NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5470-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHARLES E. ALFORD, a/k/a CHARLES ALFORD,
Defendant-Appellant. ________________________
Submitted May 11, 2021 – Decided June 28, 2021
Before Judges Gilson and Moynihan.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 16-10-2849 and 16-12-3621.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Denny, Assistant Deputy Public Defender, of counsel and on the brief).
Jill S. Mayer, Acting Camden County Prosecutor, attorney for respondent (Rachel M. Lamb, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following the denial of motions to suppress two handguns seized during
separate searches, defendant Charles Alford pled guilty to two counts of
attempted murder, N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:11-3(a)(1), involving
separate victims. In accordance with his plea agreement, defendant was
sentenced to concurrent terms of ten years in prison with periods of parole
ineligibility and parole supervision as prescribed by the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2.
Defendant appeals, contending that the trial court erred in denying both
motions to suppress the seizures of the handguns. We discern no basis to reject
the factual findings made by the motion judge and therefore affirm both orders
and convictions.
I.
On June 9, 2013, S.G. (Sam) was shot and seriously injured in Camden. 1
The following month, on July 30, 2013, C.G. (Chuck) was shot and seriously
injured in Camden. Both shootings were eventually linked to defendant.
1 We use initials and fictitious names for the victims and witnesses to protect their privacy interests.
2 A-5470-18 On June 26, 2013, Camden County Police Officer Romelia Villegas-Diaz
received a tip that the next day a tan or gold Cadillac would be dropping off
drugs on Berkeley Street in Camden. Accordingly, on June 27, 2013, Officer
Villegas-Diaz patrolled that area in a marked police vehicle. At approximately
1:47 p.m., she observed a gold Cadillac with tinted windows, and she stopped
that vehicle. The Cadillac had one occupant, the driver, who was later identified
as defendant. Defendant did not have a driver's license and, following a check,
Villegas-Diaz learned that there were outstanding warrants for defendant's
arrest. Consequently, the officer arrested defendant and placed him in the rear
of her patrol car.
Officer Villegas-Diaz then returned to the Cadillac and looked in its
windows. While standing outside the front passenger door, Villegas-Diaz saw
the black handle of what she believed was a gun. She thereafter opened the car
door and observed an M88 .38 special revolver. The weapon was photographed,
seized, and later determined to be loaded. Defendant was charged with unlawful
possession of a gun and given summonses for driving without a license and
driving a vehicle with tinted windows. Apparently, the gun was not immediately
linked to Sam's shooting, and defendant was released from custody.
3 A-5470-18 On July 31, 2013, the day after Chuck was shot, law enforcement
personnel received a tip that the shooter was a young man named Mac who drove
a gold Cadillac. That same day, Investigator Joseph Goonan of the Camden
County Sheriff's Office stopped a Cadillac driven by defendant. During the
vehicle stop, L.G. (Lucy) arrived and told investigators that she was defendant's
girlfriend, and defendant went by the name Mac. She also gave the investigators
her address. Defendant was not arrested on that day. Several days later, on
August 2, 2013, defendant was charged with first-degree attempted murder and
other offenses for Chuck's shooting, and a warrant for his arrest was issued.
On October 30, 2013, law enforcement personnel received a tip that
defendant might be at Lucy's home in Camden. Accordingly, several members
of the U.S. Marshals Fugitive Task Force placed Lucy's home under
surveillance. That same day, a black man matching defendant's description was
seen going into Lucy's residence. As members of the task force approached the
residence, Lucy drove up. According to the task force members, Lucy gave
them verbal and written consent to search for defendant in her home.
While searching for defendant, law enforcement personnel located a
.9 mm loaded handgun in a couch cushion on the first floor of Lucy's home.
Thereafter, Lucy gave a statement, during which she told detectives that the gun
4 A-5470-18 belonged to defendant. Defendant was not found at Lucy's home, but later that
day he was located and arrested.
Law enforcement personnel subsequently connected the .9 mm handgun
to Chuck's shooting. The .38 caliber handgun seized from the vehicle was
connected to the shooting of Sam.
In December 2013, a grand jury indicted defendant for first-degree
attempted murder and numerous weapons offenses related to the shooting of
Sam. Several months later, in April 2014, a second indictment was issued
charging defendant with first-degree attempted murder and weapons offenses
related to the shooting of Chuck. In 2016, superseding indictments were issued
in both matters.
Defendant filed two separate motions seeking to suppress the handgun
seized from the Cadillac and the handgun seized from Lucy's home. The same
judge conducted separate evidentiary hearings on those motions.
