STATE OF NEW JERSEY VS. HOWARD S. THOMAS (14-04-0604, MONMOUTH COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 26, 2017
• Docket: A-3351-14T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3351-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HOWARD S. THOMAS,

Defendant-Appellant.

_____________________________________

Submitted January 19, 2017 – Decided July 26, 2017

Before Judges Fuentes and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 14-04-0604.

Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief).

Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Keri- Leigh Schaefer, Assistant Prosecutor, of counsel and on brief).

PER CURIAM

Following the denial of his motion to suppress evidence seized

in a warrantless search of his bag, defendant Howard Thomas entered a negotiated plea of guilty to second-degree certain persons not

to have weapons, N.J.S.A. 2C:39-7(b)(1), and was sentenced to a

five-year prison term with a mandatory five-year period of parole

ineligibility. Pursuant to Rule 3:5-7(d), defendant appeals from

the October 20, 2014 order denying his motion to suppress the

handgun. We affirm.

I.

The only witness at the suppression hearing was one of the

responding officers, Patrolman Allen Williams, a twelve-year

veteran with the Asbury Park Police Department. According to

Williams, at about 9:30 a.m. on June 15, 2013, he was dispatched

to an apartment to check on a report of "physical domestic

assault." The two-story apartment was located in a large apartment

complex and shared a front porch with an adjoining apartment. To

access the apartments, there were two steps from the sidewalk onto

the porch, which then lead to the front door of each apartment.

When Williams arrived, another officer was already on scene.

Williams knocked on the screen door and entered the apartment

through the main door, which was open. Once inside, Williams

observed an individual, later identified as defendant, "coming

down the stairs carrying a large black nylon bag and a tan canvas

bag." Defendant walked past Williams and out the front door.

2 A-3351-14T1 Williams also observed a woman in the living room area on the

first floor who identified herself as defendant's girlfriend.

Defendant's girlfriend reported to Williams that defendant

had assaulted her. She informed Williams about prior unreported

domestic violence incidents between herself and defendant and told

Williams that "ever since [defendant] has been living with her,

her kids have . . . seen arguing, fighting and guns." Williams

inquired whether there were "any guns in the premises" to which

she responded "no, not that I know of because I check him from

head to toe when he comes inside the house." Although she

consented to a search of her apartment, Williams never conducted

the search because she told him that she was pregnant and showed

him physical injuries from the assault consisting of "a laceration

to her upper lip" and "her swollen right hand[.]" Despite her

injuries, she refused first aid.

When another officer arrived and began interviewing

defendant's girlfriend, Williams went outside to the porch where

a different officer arrested defendant for simple assault.

Defendant was permitted to use his cell phone to contact his mother

to come and retrieve his belongings, consisting of the black and

tan bags that were located outside on the porch. Although the

bags were in proximity to defendant on the porch, they were not

searched incident to defendant's arrest.

3 A-3351-14T1 After defendant was transported to police headquarters, the

bags remained on the porch awaiting the arrival of defendant's

mother. As Williams prepared to depart the scene to respond to

other service calls, he decided to place the bags inside the

apartment for safekeeping until defendant's mother arrived.

Williams testified that he was not expecting to detect any

contraband and his only motivation in removing the bags was to

prevent defendant's property from being stolen.

Williams testified that he picked up the black bag first.

The motion judge described the black bag as about "the size of a

pillowcase with a drawstring at the top" and Williams testified

that the bag was partially open and filled with items. According

to Williams, when he picked up the black bag with his left hand

and then grabbed the bag with his right hand, he felt a handgun

on the right side of the bag close to the top. Williams testified

he did not manipulate the bag in any way but believed he felt a

handgun based on his "training and experience in handling

firearms."

Once Williams detected the handgun, he "opened up the bag and

. . . [saw] the butt of the gun inside the bag[.]" He immediately

called another officer and had the gun photographed inside the

bag. The gun was then removed from the bag and identified as a

Ruger 40 caliber handgun. Inside the gun was a magazine loaded

4 A-3351-14T1 with bullets. A subsequent National Crime Information Center

(NCIC) search revealed that the gun was stolen.

The motion judge credited Williams' testimony, describing his

testimony as "clear, candid, and convincing." The judge found

that Williams "was honest and very straightforward" about his

observations. Accordingly, the judge made factual findings

consistent with Williams' testimony and concluded that

"[d]efendant's gun was lawfully seized under the plain-feel

doctrine, as an exception to the warrant requirement."

