Opinion
DOCKET NO. A-2071-12T1
10-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VITALY A. TRUTENKO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the briefs). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-11-2138. Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the briefs). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After losing his motion to suppress Suboxone, oxycodone, marijuana, and drug paraphernalia that the police seized from his car following a traffic stop, defendant Vitaly A. Trutenko entered into a plea agreement with the State. Pursuant to that agreement, defendant pled guilty to third-degree possession of marijuana with the intent to distribute it, N.J.S.A. 2C:35-5(b)(11). The remaining three counts of the indictment charging him with other drug-related offenses were dismissed. Consistent with the plea terms, defendant was sentenced to two years of probation, with mandatory drug testing and substance abuse counseling.
As permitted by Rule 3:5-7(d), defendant now appeals the denial of his suppression motion and his ensuing conviction. He argues that the police violated his constitutional rights by seizing from the interior of his car without a warrant what is known as a "druggist's fold" of yellow paper containing crushed Suboxone. He further argues that he never provided valid consent to search the car after that item was confiscated. He also maintains that a warrant the police procured to search the entire vehicle after discovering the druggist's fold was invalid, and that the additional contraband found in the car in the course of that wider search should have been suppressed. Lastly, he complains that the trial court improperly barred his proffered expert from testifying at the suppression hearing. We reject these arguments and affirm.
We derive the following facts from the suppression hearing, at which the sole witness was the arresting officer, Patrolman Timothy J. Snyder. According to Officer Snyder, he observed defendant at approximately 1:30 a.m. on May 5, 2010, driving his Honda alone in Marlboro Township, when he failed to halt at a stop sign before making a right-hand turn. The officer also observed other motor vehicle violations, including illegal tinted windows and an unilluminated license plate. The officer directed the car to stop. The stop was video recorded, although the audio portion of the recording was not working consistently.
Officer Snyder went to the driver's side of the Honda and asked defendant to produce his credentials. The officer then walked over to the passenger side and flashed his flashlight inside of the car. At that point the officer noticed on the console a folded yellow paper with tape securing its ends. The paper was tucked between a pack of cigarettes and package of gum. Based upon his training at the Police Academy, the officer recognized the paper as a "druggist fold," which he knew to be of a type commonly used to package cocaine.
The officer asked defendant, "What's that?" Defendant then attempted to conceal the yellow paper by pushing it further between the cigarettes and the gum, handing the officer instead a Jolly Rancher candy wrapper. When the officer then asked more specifically about the yellow package, defendant retrieved it and started to open it by removing the tape. Concerned about whether defendant might be trying to destroy the item, the officer reached in and retrieved it. The officer looked at the package, which was now partially opened, and observed a white powder-like substance inside. The powder was later tested and confirmed to be the opiate Suboxone, a controlled dangerous substance.
Defendant was taken out of the car, arrested, and handcuffed. Other officers arrived at the scene. According to his testimony, Officer Snyder advised defendant of his right to refuse consent to search the vehicle. However, that advice was not captured on the audio during the portion when it was functioning. In any event, at that point Officer Snyder went inside the car's passenger compartment and smelled marijuana. The car was then impounded. A pat-down of defendant revealed that he had $2810 in cash in his pocket. A K-9 dog brought to the impound yard was walked around the Honda and indicated that there were drugs in the trunk.
Based on this information, the police then obtained a search warrant to search the impounded Honda's trunk. The search revealed marijuana and other contraband.
The four-count indictment against defendant ensued. Defendant moved to suppress the fruits of the search, including both the items recovered without a warrant and the additional items uncovered after a warrant was obtained.
After hearing the officer's testimony at the suppression hearing and also reviewing the recording of the motor vehicle stop, Judge Lisa P. Thornton denied defendant's motion, concluding that the roadside seizure of the illegal drugs and paraphernalia did not violate the federal or state constitutions. The judge subsequently issued a second order likewise denying defendant's motion to suppress the items recovered from the impounded car pursuant to the search warrant.
On appeal, defendant raises the following points for our consideration:
POINT I
THE STATE FAILED TO MEET THE PLAIN VIEW EXCEPTION TO THE SEARCH WARRANT REQUIREMENT BECAUSE PATROLMAN SNYDER WAS NOT IN A LAWFUL VIEWING AREA, DID NOT INADVERTENTLY DISCOVER THE YELLOW PAPER FOLD, AND LACKED PROBABLE CAUSE THAT THE YELLOW PAPER FOLD CONTAINED ILLEGAL DRUGS.
A. Officer Snyder Was Not in a "Lawful Viewing Area."
B. Officer Snyder's Search Was Not Inadvertent.
C. Officer Snyder Lacked Probable Cause to Associate the Yellow Paper with Criminal Activity.
POINT II
OFFICER SNYDER'S OPENING THE FOLDED YELLOW PAPER TO SEARCH ITS CONTENTS WAS INVALID SINCE NO EXIGENCY JUSTIFIED THE WARRANTLESS SEARCH.
POINT III
THE EVIDENCE SEIZED FROM THE DEFENDANT'S TRUNK PURSUANT TO A WARRANT SHOULD BE SUPPRESSED BECAUSE THE STATE OBTAINED THE WARRANT BASED ON UNLAWFUL POLICE CONDUCT IN SEARCHING THE PASSENGER COMPARTMENT OF THE DEFENDANT'S CAR.
A. Defendant Did Not Voluntarily Consent to a Search.
POINT IV
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR EXPERT TESTIMONY AT THE SUPPRESSION HEARING.
