NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0202-17T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DOUGLAS T. SHORTER,
Defendant-Respondent.
Submitted March 21, 2018 – Decided June 15, 2018
Before Judges Alvarez and Currier.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 17-01-0022.
Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for appellant (Carey J. Huff, Assistant Prosecutor, of counsel and on the brief).
Hobbie, Corrigan & Bertucio, PC, attorneys for respondent (Edward C. Bertucio, of counsel and on the brief; Elyse S. Schindel, on the brief).
PER CURIAM
The State of New Jersey, on leave granted, appeals a Law
Division judge's July 26, 2017 decision granting a motion to suppress evidence. After our review of the relevant motion
testimony and precedents, we reverse and remand for further
proceedings.
Officers Sean DeShader and Joe Leon of the Asbury Park Police
were on patrol the afternoon of July 9, 2016, in an unmarked
vehicle in a high-crime area. DeShader was a thirteen-year veteran
of the department who had participated in hundreds of heroin
investigations over the course of his career. The officers saw
a car bearing Massachusetts license plates, and DeShader
immediately recognized one of the occupants, defendant Douglas
Shorter, from an arrest days earlier on a drug paraphernalia
offense. DeShader knew defendant had an outstanding arrest
warrant.
Once the officers stopped the vehicle, DeShader noticed
defendant repeatedly looking backwards towards the officers and
leaning towards the center console, the floor, and the passenger's
side door. As the officers approached, defendant appeared
extremely nervous. DeShader asked defendant to step out of the
car and noticed defendant anxiously looking around while his chest
visibly rose and fell. While patting down and cuffing defendant
under the authority of the warrant, DeShader asked him if he had
anything that would "poke [him], prick [him], or stick [him]."
Defendant responded that he had "a little bit of Molly," which
2 A-0202-17T4 DeShader understood to mean ecstasy based on his training and
experience. When he searched defendant, DeShader found sixty-
eight white glassine bags stamped "Black Ink," containing
suspected heroin, as well as a knotted white plastic bag, which
DeShader believed contained ecstasy. DeShader also found two
folds of money totaling $799.
As the officers awaited the arrival of a marked patrol
vehicle, Leon drew DeShader's attention to a brown-colored box
protruding from the open front passenger's side door. The box,
located inside the front passenger door pocket, was approximately
the size of a bible and could fit into a cargo pocket. On the
box, DeShader could see a red stamp with the word "Empire." He
testified:
[r]ed stamp is commonly used to be put on boxes or bags in reference [to] an indication of heroin. Brown box is commonly known to [him] to contain 600 white [glassine] bags which is used in the production and packaging of heroin for street ready drug sales.
Leon handed the box to DeShader, which contained ten bricks
of heroin. Each of the 499 bags inside the box were stamped with
the word "Empire" in red. The driver consented to a search of the
vehicle and identified a Samsung smart phone as belonging to
defendant.
3 A-0202-17T4 The judge found the officer to have been "an honest and candid
witness." However, he concluded that seizing the Empire cardboard
box and opening it was based on more than a hunch but "far shy of
the probable cause necessary to justify that seizure under the
plain view exception to the warrant requirement."
On appeal, the State contends:
POINT I SUPPRESSION OF THE EVIDENCE RECOVERED FROM THE CAR WAS ERROR BECAUSE THERE WAS PROBABLE CAUSE TO SEARCH THE CAR.
POINT II THERE WAS PROBABLE CAUSE TO ASSOCIATE THE BOX WITH CRIMINAL ACTIVITY, THUS, THE SUPPRESSION WAS IN ERROR.
I.
In reviewing a motion to suppress, this court defers to the
trial court's fact and credibility findings so long as those
findings are "supported by sufficient credible evidence in the
record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State
v. Elders, 192 N.J. 224, 243 (2007)). We review such decisions
deferentially because the "findings of the trial judge . . . are
substantially influenced by his [or her] opportunity to hear and
see the witnesses and to have the 'feel' of the case, which a
reviewing court cannot enjoy." State v. Reece, 222 N.J. 154, 166
(2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). An
appellate court should disregard those findings only upon a
4 A-0202-17T4 "showing of an abuse of discretion, i.e. [that] there has been a
clear error of judgment." State v. Nantambu, 221 N.J. 390, 402
(2015) (quoting State v. Harris, 209 N.J. 431, 439 (2012)).
