NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3703-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
January 23, 2020 v. APPELLATE DIVISION
MIGUEL A. ROMAN-ROSADO, a/k/a MIGUEL ROMAN, DAMIAN ROSADO, MIGUEL A. ROMAN, and MIGUEL A. ROSADO,
Defendant-Appellant. ______________________________
Argued November 12, 2019 – Decided January 23, 2020
Before Judges Sumners, Geiger and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 16-12- 0968.
Emma R. Moore, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Emma R. Moore, of counsel and on the briefs).
Regina M. Oberholzer, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Regina M. Oberholzer, of counsel and on the brief).
The opinion of the court was delivered by SUMNERS, JR., J.A.D.
A stop and a warrantless search of a car defendant was driving1 uncovered
a handgun. After the trial court denied his motion to suppress the search and
seizure of the handgun, defendant pled guilty to second-degree certain persons
not to possess a weapon, N.J.S.A. 2C:39-7(b)(1). In defendant's appeal, we are
asked to decide: (1) whether there was reasonable suspicion to stop the car for
violating N.J.S.A. 39:3-33, because the license plate frame on the car's rear
license plate "conceal[ed] or otherwise obscure[d]" the words "Garden State" at
the bottom of the license plate; and (2) whether the subsequent search and
seizure of the handgun was legally permissible. Having considered the record
and applicable law, we conclude there was no reasonable suspicion to stop
defendant for violating N.J.S.A. 39:3-33, and thus the seizure of the gun is
inadmissible to prove a second-degree certain persons offense. Even if there
was reasonable suspicion to stop defendant's car, the search did not satisfy the
warrant exceptions of the automobile exception, a search incident to arrest, or
protective sweep. Accordingly, we reverse and vacate the conviction for
1 Although defendant did not own the car, for convenience, hereafter we will refer to the car as defendant's car. A-3703-17T4 2 second-degree certain persons not to possess weapons, and remand so defendant
can move to vacate his guilty plea.
I.
We begin with a summary of the facts derived from the trial court's
suppression hearing conducted on October 18, 2017.
Deptford Township Police Officer Thomas Warrington provided the only
testimony at the suppression hearing. Warrington was on "proactive detail" at
approximately 6:47 p.m. on April 17, 2017, when he pulled over defendant's car
because the license plate frame covered a portion of the bottom of the words
"Garden State" on the rear license plate.2 Warrington explained on cross-
examination that during proactive detail officers look for traffic code violations
and try to "develop criminal investigations from that." Having been shown a
picture of the car's rear license plate, Warrington admitted he could still clearly
read "Garden State," of which he estimated fifteen to ten percent of the words
were covered by the license plate frame. Despite being able to clearly see the
words "Garden State," it was Warrington's understanding N.J.S.A. 39:3-33
2 The standard New Jersey license plate, as currently issued, is yellow with black lettering and features the state outline in the center with "New Jersey" at the top and "Garden State" at the bottom. We attach as Appendix A defendant's license plate, inclusive of the offending frame, with the specific plate alpha- numeric identifiers redacted. See R. 1:38-7(a). A-3703-17T4 3 required that "none of the lettering on the plate including the characters and also
the New Jersey Garden State, any lettering [could not] be obstructed by
anything." Warrington did not indicate the basis for his understanding but
admitted his assessment that N.J.S.A. 39:3-33 was violated was the sole reason
for the stop.
Defendant was asked for his driver's license, but he produced a state
identification card; his driving license was suspended. Two passengers were
also in the car, a woman in the front passenger seat, and a male child3 behind
her in the rear seat. Warrington went back to his patrol car and subsequently
discovered defendant had warrants out for his arrest.
Warrington then radioed for backup to help take defendant into custody.
Warrington approached the car and asked defendant to step out; the record is
unclear if Warrington was alone, or if any other police officer had arrived at the
scene. After requesting help, Warrington's testimony often refers to "we"
instead of "I." For example, he stated, "we weren't sure what it was" . . . "[w]e
3 The record did not indicate the child's age.
A-3703-17T4 4 had the other two parties step out of the vehicle" . . . "we conducted a further
search on that basis." 4
As defendant stepped out of the car, Warrington saw "a white garment that
looked like it had something bulky wrapped in it, shoved partially under the
[defendant's] seat." According to Warrington, "[i]t looked like he might have
quickly tried to discard something under the seat when we went to stop him."
