PTI denial without full evaluation was error here STATE v. JAMAL C. NURSE
______________________________
Submitted December 10, 2018 – Decided January 2, 2019
Before Judges Sabatino, Haas and Sumners.
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 15-07-0704.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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-3528-16T3
PER CURIAM
A Morris County grand jury charged defendant in a seven-count
indictment with two counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(2)
(counts one and two); second-degree burglary, N.J.S.A. 2C:18-2(b)(2) (count
three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a) (count four); second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b) (count five); and two counts of second-degree kidnapping,
N.J.S.A. 2C:13-1(b)(1) (counts six and seven).
Prior to trial, the judge 1 denied defendant's motion to suppress
identification evidence provided by his coworkers, who told the police that
defendant was the individual seen in a surveillance video connected to the
offenses.
Following a multi-day trial, the jury convicted defendant on counts one
through five, and of the lesser-included offense of false imprisonment, a
disorderly persons offense under N.J.S.A. 2C:13-3, on counts six and seven.
The judge sentenced defendant to concurrent twelve-year terms on counts one
and two, subject to the 85% parole ineligibility provisions of the No Early
1
One judge handled the pre-trial motions and a different judge presided at the
trial and sentencing. Because we have no reason to distinguish between the
judges involved for purposes of this opinion, we do not.
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2
Release Act (NERA), N.J.S.A. 2C:43-7.2; concurrent six-year terms on counts
three, four,2 and five, subject to NERA; and concurrent six-month terms on
counts six and seven. Accordingly, defendant's aggregate sentence was twelve
years, subject to NERA.
On appeal, defendant raises the following contentions:
POINT I
THE OUT-OF-COURT AND IN-COURT
IDENTIFICATIONS WERE SUGGESTIVE,
INADMISSIBLE, AND VIOLATED DUE PROCESS
BECAUSE THE WITNESSES AND
ADMINISTRATOR ALREADY SUSPECTED
[DEFENDANT] OF THE ROBBERY WHEN THE
WITNESSES IDENTIFIED HIM AS THE FACELESS
MAN ON A GRAINY SURVEILLANCE VIDEO.
U.S. CONST. AMEND. XIV; N.J. CONST. ART. I,
PARA. 1.
A. Arguments and Testimony at the Pre-Trial
Suppression Hearing.
B. The Out-of-Court and In-Court Identifications
Were Inadmissible.
2
In rendering his oral sentencing decision, the judge stated that count four
should merge into counts one, two, and three. However, the judgment of
conviction (JOC) failed to reflect this merger. In Point V of his appellate brief,
defendant argues that the JOC should have included this merger. The parties
agree, and we concur, that merger of count four into the other counts was
appropriate. Therefore, we remand to the trial court for the entry of a corrected
JOC to address this mistake.
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C. A New Trial Should Occur Because the
Admission of the Identifications Was Harmful
Error.
D. Alternatively, a New Suppression Hearing
Should Occur.
POINT II
A NEW TRIAL SHOULD OCCUR BECAUSE THE
COURT IMPROPERLY REFUSED TO GIVE JURY
INSTRUCTIONS APPROPRIATE TO WHEN AN IN-
COURT IDENTIFICATION IS PRECEDED BY AN
OUT-OF-COURT IDENTIFICATION, EVEN
THOUGH THAT WAS THE SITUATION HERE.
U.S. CONST., AMEND. XIV; N.J. CONST. ART. I,
PARA. 1.
POINT III
AN INVESTIGATING DETECTIVE WHO DID NOT
KNOW [DEFENDANT] WAS IMPROPERLY
PERMITTED TO OPINE THAT [DEFENDANT'S]
APPEARANCE WAS SIMILAR TO THE ROBBER'S.
U.S. CONST. AMEND. XIV; N.J. CONST. ART. I,
PARA. 1.
POINT IV
THE COURT IMPROPERLY REFUSED TO GIVE A
COOPERATING WITNESS INSTRUCTION
REGARDING A WITNESS WHO TOLD OFFICERS
THAT SHE DROVE [DEFENDANT] TO THE
ROBBERY AND WHOM OFFICERS THREATENED
WITH CRIMINAL CHARGES. U.S. CONST.
AMEND. XIV; N.J. CONST. ART. I, PARA. 1.
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POINT V
THE WRITTEN [JOC] SHOULD BE CORRECTED
TO MERGE GUN POSSESSION FOR AN
UNLAWFUL PURPOSE [UNDER COUNT FOUR OF
THE INDICTMENT] WITH THE SUBSTANTIVE
OFFENSES [SET FORTH IN COUNTS ONE, TWO,
AND THREE] THAT WERE THE PURPOSE OF THE
GUN POSSESSION.
After reviewing the record in light of the contentions advanced on appeal,
we affirm defendant's convictions and aggregate sentence, but remand to the
trial court to correct the JOC to reflect the merger of count four into counts one,
two, and three.
I.
At approximately 11:00 p.m. on July 19, 2014, two employees of a
children's store, M.D.3 and M.W., left the business after it closed for the night.
As they walked away, a man wearing a black stocking over his face rushed
toward them, brandishing a handgun. The employees could not see the man's
face, but his hands were uncovered. They described him as a very tall, thin man
with a light complexion. He was wearing a black hoodie and ripped jeans.
The man ordered the employees to go back into the store and stated, "get
me to the safe, hurry up, be quiet." Once they reached the safe in the manager's
3
We use initials to identify the store employees in order to protect their privacy.
A-3528-16T3
5
office, the man directed the employees to take the money out of the safe and put
it in a black bag the man was carrying. The man also helped load the money
into the bag. Some of the money was stacked and wrapped in blue, paper bands.
Once the employees were done, the man ordered them to get under a desk while
he fled the scene. The employees then called the police. The entire event was
captured on the store's security cameras.
Detective Frank Franco was the lead detective on the investigation that
followed. In addition to the store's security video, Detective Franco obtained
surveillance video from several nearby businesses. The first of two important
pieces of evidence came from the video taken from outside a car wash. On this
video, the detective could see a white Honda parked in the car wash's parking
lot before the robbery. There were two people in the car. The car remained in
the lot for about thirty minutes, until it moved outside the children's store.
Shortly before the robbery occurred, a man could be seen running toward the
store. The car then left the scene.
The police later determined that the car belonged to Nicole Biggs. She
testified at trial that she met defendant on "social media" in the weeks prior to
July 19, and the two sometimes hung out together. On the night of the robbery,
defendant called Biggs and asked her to help him pick up something from a
A-3528-16T3
6
friend. Biggs agreed, and arrived at defendant's house around 9:00 p.m. Once
he got into Biggs's car, defendant asked her to drive him to a hotel parking lot,
where he called someone from a cellphone. He then told her to go to a
department store. Biggs stated that defendant told her buy him some gloves at
the store, but she refused to do so. However, she did go into the store to use the
bathroom. When she got back into her car, she saw that defendant had changed
his clothes and was now wearing a black, hooded sweatshirt and jeans.
Defendant also had a piece of duct tape on his face.
After making another phone call, defendant told Biggs to take him to the
car wash, where they parked for about thirty minutes. Defendant placed another
phone call, and directed Biggs to drive around the children's store, and then to
the parking lot of a plumbing company nearby. Defendant got out of the car and
told Biggs to wait for him. Biggs testified that she did not see defendant after
that. She called and texted him to say that she was going to leave if he did not
come back. When defendant failed to reply, Biggs drove away. As discussed
above, many of the movements of her car outside the children's store that she
described at trial were captured by surveillance cameras.
Later that night, defendant called Biggs and told her it was "messed up"
that she had left him, but he had gotten home anyway. Two days later, defendant
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7
asked Biggs when he could get his "stuff back." 4 After some back and forth
between them, Biggs took defendant's things to his house and left them in a bag
near his front door.
The two then began to argue with each other in a series of text messages.
During this exchange, defendant boasted of how much money he had, and sent
Biggs a photograph of himself holding six stacks of money on his lap that were
wrapped together with blue, paper bands. 5 Defendant was wearing red, Polo-
brand boxer shorts in the photograph.
The next important item of evidence was a surveillance video Detective
Franco obtained from the plumbing company. In this video, the detective saw
several views of a very tall, thin man moving around the area near the time of
the robbery. The man's face was not visible. However, the detective could see
that the man was wearing a Cincinnati Reds baseball cap, and his hair was styled
in short braids that stuck out of the hat. The man wore a light t-shirt and ripped
blue jeans, and carried a black bag. Detective Franco believed that the
4
Defendant had left a jacket and sneakers in Biggs's car after he changed his
clothes in the department store parking lot.
5
Copies of the pertinent texts and the photograph were obtained from Biggs's
phone and entered in evidence at the trial.
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appearance of the man seen in the video was consistent with the descriptions
M.D. and M.W. provided of the robber.
The day after the robbery, Detective Franco spoke to M.F., an investigator
who worked for the children's store. Suspecting that the robbery was an "inside
job," the detective asked M.F. if the store had any "problem employees." M.F.
had spoken to M.D., M.W., and other employees at the store about this issue
earlier in the day. M.F. identified defendant as an employee who had recently
stopped showing up for work. 6 Defendant had worked part-time on the sales
floor and in the "back of the house" for different shifts, including closing.
Defendant was 6'6" tall, and weighed only 180 pounds. He had a light
complexion, styled his hair in short braids, and frequently wore a baseball cap
and jeans while working.
Several days after the robbery, Detective Franco called M.D. and M.W.
and asked them to come to the police station because he wanted to show them a
video. The detective testified that he did not tell the two employees that the
video was taken from the plumbing company's surveillance system, or that he
6
M.F. also identified a second individual, who had recently applied for a job at
the store but did not get it. However, this individual was short and stocky and,
therefore, was never considered a suspect.
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suspected that the person depicted in the video was the robber or defendant.
Instead, he simply instructed them to look at the video and tell him what they
saw.7
At trial, the prosecutor played the surveillance video and asked M.D. and
M.W. if they could identify the person seen in it. Both employees testified that
the man was defendant. They based their in-court identifications on their
knowledge of defendant's appearance from when he worked with them at the
store.
The police obtained a search warrant and searched defendant's home.
