The judge ruled that the seizure of the cell phone was lawful under both the plain view and inevitable discovery doctrines.
During the motion, defense counsel argued that the blood exemplars taken from defendant's hands should also be suppressed. The judge did not address this particular request for relief in his decision.
On appeal, defendant raises the following points for our consideration:
POINT I
THE TRIAL COURT INCORRECTLY DENIED DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE REQUIRING THE REVERSAL OF THE CONVICTION AND SENTENCE.
A. THE WARRANTLESS SEIZURE AND SEARCH OF [J.R.'s] CELLULAR TELEPHONE WERE UNCONSTITUTIONAL.POINT II
1. THE POLICE WERE REQUIRED TO OBTAIN A WARRANT PRIOR TO SEARCHING THE VEHICLE AND SEIZING AND SEARCHING [J.R.'s] CELLULAR TELEPHONE.B. THE WARRANTLESS SEIZURE OF [J.R.'s] CLOTHING AND OF EXEMPLARS OF BLOOD FROM [J.R.'s] PERSON WAS UNCONSTITUTIONAL.
2. THE "PLAIN VIEW" EXCEPTION TO THE WARRANT REQUIREMENT DOES NOT JUSTIFY THE WARRANTLESS SEIZURE AND SEARCHES THAT OCCURRED IN THIS CASE.
3. THE STATE FAILED TO SATISFY THE MANDATORY BURDEN OF PROOF REQUIRED TO JUSTIFY THE APPLICATION OF THE INEVITABLE DISCOVERY PRINCIPLE.
4. THE WARRANTLESS SEARCHES AND SEIZURES CONDUCTED BY DETECTIVE PEACE CANNOT BE RETROACTIVELY JUSTIFIED BY THE SUBSEQUENT CONSENT OBTAINED FROM [K.Q.].
THE TRIAL COURT IMPROPERLY DOUBLE COUNTED ELEMENTS OF THE OFFENSE AS AGGRAVATING FACTORS ONE AND TWO AND FAILED TO CONSIDER APPLICABLE MITIGATING FACTORS, LEADING TO THE IMPOSITION OF AN EXCESSIVE SENTENCE.
I
In reviewing a denial of a motion to suppress on appeal, we "must uphold the factual findings underlying the trial court's decision so long as" there is sufficient and credible record support. State v. Elders, 192 N.J. 224, 243 (2007). An appellate court should not disturb the findings of the trial court simply because an appellate court "might have reached a different conclusion were it the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). The trial court's legal conclusions, however, are not entitled to the same deference — "appellate review of legal determinations is plenary." State v. Handy, 206 N.J. 39, 45 (2011).
Under both the federal and state constitutions, a warrantless search is presumptively invalid unless it "'falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). Furthermore, the State bears the burden of proving that the search falls within such an exception. Ibid.
II
First, we address defendant's contentions with regard to the State's initial seizure of the cell phone. It is undisputed that Peace saw the cell phone after impounding the motor vehicle. Peace's observations through the windows, however, do not constitute an unlawful search. See State v. Mann, 203 N.J. 328, 341 (2010) (restating and applying the three elements of the plain view exception); State v. Johnson, 274 N.J. Super. 137, 153 (App. Div.) (explaining that individuals have no legitimate expectation of privacy in the areas of their car interiors which can be seen by an officer from the outside), certif. denied, 138 N.J. 265 (1994).
Peace's removal of the phone from the console was proper in light of defendant's deliberately false identification of the true owner during the interview. It was within the police department's community caretaking function to locate the owner, not just for Peace's initial purpose of obtaining the owner's consent for a further search for evidence, but also to address the eventual need to dispose of the vehicle, which obviously could not indefinitely remain in the police department's sallyport. See State v. Vargas, _ N.J. _ (2013) (slip op. at 18) (describing a warrantless search as justified under the community caretaking doctrine when "[t]he purpose . . . [is] to secure the car's contents for the owner's protection and public safety, not to look for evidence of a crime"). The Acura was only incidentally involved in defendant's commission of a crime and the owner was entitled to the vehicle's return within a reasonable time frame. When the car was returned, defendant's phone could not be returned with it, as the police were equally obligated to protect defendant's property. Hence, under the community caretaking doctrine, there was no impropriety in Peace's initial seizure of the phone.