(Emphasis added). After directing defendant to move to the rear of the car,
Warrington stated he was concerned about the object under the seat. Although
he wasn't "sure what it was," he explained that it was "just strange," and "could
have been a weapon" within the reach of the woman in the front passenger's seat.
Warrington reached into the car, removed the object, and discovered it
was an unloaded handgun.5 Defendant was then placed in handcuffs, and the
two other passengers were asked to step out the car. Warrington stated that when
4 This is one of several occasions in which Warrington's testimony shifted to the use of plural regarding the stop and search of defendant's car. 5 Defendant later testified at his sentencing hearing that he found the handgun while at work and had taken it to sell it to a gun buy-back program at a Camden church.
A-3703-17T4 5 he leaned into the car again, he smelled burnt marijuana, and proceeded to search
the entire vehicle, but found no other contraband. 6
Following counsel's arguments, the trial judge rendered an oral decision
denying defendant's motion and remarked "a more formal opinion" would be
issued. Two days later, the judge issued an order and written opinion denying
the motion.
The judge ruled the stop of defendant's car was justified as Warrington
reasonably suspected defendant violated N.J.S.A. 39:3-33 because the rear
license plate frame of defendant's car concealed or otherwise obscured a part of
the marking imprinted upon the car's license plate. The judge noted there was
no question that defendant's rear license plate was readable but held readability
of "Garden State" was not determinative of the statute's violation. The judge
found the statute objective in that "prohibiting obstruction of any marking
imprinted on the vehicle license plate[,]" had no subjective issue. Thus, even a
de minimis obstruction of any marking on the license plate was a violation. The
judge remarked that defendant's car was reasonably stopped "[b]ecause this
6 Since no other contraband was found, the trial judge found the testimony regarding "burnt marijuana" to be unimportant.
A-3703-17T4 6 statute just determines that the imprinted language of the plate can in no way be
obstructed."
The judge, discussing an unpublished case from this court, 7 stated:
The case involved a de novo review of a municipal court appeal as I understand it . . . . There was a motion to suppress . . . based upon the enforcement of the statute, [N.J.S.A.] 39:3-33, and . . . on a de novo review of the motion to suppress which was granted that it was clear and unambiguous on its face that the words Garden State were imprinted on the license and thus could not be obstructed under the statute which indicates that nothing can be done or nothing can be mounted around the plate that would conceal or otherwise obscure any part of marking imprinted on the plate.
....
Even if a de minim[i]s, minimal covering of any imprinted portion – I'll give it to you, without question, D-1 is a readable license plate. . . . That's really not the question. Because this statute just determines that the imprinted language of the plate can in no way be obstructed . . . . It is thus valid for a law enforcement officer to enforce that.
Addressing defendant's challenge to the search of his car, the judge ruled
that Warrington had a lawful ground to effectuate the stop "and any investigation
that flows therefrom is proper." In his written decision, the judge cited State v.
7 The cited opinion, in accordance with our rules, has no precedential value. R. 1:36-3. A-3703-17T4 7 Eckel, 185 N.J. 523, 541 (2006), for the proposition that New Jersey recognizes
two grounds for a warrantless search of a motor vehicle incident to arrest: officer
safety and preventing the destruction of evidence. Applying that principle, the
judge found that Warrington was concerned for his safety after seeing the object
that appeared to be hastily shoved under the driver's side seat. Because
defendant was not in handcuffs at the time and there were other occupants in the
car, the judge found it reasonable for Warrington to reach into the car and secure
the unknown covered object that turned out to be a handgun. The judge further
determined that had the officer tried to handcuff defendant, instead of reaching
for the unknown object, "he would have exposed himself to possible harm from
the passengers as his attention would have been focused on securing
[d]efendant."
Defendant appeals the order denying his motion to suppress raising the
following points of argument:
POINT I
THE INITIAL STOP OF MR. ROMAN-ROSADO'S VEHICLE WAS NOT SUPPORTED BY REASONABLE SUSPICION THAT AN OFFENSE WAS BEING COMMITTED BECAUSE HIS LICENSE PLATE WAS NOT "OBSTRUCTED" WITHIN THE MEANING OF N.J.S.A. 39:3-33. BECAUSE OFFICER WARRINGTON'S BELIEF TO THE CONTRARY WAS BASED ON AN
A-3703-17T4 8 UNREASONABLE INTERPRETATION OF THE STATUTE, THE STOP WAS UNCONSTITUTIONAL.
