Opinion
DOCKET NO. A-1009-10T2
10-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GENE HINTON, Defendant-Appellant.
Matthew Astore, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Astore, of counsel and on the brief). Emily R. Anderson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Anderson, of counsel and on the brief). Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey, attorneys; Mr. Shalom, Edward Barocas and Jeanne LoCicero, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, St. John and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-08-2236. Matthew Astore, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Astore, of counsel and on the brief). Emily R. Anderson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Anderson, of counsel and on the brief). Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey, attorneys; Mr. Shalom, Edward Barocas and Jeanne LoCicero, of counsel and on the brief). PER CURIAM
This matter is before us on remand from the Supreme Court, to consider the constitutionality of the seizure by the police of evidence in an apartment in which defendant had been residing, and issues not addressed in our prior opinion. State v. Hinton, 216 N.J. 211, 240 (2013). For the reasons that follow, we conclude that the seizure of the evidence was constitutional, and the other issues raised by defendant are without merit. Accordingly, we affirm.
I.
The relevant facts are set forth in the Supreme Court's opinion. Nevertheless, we repeat them in order to provide a context for our opinion. Defendant had been residing in his mother's apartment in Newark, although he was not identified on the lease as a tenant. Id. at 216. Defendant's mother died in March 2009. Id. at 215. The owner of the apartment initiated a summary dispossession action, which apparently resulted in the entry of a judgment of possession for the owner. Id. at 216.
On March 31, 2009, a Superior Court judge issued a warrant of removal, which instructed a Special Civil Part Officer ("SCPO") to "dispossess the tenant and place the landlord in full possession of the premises." Ibid. (internal quotation marks omitted). The warrant also directed the SCPO "to remove all persons and property from the . . . premises within three days after receiving [the] warrant." Id. at 216-17 (internal quotation marks omitted).
On April 6, 2009, SCPO Ricardo D. Pratt ("Pratt") served the warrant, by placing it under the door of the apartment. Id. at 217. The notice indicated that the occupant had until April 10, 2009, to vacate the apartment. Ibid. On April 13, 2009, Pratt went to the apartment to remove any persons there and to have the locks changed. Id. at 217-18. Pratt was accompanied by a repairman. Id. at 218. Pratt entered the apartment, determined that the living room and bathroom were clear, and proceeded to the bedroom. Ibid.
In the middle of the bed, Pratt observed an open shoe box, which contained little envelopes with a substance he recognized as heroin. Ibid. Pratt also observed more envelopes in a blue bag, and another bag containing a large amount of currency. Ibid. Pratt called the Newark Police Department ("NPD"). Ibid. He instructed the repairman to change the locks. Ibid. After he had done so, Pratt locked the apartment and waited for the police to arrive. Ibid.
Officers Carmen Rivera ("Rivera") and Ana Colon ("Colon") of the NPD arrived at the apartment within five to ten minutes after Pratt's call. Ibid. Rivera and Colon were aware that Pratt had found what he believed were illegal drugs, and they wanted to verify if that were so. Id. at 218-19. Pratt told the officers he had a warrant that authorized him to take possession of the premises and padlock the door. Id. at 219.
Pratt explained that, before padlocking the door, he had entered the apartment to ensure that there were no persons or animals present and, while doing so, he had come across a shoe box containing what he believed was heroin and the bag of money. Ibid. He opened the door and showed Rivera and Colon the shoe box and the bag on the bed. Ibid. The officers summoned their supervisor, Sergeant Robinson Rodriguez ("Rodriguez"), who arrived, examined the shoe box and identified the contents as heroin. Ibid.
Defendant's niece arrived and told the officers that her uncle was living in the apartment. Ibid. Colon contacted Sergeant Thomas Roe ("Roe"), and told him they found drugs and money in the apartment. Ibid. Roe came to the apartment and was waiting in the hall with Pratt and the officers when defendant arrived. Ibid. Defendant pointed at the apartment and said it was his "place." Ibid. He asked what was going on. Ibid.
Pratt told defendant he was serving a warrant of removal and he was going to padlock the door. Ibid. Rodriguez asked defendant if anyone had stayed or resided in the apartment with him. Ibid. Defendant stated that his mother had recently died, and he was living there alone. Ibid. Defendant admitted he did not have a lease that identified him as a tenant. Id. at 219-20.