They found a Cincinnati Reds baseball cap and a pair of red, Polo-brand boxer
shorts. The police seized four cell phones, but were not able to recover any
relevant data from them. No forensic evidence, such as fingerprints or DNA,
was discovered.
7
As discussed in greater detail in Section II of this opinion, M.D. and M.W.
identified defendant as the man in the video as part of the out-of-court
identification procedure Detective Franco conducted. However, the State
presented no evidence concerning the employees' out-of-court identifications of
defendant at trial, even though the motion judge had denied defendant's pre-trial
motion to suppress this evidence.
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II.
In Point I of his brief, defendant argues that the trial judge incorrectly
denied his pre-trial motion to suppress the identifications M.D. and M.W. made
of him after viewing the plumbing company surveillance video at the police
station. Defendant contends that the judge erred by determining that the out-of-
court identifications, and the in-court identifications the two employees made at
trial, were admissible as lay opinion testimony under N.J.R.E. 701. Instead,
defendant asserts that the judge should have excluded this evidence under State
v. Henderson, 208 N.J. 208 (2011), because the procedures the police used to
obtain the identifications were impermissibly suggestive and deprived him of
his constitutional rights to due process and a fair trial under U.S. Const., amend.
XIV, and N.J. Const. art. I, ¶ 1. We disagree.
The judge conducted a Rule 104 evidentiary hearing prior to ruling on
defendant's suppression motion. Detective Franco was the only witness, and his
account of how the identifications occurred was consistent with, but even more
detailed than, his trial testimony.
As noted above, Detective Franco obtained a four-camera view,
surveillance video from the plumbing company. The quality of the video was
"grainy," but there were several fairly clear views of a man in the area near the
A-3528-16T3
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children's store. One of the cameras showed a front view of a man wearing
ripped jeans, a light t-shirt, and a Cincinnati Reds hat. This angle showed the
man crouching and walking. A second camera captured the man, his clothing,
and his "distinctive twist" hairstyle. A third camera enabled the viewer "to
observe this person's gait or style of walking[.]"
After obtaining this video, Detective Franco spoke to M.F., the children's
store security investigator, who identified defendant as a possible disgruntled
employee. The detective believed that the description he obtained of defendant
was consistent with the physical appearance of the man in the surveillance video
and the victims' description of the robber from the night of the crime. However,
the detective could not be sure defendant was the man in the video because he
did not know him.
Accordingly, Detective Franco reached out to M.D., M.W., and three other
employees of the children's store. The detective chose these individuals because
they had worked with defendant. He separately asked each employee to come
to police headquarters to view a video.
At police headquarters, each employee was brought into the sergeant's
office, which was a private area with a computer that was capable of showing
the plumbing company video on a desktop monitor. Detective Franco was in
A-3528-16T3
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the room, along with two other officers. All of the employees were kept apart
from each other.
None of the employees had ever seen the video before, and Detective
Franco did not tell them anything in advance about the subject of the video, that
it was a surveillance video from the plumbing company, or that it might depict
a possible suspect in the robbery. He simply explained that he was going "to
show them a video and once the video is played[,] I would like them to just tell
me what they saw." He then played the plumbing company surveillance video
for each employee. 8 Detective Franco's purpose in showing these individuals
the video was "strictly to identify the individual in the . . . video." The
employees were permitted to view the video as many times as they wanted and
to enlarge it if desirable. This process was not recorded because the sergeant's
office was not equipped to do so.
After an employee watched the video, he or she was taken to a different
room, where they gave a video-recorded statement. M.D. and M.W. both told
the officers that defendant was the man shown in the plumbing company
8
Detective Franco testified that he did not show the surveillance video of the
actual robbery to M.D., M.W., or the other employees because the robber was
wearing a mask and his hair was covered. In contrast, the plumbing company
video showed several views of the man, in both stationary and walking positions,
his clothes, height, and hair style.
A-3528-16T3
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surveillance video. In particular, M.D. stated that the "twist" hairstyle worn by
the man, his mannerisms, and the length of his arms matched defendant. M.W.
also recognized defendant as the man in the video, and remarked that his hair
style and mannerisms were a match. 9
At the conclusion of the hearing, the judge rendered a thorough oral
decision denying defendant's motion to suppress the identifications made b y
M.D. and MW. In so ruling, the judge found that Detective Franco's testimony
was "credible and reliable as to the source of what was done [during the
identification process] and how it was done." The judge further found that the
detective had done nothing to interfere with the employees' independent ability
to view the contents of the video and provide their opinions on what they saw.
The judge concluded that the employees would be permitted to provide
lay testimony at trial under N.J.R.E. 701 that defendant was the man shown in
the plumbing company surveillance video. Under N.J.R.E. 701, "[i]f a witness
is not testifying as an expert, the witness' testimony in the form of opinions or
inferences may be admitted if it (a) is rationally based on the perception of the
9
Two of the other three employees identified defendant as the man in the
plumbing store surveillance video. One of the employees could not make a
positive identification of the man. Neither party called any of these three
employees as a witness at the trial.
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witness and (b) will assist in understanding the witness' testimony or in
determining a fact in issue." Also, under N.J.R.E. 704, "[t]estimony in the form
of an opinion or inference otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact." Opinion testimony
"is subject to exclusion if the risk of undue prejudice substantially outweighs its
probative value." State v. Summers, 176 N.J. 306, 312 (2003).
A witness who can demonstrate familiarity with the defendant may be
permitted to testify regarding identification. See State v. Lazo, 209 N.J. 9, 22-
24 (2012) (citing State v. Carbone, 180 N.J. Super. 95 (Law. Div. 1981)). For
example, in Carbone, the court admitted the State's lay witness testimony of
personal photographic identifications of the defendant before the jury by
individuals who did not witness the crime, but nevertheless had personal
knowledge of and familiarity with the defendant's appearance at the time the
defendant committed the offense charged. Id. at 96-100. Underlying the court's
decision were "crucial factors" such as the lack of available eyewitness
identification and the change of the defendant's appearance since the time of the
crime. Id. at 100.
Citing Carbone, the judge found that the plumbing company surveillance
video, although grainy in spots, contained "the type of imagery that [he] would
A-3528-16T3
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characterize as showing enough features and detail of a person to be able to give
a pretty good general description of the person." Although the judge stated that
neither he nor the detective would be able identify defendant from the video,
M.D. and M.W. were in a "different position" because they worked with and
knew defendant prior to viewing it. Thus, the judge determined that defendant's
coworkers could rationally and competently form an opinion that they
recognized the person in the video.
The judge also addressed the issue of suggestiveness, finding that there
was no undue suggestibility in the identification procedure and that the
detective's approach was sensible even though this was not a traditional
identification process. In so finding, the judge recognized that this was not a
double-blind procedure since Detective Franco already suspected defendant;
however, the judge noted that the detective was careful not to taint the
identification.
When reviewing an order denying a motion to bar identification evidence,
our standard of review "is no different from our review of a trial court's findings
in any non-jury case." State v. Wright, 444 N.J. Super. 347, 356 (App. Div.
2016) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). We accept those
findings of the trial court that are "supported by sufficient credible evidence in
A-3528-16T3
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the record." State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders,
192 N.J. 224, 243 (2007)). Deference should be afforded to a trial judge's
findings when they 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." Johnson, 42 N.J. at 161. However, "[a] trial court's
interpretation of the law . . . and the consequences that flow from established
facts are not entitled to any special deference." Gamble, 218 N.J. at 425.
In addition, it is well settled that the admissibility of evidence is a matter
within the sound discretion of the trial court. State v. McGuire, 419 N.J. Super.
88, 123 (App. Div. 2011). "Under that standard, an appellate court should not
substitute its own judgment for that of the trial court, unless 'the trial court's
ruling was so "wide of the mark that a manifest denial of justice resulted."'"
State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J.
469, 484 (1997)).
Applying these principles, we discern no basis for disturbing the trial
judge's reasoned decision to permit M.D. and M.W. to provide lay opinion
testimony; that is, their opinions that defendant was the individual depicted in
the plumbing company surveillance video. In so ruling, we are mindful that
there is no New Jersey appellate case law directly on point specifically
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addressing the admissibility of a lay witness's opinion testimony that identified
a defendant, based upon a review of a surveillance video. However, in Lazo,
209 N.J. at 19-24, our Supreme Court considered the admissibility of lay opinion
testimony from a police officer regarding the reason he selected a photo of
defendant to be included in a photo array, that is, because the officer belie ved
defendant resembled a composite sketch of the suspect.
As noted in Lazo, resolution of the admissibility of this evidence question
required consideration of a number of factors. For example, a trial court should
consider whether the defendant had disguised his appearance during the offense
or altered his appearance before trial; if not, then the jury could decide for itself
if defendant was the person in the photograph. Id. at 22-23. Also, the court
should consider whether there were additional witnesses to identify the
defendant at trial, and how long the witness knew the defendant, and in what
capacity. Id. at 23-24.
The Court held in Lazo that the officer was improperly permitted to give
jurors his opinion that the defendant resembled a composite sketch of the
suspect. Id. at 24. The Court cited favorably to the Law Division's 1981
decision in Carbone.
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In Carbone, the defendant was charged with five armed bank robberies,
and the State had secured statements from individuals who knew the defendan t,
who identified him from photographs taken by the banks' surveillance cameras.
180 N.J. Super. at 96-97. Citing cases from other jurisdictions, the Law
Division, as previously discussed, considered a number of factors in reaching its
determination that the proposed identifications were admissible, including: the
fact that the defendant's appearance had changed since the time of the offense
charged; the lack of eyewitnesses to the offenses charged; the extent of the
potential witnesses' familiarity with the defendant, particularly at the time of the
offenses charged; and the basis of the witnesses' knowledge of the defendant.
Id. at 97-100.
Although New Jersey law is sparse on the subject of the admissibility of
lay opinion testimony identifying a defendant from surveillance video or
surveillance photographs, there is abundant case law from other jurisdictions on
the subject. Those cases generally hold that such testimony may be admissible
after considering a variety of factors, including a number of the factors set forth
under New Jersey case law in Lazo and Carbone.10
10
See, e.g., United States v. White, 639 F.3d 331, 335-36 (7th Cir. 2011); United
States v. Contreras, 536 F.3d 1167, 1170-73 (10th Cir. 2008); United States v.