A. In His Motion to Suppress, Mr. Roman-Rosado Argued That the Stop Was Unconstitutional Because Officer Warrington Had Misinterpreted the Law, Not Because He Had Misapprehended the Facts.
B. Both the Language and Meaning of N.J.S.A. 39:[3- 33] Are Unambiguous. Therefore, the Officer's Mistake of Law was Not Objectively Reasonable.
i. To "Obscure" Unambiguously Means to Derogate Visibility.
ii. The Unambiguous Legislative Intent Shows that the Law Pertains to Obstruction of the Identifying Number, Not Any Text or Decorative Element of the Plate.
C. Even If Officer Warrington's Mistake of Law Were Reasonable, the "Reasonable Mistake of Law Doctrine" Is Not Compatible with New Jersey's Jurisprudence and Should Not Change the Court's Conclusion.
[i]. The "Reasonable Mistake of Law" Doctrine is Contrary to this Court's Article I, Paragraph 7 Jurisprudence.
[ii]. The Deleterious Consequences of the Doctrine Are Widely Recognized.
POINT II
BECAUSE MR. ROMAN-ROSADO WAS SAFELY REMOVED FROM THE VEHICLE AND THERE WAS NO INDICATION THAT THE PASSENGER OR ACCOMPANYING CHILD WERE A THREAT,
A-3703-17T4 9 ENTRY INTO THE VEHICLE AND SIEZURE OF ITEMS WAS NOT JUSTIFIED BY A CONCERN FOR OFFICER SAFETY AND THEREFORE NOT A VALID SEARCH-INCIDENT-TO-ARREST. THE INVALID SEARCH PROVIDES INDEPENDENT GROUNDS FOR SUPPRESSION.
A. Mr. Roman-Rosado Presented No Threat Which Would be Ameliorated by Choosing to Search the Vehicle Instead of Securing his Person.
B. The Presence of Passengers Did Not Provide Grounds for Search. Defendant's reply brief argues the following points:
THE STATE'S CONSRUCTION OF THE LICENSE PLATE STATUTE IS INCORRECT.
A. The State's Argument with Respect to The Meaning of "Conceal or Otherwise Obscure" is Erroneous Because Unless a License Plate Holder Makes a Plate Less Readable, It Neither "Obscures" Nor "Conceals" the Plate.
B. The State's Argument with Respect to What Content Must be Obscured is Mistaken Because, Contrary to the State's Assertion, Some Plates May Have Identifying or Otherwise Mandated Information at the Edge Which May be Covered By Certain License Plate Frames.
C. The State's Reliance on an Unpublished Decision is Unavailing.
A-3703-17T4 10 POINT II
BECAUSE THE STATE DID NOT PRESENT ITS PROTECTIVE SWEEP THEORY BELOW, THIS COURT CANNOT ENDORSE IT NOW.
POINT III
BECAUSE THE OFFICER LACKED PARTICULARIZED FACTS DEMONSTRATING THAT MR. ROMAN-ROSADO OR HIS PASSENGERS WERE A DANGER, THE NEWLY PROFFRED PROTECTIVE SWEEP ARGUMENT MUST FAIL.
II.
A.
On review of a motion to suppress evidence, we give deference to the trial
court's fact findings underlying its decision, "so long as those findings are
supported by sufficient credible evidence in the record." State v. Robinson, 200
N.J. 1, 15 (2009) ("James Robinson") (quoting State v. Elders, 192 N.J. 224, 243
(2007)). Deference is afforded because the factual determinations "are
substantially influenced by [the court's] opportunity to hear and see the
witnesses and to have the 'feel' of the case, which a reviewing court cannot
enjoy." Elders, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). Reversal is warranted only when the court's determination is "so clearly
A-3703-17T4 11 mistaken 'that the interests of justice demand intervention and correction.'" Ibid.
(quoting Johnson, 42 N.J. at 162).
We, however, do not defer to the trial court where it "acts under a
misconception of the applicable law," State v. Brown, 118 N.J. 595, 604 (1990),
and thus we review de novo the court's application of the law, State v. Evans,
235 N.J. 125, 133 (2018) (quoting Elders, 192 N.J. at 243).
B.