Rodriguez, Roe, Pratt and defendant entered the apartment. Id. at 220. They walked to the bedroom. Ibid. Rodriguez asked defendant if the room was his bedroom, and defendant said that it was. Ibid. Rodriguez asked defendant if the shoe box was his. He said that it was. Ibid. Defendant was arrested and the items on the bed were seized as evidence. Ibid.
On August 13, 2009, an Essex County grand jury issued Indictment No. 09-08-2236 charging defendant with third-degree possession of a controlled dangerous substance ("CDS"), N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of CDS with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three); and second-degree possession of CDS with intent to distribute within 500 feet of a public housing facility, park or building, N.J.S.A. 2C:35-7.1 (count four). On October 1, 2009, defendant applied for admission to Pre-Trial Intervention ("PTI"). The application was denied.
Thereafter, defendant moved to suppress the evidence seized by the police in the apartment, and his statements to the police. Id. at 221. The judge denied the motion. Ibid. Defendant was then tried before the judge, sitting without a jury. Ibid. The judge granted the State's motion to amend count two to charge third-degree possession of a CDS with intent to distribute, and granted defendant's motion to dismiss count four.
At the trial, defendant denied that the heroin found in the apartment belonged to him. Ibid. He acknowledged that he told Pratt the shoe box was his, but he claimed that he did not see the heroin and he was unaware of its presence. Ibid. The judge found defendant guilty on counts one and two. Id. at 221-22.
The judge later denied defendant's motion for a new trial, and affirmed the prosecutor's denial of admission to PTI. Id. at 222. The judge merged the offenses and sentenced defendant to two years of probation. Ibid.
On appeal, defendant raised the following arguments:
POINT I: MODIFICATION OF [THE] SENTENCE IS REQUIRED WHERE [THE] RECORD DEMONSTRATES [(]a) CONSIDERATION OF IRRELEVANT OR INAPPROPRIATE FACTORS WHERE PRESUMPTION AGAINST ENROLLMENT IN PTI PROGRAM ONLY EXISTED AT TIME OF INITIAL REJECTION BECAUSE
OF UNSUBSTANTIATED ELEMENTS OF ALLEGED SECOND DEGREE CRIMES, AND[] [(]b) A CLEAR ERROR OF JUDGMENT IN WITHHOLDING CONSENT TO DEFENDANT, A FIRST TIME OFFENDER FOUND GUILTY OF THIRD DEGREE OFFENSES AFTER [A] BENCH TRIAL.
POINT II: THE FACTS ADDUCED AT [THE] TIME OF MOTION TO SUPPRESS DO NOT SUPPORT AS A MATTER OF LAW THAT THE POLICE ENGAGED IN A FIELD INQUIRY WHERE ALL RELEVANT FACTS WERE KNOWN BY THE POLICE PRIOR TO THE ENCOUNTER WITH THE DEFENDANT. MOREOVER[, THE] POLICE HAD NO AUTHORITY TO ENTER THE HOME. CONSENT WAS NOT ESTABLISHED AND NO EXIGENT CIRCUMSTANCES EXISTED TO EXCUSE [THE] FAILURE TO OBTAIN [A] SEARCH WARRANT. [THEREFORE, THE] STATEMENTS AND EVIDENCE MUST BE SUPPRESSED.
We reversed defendant's conviction, concluding that the police action constituted an impermissible warrantless search of the apartment, which violated defendant's constitutional rights. State v. Hinton, No. A-1009-10 (App. Div. March 13, 2012) (slip op. at 8-14).
The Supreme Court reversed that decision, holding that defendant did not have an objectively reasonable expectation of privacy in the apartment at the time the police seized the evidence, and that the police action did not constitute a search under the Fourth Amendment to the United States Constitution or Article 1, Paragraph 7 of the New Jersey Constitution. Hinton, supra, 216 N.J. at 239-40.
The Court remanded the case to us with instructions to address the constitutionality of the police officers' seizure of the evidence, and other issues raised in the appeal. Id. at 240.
II.
We first consider the constitutionality of the seizure of the drugs and other items in the bedroom of the apartment.
The Constitution of the United States and the New Jersey Constitution "'protect citizens against unreasonable searches and seizures.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting State v. Amelio, 197 N.J. 207, 211 (2008)). "A warrantless seizure 'is presumptively invalid as contrary to the United States and New Jersey Constitutions.'" Ibid. (quoting State v. Pineiro, 181 N.J. 13, 19 (2004)). "'Because our constitutional jurisprudence evinces a strong preference for judicially issued warrants, the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure falls within one of the few well-delineated exceptions to the warrant requirement.'" Id. at 337-38 (quoting State v. Elders, 192 N.J. 224, 246 (2007)).