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Contrary to defendant's argument, a few courts from other states have
concluded that lay opinion testimony is more likely to be admissible when the
surveillance video is of passable quality, but is grainy or shows only a partial
view of the person of interest. See, e.g., Nooner, 907 S.W 2d at 685; Glenn, 806 S.E 2d at 569; Barnes, 212 P.3d at 1025; Thompson, 49 N.E 3d at 404. In such
cases, the lay witnesses' opinions become more valuable to the jury, based upon
Beck, 418 F.3d 1008, 1013-15 (9th Cir. 2005); Nooner v. State, 907 S.W.2d 677,
684-86 (Ark. 1995); People v. Leon, 352 P.3d 289, 312-13 (Cal. 2015);
Robinson v. People, 927 P.2d 381, 382-85 (Colo. 1996) (en banc); Young v.
United States, 111 A.3d 13, 15-16 (D.C. 2015); Glenn v. State, 806 S.E.2d 564,
568-69 (Ga. 2017); State v. Barnes, 212 P.3d 1017, 1020-26 (Idaho Ct. App.
2009); People v. Thompson, 49 N.E.3d 393, 402-09 (Ill. 2016); Gibson v. State,
709 N.E.2d 11, 15-16 (Ind. Ct. App. 1999); Morgan v. Commonwealth, 421 S.W.3d 388, 391-92 (Ky. 2014); State v. Berniard, 163 So.3d 71, 89-91 (La. Ct.
App. 2015); State v. Robinson, 118 A.3d 242, 247-52 (Me. 2015); Moreland v.
State, 53 A.3d 449, 453-56 (Md. Ct. Spec. App. 2012); Commonwealth v.
Vacher, 14 N.E.3d 264, 278-79 (Mass. 2014); Lenoir v. State, 222 So.3d 273,
276-78 (Miss. 2017) (en banc); State v. Gardner, 955 S.W.2d 819, 823-25 (Mo.
Ct. App. 1997); Rossana v. State, 934 P.2d 1045, 1048-49 (Nev. 1997); State v.
Sweat, 404 P.3d 20, 22, 24-27 (N.M. Ct. App. 2017); People v. Sanchez, 941 N.Y.S.2d 599, 606 (App. Div. 2012), aff'd, 991 N.E.2d 698 (N.Y. 2013); State
v. Patterson, 791 S.E.2d 517, 520-23 (N.C. Ct. App. 2016), review denied, 794 S.E.2d 328 (N.C. 2016); State v. Fripp, 721 S.E.2d 465, 467-69 (S.C. Ct. App.
2012); Woods v. State, 13 S.W.3d 100, 101-05 (Tex. Crim. App. 2000); State v.
George, 206 P.3d 697, 700-02 (Wash. Ct. App. 2009), review denied, 217 P.3d 783 (Wash. 2009). But see State v. Finan, 881 A.2d 187, 191-94 (Conn. 2005);
Ibar v. State, 938 So.2d 451, 462 (Fla. 2006).
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their superior knowledge of the defendant's appearance, particularly around the
time of the crime.
After considering the relevant Lazo and Carbone factors, we are satisfied
that the judge correctly concluded that M.D. and M.W.'s identifications of
defendant as the man in the plumbing company surveillance video were
permissible lay opinions under N.J.R.E. 701. Both witnesses worked with
defendant and, unlike the jurors, were fully familiar with his mannerisms, gait,
and appearance, including his distinctive hairstyle. 11 Thus, they were able to
draw on this knowledge when they watched the surveillance video.
Because of the grainy quality of the video, the jury likely would have been
unable to identify whether defendant was the man in the video without the
assistance of this testimony. Indeed, the judge noted that he would have been
uncomfortable making such an identification because, unlike M.D. and M.W.,
he did not have a prior working relationship with defendant. Thus, M.D. and
M.W.'s identification testimony was admissible because it was "rationally based
on the perception of the witness[es]" and would assist the jury "in determining
a fact in issue." N.J.R.E. 701. Under these circumstances, we detect no abuse
11
By the time of the trial, defendant no longer wore his hair in short, twisted
braids.
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of discretion in the judge's denial of defendant's suppression motion and the
admission of the identification testimony.
We also reject defendant's claim that M.D. and M.W.'s identifications
were made under suggestive conditions that required their exclusion under State
v. Henderson. That case is clearly distinguishable from the matter at hand. As
our colleague, Judge Allison Accurso, recently stated in Wright, "[t]he central
point of Henderson is the recognition that suggestive procedures can skew a
witness's report of his opportunity to view the crime[.]" 444 N.J. Super. at 360.
Here, Detective Franco did not ask M.D. or M.W. to identify the robber
based on what they remembered from seeing him during the actual robbery.
Instead, he showed them a surveillance video of a man walking and crouching
in a parking lot and asked what they thought of it. Unlike crime victims who
have only a fleeting opportunity to observe their assailant, M.D. and M.W. both
knew defendant from working with him at the children's store. Thus, the
witnesses were well-acquainted with defendant and, therefore, could rely on that
relationship, rather than what they might have remembered from the robbery, in
pinpointing defendant as the man in the video. See State v. Herrera, 187 N.J.
493, 507 (2006) (finding prior relationship a "significant, if not controlling" fact
in determining reliability of identification procedure). Indeed, a "confirmatory"
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22
identification, which occurs when a witness identifies someone he or she knows
from before but cannot recall their name, is not considered suggestive. State v.
Pressley, 232 N.J. 587, 592-93 (2018).
Under these circumstances, the "estimator variables" identified by the
Henderson Court were inapplicable to the identification procedure involved in
this case. These factors include stress; weapon focus; duration of the witness'
observation of the perpetrator; distance and lighting; the witness' characteristics
that could impact an identification's accuracy; the perpetrator's appearance,
including whether a mask or disguise was employed; racial bias, and speed of
an identification. Henderson, 208 N.J. at 261-272. Again, M.D. and M.W.'s
testimony that defendant was the man in the plumbing company surveillance
video was based entirely upon their past working relationship with him, and not
upon their ability to see and remember what the robber looked like on the night
of the crime.
Nevertheless, the judge did consider most of the "system variables"
described in Henderson, and found that the procedure Detective Franco used to
show the video to the employees was not unduly suggestive. These variables
concern the manner in which the police conduct an identification procedure and
include considerations such as the type of procedure used, what pre-
A-3528-16T3
23
identification instructions were given to a witness, and whether suggestive
feedback was given to a witness post-identification. Id. at 248-61.
The judge noted that Detective Franco suspected defendant was the man
in the surveillance video and, therefore, the procedure was not "double blind."
The judge also observed that the police did not record the witnesses as they
watched the video, which was "not ideal[.]" Nevertheless, the judge concluded
that
the detective's approach was sensible, although [unlike
a case governed by the Henderson rules,] this was not a
constructed identification array or sequential photo
identification process. [Detective Franco] did employ,
as was suggested, many of the principles of how to
handle people so that you don't taint their process of
identification.
Therefore, the judge concluded, and we agree, that the procedures the detective
used were not unduly suggestive.
In addition, the judge ruled that defendant could address the question of
possible taint on cross-examination of any witnesses the State proffered in
connection with the identifications. Defense counsel took full advantage of this
opportunity at trial after M.D. and M.W. made their in-court identifications
based on the surveillance video.
A-3528-16T3
24
In sum, there is no basis to disturb the judge's denial of defendant's
suppression motion. We therefore reject defendant's contentions on this point.
III.
At the end of the trial, the judge gave a detailed instruction to the jury on
the in-court identifications M.D. and M.W. made of defendant based upon
Model Jury Charge (Criminal), "Identification: In-Court Identification Only"
(rev. July 19, 2012, eff. Sept. 4, 2012). In Point II, defendant argues that the
judge erred by denying his request to give the jury the model charge for in-court
identifications and out-of-court identifications. 12 We disagree.
It is well settled that "[a]ppropriate and proper charges are essential for a
fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (alteration in original)
(internal quotation marks omitted) (quoting State v. Reddish, 181 N.J. 553, 613
(2004)). Jury instructions must give a "comprehensible explanation of the
questions that the jury must determine, including the law of the case applicable
to the facts that the jury may find." Id. at 159 (quoting State v. Green, 86 N.J.
281, 287-88 (1981)).
12
Model Jury Charge (Criminal), "Identification: In-Court and Out-of-Court
Identifications" (rev. July 19, 2012, eff. Sept. 4, 2012).
A-3528-16T3
25
"A trial court is vested with discretion in delivering the jury instructions
that are most applicable to the criminal matter before it." State v. Funderburg,
225 N.J. 66, 80 (2016) (citing State v. Ernst, 32 N.J. 567, 583-84 (1960)). To
assess the soundness of the jury instruction, we consider "how and in what sense,
under the evidence before them, and the circumstances of the trial, would
ordinary . . . jurors understand the instructions as a whole." State v. Savage, 172 N.J. 374, 387 (2002) (alteration in original) (internal quotation marks omitted)
(quoting Crego v. Carp, 295 N.J. Super. 565, 573 (App. Div. 1996)).
Applying these principles, there are no grounds for disturbing the judge's
determination that only the model judge charge for in-court identifications was
appropriate. At trial, the State did not present evidence concerning the out-of-
court identifications that were the subject of the pre-trial, Rule 104 hearing.
Instead, M.D. and M.W. only made in-court identifications of defendant.
Detective Franco was also careful not to reveal that either of the victims had
identified defendant as the man in the plumbing company video prior to trial.
Although M.W. made a fleeting remark on cross-examination that she thought
it was defendant in the surveillance video when she was first shown it, defendant
concedes in his brief that this comment was "oblique" and defense counsel asked
no follow up questions.
A-3528-16T3
26
As the judge noted, the State was "cautious and careful" not to refer to any
out-of-court identifications during the trial. As a result, there was no need to
instruct the jury on identifications that were not introduced in evidence.
Moreover, the jury received ample guidance in the final jury charge on
identification issues relating to the in-court identifications that were the only
ones actually presented to the jury for consideration. Therefore, we reject
defendant's contention on this point.
IV.