Under the Fourth Amendment of the Unites States Constitution and under Article 1, paragraph 7 of the New Jersey Constitution, a warrantless search or seizure is presumed invalid unless it falls within a recognized exception to the warrant requirement. State v. Mann, 203 N.J. 328, 337-38 (2010); see also State v. Witt, ___ N.J. ___, ___ (2015) (slip op.). In addition, when a search warrant is issued, it must be founded upon probable cause of criminal activity. State v. Holland, 176 N.J. 344, 353-54 (2003). We agree with Judge Thornton's analysis that the police here acted in accordance with these constitutional precepts, and with her denial of defendant's suppression motions.
We do not discuss the Supreme Court's doctrinal revision of the automobile exception in Witt, as that new case law only applies prospectively, slip op. at 55, and also because the State did not rely on that exception in this case.
Examining the events here in chronological order, we initially note that defendant does not contest the propriety of the stop of his Honda for multiple apparent traffic violations. Once the car was stopped, we discern nothing untoward in Officer Snyder walking to the passenger side of the vehicle after receiving defendant's credentials, an action which was justifiable for the officer's own safety, and peering inside the car with a flashlight.
In the context of a traffic stop, "[a] simple observation into the interior of an automobile by a police officer located outside the automobile is not a 'search' within the meaning of the Fourth Amendment." State v. Reininger, 430 N.J. Super. 517, 534 (App. Div.), certif. denied, 216 N.J. 367 (2013), cert. denied, 134 S. Ct. 1947, 188 L. Ed. 2d 962 (2014) (quoting State v. Foley, 218 N.J. Super. 210, 215 (App. Div. 1987)). Moreover, the use of a flashlight to illuminate the interior of an automobile, as Officer Snyder did here, does "not transform an otherwise reasonable observation into an unreasonable search[.]" Reininger, supra, 430 N.J. Super. at 534-35 (quoting State v. Johnson, 17 N.J. 192, 210 (2002)).
We agree with Judge Thornton that once Officer Snyder had observed the yellow folded paper and defendant's furtive efforts initially to conceal it and then to tear the package apart, the officer was justified in confiscating it pursuant to the plain view exception to the warrant requirement. Under this doctrine, a police officer is not required to obtain a warrant to seize evidence that has been observed if the officer (1) is "lawfully in the viewing area"; (2) discovers the evidence inadvertently; and (3) it is immediately apparent to the officer "that the items in plain view [are] evidence of a crime, contraband, or otherwise subject to seizure." State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
The "inadvertency" requirement has been expressly disapproved by the U.S. Supreme Court in Horton v. California, 496 U.S. 128, 137-40, 110 S. Ct. 2301, 2308-10, 110 L. Ed. 2d 112, 123-25 (1990). New Jersey, however, still adheres to this requirement. See Mann, supra, 203 N.J. at 341 (continuing to apply the inadvertency requirement); State v. Johnson, 171 N.J. 192, 211-13 (2002) (acknowledging Horton but continuing to apply inadvertence requirement); State v. Damplias, 2 82 N.J. Super. 471, 478 (App. Div. 1995) (acknowledging Horton but refraining from ruling whether inadvertency is still essential under New Jersey Constitution). --------
Each of these plain view elements is present here. The judge reasonably determined that Officer Snyder was lawfully in the viewing area during a roadside traffic stop. Based upon the officer's training and experience, he immediately recognized that the folded yellow paper appeared to be a "druggist's fold" containing illegal drugs. See, e.g., State v. Murphy, 238 N.J. Super. 546 (App. Div. 1990) (authorizing the warrantless confiscation of two druggist folds protruding from a defendant's sneakers). Finally, there is no credible proof that the officer's observation of the apparent contraband was anticipated rather than inadvertent. The officer acted properly in confiscating the package to prevent its alteration or destruction.
We do agree with defendant that the State failed to credibly prove that it extracted his valid consent to search his vehicle once the yellow package was confiscated. However, this lack of consent is of no moment because the police ultimately obtained a valid search warrant supported by probable cause to search the car interior, leading to the seizure of additional incriminating evidence. Even if, for the sake of argument, the officer's detection of the odor of marijuana upon entering the car without a warrant should be disregarded, there were ample other independent grounds that supported issuance of the warrant, including the druggist fold and the positive response of the drug-sniffing dogs. Holland, supra, 176 N.J. at 361 (instructing that a warrant can still be valid, despite unlawfully obtained information included in the supporting affidavit, if other independent grounds for probable cause are present and there is no flagrant police misconduct).
Lastly, we are satisfied that the judge did not abuse her discretion in declining to hear testimony at the suppression hearing from defendant's proffered expert concerning druggist folds. Although we do not question the expert's credentials as an experienced law enforcement officer, the judge had ample grounds to reject the conclusory assertions expressed in his report as inadmissible net opinions. Townsend v. Pierre, 221 N.J. 36, 52-53 (2015).
The expert's assertion in his report that "a folded piece of paper does not immediately constitute packing for [a] Controlled Dangerous Substance," (emphasis added), is not dispositive of the more critical question of whether the officer had a least a reasonable basis to consider the folded paper to be potential contraband, particularly given defendant's furtive actions when the officer asked him about the paper. The judge had the prerogative to decline to take testimony from the expert because he would not have significantly assisted her as the trier of fact at the suppression hearing. See N.J.R.E. 702 (permitting an expert to testify only if the proposed witness's specialized knowledge "will assist the trier of fact to understand the evidence or to determine a fact in issue"). Moreover, her analysis did not presume that all paper folded in a similar manner automatically contains illegal drugs.
The remaining points and sub-points raised by defendant lack sufficient merit to warrant discussion. 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