In the hearing related to the search of the vehicle, the judge heard
testimony from four witnesses: Officer Villegas-Diaz, defendant, M.H., a friend
of defendant, and M.F., defendant's fiancée.
Officer Villegas-Diaz testified that she stopped the Cadillac in Camden
on June 27, 2013 based on an anonymous tip she had received the previous day,
5 A-5470-18 and her observation that the vehicle had tinted windows. She also explained
how she arrested defendant when she learned that he had outstanding warrants.
Further, she testified that after defendant had been secured in her vehicle, she
looked through the front passenger window of the Cadillac and saw the black
handle of what she believed was a gun on the car's floor, partially obscured by
the front passenger seat. She therefore opened the door to confirm her suspicion.
The gun was subsequently photographed and seized.
Defendant and his two witnesses told a different version of events. The
two witnesses testified that it would be difficult to see through the Cadillac's
tinted windows. Moreover, defendant, his friend, and his fiancée testified that
they saw Officer Villegas-Diaz open the Cadillac's doors and look inside the
vehicle.
The motion judge found Officer Villegas-Diaz's testimony credible. The
judge then found that the Cadillac had been stopped after the officer observed
tinted windows and that the gun had been lawfully seized under the plain view
doctrine. Accordingly, the judge denied defendant's motion to suppress the
seizure of the .38 caliber handgun found in the vehicle.
6 A-5470-18 In a separate hearing concerning the search of Lucy's residence, the
motion judge heard testimony from several law enforcement officers, Lucy, and
members of Lucy's family.
Investigator Goonan explained that he had learned of Lucy and
defendant's dating relationship when he stopped the Cadillac driven by
defendant on July 31, 2013. Other members of the task force testified
concerning the search of Lucy's home. They explained that they had received
an anonymous tip that defendant was going to be at Lucy's home.
When they set up surveillance of the home on October 30, 2013, they saw
someone matching defendant's description enter the home. At approximately
the same time, Lucy arrived at the home. A detective explained to Lucy that
they had a warrant for defendant's arrest, and he showed Lucy a picture of
defendant. Initially, Lucy denied knowing defendant, but then admitted that he
was her boyfriend and sometimes stayed at her home. The detective testified
that Lucy then gave verbal consent to search the home. While members of the
task force searched the home, another officer asked Lucy to execute a written
consent form for the search, which she did.
Members of the task force also explained that when they searched Lucy's
home, they looked for places where defendant might be hiding, including inside
7 A-5470-18 furniture. During that search, a .9 mm handgun was discovered in a couch
cushion on the first floor of Lucy's home. The team continued to search the rest
of the home, but defendant was not located.
Members of the task force thereafter received a tip that defendant was at
another location. After officers went to that location, defendant was found and
arrested.
Lucy told a different version of events. She testified that on October 30,
2013, she went to leave her home, but was confronted by at least six officers
armed with guns. She was directed to put her hands up and was then placed in
handcuffs. She denied giving consent to search her home. Instead, she
explained, the officers went into the home without her consent and found the
gun. The officers thereafter suggested that they might call child protective
services if she did not sign a consent form. She testified she signed the form
under duress.
After hearing the testimony and considering the evidence submitted, the
motion judge denied defendant's motion and made findings of facts and
conclusions of law on the record. The judge found the officers' testimony
credible, and he rejected Lucy's testimony. The judge went on to find that law
enforcement personnel had lawfully entered Lucy's home based on two
8 A-5470-18 exceptions to the warrant requirement. First, the judge reasoned that the task
force had an arrest warrant for defendant and had reasonable bases to believe
that defendant was in and resided at Lucy's home. Second, the court found that
Lucy had given knowing and voluntary consent to search her home. The court
then went on to find that the handgun was lawfully seized under the plain view
exception to the warrant requirement.
II.
Defendant appeals, challenging both his convictions and arguing that the
searches of the vehicle and Lucy's home were illegal. Specifically, defendant
articulates those arguments as follows:
POINT I – BECAUSE OFFICERS ENTERED A PRIVATE RESIDENCE WITHOUT A WARRANT OR VALID CONSENT, THE POLICE ENTRY WAS ILLEGAL, AND THE HANDGUN DISCOVERED MUST BE SUPPRESSED AS FRUIT OF THE UNLA[W]FUL ENTRY.
A. The Officers[] Did Not Have A Reasonable Basis To Believe That [Defendant] Lived With [Lucy]
B. [Lucy] Did Not Give Valid Consent To Search Her Home
POINT II – THE PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT DOES NOT APPLY BECAUSE THE DI[S]COVERY OF THE HANDGUN WAS NOT INADVERTENT.