In Point III, defendant argues for the first time on appeal that reversal is
required because Detective Franco offered lay opinion witness testimony in
violation of N.J.R.E. 701. Defendant points to the detective's statement that the
man's ripped jeans in the plumbing store surveillance video were "consistent
with the blue jeans . . . [shown] on the [children's store] surveillance video[,]"
and his answer in the affirmative when asked whether the man in the video "was
consistent with the description [he] had received of the suspect and what [he]
had seen on the [children's store] video." Defendant also contends for the first
time that it was improper for Detective Franco to testify that he suspected the
man in the shopping store video might be defendant because both men were
A-3528-16T3
27
extremely tall, styled their hair in short twists, and wore ripped jeans. In support
of this position, defendant relies upon State v. Lazo.
Because defendant did not raise this issue at trial, we must review the
matter for plain error. R. 2:10-2. Plain error is "error possessing a clear capacity
to bring about an unjust result and which substantially prejudiced the defendant's
fundamental right to have the jury fairly evaluate the merits of his [or her]
defense." State v. Timmendequas, 161 N.J. 515, 576-77 (1999) (quoting State
v. Irving, 114 N.J. 427, 444 (1989)). "[A]ny finding of plain errors depends on
an evaluation of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).
As noted above, N.J.R.E. 701 permits lay opinion testimony that is
"rationally based on the perception of the witness" and "will assist in
understanding the witness' testimony or in determining a fact in issue." Lay
opinion testimony "is not a vehicle for offering the view of the witness about a
series of facts that the jury can evaluate for itself or an opportunity to express a
view on guilt or innocence." State v. McLean, 205 N.J. 438, 462 (2011)
(remanding for a new trial on the defendant's possession with intent to distribute
controlled dangerous substances charge because a police officer, who observed
A-3528-16T3
28
the defendant hand an item to an individual in exchange for money, testified as
to his opinion that a drug transaction had occurred).
In Lazo, the issue was whether it was proper for a detective who had no
personal knowledge of the crime to testify at trial that he included the
defendant's photo in a photo array because the defendant's photo resembled the
composite sketch of the assailant. Lazo, 209 N.J. at 12. Unlike in this case, the
defendant in Lazo fully presented and argued the issue at trial and, therefore, it
was not raised as plain error as it is here. "The victim's identification was the
only evidence linking defendant to the crime. No physical evidence or other
corroboration of the identification was presented." Id. at 15.
The Court held that the detective's testimony violated N.J.R.E. 701
because his opinion was not based on personal knowledge and the testimony was
introduced to bolster the victim's identification. Id. at 24. The Court further
ruled that "[n]either a police officer nor another witness may improperly bolster
or vouch for an eyewitness' credibility and thus invade the jury's province. Ibid.
Because the identification was the only evidence against the defendant, the
Court could not "conclude that the error was harmless." Id. at 27.
Contrary to defendant's assertions, the point of the detective's testimony
was not to bolster an identification made by another witness. Detective Franco
A-3528-16T3
29
did not testify that defendant was the man who robbed the victims. Instead, his
testimony had a notably different, and more relevant, significance than the
detective's testimony in Lazo: it laid the foundation for why defendant became
a suspect and why the detective decided to show the two robbery victims, M.D.
and M.W., the plumbing store surveillance video to see if they could recognize
the man appearing in it. Indeed, in testimony that defendant omits from his
appellate brief, Detective Franco agreed "it [was] fair to say [that M.D. and
M.W.] would be in a better position to know what [defendant] looked like and
to make that I.D. if there was an I.D. to make[.]" Because this was not improper
lay opinion testimony, we are satisfied that the trial judge did not err in admitting
it.
However, even if the detective's brief remarks were to any degree
problematic, any error in admitting them was not "clearly capable of producing
an unjust result[.]" Rule 2:10-2. This is so because, unlike in Lazo, the State
had independent evidence in the form of Biggs's testimony placing defendant at
the scene of both the children's store and the plumbing company on the night of
the robbery. In addition, the State produced the photograph defendant sent
Biggs showing him holding a number of stacks of money bound together with
distinctive blue tape as was used at the store, and his texts stating that he now
A-3528-16T3
30
had enough to pay cash for a car. Thus, there was strong evidence of defendant's
guilt, separate and apart from the detective's testimony, that was more than
sufficient to support the jury's verdict. Therefore, defendant's contention on this
point fails.
V.
In Point IV, defendant argues that the trial judge erred by denying his
request to give Model Jury Charge (Criminal), "Testimony of a Cooperating Co-
Defendant or Witness" (rev. Feb. 6, 2006) (Cooperating Witness Charge) based
upon Biggs's testimony at the trial. We disagree.
It is long-established that "a defendant has a right, upon request, to a
specific jury instruction 'that the evidence of an accomplice is to be carefully
scrutinized and assessed in the context of his specific interest in the context of
his specific interest in the proceeding.'" State v. Adams, 194 N.J. 186, 207
(2008) (quoting State v. Begyn, 34 N.J. 35, 54 (1961)). The purpose of the
Cooperating Witness Charge is to "caution the jury 'regarding the credibility of
witnesses who may have a special interest in the outcome of the cause, which
might lead to influencing their testimony.'" Id. at 208 (quoting Begyn, 34 N.J.
at 54). "This special interest comes about by reason of hope, or even bargain,
A-3528-16T3
31
for favor in later prosecution treatment of the witness' own criminal conduct in
return for aid in convicting the defendant." Begyn, 34 N.J. at 54.13
Defendant asserts that because the police gave Biggs Miranda14 warnings
when they first met with her, and stated she "could have been charged in a
conspiracy or as an accessory" in the robbery, she had a "special interest" in the
outcome of the case requiring the judge to give the jury the Cooperating Witness
Charge. However, when defendant counsel asked Biggs at trial whether she "felt
like as long as [she] cooperated with the police and told them that it was
[defendant], that [she] felt like [she] would not be charged with this crime or
. . . in a conspiracy or as an accessary to a crime[,]" she replied, "No."
Indeed, neither the police nor the prosecutor ever charged Biggs with any
offense, and never asserted she played any role whatsoever in defendant's
13
Thus, the Cooperating Charge provides:
The law requires that the testimony of such a witness
be given careful scrutiny. In weighing his/her
testimony, therefore, you may consider whether he/she
has a special interest in the outcome of the case and
whether his/her testimony was influenced by the hope
or expectation of any favorable treatment or reward, or
by any feelings of revenge or reprisal.
14
Miranda v. Arizona, 384 U.S. 436 (1966).
A-3528-16T3
32
criminal conduct on the night of the robbery. Because Biggs faced no past,
present, or future penal liability as the result of driving defendant around after
he told her he was looking for his friend, she had no reason to seek any favor
from the prosecution that would give her any "special interest" in the outcome
of the trial or influence her testimony. Therefore, the judge did not err by
denying defendant's request for a Cooperating Witness Charge. 15
VI.
In sum, we affirm defendant's convictions and aggregate sentence, but
remand to the trial court to correct the JOC to reflect the merger of count four
into counts one, two, and three. 16
Affirmed in part; and remanded. We do not retain jurisdiction.
15
In addition, defense counsel thoroughly cross-examined Biggs to challenge
her credibility, and the judge instructed the jury on credibility at the beginning
and end of the trial. Thus, any possible error in the failure to give the jury this
instruction would have been harmless. Adams, 194 N.J. at 209.
16
As for the balance of any of defendant's arguments not expressly discussed
above, they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Thursday, September 05, 2019
PTI denial without full evaluation was error here STATE v. JAMAL C. NURSE
Denial of Suppression motion reversed STATE v. SHELBY E. HUTCHINS
Denial of Suppression motion reversed
STATE v. SHELBY E. HUTCHINS,
Defendant-Appellant.
Argued June 4, 2019 – Decided June 20, 2019
Before Judges Fasciale and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Indictment Nos. 15-09-2222
and 15-10-2632.
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-0715-17T4
PER CURIAM
Following denial of her motion to suppress evidence seized without a
search warrant, defendant Shelby Hutchins pled guilty to multiple charges of an
Atlantic County indictment, including second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b). The charges emanated from defendant's
involvement in the burglary of her ex-boyfriend's residence, from which several
firearms were stolen. Defendant was sentenced to an aggregate term of
imprisonment of three years with one year of parole ineligibility pursuant to the
Graves Act, N.J.S.A. 2C:43-6(c). Defendant now appeals, claiming the motion
judge erred by failing to suppress incriminating paperwork seized from her bag
during the search of her friend's vehicle, and by finding defendant lacked
standing to challenge the search. For the reasons that follow, we revers e and
remand.
I.
We summarize the salient facts from the suppression hearing, during
which the State presented the testimony of four members of the Egg Harbor
Police Department (EHPD). Defendant did not testify nor present any evidence.
While attempting to locate defendant two days after the burglary, EHPD
Detectives Kyle Warren, Robert Harte and Shawn Owen approached a red
A-0715-17T4
2
minivan owned by defendant's friend, Nicole Cooper. After passing the
detectives' unmarked car, the minivan pulled over to the side of a roadway in the
vicinity of the hotel where Cooper and defendant were reportedly staying.
Cooper and defendant's then-current boyfriend, Elmer Burgos, 1 were the only
occupants of the vehicle.
While speaking with Cooper, Owen detected an odor of raw marijuana.
Mindful that "the case was a firearm case," Owen asked Cooper whether she
wished to surrender anything in the vehicle. Cooper turned over a small bag of
marijuana from her purse, and consented to a search of the vehicle at roadside.
When Warren opened a drawstring bag and discovered what appeared to be
several bundles of heroin, Cooper disclaimed ownership of that bag and all other
bags in the minivan, except for her purse. Notably, Cooper told Warren she and
Burgos were en route to defendant's mobile home "to drop the bags off" when
the minivan pulled over.
Rather than resuming the search, Warren contacted his supervisors, who
directed him to tow the vehicle to the police station to photograph and record
the items seized during the search. Thereafter, police considered obtaining a
1
Burgos was charged as a codefendant in the present matter. He participated
in the suppression hearing, but is not a party to this appeal. Cooper was not
indicted in this matter.