Initially, the judge distinguished State v. Perkins, 358 N.J.

Super. 151 (App. Div. 2003), noting:

As was made clear in this case, Patrolman Williams did not seize the gun based on the domestic violence call he received from the victim. Although it was elicited through Patrolman Williams' testimony that he was going to search the apartment for weapons, he did not do so. The revelation of the gun in [d]efendant's nylon bag was wholly unrelated to a "search" of any kind. Patrolman Williams seized the gun based on the plain-feel of the [d]efendant's nylon bag. Thus, the Perkins case is not applicable.

The judge also examined whether Williams' conduct in moving

the bag from the porch to the interior of the apartment for

safekeeping was covered under the Fourth Amendment and concluded

that it was not. The judge explained:

The victim's porch was shared by another apartment and served as a route of access for

5 A-3351-14T1 anyone visiting the premises. As such, it is only a semi-private area. [State v. Johnson, 171 N.J. 192, 209 (2002)]. Once patrolman Williams went back outside the victim's residence and the [d]efendant was placed under arrest, he "came onto private property for a legitimate purpose." The porch that he was situated on was a "place visitors could be expected to go." [Ibid.]. Thus, his observation of the [d]efendant's nylon bag, including the "plain" feel of the gun inside the [d]efendant's bag was "made from such a vantage point which is not covered by the Fourth Amendment." [Ibid.].

In applying the plain feel doctrine to his factual findings,

the judge reasoned:

Here, Patrolman Williams was dispatched to the victim's ([d]efendant's girlfriend) home after receiving a call from the victim that [d]efendant punched her in the face. As such, Patrolman Williams was lawfully at the scene. While Patrolman Williams was at the scene and [d]efendant was placed under arrest, [d]efendant left his thin, black, nylon bag outside of his apartment for his mother to retrieve from his girlfriend's apartment. However, the officers who were on scene were unable to remain at the [d]efendant's apartment, and did not want to leave [d]efendant's bag outside unattended. . . . Thus, Patrolman Williams picked up the bag and placed it inside the apartment for safekeeping. Patrolman Williams did not open the bag, look inside the bag, or manipulate the bag in any way. He simply picked up the bag in a non-intrusive manner to protect it from a potential crime of theft. As such, no reasonable expectation of privacy was invaded. . . . As such, his actions were lawful, in that he simply wanted to "put the bag inside the house for safekeeping."

6 A-3351-14T1 Further, the feel of the gun's contour or mass in [d]efendant's nylon [b]ag made the gun's identity immediately apparent. Once Patrolman Williams picked the nylon bag up, without manipulating the nylon bag from the outside in any way, he felt an object whose "contours and mass he clearly and immediately recognized" to be consistent with that of a handgun based on his training and experience.

. . . .

Further, the victim informed Patrolman Williams that since the [d]efendant has been to her apartment, her kids "have seen arguing, fighting, and guns." She also stated that she previously told the [d]efendant to "get it out of her house," referring to the [d]efendant's alleged gun. Thus, based on the totality of the circumstances, including Patrolman Williams' training and experience with handguns, the victim's prior statements, and the feel of a hard metal object, he was immediately able to recognize the object he felt inside the [d]efendant's bag as a gun.

Accordingly, the judge denied defendant's motion to suppress

the handgun and signed a memorializing order on October 20, 2014.

This appeal followed.

II.

On appeal, defendant raises the following arguments for our

consideration.

POINT I

THE PLAIN FEEL DOCTRINE DOES NOT JUSTIFY THE WARRANTLESS SEIZURE OF THE HANDGUN IN DEFENDANT'S BAG.

7 A-3351-14T1 A. BECAUSE DEFENDANT MADE HIS OWN ARRANGEMENTS FOR THE SAFEKEEPING OF HIS PERSONAL PROPERTY FOLLOWING HIS ARREST, THE POLICE ACTED UNREASONABLY IN SEIZING HIS PROPERTY TO PLACE IT BACK INSIDE THE HOME OF THE COMPLAINANT.

B. BECAUSE THE ILLEGALITY OF THE FIREARM WAS NOT IMMEDIATELY APPARENT, THE POLICE LACKED PROBABLE CAUSE TO SEIZE THE FIREARM PURSUANT TO THE PLAIN FEEL DOCTRINE.