Defendant's initial argument that the trial judge erred in determining there
was no probable cause to stop him for violating N.J.S.A. 39:3-33 requires us to
consider this matter de novo because it involves a legal question – the
interpretation of the statute.
A police officer has the right to conduct an investigatory stop of a motor
vehicle where there is a reasonable and articulable suspicion that violations of
the motor vehicle code or other laws have been or are being committed. State
v. Carty, 170 N.J. 632, 639-40 (2002). A law enforcement officer who observes
a driver violating "any provision of chapter [three]" or "chapter [four]" is
authorized to issue a summons and arrest the driver, without a warrant. N.J.S.A.
39:5-25. However, an automobile search incident to the traffic stop is forbidden
absent probable cause of other criminal conduct or if the occupants pose a safety
A-3703-17T4 12 threat. State v. Pierce, 136 N.J. 184, 205 (1994). "'The principal components
of a determination of reasonable suspicion . . . [are] the events which occurred
leading up to the stop . . . , and then the decision whether these historical facts,
viewed from the standpoint of an objectively reasonable police officer, amount
to a reasonable suspicion. . . .'" State v. Stovall, 170 N.J. 346, 357 (2002)
(alteration in original) (quoting Ornelas v. United States, 517 U.S. 690, 696
(1996)).
The totality of the circumstances determines whether reasonable and
articulable suspicion exists to stop a motor vehicle. State v. Pineiro, 181 N.J.
13, 22 (2004). Considering the totality of the circumstances surrounding a
Terry8 investigatory stop, requires a reviewing court to balance "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.
Davis, 104 N.J. 490, 504 (1986). An investigatory stop or detention is
constitutional only "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." Elders, 192 N.J. at 247 (internal quotation marks
8 Terry v. Ohio, 392 U.S. 1 (1968). A-3703-17T4 13 omitted). The State need not prove the defendant actually committed the offense
involved. State v. Williamson, 138 N.J. 302, 304 (1994).
Appellate review must also "give weight to 'the officer's knowledge and
experience' as well as 'rational inferences that could be drawn from the facts
objectively and reasonably viewed in light of the officer's expertise.'" State v.
Citarella, 154 N.J. 272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11
(1997)). "The fact that purely innocent connotations can be ascribed to a
person's actions does not mean that an officer cannot base a finding of
reasonable suspicion on those actions as long as 'a reasonable person would find
the actions are consistent with guilt.'" Id. at 279-80 (quoting Arthur, 149 N.J.
at 11). A traffic stop based on an objectively erroneous understanding of the
law is a violation of a person's personal liberty. State v. Puzio, 379 N.J. Super.
378, 384 (App. Div. 2005). Under the exclusionary rule, evidence obtained in
violation of an individual's constitutional rights will be excluded as "fruit of the
poisonous tree." State v. Faucette, 439 N.J. Super. 241, 266 (App. Div. 2015).
Before examining N.J.S.A. 39:3-33, we look to our well-settled rules of
statutory construction:
The primary purpose of "statutory interpretation is to determine and 'effectuate the Legislature's intent.'" State v. Rivastineo, 447 N.J. Super. 526, 529 (App. Div. 2016) (quoting State v. Shelley, 205 N.J. 320, 323
A-3703-17T4 14 (2011)). We initially consider "the plain 'language of the statute, giving the terms used therein their ordinary and accepted meaning.'" Ibid. "We will not presume that the Legislature intended a result different from what is indicated by the plain language or add a qualification to a statute that the Legislature chose to omit." Tumpson v. Farina, 218 N.J. 450, 467-68 (2014) (citing DiProspero v. Penn, 183 N.J. 477, 493 (2005)). When we do not conclude that the "plain reading of the statutory language is ambiguous, . . . or leads to an absurd result," we refrain from looking at "extrinsic evidence, such as legislative history, committee reports, and contemporaneous construction in search of the Legislature's intent." Tumpson, 218 N.J. at 468 (citing DiProspero, 183 N.J. at 492-93).
[Tasca v. Bd. of Trs., Police & Firemen's Ret. Sys., 458 N.J. Super. 47, 56 (App. Div. 2019).]
N.J.S.A. 39:3-33 provides in pertinent part:
No person shall drive a motor vehicle which has a license plate frame or identification marker holder that conceals or otherwise obscures any part of any marking imprinted upon the vehicle's registration plate or any part of any insert which the director, as hereinafter provided, issues to be inserted in and attached to that registration plate or marker.