A-0715-17T4
3
search warrant to resume the search of the minivan, including the remainder of
the bags that had not been opened. However, "a legal advisor from the
Prosecutor's Office" said a search warrant was unnecessary. Instead, Warren
again asked Cooper for her consent to continue searching the minivan, including
the bags, of which she had denied ownership. Cooper's consent was video and
audio recorded.
During the second search of the minivan, detectives opened another
drawstring bag, containing female clothing and "paperwork for the stolen
handgun that was removed from the residence." Police determined that bag
belonged to defendant.
Following the suppression hearing, the motion judge issued a written
decision. Relevant here, the judge initially determined the search conducted at
the police station was valid because drugs had been found in one of the bags
during the roadside search:
After the car was towed to [EHPD] headquarters,
police officers resumed the search of Ms. Cooper's
vehicle. Finding the drugs in one bag created probable
cause to believe more drugs would be found in other
similar container[s]; thus, the search of the other bag
would also be permissible.
A-0715-17T4
4
Further, the motion judge found defendant lacked standing to challenge
the search of Cooper's minivan because "at the time of the stop, [defendant] had
fled to Northern New Jersey." According to the judge:
The fact that [defendant] was not present when the
vehicle was searched, nor in the vicinity of the stop,
further exemplifies an absence of . . . defendant's
proprietary, possessory and participatory [sic]. The
record is void of any evidence to support the contention
that defendant retained any interest in the victim's
permit to purchase firearms and paperwork for [the
stolen] handgun at the time of the search. Further the
[c]ourt finds that the[re] was seemingly no connection
[between] the search of the car and [defendant]. While
the police may have initially stopped the vehicle to
investigate into the whereabouts of [defendant], the
search was commenced after marijuana was found and
Ms. Cooper consented to the search of the vehicle. The
police stopped the car to learn if [defendant] was in the
car, but the police were not searching the car with the
purpose to find [defendant].
Accordingly, the judge concluded defendant's "alleged connection to the vehicle
searched and the items seized simply [wa]s far too attenuated to support a
constitutional right to object to the search and seizure."
On appeal, defendant renews the arguments she raised before the motion
judge:
POINT I
THE PAPERWORK RELATED TO THE THEFT OF
THE HANDGUNS SHOULD HAVE BEEN
A-0715-17T4
5
SUPRESSED BECAUSE COOPER'S CONSENT TO
SEARCH THE VAN COULD NOT REASONABLY
EXTEND TO CLOSED BAGS ONCE THE POLICE
WERE INFORMED THAT THE BAGS DID NOT
BELONG TO HER. STATE V. SUAZO, 133 N.J. 315,
320 (1993).
POINT II
THE JUDGE'S CONCLUSION THAT DEFENDANT
LACKED STANDING BECAUSE "SHE WAS NOT
PRESENT WHEN THE ITEMS WERE
DISCOVERED" VIOLATED NEW JERSEY'S
AUTOMATIC STANDING RULE. STATE V.
RANDOLPH, 228 N.J. 566 (2017).
In response, the State abandons its third-party consent argument for the
bags searched after the minivan was impounded, claiming "the continued search
at police headquarters was justified by the automobile exception [to the warrant
requirement] . . . ." Indeed, at oral argument before us, the State conceded the
validity of Cooper's second consent to search no longer was an issue, but claimed
exigent circumstances supported the warrantless search of the minivan at the
police station. In its merits brief, the State mentioned in passing that the search
was also proper under the inevitable discovery exception to the warrant
requirement. The State did not advance that point at oral argument.
II.
In reviewing a suppression ruling, we are mindful that we must uphold a
trial court's factual findings if they are supported by sufficient credible evidence
A-0715-17T4
6
in the record. State v. Dunbar, 229 N.J. 521, 538 (2017). "We accord no
deference, however, to a trial court's interpretation of law, which we review de
novo." Ibid.
"Warrantless seizures and searches are presumptively invalid as contrary
to the United States and the New Jersey Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004). To overcome this presumption, the State must show by a
preponderance of evidence that the search falls within one of the well-
recognized exceptions to the warrant requirement. State v. Bryant, 227 N.J. 60,
69-70 (2016). The warrant requirement "is not lightly to be dispensed with, and
the burden is on the State, as the party seeking to validate a warrantless search,
to bring it within one of those recognized exceptions." State v. Alston, 88 N.J.
211, 230 (1981).
As the motion judge noted in the present case, the State opposed
defendant's suppression motion on four grounds. Pertinent to this appeal, 2 the
State argued "Cooper's consent was valid[,]" and defendant lacked "standing to
contest the evidence seized." Indeed, much of the testimony adduced at the
motion hearing pertained to the propriety of the searches conducted at the
2
The State also contended the stop was valid and the protective pat-down search
of Cooper and Burgos was lawful. Defendant does not contest those points on
appeal.
A-0715-17T4
7
roadside and police station. Nonetheless, the State now concedes Cooper's
consent did not validate the search of the bags after the vehicle was impounded.
Because we agree, we merely acknowledge the motion judge erroneously
upheld the search of the bags at the police station where, as here, Cooper
disclaimed ownership of the bags; expressly advised police the bags belonged
to defendant; and stated she and Burgos had been en route to drop off the bags
at defendant's residence before the search. As our Supreme Court explained in
State v. Suazo 3:
A third party who possesses the authority to
consent to a search of premises generally, however,
may lack the authority to consent to a search of specific
containers found on those premises. [The] consent does
not extend to containers in which the consenting party
has disclaimed ownership[, or] to property within the
exclusive use and control of another.
[ 133 N.J. at 320 (emphasis added) (citations omitted).]
3
In Suazo, the third-party driver consented to a search of his vehicle, which
revealed a closed bag in the trunk. 133 N.J. at 318. Prior to the search, the
defendant-passenger claimed ownership of the bag. Ibid. Relying on the driver's
consent, police opened the bag and discovered narcotics. Ibid. The Court held
the defendant's ownership claim of the bag rendered the officer's reliance on the
driver's consent unreasonable. Id. at 322. Rather, the defendant's
"acknowledgment that he owned the . . . bag impelled [the officer] either to seek
[the] defendant's consent or to make further inquiry before opening the bag."
Ibid. Accordingly, the Court reversed the trial court's denial of defendant's
suppression motion. Id. at 323.
A-0715-17T4
8
Moreover, the motion judge erroneously determined defendant lacked standing
to challenge the search and seizure of the bags. Although she was not present
when the minivan was stopped or searched, defendant was the target of the stop;
the bags contained evidence of the burglary; Cooper expressly disclaimed
ownership of the bags; and Cooper identified defendant as the owner. Clearly,
under those circumstances, defendant had automatic standing to challenge the
search of the bags, at least one of which contained evidence implicating her in
the burglary. See State v. Hinton, 216 N.J. 211, 233-34 (2013) (quoting Alston,
88 N.J. at 228) ("Unlike federal law, New Jersey law confers automatic standing
on a defendant 'in cases where the defendant is charged with an offense in which
possession of the seized evidence at the time of the contested search is an
essential element of guilt.'").
Because the State did not raise before the trial judge its newly-minted
argument that the search was justified under the automobile exception to the
warrant requirement, we need not consider that argument on appeal. State v.
Robinson, 200 N.J. 1, 20 (2009). Nonetheless, at oral argument before us, the
State maintained the testimony adduced at the hearing established exigent
A-0715-17T4
9
circumstances,4 thereby preventing police from obtaining a warrant. The State
therefore urges us to affirm on grounds other than those relied upon by the
motion judge. See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011).
However, we need look no further than the consistent testimony of the
EHPD detectives, which dispel the State's belated argument that exigent
circumstances justified the warrantless search here:
DEFENSE COUNSEL: . . . you would agree with me,
would you not, Detective [Warren], that you had ample
opportunity to apply for a search warrant at th[e] point
[in which the vehicle was towed to the station], right?
WARREN: I could have, yes.
....
DEFENSE COUNSEL: . . . in your judgment you would
agree, would you not, Detective [Harte], that you or
your team had ample opportunity, . . . the police that
were conducting this investigation had ample
opportunity to apply for a warrant, is that right?
4
Because the search in the present case occurred before the Supreme Court
decided State v. Witt, 223 N.J. 409, 431 (2015), exigent circumstances making
it "impracticable to obtain a warrant when the police have probable cause to
search the car" were still necessary to conduct a warrantless search of Cooper's
minivan. As we recently recognized, "[i]n the aftermath of Witt, the current law
of this State now authorizes warrantless on-the-scene searches of motor vehicles
in situations where: (1) the police have probable cause to believe the vehicle
contains evidence of a criminal offense; and (2) the circumstances giving rise to
probable cause are unforeseeable and spontaneous." State v. Rodriguez, ___
N.J. Super. ___, ___ (App. Div. 2019) (slip op. at 12) (emphasis added)
(footnote omitted) (citing Witt, 223 N.J. at 447-48).
A-0715-17T4
10
HARTE: I believe so, sir.
Further, at the time of the search at the police station, Cooper's minivan
was in the exclusive custody of the EHPD, secured at its own sally port, thereby
obviating the risk the bags would be removed or destroyed by passersby as might
be the case at the roadside. Also, the burglary had occurred two days before the
vehicle was stopped and the search occurred during daytime hours. But cf. State
v. Minitee, 210 N.J. 307, 322-23 (2012) (upholding the search of a motor vehicle
under the automobile exception where the car was searched after midnight,
while police were actively investigating a string of robberies). We thus reject
the State's argument that the search was justified under the automobile exception
on substantive as well as procedural grounds.
Finally, the State's fleeting suggestion that "the incriminating evidence
would have inevitably been discovered by the police obtaining a search warrant"
lacks sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(2). We
simply note our Supreme Court recently rejected a similar belated argument in
State v. Shaw, ___ N.J. ___, ___ (2019) (slip op. at 38) (declining to apply the
inevitable discovery doctrine where "[a] review of the record show[ed] the
prosecutor made only passing reference to the inevitable discovery doctrine").
Reversed and remanded. We do not retain jurisdiction.