"Although the ordinary 'abuse of discretion' standard defies
precise definition, it arises when a decision is made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis." Flagg v. Essex
Cty. Prosecutor, 171 N.J. 561, 571 (2002) (citations omitted).
No deference is given to the trial court's legal conclusions.
Nantambu, 221 N.J. at 402. The legal conclusions of a trial court
are reviewed de novo. State v. Hubbard, 222 N.J. 249, 263 (2015).
We conclude that the State's proofs established an exception
to the warrant requirement by a preponderance of the evidence.
See State v. Minitee, 210 N.J. 307 (2012) (citations omitted).
That exception is a police officer's right to lawfully "seize
evidence or contraband that is in plain view." State v. Gonzales,
227 N.J. 77, 90 (2016) (citing State v. Bruzzese, 94 N.J. 210,
235-36 (1983)).
An officer may seize evidence in plain view if the following
three requirements are satisfied:
First, the police officer must be lawfully in the viewing area.
Second, the officer has to discover the evidence 'inadvertently,' meaning that he did
5 A-0202-17T4 not know in advance where evidence was located nor intend beforehand to seize it.
Third, it has to be 'immediately apparent' to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.
[State v. Mann, 203 N.J. 328, 341 (quoting Bruzzese, 94 N.J. at 236)].
In Gonzalez, the Supreme Court "reject[ed] the inadvertence
prong of the plain-view doctrine because it requires an inquiry
into a police officer's motives and therefore is at odds with the
standard of objective reasonableness that governs [the Court's]
analysis of a police officer's conduct." 227 N.J. at 99. Since
the motor vehicle stop in this case occurred before the Gonzalez
decision, we assess the lawfulness of the seizure pursuant to the
three-prong standard that existed prior to the decision in
Gonzalez. 227 N.J.
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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-0202-17T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DOUGLAS T. SHORTER,
Defendant-Respondent.
Submitted March 21, 2018 – Decided June 15, 2018
Before Judges Alvarez and Currier.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 17-01-0022.
Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for appellant (Carey J. Huff, Assistant Prosecutor, of counsel and on the brief).
Hobbie, Corrigan & Bertucio, PC, attorneys for respondent (Edward C. Bertucio, of counsel and on the brief; Elyse S. Schindel, on the brief).
PER CURIAM
The State of New Jersey, on leave granted, appeals a Law
Division judge's July 26, 2017 decision granting a motion to suppress evidence. After our review of the relevant motion
testimony and precedents, we reverse and remand for further
proceedings.
Officers Sean DeShader and Joe Leon of the Asbury Park Police
were on patrol the afternoon of July 9, 2016, in an unmarked
vehicle in a high-crime area. DeShader was a thirteen-year veteran
of the department who had participated in hundreds of heroin
investigations over the course of his career. The officers saw
a car bearing Massachusetts license plates, and DeShader
immediately recognized one of the occupants, defendant Douglas
Shorter, from an arrest days earlier on a drug paraphernalia
offense. DeShader knew defendant had an outstanding arrest
warrant.
Once the officers stopped the vehicle, DeShader noticed
defendant repeatedly looking backwards towards the officers and
leaning towards the center console, the floor, and the passenger's
side door. As the officers approached, defendant appeared
extremely nervous. DeShader asked defendant to step out of the
car and noticed defendant anxiously looking around while his chest
visibly rose and fell. While patting down and cuffing defendant
under the authority of the warrant, DeShader asked him if he had
anything that would "poke [him], prick [him], or stick [him]."
Defendant responded that he had "a little bit of Molly," which
2 A-0202-17T4 DeShader understood to mean ecstasy based on his training and
experience. When he searched defendant, DeShader found sixty-
eight white glassine bags stamped "Black Ink," containing
suspected heroin, as well as a knotted white plastic bag, which
DeShader believed contained ecstasy. DeShader also found two
folds of money totaling $799.