[(Emphasis added).]
Thus, the key issue is whether the license plate frame on defendant's car
concealed or obscured the words Garden State on the car's license plate. The
statute does not define or limit the meaning of "conceal" or "obscure." However,
the well-understood definition of the verb "obscure" means: (1) "to make dark,
A-3703-17T4 15 dim, or indistinct;" and (2) "to conceal or hide by or as if by covering."
Merriam-Webster Collegiate Dictionary 856 (11th ed. 2012). The adjective
"obscure" is defined as: (a) "dark dim"; (b) "shrouded in or hidden by darkness";
and (c) "not clearly seen or easily distinguished: FAINT." Ibid.
By applying the common definition of obscure to the statute, we agree
with defendant that N.J.S.A. 39:3-33 is unambiguous because it prohibits the
concealment and obfuscation of identifying information on license plates. We
do not read the statute to establish a motor vehicle violation for cosmetic license
plate frames that make minimal contact with lettering on the license plate and
do not make the plate any less legible. Especially as is the case here,
demonstrated in the Appendix, which shows at best a minimal covering of our
state motto, the words "Garden State," by the license plate frame.
Although involving a different type of license plate frame, we find
instructive State ex rel. D.K., 360 N.J. Super. 49 (App. Div. 2003), the only
published decision interpreting N.J.S.A. 39:3-33. In D.K., the defendant was
pulled over when a police officer could not read his car's entire license plate
"even at a well-lit intersection because of the tint and glare arising from the
license plate's [plastic] cover." Id. at 53. Regarding the statute's word
"obscure," we held "[t]he term does not mean, as [the] defendant suggest[ed], to
A-3703-17T4 16 make an object such as a license plate wholly undecipherable but, reasonably
construed, means merely to make it less legible." Ibid. In our discussion of the
statutory scheme surrounding N.J.S.A. 39:3-33, we inferred the prohibition of
equipment that would make a plate "less readable . . . was formulated
specifically to address the need for license plate legibility in policing activities
and, more recently, at toll barriers employing scanning and photographic
devices." Ibid.
Based on our common understanding of the verbs "conceal" and
"obscure," coupled with our prior interpretation of the N.J.S.A. 39:3-33 in D.K.,
a license plate only violates N.J.S.A. 39:3-33 if any part of the license plate's
marking is concealed or obscured so as to make it less legible. By "less legible,"
we mean an inability to discern critical identifying information imprinted on the
license plate. Otherwise, this would cause an absurd result where a law
enforcement officer, as was the situation here, has the unfettered right to stop a
motorist where there is the slightest, and candidly insignificant, covering of
"Garden State" on a driver's rear license plate.
Our concern is further heightened by the fact that Warrington was detailed
on an assignment to look for traffic code violations with the sole purpose to
develop criminal investigations. We cannot envision the Legislature intended a
A-3703-17T4 17 slight covering of a license plate's words to form the basis for the stop of an
otherwise lawful driver when it enacted N.J.S.A. 39:3-33. If such was the case,
the statute would have used the word "covers" or "obstructs" instead of
"conceals or otherwise obscures," where it states, "conceals or otherwise
obscures any part of any marking imprinted upon the vehicle's registration
plate."
The trial judge in effect rewrote the statute's language when he stated in
his written decision that "the partial obstruction of [d]efendant's license plate
gave . . . Warrington reasonable articulable suspicion that the driver had
committed a motor vehicle offense." (Emphasis added). There is nothing in the
statute that proscribes mere "partial obstruction" of a license plate. Only a
license plate marking that is concealed or obscured, meaning it cannot readily
be deciphered, constitutes a violation. Accordingly, we see no merit to the
State's contention that the statute unambiguously prohibits the partial covering
of any lettering at the bottom of a license plate as was the case with defendant's
car.9
9 The State relies on an unpublished decision, which we do not cite as it has no precedential value. R. 1:36-3. A-3703-17T4 18 Hence, we conclude the trial judge erred in interpreting N.J.S.A. 39:3-33
and deciding that Warrington had a reasonable basis for stopping defendant's car
for a violation of the statute. Given our conclusion, the subsequent search of
defendant's car was unconstitutional, and the handgun seized from that
unconstitutional warrantless search was the fruit of the poisonous tree which
should have been suppressed. See State v. O'Neill, 193 N.J. 148, 171 n.13
(2007). This matter must therefore be remanded to afford defendant an
opportunity to withdraw his guilty plea to second-degree certain persons not to
possess a weapon and have the judgment of conviction vacated.