A-0715-17T4
Saturday, August 31, 2019
STATE OF NEW JERSEY VS. LOUIS V. WILLIAMS (16-11-0834, MERCER COUNTY AND STATEWIDE) (A-2490-17T4)
In this appeal, we address whether a resident of a boarding house has a reasonable expectation of privacy in a common hallway accessible by other residents. The court determined that the Law Division improperly denied defendant's motion to suppress evidence seized from his bedroom after the police observed contraband while standing in a hallway in front of defendant's bedroom door. The court concluded that boarding house residents have a reasonable expectation of privacy in the hallways linking their bedrooms to areas traditionally contained within one living unit, such as a bathroom or kitchen, and the warrantless police entry into the home was not justified by the plain view doctrine because the officers did not have a lawful right to enter.
According to the court, whether the residential structure's front door was locked was not dispositive of whether defendant's reasonable expectation of privacy extended beyond his bedroom door, as the exterior door was equipped with a lock and the evidence showed only that the door was unlocked when the police made their warrantless entry, but not at any other time. In addition, drawing on a distinction recognized by courts in other states between apartment buildings and boarding or rooming houses, the court concluded that a boarding house resident's need to use a shared hallway to access his or her bathroom supports a reasonable expectation of privacy in that hallway notwithstanding an unlocked front door. Accordingly, the court held that the trial court should have granted defendant's motion to suppress because he had a reasonable expectation of privacy in the place searched, and the State did not establish the warrantless search of the home was justified by the plain view doctrine or any other exception to the warrant requirement.
Thursday, August 29, 2019
Warrantless search suppressed State v. Adl
Warrantless search suppressed State v. Adl Ken V represented a co-defendant in this case.
Friday, August 23, 2019
Police false promise of no jail and leniency required suppression of Confession State v. L.H
Police false promise of no jail and leniency required suppression of Confession State v. L.H.(A-59-17) July 22, 2019
ALBIN, J., writing for the Court.
The primary issue in this appeal is whether the interrogation techniques that included false promises of leniency induced defendant L.H. to confess to two alleged sexual assaults and one alleged attempted sexual assault and overbore defendant’s will. In this context, the Court must determine whether the State proved beyond a reasonable doubt that, under the totality of the circumstances, defendant’s confession was voluntary.
Defendant, who was suspected of committing the alleged offenses, was stopped and brought to the Bloomfield police headquarters on August 6, 2011, at about 2:30 a.m. After being held for three hours, he was brought to an interview room. For the first fifty- five minutes, Detective Lieutenant Joseph Krentz and Detective Thomas Fano secured information from defendant about his education, employment, prior residences, family, and his reason for driving in Bloomfield that evening. Almost an hour into the interrogation, Detective Fano told defendant that he had a “problem.” For the next twenty minutes, while defendant deflected questions that would have implicated him in a crime, the two detectives suggested that, if defendant cooperated and incriminated himself, he would receive counseling and help, not go to jail, and remain free to raise his child. Indeed, defendant was told that the truth would set him free. The detectives’ assurances and suggestions that defendant would receive help and counseling, stay out of jail, and be there for his daughter if he cooperated were aimed at assuaging the reluctance defendant repeatedly expressed about giving up the right to remain silent.
For example, Detective Krentz stated, “I just need to hear your side of the story so I can find out exactly where you are as far as getting the help you need, the right help.” Defendant asked, “The help I need is not sending me to jail is it?” Detective Krentz: “Not at all. Nobody gets rehabilitated in jail.” Detective Fano: “Yeah, I agree.” The detectives, moreover, continually minimized the nature of the assaults of which defendant was suspected, telling him, “You’re not a bad guy,” and “You didn’t hurt anybody.”
One hour and fourteen minutes into the interrogation, defendant began to make admissions about his involvement in the charged offenses. The interrogation ended at 8:51 a.m. -- more than three hours after it had begun. In his testimony at the hearing, Detective Krentz conceded that “[e]very time [defendant] expressed hesitancy, [the detectives] talked about the help he was going to get,” and that “it was clear . . . that ‘help’ meant counseling.” The trial court rejected defendant’s argument that his will was overborne by false promises and declined to suppress his confession.
Defendant also moved for an evidentiary hearing because of the failure of the police to record, electronically or otherwise, the identification procedure that led to M.H. identifying defendant as her assailant. During the fourteen earlier identification procedures, M.H. was unable to make a positive identification of her assailant. On August 8, 2011, two days after defendant’s arrest, M.H. viewed a fifteenth photographic array. In the report from that identification, the position of each photograph is given a sequential number from one to six. Next to photo position number three -- designating defendant’s photograph -- is the word “SUSPECT.” The report does not explain why the word “SUSPECT” was used rather than the six-digit number and letter assigned to every other photograph.
The trial court denied defendant’s motion for a hearing, and defendant entered guilty pleas to five counts in the indictment, preserving his right to appeal the denial of both his motion to suppress his confession and his motion for an evidentiary hearing. In an unpublished opinion, the Appellate Division reversed the trial court, vacating defendant’s convictions and remanding for further proceedings. The Court granted the State’s petition for certification. 233 N.J. 24 (2018).
HELD: The State failed to prove beyond a reasonable doubt that, under the totality of the circumstances, defendant’s statement was voluntary. Defendant may withdraw his guilty plea. The failure to record the identification procedure as required by Delgado requires a remand to allow defendant the benefit of a hearing to inquire into the reliability of the identification and any other remedy deemed appropriate by the trial court.
1. Due process requires that the State prove beyond a reasonable doubt that a defendant’s confession was voluntary and was not made because the defendant’s will was overborne. A confession which is the product of physical or psychological coercion must be considered to be involuntary and is inadmissible in evidence regardless of its truth or falsity. The voluntariness determination weighs the coercive psychological pressures brought to bear on an individual to speak against his power to resist confessing. Relevant factors include the suspect’s age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved, as well as previous encounters with law enforcement. The ultimate determination of voluntariness depends on the totality of the circumstances.
2. Because a suspect will have a natural reluctance to furnish details implicating himself, an interrogating officer may attempt to dissipate this reluctance and may even tell some lies during an interrogation. Certain lies, however, may have the capacity to overbear a suspect’s will and to render a confession involuntary. Thus, a police officer cannot directly or by implication tell a suspect that his statements will not be used against him because to do so is in clear contravention of the Miranda warnings. Other impermissible lies are false promises of leniency that, under the totality of circumstances, have the capacity to overbear a suspect’s will. A court may conclude that a defendant’s confession was involuntary if interrogating officers extended a promise so enticing as to induce that confession.
3. The video-recorded interrogation here reveals that the detectives made (1) representations that directly conflicted with the Miranda warnings, (2) promises of leniency by offering counseling as a substitute for jail, and (3) statements that minimized the seriousness of the crimes under investigation -- all relevant factors under the totality- of-the-circumstances test. In the totality of the circumstances, given the combination of all the relevant evidence and factors, the State failed to show beyond a reasonable doubt that the interrogators’ representations to defendant did not overbear his will and induce him to confess. The detectives secured an involuntary confession. Because defendant preserved his right to appeal the denial of his motion to suppress the confession, defendant’s guilty plea must be vacated.
Monday, August 19, 2019
STATE OF NEW JERSEY IN THE INTEREST OF T.D., A JUVENILE. (FJ-15-0476-18/FJ-15-0569-18)
STATE OF NEW JERSEY IN THE INTEREST OF T.D., A JUVENILE. (FJ-15-0476-18/FJ-15-0569-18)
Following juvenile T.D.’s admission to committing the offense of shoplifting, under N.J.S.A. 2C:20-11, the court placed T.D. on a twelve-month deferred disposition and imposed a condition that T.D. complete thirty hours of community service. In light of the plain language of N.J.S.A. 2C:20-11(c) indicating that “any person convicted of a shoplifting offense shall be sentenced to perform community service[,]” the parties expressly contemplated that the community service hours imposed in this case were mandatory.
The matter was returned to court post-disposition on probation’s recommendation, due to T.D.’s failure to complete the community service hours. The court concluded that the community service hours were not mandatory, notwithstanding the language within subsection (c) of the shoplifting statute. The court reasoned that the Legislature did not explicitly apply the mandatory penalty provisions of the shoplifting statute to juveniles, as it has done with other statutory schemes. The court further found that the imposition of mandatory community service hours for shoplifting offenses was incompatible with the imposition of a deferred disposition resulting in the dismissal of the complaint, in the absence of any specific requirement to impose such a penalty on juveniles. Upon consideration of T.D.’s representations that she and her mother were experiencing homelessness, and mindful of the rehabilitative goals of the Juvenile Code, the court vacated the imposition of the community service hours as a condition of T.D.’s deferred disposition.
STATE OF NEW JERSEY V. DANIEL MARKS. (INDICTMENT NO.17-03-00575)
STATE OF NEW JERSEY V. DANIEL MARKS. (INDICTMENT NO.17-03-00575)
Defendant was charged with third degree theft of services for the alleged violation of N.J.S.A. 2C:20-8(a). The indictment resulted from defendant’s use of EZ Pass only lanes on 220 occasions without possessing an EZ Pass transponder. Defendant moved to dismiss the indictment.
The court concluded that the evidence presented to the grand jury was sufficient to establish a prima facie case for violation of the statute. The court first found that traveling through the EZ Pass only lane was a representation that the vehicle operator possessed a valid EZ Pass. The court further held that N.J.S.A. 2C:20-2(b), the theft grading statute, permitted the aggregation of 220 bridge crossings for purposes of establishing that the crime fell within the third degree range. Finally, the court rejected defendant’s argument that the existence of civil penalties precluded criminal responsibility for the same conduct.
State v. A.T.C. (081201)(Warren County and Statewide) (A-28-18;
State v. A.T.C. (081201)(Warren County and Statewide) (A-28-18; 080753)
The JLA does not violate the separation of powers doctrine, provided that the State presents a statement of reasons explaining its decision to depart from the twenty-five year mandatory minimum sentence specified in N.J.S.A. 2C:14-2(a), and the court reviews the prosecutor’s exercise of discretion to determine whether it was arbitrary and capricious. So that the standard adopted today may be applied in this matter, the Court remands to the sentencing court for further proceedings in accordance with this opinion.