9 A-5470-18 Our review of a denial of a motion to suppress physical evidence
following an evidentiary hearing is limited. See State v. Handy, 206 N.J. 39, 44
(2011). Appellate courts disturb factual findings made by trial courts only when
they are not supported "by sufficient credible evidence in the record." State v.
Hagans, 233 N.J. 30, 37 (2018) (quoting State v. Gamble, 218 N.J. 412, 424
(2014)). That deference is afforded "because 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.'" Gamble, 218 N.J. at
424-25 (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). Accordingly, we "reverse only when the trial court's determination is
'so clearly mistaken that the interests of justice demand intervention and
correction.'" Hagans, 233 N.J. at 37-38 (quoting Gamble, 218 N.J. at 425). We
review the trial court's legal determinations de novo. Id. at 38 (citing Gamble,
218 N.J. at 425).
The United States Constitution and the New Jersey Constitution protect
individuals from "'unreasonable searches and seizures' by government officials."
Ibid. (quoting State v. Watts, 223 N.J. 503, 513 (2015)). A warrantless search
is presumptively unreasonable. Ibid. To overcome that presumption, the State
must prove by a preponderance of the evidence that the search was based on
10 A-5470-18 probable cause and "f[ell] within one of the few well-delineated exceptions to
the warrant requirement." Id. at 38-39 (alteration in original) (quoting State v.
Bryant, 227 N.J. 60, 69-70 (2016)). Several exceptions to the warrant
requirement are applicable to the search of the Cadillac and the search of Lucy's
home.
A. The Search of the Cadillac
Defendant argues that the handgun found in the Cadillac was unlawfully
seized because the officer did not "inadvertently" discover the firearm as
required by the plain view exception to the warrant requirement. We disagree.
To lawfully stop a motor vehicle, a police officer must have a "reasonable
and articulable suspicion that the driver of a vehicle, or its occupants, is
committing a motor-vehicle violation or a criminal or disorderly persons
offense." State v. Scriven, 226 N.J. 20, 33-34 (2016) (citing State v. Locurto,
157 N.J. 463, 470 (1990)). Accordingly, an investigatory stop is permissible "if
it is based on specific and articulable facts which, taken together with rational
inferences from those facts, give rise to a reasonable suspicion of criminal
activity." State v. Chisum, 236 N.J. 530, 545-46 (2019) (quoting State v.
Pineiro, 181 N.J. 13, 20 (2004)).
11 A-5470-18 "[I]n determining the lawfulness of an investigatory stop, a reviewing
court must 'evaluate the totality of circumstances surrounding the police-citizen
encounter, balancing the State's interest in effective law enforcement against the
individual's right to be protected from unwarranted and/or overbearing police
intrusions.'" State v. Privott, 203 N.J. 16, 25-26 (2010) (quoting State v. Davis,
104 N.J. 490, 504 (1986)). "An investigative detention that is premised on less
than reasonable and articulable suspicion is an 'unlawful seizure,' and evidence
discovered during the course of an unconstitutional detention is subject to the
exclusionary rule." State v. Elders, 192 N.J. 224, 247 (2007) (citing State v.
Rodriguez, 172 N.J. 117, 132-33 (2002)).
After hearing the testimony of Officer Villegas-Diaz, the motion judge
found that she had acted with reasonable and particularized suspicion in
stopping the Cadillac. Specifically, the motion judge found the officer testified
credibly that she had stopped the vehicle because it had tinted windows.
The plain view exception allows police to seize contraband in plain view
without a warrant if three requirements are met: "(1) the officer must be lawfully
in the viewing area when making the observation; (2) 'the discovery of the
evidence . . . must be inadvertent,'" State v. Gonzales, 227 N.J. 77, 91 (2016)
(alteration in original) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 468-
12 A-5470-18 69 (1971)); and (3) the "police officer must have 'probable cause to associate the
property with criminal activity,'" State v. Bruzzese, 94 N.J. 210, 237 (1983)
(quoting Texas v. Brown, 460 U.S. 730, 738 (1983)).
In Gonzales, the New Jersey Supreme Court eliminated the inadvertence
prong of the plain-view test. 227 N.J. at 101. The Court, however, applied that
new rule of law prospectively as of the date of the opinion – November 15, 2016.
Ibid. The search at issue in this case took place on June 27, 2013, and therefore
we analyze the officer's actions under the pre-Gonzales standard.
An "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. 2013)
(quoting State v. Foley, 218 N.J. Super. 210, 215 (App. Div. 1987)). When an
officer seizes contraband in plain view from an automobile, it is "not necessary
for the State to establish exigent circumstances." Id. at 537.