III.
In light of our conclusion that there was no legal basis to stop defendant's
car under N.J.S.A. 39:3-33 and therefore the seizure of the handgun was fruit of
an unlawful stop, we could dispense with any discussion of his contention that
even if the stop was permissible, the search was still illegal. Nevertheless, for
the sake of completeness we address the merits of defendant's alternative
arguments.
Under the Fourth Amendment to the United States Constitution and
Article I, paragraph 7 of the New Jersey Constitution, law enforcement officers
must "obtain a warrant 'before searching a person's property, unless the search
A-3703-17T4 19 falls within one of the recognized exceptions to the warrant requirement.'" State
v. Cassidy, 179 N.J. 150, 159-602 (2004) (quoting State v. DeLuca, 168 N.J.
626, 631(2001)); see also State v. Pena-Flores, 198 N.J. 6, 18 (2009). Because
a warrantless search is presumed invalid, the State has the burden to prove it
"falls within one of the few well-delineated exceptions to the warrant
requirement." Pineiro, 181 N.J. at 19-20 (quoting State v. Maryland, 167 N.J.
471, 482 (2001)).
Three interrelated exceptions to the warrant requirement are discussed by
the trial court or relied upon by the State to determine whether the warrantless
search and seizure of the handgun in defendant's car was constitutional. The
first exception is the automobile exception. This exception authorizes a law
enforcement officer to conduct a warrantless on-scene search of a motor vehicle
only when there is probable cause to believe the vehicle contains contraband or
evidence of an offense, and circumstances giving rise to this probable cause are
"unforeseeable and spontaneous." State v. Witt, 223 N.J. 409, 447 (2015).
The second exception is a search incident to an arrest, which affords an
officer the right to search a defendant's person without a warrant if there is
probable cause to arrest. State v. Evans, 181 N.J. Super. 455, 459 (App. Div.
1981). The purpose of a search incident to arrest is to protect arresting officers
A-3703-17T4 20 from potential dangers, as well as to prevent destruction or concealment of
evidence. State v. Dangerfield, 171 N.J. 446, 461 (2002).
The final exception is a protective sweep of a vehicle. Law enforcement
can perform a warrantless search of the passenger compartment of a vehicle
when the totality of circumstances supports a reasonable suspicion a driver or
passenger is dangerous and may gain immediate access to weapons. State v.
Gamble, 218 N.J. 412, 431-32 (2014).
Defendant argues reversal of the trial judge's order is warranted due to a
procedural flaw in the State's contention on appeal to support the search of his
car. The State no longer relies upon its contention raised at the suppression
hearing that Warrington's search was incident to arrest. Rather, it now argues
the search was done as a protective sweep. Because this theory was not raised
below, defendant lacked the opportunity to develop a record to refute it;
therefore, he contends this court should decline to consider this newly argued
theory. Witt, 223 N.J. at 418-19; James Robinson, 200 N.J. at 19.
There is some merit to this procedural argument. "Parties must make
known their positions at the suppression hearing so that the trial court can rule
on the issues before it." Witt, 223 N.J. at 419 (citing James Robinson, 200 N.J.
A-3703-17T4 21 at 19). This court will "'decline to consider questions or issues not properly
presented to the trial court when an opportunity for such a presentation is
available.'" Chirino v. Proud 2 Haul, Inc., 458 N.J. Super. 308, 318 (App. Div.
2017) (citing Witt, 223 N.J. at 419). However, the limitation is subject to
exceptions, including if a trial error is of such a nature as to produce an unjust
result, if the issue is jurisdictional in nature, or substantially implicates the
public interest. Id. at 318-19 (citing James Robinson, 200 N.J. at 20; N.J Div.
of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010)).
As mentioned above, the judge ruled the warrantless search was incident
to defendant's arrest because defendant was not in handcuffs and there were
other occupants in the car, prompting Warrington's concern for his safety. This,
the judge determined, gave Warrington the right to grab the unknown covered
object – turning out to be an unloaded handgun – that appeared to be hastily
shoved under the driver's side seat. The judge further held it was reasonable for
the officer to grab the object, rather than try to handcuff defendant because there
were other passengers in the car who could have grabbed and presumably used
the object.