State v. Charudutt J. Patel (081069) (Middlesex County and Statewide) (A-13-18
State v. Charudutt J. Patel (081069) (Middlesex County and Statewide) (A-13-18; 080753)
To secure relief from an enhanced custodial sentence for a subsequent DWI conviction, a non-indigent defendant must establish that in the earlier uncounseled DWI proceeding, (1) he was not advised or did not know of his right to counsel and (2) had he known of his right to counsel, he would have retained a lawyer. A defendant contending he was indigent must establish that in the earlier uncounseled DWI proceeding (1) he was not advised and did not know of his right to appointed counsel, (2) he was entitled to the appointment of counsel under the applicable financial means test,R. 7:3-2(b), and (3) had he been properly informed of his rights, he would have accepted appointed counsel. Because denial of counsel is a structural defect in the proceeding, to secure relief from an enhanced custodial sentence, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented. The Court removes the five-year limitation in Laurick petitions and amends Rule 7:10-2(g)(2), effective immediately, to provide the following: “(2) Time Limitations. A petition seeking relief under this Rule may be filed at any time.” Here, Patel’s unrebutted certifications established that his 1994 plea was uncounseled, and he had no obligation to establish that he would not have pled guilty or been convicted at trial had he been represented by counsel. The Court therefore reverses the judgment of the Appellate Division and remands the matter for proceedings consistent with this opinion.
State v. Keith V. Cuff (080753) (Camden County and Statewide) (A-79-17;
State v. Keith V. Cuff (080753) (Camden County and Statewide) (A-79-17; 080753)
The omission of second-degree kidnapping from the verdict sheet does not constitute plain error. The jury instruction accurately described the State’s burden of proof with respect to the elements of both first-degree and second-degree kidnapping, and directed the jury to consider second-degree kidnapping as a lesser-included offense if it did not find defendant guilty of the first-degree offense. Moreover, the evidence presented at trial did not provide a rational basis for a second-degree kidnapping conviction because the victims were not “release[d] . . . unharmed and in a safe place,” an element of the second-degree offense. N.J.S.A. 2C:13-1(c). Defendant was properly convicted of three counts of first-degree kidnapping. As to the sentence, the Court agrees with the Appellate Division that the terms imposed for most of defendant’s offenses constituted a proper exercise of the trial court’s discretion but concludes that the trial court should resentence defendant so that it may consider whether certain offenses committed within the same criminal episode warrant concurrent rather than consecutive sentences, as well as whether the decision to make the sentences consecutive rather than concurrent made the aggregate sentence imposed on defendant an abuse of discretion.
State v. William T. Liepe (080788) (Atlantic County and Statewide) (A-7-18;
State v. William T. Liepe (080788) (Atlantic County and Statewide) (A-7-18; 080788)
The trial court properly applied the factors identified in Yarbough for the imposition of consecutive sentences, and defendant’s sentence is consistent with the principles stated in Carey and does not shock the judicial conscience. The Court reverses the Appellate Division’s judgment and reinstates the sentence that the trial court imposed.
Monday, August 05, 2019
State v. James Hemenway (A-19-18) (081206) July 24, 2019
State v. James Hemenway (A-19-18) (081206) July 24, 2019
ALBIN, J., writing for the Court.
The Prevention of Domestic Violence Act (Domestic Violence Act or Act), N.J.S.A. 2C: 25-17 to -35, empowers a judge to issue a temporary restraining order (TRO) to protect a victim of domestic violence and to enter an order authorizing the police to search for and seize from the defendant’s home, or any other place, weapons that may pose a threat to the victim. In this appeal, the Court considers whether the reasonable cause standard for the issuance of a domestic violence search warrant for weapons set forth in N.J.S.A. 2C: 25-28(j) and a 2002 case is incompatible with the Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution.
In June 2012, D.S. filed a domestic violence complaint against defendant James Hemenway and requested a TRO barring him from having contact with her and members of her family, as well as from possessing “firearms, knives, & [a Taser].” D.S. appeared before a Family Part judge, who asked: “[Do you have a[n] awareness that he has any weapons?” When D.S. said “yes,” the court asked, “What kind of weapons do you claim he has?” D.S. replied, “Handguns, knives.” The court: “A handgun?” D.S.: “Knives, blades.” The court: “Handguns?” D.S.: “Switchblades.” D.S. stated that Hemenway kept those weapons in his three cars and his apartment. The court entered a TRO and authorized the issuance of a warrant to “search for and seize . . . handguns, knives, switchblades” from Hemenway’s home and three vehicles. The court did not articulate a reasonable cause or probable cause basis for believing that Hemenway possessed firearms or switchblades or that they would be found in the places to be searched.
On June 29, 2012, two Old Bridge police officers advised Hemenway outside his apartment that they possessed a TRO and a warrant to search his residence for weapons. The officers did not allow Hemenway to call his attorney, and Hemenway then refused their order to allow them entry to his apartment. Hemenway was arrested for obstructing the execution of the domestic violence warrant. Officers entered the apartment and observed what appeared to be marijuana and cocaine. Based on that discovery, a detective applied for and received a telephonic search warrant for the residence and the vehicles. The police searched and recovered drugs, bullets, and cash. No handguns or switchblades were found. Defendant was charged with four drug offenses.
The trial court denied Hemenway’s motion to suppress, concluding that the telephonic criminal search warrant application set forth probable cause for the issuance of a warrant to search Hemenway’s residence and that the domestic violence warrant provided an adequate and independent basis for the search of the vehicles. Hemenway appealed, challenging the validity of the domestic violence and telephonic search warrants. The Appellate Division affirmed the denial of Hemenway’s motion to suppress. 454 N.J. Super. 303, 307 (App. Div. 2018). The Court granted Hemenway’s petition for certification. 236 N.J. 42 (2018).
HELD:The beneficent goal of protecting domestic violence victims must be accomplished while abiding by well-established constitutional norms. Before issuing a warrant to search for weapons under the Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3) probable cause to believe that the weapons are located in the place to be searched. Transposed into the context of a domestic violence search warrant for weapons, probable cause requires that the issuing court only have a well-grounded suspicion.
1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, in nearly identical language, both guarantee “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and that “no Warrants shall issue, but upon probable cause.” Whether a government official is armed with a criminal warrant or a civil or administrative warrant, physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Because a warrantless search is presumptively invalid, the burden falls on the State to demonstrate that the search is justified by one of the few specifically established and well-delineated exceptions to the warrant requirement. One principal exception to the warrant requirement, as applied to the search of a home, is the exigent circumstances doctrine, which allows warrantless entry if police officers possess an objectively reasonable basis to believe that prompt action is needed to meet an imminent danger. Entry into the home must be premised on a search warrant issued on probable cause or on an exception to the warrant requirement, such as consent or exigent circumstances.
2. The State claims that, under the special needs doctrine, a judicial order for the seizure of weapons under the Domestic Violence Act does not have to comport with the probable cause requirement. But neither the United States Supreme Court nor the Supreme Court of New Jersey has ever sanctioned the issuance of a warrant for the search of a home on less than probable cause under the special needs doctrine, except in the case of probationers. The special needs doctrine is applied in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.
3. The Domestic Violence Act provides access to both civil and criminal remedies and sanctions. One such remedy is to prevent a person judged to be a domestic violence abuser from having access to a weapon, including a firearm, which poses an imminent threat to a victim who has sought the protection of our courts. See N.J.S.A. 2C:25-28(j). The court is thus empowered to “order[] the search for and seizure of any firearm or other weapon at any location where the judge has reasonable cause to believe the weapon is located.” N.J.S.A. 2C:25-28(j) (emphasis added).
4. The language of the Domestic Violence Act, standing alone, lacks clear standards to guide a court in ordering a civil warrant for the seizure of weapons. Through judicial interpretation of the Act’s provisions, New Jersey courts have imposed standards to conform the Act to the Federal and State Constitutions. See State v. Johnson, 352 N.J. Super. 15, 20 (App. Div. 2002); see also State v. Dispoto, 189 N.J. 108, 120-21 (2007). In Johnson, the Appellate Division set a reasonableness standard rather than the traditional probable cause standard for its three-part test. 352 N.J. Super. at 19-20. In Dispoto, the Court disapproved of one part of the Johnson standard, holding that “before a domestic violence temporary restraining order and accompanying search warrant can be issued, the court must find probable cause to believe that an offense of domestic violence has occurred.” 189 N.J. at 120, 121 n.3 (emphasis added). The validity of the two other parts of the Johnson standard and the constitutionality of N.J.S.A. 2C:25-28(j) are now squarely before the Court.
5. A search warrant for weapons under N.J.S.A. 2C:25-28(j) is a civil warrant aimed not at recovering evidence of a crime, but rather at seizing weapons that may pose an imminent risk to a domestic violence victim. But the Fourth Amendment and Article I, Paragraph 7’s prohibition against unreasonable searches and seizures and their command that warrants issue upon probable cause apply not only to criminal investigations but also to searches related to civil or administrative investigations.
6. The important goals of the Domestic Violence Act can be achieved within our constitutional scheme of ordered liberty. The sanctity of the home can be preserved while providing thorough safeguards to domestic violence victims. The Court notes that other jurisdictions have conformed their domestic violence statutory schemes to the Fourth Amendment and that N.J.S.A. 2C:25-28(j)’s authorization of a search warrant issued on less than probable cause apparently is unique to New Jersey.
7. The special needs doctrine has applied almost uniformly to those exceptional circumstances involving warrantless searches and seizures. In this case, a domestic violence victim appeared before a court seeking a TRO and a warrant to seize weapons from an alleged abuser. This is not an exceptional circumstance that renders the warrant and probable cause requirement impracticable.
8. In Johnson and Dispoto, the courts engrafted standards onto the spare language of N.J.S.A. 2C:25-28(j) to save it from a constitutional challenge. The standards that the Court adopts today will ensure that N.J.S.A. 2C:25-28(j) conforms to the Federal and State Constitutions, while safeguarding domestic violence victims. Before issuing a search warrant for weapons as part of a TRO under the Domestic Violence Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3) probable cause to believe that the weapons are located in the place to be searched. One long-established definition for probable cause for a criminal search warrant is a well-grounded suspicion. As with any other search warrant, hearsay may be sufficient to establish probable cause, so long as there are facts, which give the statement an appearance of trustworthiness. Courts can credit information received directly from a citizen source. Because domestic violence victims are often unrepresented, under considerable stress, in fear of their alleged abusers, and may have language barriers, courts must be patient and take the time necessary to make a complete record. The court should ask the victim questions that will elicit the victim’s basis of knowledge that the defendant possesses weapons and that the weapons will be found at a home or other location. Additionally, the court may make reasonable inferences and accredit trustworthy hearsay when establishing a victim’s basis of knowledge regarding the abuser’s ownership and location of weapons.