Plain view is one such exception. State v. Johnson, 171 N.J. 192, 206 (2002). To come within this exception, the State must establish that the officer was lawfully in the viewing area; the evidence was discovered inadvertently; and it was immediately apparent to the officer that the items were evidence of a crime, contraband, or otherwise subject to seizure. Id. at 206-07 (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-70, 91 S. Ct. 2022, 2037-40, 29 L. Ed. 2d 564, 582-85 (1971); State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).
The parties agree that the first and third requirements of the plain view exception were met here. Indeed, the Supreme Court held that the police officers were lawfully in the apartment when they observed the CDS and other items. Hinton, supra, 216 N.J. at 239-40. Furthermore, the evidence shows that it was immediately apparent to the officers that the items seized were evidence of a crime.
Defendant argues that the State has not shown that the officers observed the evidence inadvertently because Pratt had informed the NPD he had discovered a substance that appeared to be heroin, and the officers went to the apartment to seize the evidence. Thus, according to defendant, the State cannot show that the officers "did not know in advance where [the] evidence was located nor intend beforehand to seize it." Bruzzese, supra, 94 N.J. at 236 (citations omitted).
In response, the State argues that inadvertence should no longer be considered in determining whether the plain view exception applies. The State notes that in Horton v. California, 496 U.S. 128, 141-42, 110 S. Ct. 2301, 2310, 110 L. Ed. 2d 112, 125-26 (1990), the Court eliminated the inadvertence prong of the test for purposes of determining the applicability of the plain view exception under the United States Constitution. In Horton, the Court stated that
the seizure of an object in plain view does not involve an intrusion on privacy. If the interest in privacy has been invaded, the violation must have occurred before the object came into plain view and there is no need for an inadvertence limitation on seizures to condemn it. The prohibition on general searches and general warrants serves primarily as a protection against unjustified intrusions on privacy. But reliance on privacy concerns that support that prohibition is misplaced when the inquiry concerns the scope of an exception that merely authorizes an officer with a lawful right of access to an item to seize it without a warrant.
[Ibid.]
In State v. Johnson, our Supreme Court stated that the Court in Horton had "altered the 'inadvertence prong' of the plain view exception." Johnson, supra, 171 N.J. at 211. Indeed, the Court applied "whatever remains" of that prong. Id. at 213. Nevertheless, after Johnson, the Court has stated that "inadvertence" remains as one of the requirements for application of the plain view exception to the warrant requirement. See State v. Earls, 214 N.J. 564, 592 (2013); Mann, supra, 203 N.J. at 341. Thus, until our Supreme Court expressly declares that the inadvertent discovery of the items seized is no longer a requirement for application of the plain view exception under the New Jersey Constitution, we are required to consider inadvertence in determining whether the plain view exception applies.
The State argues that the discovery of the CDS and other evidence in the apartment should be considered to have been inadvertent. We agree. Here, it is undisputed that SCPO Pratt observed the heroin, money and other evidence inadvertently. As the record shows, Pratt went to the apartment to check to see if anyone was present and to have the locks changed, so that possession could be returned to the owner. Hinton, supra, 216 N.J. at 217-18.
Pratt entered the apartment, went to the bedroom and observed the CDS, bag of glassine envelopes and currency. Id. at 218. It is undisputed that Pratt did not know in advance that he would find these items in the apartment. Id. at 218-19. Pratt's discovery of the CDS and other evidence was undoubtedly inadvertent.
In our prior opinion, we stated that the trial judge had correctly determined that Pratt was not a law enforcement officer. State v. Hinton, supra, slip op. at 8. However, as the Supreme Court explained in its opinion, Pratt was an officer of the court, who was authorized to enforce the warrant of removal and "put the claimant into full possession" of the premises. Hinton, supra, 216 N.J. at 225 (citing N.J.S.A. 2A:18-57).
We are convinced that, in view of Pratt's status as an officer of the court, and his responsibility for enforcing the warrant of removal pursuant to law, the inadvertence of his discovery of the contraband should be imputed to the police officers to whom his discovery was reported.
Our conclusion is supported by State v. Bell, 737 P.2d 254 (Wash. 1987). There, firefighters were summoned to the scene of a fire, and they removed a woodstove that apparently caused the fire. Id. at 256. The firefighters checked the attic to see if there were any smoldering embers. Ibid. They observed what they believed to be marijuana plants. Ibid. The firefighters summoned the assistant fire marshal, who contacted the prosecutor and was told to confiscate the plants. Ibid. The court upheld the warrantless seizure of the contraband, finding that the plain view exception applied. Id. at 260.