It is not improper for an officer to look through areas or conduct a limited search where "evidence of ownership might be expected to be found." State v. Pena-Flores, 198 N.J. 6, 31 (2009). In this instance, although Peace had evidence of ownership, he had no means of contacting the owner. And defendant has no reasonable expectation of privacy in a phone number, which merely connected police to the owner. Moreover, the number was not evidence gathered in furtherance of the prosecution. See State v. DeFranco, 426 N.J. Super. 240, 249-50 (App. Div.), certif. denied, 212 N.J. 462 (2012).
However, a remand is necessary as to the subsequent searches of the phone. Although during the motion to suppress, counsel referred to text messages later retrieved from the phone, no witness testified about them. It is not surprising that the trial judge rendered no findings with regard to that search of the phone's contents, as no proofs were developed elucidating the manner in which the evidence was obtained, or whether the execution of the subsequent consent order made that step unobjectionable.
Thus we remand the matter for additional proceedings focusing on the State's further search or searches of the phone's contents after Peace obtained Quintero's number, and the seizure and reproduction of the draft text messages or text messages. The court's plain view analysis correctly endorsing the initial seizure of the phone did not address the later removal of text messages, drafts or otherwise, and the consent order.
The car owner's phone number initially obtained from the phone had no probative value. The material evidence from the phone was obtained at a later point in time, and as to this question, neither we nor the trial judge have enough information to render a decision as to admissibility.
III
Defendant also contends that the warrantless seizure of his clothing and exemplars of blood was unconstitutional; that a search warrant was required prior to the seizure of his blood-stained clothing, the scrapings taken from his hands, and the buccal swab to obtain his DNA. Defendant makes the further point that the removal of his clothing after he was interviewed proves that a search warrant should have been obtained. In our view, the delay was inconsequential.
Physical evidence gathered in this fashion has long since been considered nontestimonial in nature. See Schmerber v. California, 384 U.S. 757, 764-65, 86 S. Ct. 1826, 1832-33, 16 L. Ed. 2d 908, 916-17 (1966); Rawlings v. Police Dep't of Jersey City, 133 N.J. 182, 194 (1993); State v. Burns, 159 N.J. Super. 539, 543-44 (App. Div. 1978). It is not objectionable on Fourth Amendment grounds. State v. Bodtmann, 2 39 N.J. Super. 33, 44 n.8 (App. Div. 1990); Burns, supra, 159 N.J. Super. at 543-44. Police observation of defendant's blood-stained clothing and bloodied hands warranted the collection of material. See State v. Adams, 224 N.J. Super. 669, 674-75 (App. Div. 1988). The judge's omission of any mention of the scrapings from defendant's hands was mere oversight. He clearly intended to rule that all the physical evidence was admissible, given long-standing precedent permitting its use.
IV
Finally, defendant contends that the trial court improperly analyzed relevant aggravating and mitigating factors in imposing a sentence. In light of the remand to expand the record, and the fact that the court may be making a further assessment of the evidence and the possibility that defendant will be revisiting the entry of his guilty plea, it is premature for us to consider this argument.
Affirmed as to the seizure of the cell phone for the purpose of obtaining the car owner's phone number. Remanded for the purpose of reopening the motion to suppress as to any subsequent search of the contents of the phone and whether that material must also be suppressed. The legal effect of the consent order, if any, on this question is to be addressed in the remand hearing. As we have said, if the motion is granted, even in part, and defendant wishes to withdraw his guilty plea, the court shall consider that request in the ordinary course.
Affirmed in part; remanded in part. 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
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).