9. Applying those principles as well as the then-existing standards for issuing a domestic violence warrant, the Court finds that the search warrant issued here does not comport with the Fourth Amendment or Article I, Paragraph 7 of the State Constitution. The family court issued the search warrant for weapons based on a deficient record and without making the necessary findings to justify the warrant’s issuance. Therefore, the search of Hemenway’s home was unreasonable under the Federal and State Constitutions. All evidence derived from the search of his home, including the drugs and cash, must be suppressed based on the defective domestic violence warrant. The fruits of the unlawful search of the home were used to form the factual basis for the issuance of the criminal search warrants. Thus, the evidence secured from those searches must be suppressed as well. The Court reaches that conclusion not only based on the Fourth Amendment, but also, separately, based on Article I, Paragraph 7 of the State Constitution. Hemenway now has the option to withdraw his guilty plea in view of the order suppressing all evidence derived from the defective domestic violence warrant.
The judgment of the Appellate Division is REVERSED and the matter is REMANDED for further proceedings.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s opinion.
State v. Shaw (A-33/34-16) (078247) Decided May 13, 2019
State v. Shaw (A-33/34-16) (078247) Decided May 13, 2019
TIMPONE, J., writing for the Court.
In this case, the Court considers whether evidence found in a motel room and vehicle and defendant Nathan Shaw’s statement to police should have been suppressed.
Jasmine Hanson was staying at the Crystal Inn motel in Neptune City. She called the front desk to complain she had been bitten by bed bugs. The motel owner inspected Hanson’s room using his pass key. He saw a plastic bag containing what he suspected were narcotics and called the police. Officer Jason Rademacher had the motel owner lead him to Hanson’s room where, again using his pass key, the motel owner unlocked the door for the officer to enter. Inside, Rademacher saw what appeared to be drugs, as well as a measuring cup and scale. A criminal history check on Hanson revealed an outstanding traffic warrant and a recently issued traffic summons on a 2012 black Chevrolet Tahoe, and its plate number.
Rademacher transported the evidence to the station and returned in an unmarked vehicle to wait for Hanson’s arrival. Shortly thereafter, the black Tahoe pulled into a parking space. The front passenger was Keon Bolden, Hanson was in the driver’s seat, and in the back seat were Shakera Dickerson and Shaw. Rademacher arrested Hanson. The officer asked to search the Tahoe; Hanson refused consent. A drug-detection canine was brought to perform an exterior sniff of the vehicle. The officers conducted warrant checks on the remaining passengers. Only Dickerson’s came back positive. She was arrested and placed in a second patrol car. Shaw and Bolden were patted down and seated in separate patrol cars, uncuffed. Hanson again refused to consent to a search of the vehicle.
The handler led the canine to the Tahoe. Shaw told an officer that he had a bag of marijuana in the car, and the canine alerted to the presence of narcotics. Shaw was arrested. An officer told Hanson that Shaw admitted he had marijuana in the vehicle and, at that point, she consented to the vehicle search. She signed a consent-to-search form, but did not initial the line attesting that she gave her consent free of coercion.
The officers found drugs in the car and within a tote bag on the back seat of the car. All four passengers were charged with multiple counts of possession and possession with intent to distribute the drugs found in both the motel room and the tote bag.
All defendants moved to suppress the drug evidence seized from the motel room and the Tahoe. The motion court denied their suppression motion. Shaw pleaded guilty to one count of third-degree possession of CDS with intent to distribute.
The Appellate Division affirmed the denial of Shaw’s motion to suppress the contents of the tote bag, finding he lacked standing to challenge its search, but reversed the denial of his motion to suppress his statement made to police while in their custody. In response to an argument by a co-defendant, the panel also found that the warrantless search of the motel room was illegal.
The Court granted Shaw’s petition for certification, 228 N.J. 506 (2017), and the State’s cross-petition, 228 N.J. 518 (2017). Following oral argument on November 8, 2017, the Court ordered this case remanded to the Law Division for the court “to address the application of the inevitable discovery doctrine and the independent source doctrine to the admissibility of the evidence seized in the motor vehicle.”
On remand, the parties presented no further testimony. Relying on the record as it had been developed at the suppression hearing, the court determined the inevitable discovery and the independent source doctrines both applied and that the evidence was admissible.
HELD:Defendant’s confession and the drug evidence must be suppressed.
1. Under the third-party intervention doctrine, a person’s reasonable expectation of privacy is not violated by the actions or search of a private actor. See State v. Wright, 221 N.J. 456, 459 (2015). Fourth Amendment protections apply only to governmental action, and a subsequent search by law enforcement -- so long as it does not exceed the scope of the private search -- may not require a warrant if it does not infringe any constitutionally protected privacy interest that had not already been frustrated as a result of the private conduct. The doctrine traditionally applied to searches of objects either physically conveyed or reported to the police. See id. at 459, 468-69. In Wright, the Court held that the doctrine could not be applied to searches of private dwellings -- including rented apartments -- under our State Constitution. Id. at 476. Although Wright discussed apartments, its reasoning applies with equal force to motel rooms. Where a motel owner or employee finds contraband in a guest’s room, “the police can use that information to obtain a search warrant and then conduct a search.” Id. at 478-79. “In the time it takes to get the warrant, police officers can secure the [motel room] from the outside, for a reasonable period of time, if reasonably necessary to avoid any tampering with or destruction of evidence.” Id. at 478. Here, the motel search was unconstitutional and the illegal fruits of that search must be suppressed.
2. Police must have particularized suspicion in order to conduct an investigatory stop, and the duration of an investigative stop must be limited in time and scope to the purpose that justified the stop in the first place. If the officer’s conduct is more intrusive than necessary, the investigative stop turns into a de facto arrest. Once it was determined that Shaw was
unarmed and had no outstanding warrants, there was no particularized suspicion that Shaw was engaged in criminal activity that would justify Shaw’s further detention. Under the circumstances here, isolating Shaw in the back of a patrol car despite a negative warrant check was a de facto and an unlawful arrest.
3. It was during that period of unlawful detention that Shaw stated there was marijuana in the bag. To decide whether to suppress a statement obtained after an unlawful arrest, courts consider three factors: the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct. Here, Shaw’s confession was a product of his unlawful de facto arrest and must be suppressed. Shaw’s confession occurred during his unlawful detention, and the Court is not persuaded that the presence of the drug-detection canine purged the taint of the illegal arrest. Shaw was never informed of his right to remain silent and was held without individualized suspicion. Although his confession was not made in response to an interrogation, the Court is not convinced it was a product of his own free will.
4. The Court next addresses Shaw’s standing to challenge the search of the tote bag. Whenever a defendant is charged with committing a possessory drug offense -- as in this case -- standing is automatic, unless the State can show that the property was abandoned or the accused was a trespasser. The tote bag was found in the back seat of a car that had four occupants. They were ordered out of the car. The State simply has not established that the bag was abandoned property. The trespasser exception has even less relevancy. The record is devoid of any evidence that Shaw put the drugs in the tote bag without Dickerson’s knowledge. Shaw had automatic standing to challenge the search of the bag.
5. The Court thus considers whether the search fell within the consent-search exception to the warrant requirement. An individual’s voluntary consent to search a constitutionally protected area eliminates the need for law enforcement to obtain a warrant. When Hanson consented to the search, she had already been arrested and handcuffed. The officers asked her multiple times for consent to search the vehicle. She relented only after an officer informed her of Shaw’s unlawfully obtained confession. The warrantless search of the Tahoe was unconstitutional and the evidence seized through that search is therefore subject to suppression. Nor can the evidence come in through Shaw’s confession.
6. The State failed to make the necessary showing under either inevitable discovery or the independent source exceptions to the exclusionary rule. Accordingly, the unconstitutionally obtained evidence remains suppressed.
The judgment of the Appellate Division is affirmed in part and reversed in part and the matter is remanded to the trial court.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’S opinion.
Sunday, August 04, 2019
STATE OF NEW JERSEY VS. R.G. (17-04-0189, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-3090-18T3)
STATE OF NEW JERSEY VS. R.G. (17-04-0189, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-3090-18T3)
The court affirms an order of the trial court that denied the State's request to medicate defendant involuntarily with antipsychotic medication to restore him to competency to stand trial. The court agrees with the trial court that the State did not satisfy the test under Sell v. United States, 539 U.S. 166 (2003), because the first factor is determined by consideration of defendant's probable sentence not simply the maximum sentence exposure for the offense charged. The trial court also must consider the potential effect of the medication on defendant's right to a fair trial when applying Sell. Because the Sell test was not satisfied, we have no occasion to determine whether our State Constitution would afford a defendant greater protection of individual liberty and privacy rights.
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State v. Rafael Camey (080574)(Passaic County and Statewide) (A-73-17
State v. Rafael Camey (080574)(Passaic County and Statewide) (A-73-17; 081128)
The Court affirms the suppression of DNA evidence from the first buccal swab. The trial court’s thorough and detailed reasons for denying admission of this evidence, under either of the State’s two inevitable discovery arguments, are clearly sustainable on appeal. However, the State’s application for a second buccal swab calls for a remand for further proceedings consistent with this opinion and its new test, derived in part from aspects of the independent source doctrine: To apply for a new buccal swab for DNA evidence under Rule 3:5A, the State must demonstrate probable cause for the new search. That showing may include evidence that existed before the initial invalid search, but cannot be tainted by the results of the prior search. In addition, to deter wrongdoing by the police, the State must show by clear and convincing evidence that the initial impermissible search was not the result of flagrant police misconduct.
State v. Joey J. Fowler and Jamil L. Hearns (080880) (Union County and Statewide) (A-5-18; 080880)
Review of the alleged instructional error must be moored to the facts, and the Court concludes that the omission of the instructional charges was not error under the circumstances of this case. The Court therefore reverses and remands to the Appellate Division for consideration of defendants’ arguments that have not yet been addressed.
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