As the officers awaited the arrival of a marked patrol
vehicle, Leon drew DeShader's attention to a brown-colored box
protruding from the open front passenger's side door. The box,
located inside the front passenger door pocket, was approximately
the size of a bible and could fit into a cargo pocket. On the
box, DeShader could see a red stamp with the word "Empire." He
testified:
[r]ed stamp is commonly used to be put on boxes or bags in reference [to] an indication of heroin. Brown box is commonly known to [him] to contain 600 white [glassine] bags which is used in the production and packaging of heroin for street ready drug sales.
Leon handed the box to DeShader, which contained ten bricks
of heroin. Each of the 499 bags inside the box were stamped with
the word "Empire" in red. The driver consented to a search of the
vehicle and identified a Samsung smart phone as belonging to
defendant.
3 A-0202-17T4 The judge found the officer to have been "an honest and candid
witness." However, he concluded that seizing the Empire cardboard
box and opening it was based on more than a hunch but "far shy of
the probable cause necessary to justify that seizure under the
plain view exception to the warrant requirement."
On appeal, the State contends:
POINT I SUPPRESSION OF THE EVIDENCE RECOVERED FROM THE CAR WAS ERROR BECAUSE THERE WAS PROBABLE CAUSE TO SEARCH THE CAR.
POINT II THERE WAS PROBABLE CAUSE TO ASSOCIATE THE BOX WITH CRIMINAL ACTIVITY, THUS, THE SUPPRESSION WAS IN ERROR.
I.
In reviewing a motion to suppress, this court defers to the
trial court's fact and credibility findings so long as those
findings are "supported by sufficient credible evidence in the
record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State
v. Elders, 192 N.J. 224, 243 (2007)). We review such decisions
deferentially because the "findings of the trial judge . . . are
substantially influenced by his [or her] opportunity to hear and
see the witnesses and to have the 'feel' of the case, which a
reviewing court cannot enjoy." State v. Reece, 222 N.J. 154, 166
(2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). An
appellate court should disregard those findings only upon a
4 A-0202-17T4 "showing of an abuse of discretion, i.e. [that] there has been a
clear error of judgment." State v. Nantambu, 221 N.J. 390, 402
(2015) (quoting State v. Harris, 209 N.J. 431, 439 (2012)).
"Although the ordinary 'abuse of discretion' standard defies
precise definition, it arises when a decision is made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis." Flagg v. Essex
Cty. Prosecutor, 171 N.J. 561, 571 (2002) (citations omitted).
No deference is given to the trial court's legal conclusions.
Nantambu, 221 N.J. at 402. The legal conclusions of a trial court
are reviewed de novo. State v. Hubbard, 222 N.J. 249, 263 (2015).
We conclude that the State's proofs established an exception
to the warrant requirement by a preponderance of the evidence.
See State v. Minitee, 210 N.J. 307 (2012) (citations omitted).
That exception is a police officer's right to lawfully "seize
evidence or contraband that is in plain view." State v. Gonzales,
227 N.J. 77, 90 (2016) (citing State v. Bruzzese, 94 N.J. 210,
235-36 (1983)).
An officer may seize evidence in plain view if the following
three requirements are satisfied:
First, the police officer must be lawfully in the viewing area.
Second, the officer has to discover the evidence 'inadvertently,' meaning that he did
5 A-0202-17T4 not know in advance where evidence was located nor intend beforehand to seize it.
Third, it has to be 'immediately apparent' to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.
[State v. Mann, 203 N.J. 328, 341 (quoting Bruzzese, 94 N.J. at 236)].
In Gonzalez, the Supreme Court "reject[ed] the inadvertence
prong of the plain-view doctrine because it requires an inquiry
into a police officer's motives and therefore is at odds with the
standard of objective reasonableness that governs [the Court's]
analysis of a police officer's conduct." 227 N.J. at 99. Since
the motor vehicle stop in this case occurred before the Gonzalez
decision, we assess the lawfulness of the seizure pursuant to the
three-prong standard that existed prior to the decision in
Gonzalez. 227 N.J. at 101 (applying the new standard
"prospectively").