The factual issues, however, raised by both the State's prior contention
that the warrantless search was permissible as a search incident to arrest and its
A-3703-17T4 22 new contention based on the protective sweep, essentially invoke the same
concerns – Warrington's anxiety for his safety upon seeing an object under the
driver's seat. Even though the State has presented different theories to uphold
the search, there is no unjust result to consider its protective sweep claim
because defendant was given the opportunity to cross-examine Warrington and
present his own evidence regarding Warrington's alleged safety concern. In this
case, defendant is in effect challenging the same factual issues irrespective of
either theory proposed by the State.
Moving to the merits, defendant argues the State's assertion at the
suppression hearing – that the search was incident to arrest – is not supported
by the record. Citing Eckel, as does the State, defendant avers a search incident
to arrest is intended to protect police officer safety and preserve evidence but
cannot justify the search of a car after the suspect has been "arrested, removed
and secured elsewhere." 185 N.J at 541. Defendant maintains there was no
reason for Warrington to reach into the car to secure the object underneath the
driver's seat because defendant was outside the car and not a threat to possess it.
Dunlap, 185 N.J. at 548-49.
A-3703-17T4 23 Defendant further argues there was no need to remove the object to
prevent it from being destroyed. Because he was removed from the car and had
no control over the area at the time the officer reached under the driver's seat,
there is no factual support for the trial judge's determination that the search was
incident to arrest. Based upon our reading of Gamble, 218 N.J. 412, and State
v. Robinson, 228 N.J. 529 (2017) ("Dion Robinson"), we conclude the trial court
erred in finding the warrantless search was justified due to Warrington's safety
concerns.
In Gamble, police officers were patrolling a neighborhood in response to
a dispatch of "shots fired," when the officer's received another dispatch in
response to an anonymous 9-1-1 call reporting a person sitting in a van with a
gun in his lap. 218 N.J. at 419. When the officers found the vehicle, they could
see "the occupants moving frantically inside the van, 'as if trying to hide
something.'" Ibid. One of the officers ordered the two people to exit the vehicle;
one did, while the other "began to exit and then retreated to the driver's seat."
Id. at 419-20. The officer testified he feared the defendant might be trying to
retrieve a weapon, so he struck the defendant, pulled him from the van, frisked
him for weapons, transferred him to a backup officer, and finally returned to the
vehicle to search the interior. Id. at 420.
A-3703-17T4 24 In finding the search in Gamble was a permissive protective sweep, the
Court reasoned:
After [the officer] completed the patdown of [the] defendant and did not find a weapon, he returned to the car to conduct a search of the interior of the vehicle. He did so only after a frisk of defendant and his passenger revealed that neither carried a weapon. Yet, their conduct, particularly [the] defendant's conduct, enhanced, rather than allayed, the officers' concern that there was a weapon in the van. The officers' reasonable suspicion that there was a gun in the van that would be within easy reach when [the] defendant and his passenger returned to the vehicle, and the officers' reasonable concerns for their safety and the safety of others did not evaporate when they failed to find a weapon on either defendant or his passenger.
[Id. at 432-33.]
In Dion Robinson, the Court restated the standard for a valid protective
sweep of an automobile following a traffic stop.
The protective sweep exception in the automobile setting does not turn solely on the potential presence of a weapon in a vehicle. Instead, it addresses the imminent danger to police when a driver or passenger will be permitted access to a vehicle that may contain a weapon or may be in a position to evade or overpower the officers at the scene.
[Dion Robinson, 228 N.J. at 548 (citing Gamble, 218 N.J. at 431).]
A-3703-17T4 25 There, the officer first observed defendant driving shortly after midnight
leaving a motel in an area associated with drug activity. Id. at 536. The officer
testified the car was being driven in an "unsafe" and a "little suspicious" manner
as the defendant activated a turn signal then aborted the turn and crossed into
another lane more than once. Ibid. He initiated a traffic stop and pulled the car
over in a dim area only illuminated by the lights on the cruiser. Ibid. There
were four people in the car, the defendant stated his license was suspended, and
handed over the car's registration and insurance. Ibid. When the officer asked
the car's occupants where they were going, they gave suspicious answers
considering the location and direction the car was traveling. Ibid. And when
questioned who owned the car, the defendant stated it was a friend's whose name
he did not know. Ibid.