When a motion judge has denied a suppression motion, our

review of the motion judge's factual findings "is highly

deferential." State v. Gonzales, 227 N.J. 77, 101 (2016) (citation

omitted). Because the motion judge has the "opportunity to hear

and see the witnesses and to have the 'feel' of the case," Ibid.

(quoting State v. Johnson, 42 N.J. 146, 161 (1964)), the motion

judge's factual findings will be upheld so long as "sufficient

credible evidence in the record" supports those findings. State

v. Elders, 192 N.J. 224, 243-44 (2007) (citations omitted).

However, we review issues of law de novo. State v. Watts, 223

N.J. 503, 516 (2015).

Applying that standard of review, we discern substantial

credible evidence in the record to support the judge's findings

of fact and we agree with the judge's application of those facts

to the law. Defendant argues that the motion judge erred in

sustaining the warrantless search under the plain feel doctrine.

8 A-3351-14T1 Defendant asserts that the seizure failed to meet two elements of

the plain feel doctrine. First, Williams knew defendant left his

bag on the porch for his mother to retrieve, rendering the police

conduct unreasonable under the circumstances. "Second, the

illegality of the handgun was not immediately apparent because it

was discovered on the porch of a private residence, and its

possession was presumptively legal under N.J.S.A. 2C:39-6(e)." On

the latter point, defendant asserts that the illegality of the

handgun was not discovered until after it was seized and an NCIC

search at headquarters revealed that the gun had been reported

stolen. We are unpersuaded by defendant's arguments.

"A warrantless search [or seizure] is presumed invalid,

unless it falls within one of the recognized exceptions to the

warrant requirement" and there exists probable cause. State v.

Moore, 181 N.J. 40, 44 (2004) (alteration in original) (quoting

State v. Cooke, 163 N.J. 657, 664 (2000)); State v. Valencia, 93

N.J. 126, 133 (1983). Probable cause is supported by the "totality

of the circumstances[,]" State v. Toth, 321 N.J. Super. 609, 614

(App. Div. 1999), certif. denied, 165 N.J. 531 (2000), and

"requires nothing more than 'a practical, common-sense decision

whether, given all the circumstances . . . there is a fair

probability that contraband or evidence of a crime will be found

9 A-3351-14T1 in a particular place.'" Id. at 615 (alteration in original)

(quoting State v. Demeter, 124 N.J. 374, 380-81 (1991)).

One of the recognized exceptions to the warrant requirement

is the plain-feel doctrine. The plain-feel doctrine permits the

warrantless seizure of contraband discovered by an officer through

the sense of touch during an otherwise lawful encounter. Minnesota

v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334

(1993). Analogizing the plain-feel doctrine to the plain-view

doctrine, the Dickerson Court explained:

The rationale of the plain-view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no "search" within the meaning of the Fourth Amendment – or at least no search independent of the initial intrusion that gave the officers their vantage point. The warrantless seizure of contraband that presents itself in this manner is deemed justified by the realization that resort to a neutral magistrate under such circumstances would often be impracticable and would do little to promote the objectives of the Fourth Amendment. The same can be said of tactile discoveries of contraband. If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.

10 A-3351-14T1 [Id. at 375-76, 113 S. Ct. at 2137-38, 124 L. Ed. 2d at 345-46 (citations omitted).]

The Dickerson Court emphasized that, for the plain-feel

exception to apply, the incriminating character of the object must

be "immediately apparent." Ibid. In State v. Jackson, 276 N.J.

Super. 626 (App. Div. 1994), we explained that since the plain-

feel exception is "a corollary to the plain view doctrine[,]" the

same public policy concerns undergirding the plain-view exception

applied. See id. at 628, 630-31; see also Toth, supra, 321 N.J.

Super. at 615 (stating "[t]here is no reason in law, logic, or

policy that would justify a different analysis when analyzing a

plain feel matter."), certif. denied, 165 N.J. 531 (2000).

Because the plain-feel doctrine assumes an otherwise lawful

encounter, an analysis of its applicability must, of necessity,

evaluate the circumstances of the police encounter. While the

plain-feel doctrine ordinarily arises in the context of a Terry1

stop, its application is not limited to such circumstances. Cf.

State v. Evans, 449 N.J. Super. 66, 82-86 (App. Div. 2017)

(concluding that the plain feel doctrine did not satisfy the

1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

11 A-3351-14T1 statutory criteria for a strip search under N.J.S.A. 2A:161A-

1(b)).