The first requirement of the plain-view exception requires
little discussion. The officers were executing an arrest warrant
upon the passenger of the vehicle and were therefore in the area
lawfully.
The second prong also merits very brief discussion. The
purpose of this stop was to take defendant into custody on an
6 A-0202-17T4 unrelated matter, not for any reason related to the advancement
of a drug investigation.
In our view, the State met the third prong as well. DeShader,
whom the court found credible, testified that in his experience,
stamped cardboard boxes like the one in this case would at a
minimum contain drug paraphernalia. The officer had charged
defendant with possession of similar items days earlier.
It has been consistently held "that a principal component of
. . . probable cause . . . 'is a well-grounded suspicion that a
crime has been or is being committed.'" State v. Moore, 181 N.J.
40, 45 (2004) (quoting State v. Nishina, 175 N.J. 502, 515 (2003)).
This officer's familiarity with similar boxes containing drugs and
drug paraphernalia gave rise to his "well-grounded suspicion" that
a drug offense had been or was being committed. See ibid. The
totality of the circumstances gave rise to probable cause to seize
the box. DeShader knew defendant, found drugs on his person, saw
the box, and recognized the likely nature of its contents. In the
context of the plain-view exception, "[a]ll [an] officer needs to
meet the third requirement is [a] practical, nontechnical,
probability that incriminating evidence is involved." State v.
Reininger, 430 N.J. Super. 517, 536 (App. Div. 2013) (third
alteration in original) (citations omitted) (quoting Bruzzese, 94
N.J. at 237). The probability existed here.
7 A-0202-17T4 The judge seemed concerned that despite the officer's
description of the Empire stamp as very consequential in that
context, the testimony was not enough because the item was an
opaque cardboard box. "[T]he Fourth Amendment provides protection
to the owner of every container that conceals its contents from
plain view," Johnson, 171 N.J. at 213 (quoting United States v.
Ross, 456 U.S. 798, 822-23 (1982)).
But on the other hand, "[i]t cannot be denied that 'a police
officer lawfully in the viewing area [is not required to] close
his eyes to suspicious evidence in plain view." Id. at 208
(alteration in original) (quoting Bruzzese, 94 N.J. at 237).
"Whether the [container] . . . concealed its contents from plain
view is a factor to be considered when determining whether the
State established probable cause before seizing and opening the
container." Id. at 214.
Defendant made furtive movements as the officers approached.
He was extremely anxious. DeShader knew defendant from a prior
arrest. Defendant had drugs on his person when arrested on the
scene. In this context, DeShader's training and experience gave
him the unique familiarity with drug-related items that signaled
the contents of the box even though he obviously could not see
through it. See State v. Evans, 449 N.J. Super. 66, 78-79 (App.
Div. 2017) (holding probable cause existed to conduct a strip
8 A-0202-17T4 search when a search incident revealed the defendant had crack
cocaine on his person); State v. Rosario, 229 N.J. 263, 276-77
(2017) (quoting State v. Lund, 119 N.J. 35, 48 (1990)) (restating
the principle that "there are some cases in which 'furtive'
movements or gestures . . . accompanied by other circumstances,
will ripen into . . . probable cause to believe that the person
possesses criminal contraband"); Moore, 181 N.J. at 46 (finding
the court may consider any evidence concerning the high crime
reputation of an area in the totality of the circumstances); State
v. Hayes, 327 N.J. Super. 373, 380 (App. Div. 2000) (holding police
may rely on their knowledge of a suspect's "prior arrest [and
conviction] record"); Johnson, 171 N.J. at 219 (holding the
criminal nature of a container is immediately apparent when
"outward appearance of the [container] gave the officer a degree
of certainty that was functionally equivalent to the plain view
of crack-cocaine itself"). Thus, DeShader had probable cause to
seize the box, and its contents should not have been suppressed.
We do not reach the parties' other arguments and legal
contentions. They are moot in light of this decision.
Reversed and remanded for further proceedings.
9 A-0202-17T4