The officer subsequently discovered two of the car's occupants, including
the defendant, had warrants for their arrest and were known to carry weapons.
Ibid. After the officer called for backup and when three other officers arrived,
they ordered defendant and the other occupant with a warrant out of the car,
which led to them being searched, handcuffed, and arrested. Id. at 538. The
other two occupants were ordered out of the car and a pat-down search revealed
no weapons. Ibid. The officer then conducted a sweep of the inside of the car
A-3703-17T4 26 to check for weapons, finding a handgun. Ibid. After the car was towed from
the scene, a search warrant was obtained. Id. at 539. No other weapons or
contraband was found in the car. Ibid.
Although the Dion Robinson Court found the officer was justified in
believing the car's occupants might be armed, the setting of the stop – late at
night in an area known for crime, and the suspicious comments made by the
defendant provided reasonable suspicion that a weapon was present, it found the
protective sweep was invalid. The Court held that ultimately, because the
officers had control of the scene, there were no articulable facts that would
reasonably warrant the conclusion that any of the vehicle's occupants could gain
immediate control of weapons. Id. at 549.
Here, there is nothing in the record indicating any conduct by defendant
or the two passengers in the car, one of which was a child, gave Warrington
reasonable concern for his safety. For example, at no point did he indicate he
had his hand on his service revolver or had pulled it out of his holster because
he feared one of the passengers might grab a weapon that was under the driver's
seat. Unlike in Gamble, where the officers were patrolling for "shots fired" and
responding to a report of a man in a van with a gun in his lap, Warrington had
no reason to believe there was a weapon in the car even though he was on
A-3703-17T4 27 "proactive detail," looking for motor vehicle violations to try and develop
criminal investigations.
Further, unlike in Gamble, where the officer observed the van's occupants
moving frantically about like they were trying to hide something, and one of
them not exiting the van after being ordered to, here, defendant pulled the
vehicle over immediately, and provided his identification without quarrel or
reluctance. When asked if he had any concern about the woman in the passenger
seat, Warrington stated his only concern was that she was still in the car, and
there was an unknown object under the driver's seat.
The Court's decision in Dion Robinson underscores that, when
determining whether the protective sweep exception applies, a trial court must
consider specific and articulable facts that, at the time of the search of a car, a
person is capable of gaining immediate control of a weapon. The court must
carefully consider the actual risk that exists. Whether that risk is present
includes, but is not limited to, consideration of the ratio of police officers to
passengers; the ability of the police to keep passengers from reaching for a
weapon; and the passengers' willingness to cooperate with the police. 228 N.J.
at 549. In Dion Robinson, there were four officers who had control of the scene;
here, Warrington was alone and called for backup, but the record is unclear if
A-3703-17T4 28 other officers were present when he saw the object under the driver's seat.
However as mentioned above, after indicating he requested help, Warrington
often spoke in the plural tense "we," suggesting other officers were present
during the search of defendant's car.
We conclude the court fell short of reciting articulable facts supporting
the determination that Warrington was reasonably concerned about his safety
which caused him to reach inside defendant's car to grab an unknown object.
Warrington initiated his search based on what seems like a hunch that a piece of
cloth under the driver's seat contained a weapon, and the mere fact there was a
woman in the passenger seat. Warrington did not testify that he observed
defendant make a furtive movement, such as shoving an object under his seat,
at any time defendant was in the car. He merely stated the object wrapped in a
white garment was "partially shoved under defendant's seat" and "looked like
[defendant] might have quickly tried to discard something under the seat when
we went to stop him." (Emphasis added). This latter statement is purely
speculative and not supported by any facts. The record therefore does not
support the trial judge's finding that the object appeared to be hastily shoved
under the driver's seat, intimating that defendant placed the object there due to
being stopped by Warrington. Because there was no basis to justify a
A-3703-17T4 29 warrantless search based upon a protective sweep, or for that matter, a search
incident to arrest, we disagree with the judge's order.
In sum, we reverse and remand so that defendant can move to withdraw
his guilty plea to second-degree certain persons not to possess a weapon and
have the judgment of conviction vacated pursuant to Rule 3:9-3(f).
A-3703-17T4 30 Appendix A, Suppression Motion Exhibit D-1, Photograph of License Plate
A-3703-17T4 31