Here, Williams' physical contact with defendant's bag

occurred after Williams had responded to a domestic violence

service call during which defendant was arrested and left his bag

for his mother's retrieval on a shared porch of a large apartment

complex. Williams had no intention of searching defendant's bag

when he moved it to the interior of the apartment for safekeeping.

Rather, his intention was to protect defendant's belongings and

the detection of the gun was entirely inadvertent.2

"One seeking to invoke the protection of the [F]ourth

[A]mendment must establish that a reasonable or legitimate

expectation of privacy was invaded by government action." State

v. Marshall, 123 N.J. 1, 66 (1991), supp. 130 N.J. 109 (1992)

(citing Smith v. Md., 442 U.S. 735, 740, 99 S. Ct. 2577, 2580, 61

L. Ed. 2d 220, 226 (1979)). "The resolution of that issue depends

on whether the person 'exhibited an actual (subjective)

expectation of privacy,' and whether the expectation of privacy

2 We note that in State v. Gonzales, 227 N.J. 77 (2016), our Supreme Court discarded the prior requirement of the plain-view exception that evidence be discovered inadvertently, and determined that, prospectively, as long as the officer is "lawfully . . . in the area where he observed and seized the incriminating item or contraband," and it is "immediately apparent that the seized item is evidence of a crime[,]" the exception applies. Id. at 101. The same analysis would apply to the plain-feel doctrine.

12 A-3351-14T1 is 'one that society is prepared to recognize as reasonable.'"

Id. at 66-67 (citations omitted).

Here, although defendant expected his mother to retrieve his

bag, he nonetheless placed it on a shared porch of a large

apartment complex. It is well settled that

a portion of the curtilage, being the normal route of access for anyone visiting the premises, is only a semi-private area. . . . Thus, when the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment.

[State v. Johnson, 171 N.J. 192, 209 (2002) (citations omitted).]

Moreover, "[t]he curtilage concept has limited applicability with

respect to multi-occupancy premises because none of the occupants

can have a reasonable expectation of privacy in areas that are

also used by other occupants." Ibid. (quoting State v. Ball, 219

N.J. Super. 501, 506-07 (App. Div. 1987)).

We next consider whether the removal of the bag nevertheless

constituted a seizure for fourth-amendment purposes. "A 'seizure'

of property occurs when there is some meaningful interference with

an individual's possessory interests in that property." Marshall,

supra, 123 N.J. at 67 (quoting U.S. v. Jacobsen, 466 U.S. 109,

13 A-3351-14T1 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85, 94 (1984)). "The

[F]ourth [A]mendment prohibits not all searches and seizures but

only those that are deemed unreasonable." Ibid. (citing State

v. Campbell, 53 N.J. 230, 233 (1969)). It bears noting that "the

reasonableness of a search is determined 'by assessing, on the one

hand, the degree to which it intrudes upon an individual's privacy

and, on the other, the degree to which it is needed for the

promotion of legitimate governmental interests.'" U.S. v.

Knights, 534 U.S. 112, 118-119, 122 S. Ct. 587, 591, 151 L. Ed.

2d 497, 505 (quoting Wyo. v. Houghton, 526 U.S. 295, 300, 119 S.

Ct. 1297, 1300, 143 L. Ed. 2d 408, 414 (1999)).

Applying these principles, we agree with the motion judge

that, in the totality of the circumstances, Williams' conduct was

objectively reasonable and the seizure of the handgun from

defendant's bag was justified under the plain-feel doctrine.

Williams' handling and movement of defendant's bag was not covered

by the Fourth Amendment and did not constitute a seizure for

Fourth-Amendment purposes because he did not intrude on a

reasonable expectation of privacy or meaningfully interfere with

defendant's possessory interest in the property. Further, the

character of the contraband was "immediately apparent." Williams

testified that, based on his training and experience with firearms,

it was "immediately apparent" that the object was a handgun based

14 A-3351-14T1 upon mere touch, rather than any manipulation. Additionally, the

victim's statement that there had been prior unreported incidents

of domestic violence and that her children had witnessed "arguing,

fighting and guns" as a result of defendant's presence in the

apartment, lend further support to Williams' belief that

contraband or evidence of a crime would be found in defendant's

bag.

Affirmed.

15 A-3351-14T1