In this case, the motion judge credited Officer Villegas-Diaz's testimony
that, while standing outside the Cadillac, she looked through the passenger side
front window and saw the black handle of what she perceived to be a gun on the
floor. The motion judge also found that the gun was discovered inadvertently.
In that regard, the motion judge reasoned that once defendant was arrested, there
13 A-5470-18 was nothing unlawful in the officer looking into the unoccupied Cadillac. Those
factual findings are supported by substantial credible evidence. We therefore
discern no basis to reverse the motion judge's determination that the .38 caliber
handgun was lawfully seized.
B. The Search of the Home
Defendant also argues that law enforcement officers unlawfully entered
Lucy's home and therefore the seizure of the .9 mm handgun was illegal. We
reject this argument.
The motion judge found two bases for the entry into Lucy's home. First,
that the task force members had a valid arrest warrant and had reasonable bases
to believe that defendant was present and resided in Lucy's home. Second, that
Lucy provided knowing and voluntary consent to search her home. We hold
that the consent was valid and, therefore, we need not address whether the arrest
warrant was lawfully executed at the home of a third-party.
To justify a warrantless search based on consent, "the State must prove
that the consent was voluntary and that the consenting party understood his or
her right to refuse consent." State v. Maristany, 133 N.J. 299, 305 (1993) (citing
State v. Johnson, 68 N.J. 349, 353-54 (1975)). "[T]he State is required to prove
voluntariness by 'clear and positive testimony.'" State v. Chapman, 332 N.J.
14 A-5470-18 Super. 452, 466 (App. Div. 2000) (quoting State v. King, 44 N.J. 346, 352
(1965)). Moreover, the State must "show that the individual giving consent
knew that he or she 'had a choice in the matter.'" State v. Carty, 170 N.J. 632,
639 (2002) (quoting Johnson, 68 N.J. at 354).
Factors "tending to show that the consent was coerced" include: (1)
consent was obtained from a person who had already been arrested; (2) it was
obtained notwithstanding a denial of guilt; (3) the police obtained consent only
after the consenting person had refused initial requests for consent; (4) consent
was given where the subsequent search led to the seizure of contraband "which
the accused must have known would be discovered;" and (5) consent was given
by a person in handcuffs. King, 44 N.J. at 352-53 (citations omitted).
Factors "tending to show the voluntariness of the consent" include: "(1)
that consent was given where the accused had reason to believe that the police
would find no contraband; (2) that the defendant admitted his guilt before
consent; [and] (3) that the defendant affirmatively assisted the police officers."
Id. at 353 (citations omitted).
"[T]he existence or absence of one or more of the above factors is not
determinative of the issue." Ibid. Instead, the factors "are only guideposts to
aid a trial judge in arriving at his [or her] conclusion." Ibid.
15 A-5470-18 At the evidentiary hearing concerning the motion to suppress the gun
seized from Lucy's home, the motion judge heard testimony from several law
enforcement officers. The judge found their testimony regarding the oral and
written consent provided by Lucy credible. The judge also considered, but
rejected, Lucy's contradictory testimony that she had not given valid consent.
We discern no basis for rejecting the motion judge's factual findings that
Lucy gave consent voluntarily, and that she understood her right to refuse
consent. Those factual findings are supported by the officers' testimony, which
the motion judge found credible. Moreover, the factual findings are
corroborated by the written consent form Lucy executed. Finally, there are more
factors tending to show that the consent was voluntary than factors tending to
show that the consent was coerced.
The motion judge credited the officers' testimony that after obtaining
consent from Lucy, they searched the home looking for defendant. The motion
judge also found credible that the officers had prior experiences during which
suspects hid inside hollowed out furniture. Therefore, the motion judge credited
their testimony that they picked up the couch's cushions to see if there was a
compartment in which defendant was hiding, and, in doing so, inadvertently
discovered the gun in a couch cushion. The plain view exception allows police
16 A-5470-18 to seize contraband without a warrant when they are lawfully in an area and they
inadvertently discover evidence associated with criminal activity. See, e.g.,
State v. Farmer, 366 N.J. Super. 307, 313-15 (App. Div. 2004); see also State v.
Domicz, 188 N.J. 285, 291, 310-11 (2006) (finding law enforcement seizure of
marijuana plants observed in plain view during residential consent search
lawful).
All those findings are supported by substantial credible evidence in the
record, and we discern no error in the trial court's application of the law to the
factual findings. Accordingly, we also affirm the denial of defendant's motion
to suppress the handgun seized from Lucy's home and defendant's subsequent
conviction based on his guilty plea.
Affirmed.
17 A-5470-18