The court stated that it made no sense to require the police officers to obtain a warrant to enter the premises and complete what the firefighters were already justified in doing, so long as the officers did not exceed the scope of the initial intrusion. Id. at 259. The court stated that, "In essence, [the police officers] step into the shoes of the firefighters." Ibid.
In Commonwealth v. Person, 560 A.2d 761 (Pa. Super. Ct. 1989), the court reached the same conclusion. In that case, a fire marshal was called to an apartment following a recently-extinguished fire to determine its origin. Id. at 762. While examining the bedrooms, the fire marshal observed drugs and drug paraphernalia in plain view. Ibid. He reported his discovery to a police officer, who was outside the building. Ibid. The officer entered the apartment, observed the items. Ibid.
The court held that the fire marshal was lawfully on the premises and the police officer summoned by the marshal could seize the evidence without a warrant, provided the officer did not extend the scope of the search. Id. at 769. The court stated that, "The policeman stood in the shoes of the fire marshal[] and could seize that which the marshal[] could have seized." Ibid.
Other courts have issued decisions reaching similar conclusions. See Jones v. Commonwealth, 512 S.E.2d 165, 168 (Va. Ct. App. 1999) (holding that when firefighter observes contraband while lawfully on premises, he may contact police, who are authorized to seize contraband without a warrant); United States v. Green, 474 F.2d 1385, 1390 (5th Cir.) (concluding that law enforcement officer validly seized evidence without a warrant after it was discovered by firefighter who was lawfully on the premises), cert. denied, 414 U.S. 829, 94 S. Ct. 55, 38 L. Ed. 2d 63 (1973).
Furthermore, one of the reasons the courts have established the "inadvertence prong" is to ensure that law enforcement officers do not rely on plain view doctrine as pretext for seizing evidence they knew would be found at a particular location. Johnson, supra, 171 N.J. at 192 (citing Coolidge, supra, 403 U.S. at 470, 91 S. Ct. at 2040, 29 L. Ed. 2d at 585). Here, the officers had no prior plan to seize the evidence, until Pratt had reported its inadvertent discovery.
We therefore conclude that, in this matter, the police officers essentially stepped in the shoes of the SCPO Pratt when they went to the apartment and observed the CDS, money and other evidence in plain view. Under the circumstances, Pratt's inadvertent observation of the contraband should be imputed to the police officers, and the warrantless seizure of the evidence was permissible under the plain view exception.
In view of our decision, we need not address the State's contention that N.J.S.A. 2C:64-1(a) authorized the police to seize the contraband without a warrant.
Accordingly, we affirm the denial of defendant's motion to suppress the evidence seized by the police in the apartment.
III.
We next consider whether the trial judge erred by denying defendant's motion to suppress the statements that defendant made to the police while in the apartment.
Here, Roe testified that she was present with Pratt, Colon, Rivera and Rodriguez when defendant arrived on the scene. They were standing outside the apartment. Defendant asked if everything was "okay." Rodriguez inquired if it was defendant's apartment, and he acknowledged that he resided there. Rodriguez, Roe and Pratt entered the premises with defendant.
They walked to the bedroom. Roe followed. Pratt testified that the room was approximately ten feet by six or eight feet, and had one entry door. According to Roe, Rodriguez, Pratt and defendant were standing at the threshold of the bedroom. Rodriguez asked defendant if that was his bedroom, and he said it was. Rodriguez then asked defendant if the shoe box was his. Defendant said, "Yes."
The trial judge determined that the officer's questions were part of a legitimate field inquiry, and defendant was not in custody when he was questioned. The judge ruled that, under the circumstances, the officers were not required to provide defendant with Miranda warnings before questioning him, and defendant's rights under the Fifth and Sixth Amendments to the United States Constitution were not violated.
It is well established that Miranda warnings must be provided when the police conduct a custodial interrogation, which is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. A court must consider the totality of circumstances in determining whether an individual is in custody. State v. Milledge, 386 N.J. Super. 233, 244 (App. Div.) (citing State v. Pierson, 223 N.J. Super. 62, 67 (App. Div. 1988)), certif. denied, 188 N.J. 355 (2006).
"Pertinent factors include the duration of the detention, the nature and degree of the pressure applied to detain the individual, the physical surroundings of the questioning and the language used by the officer in summoning the individual.'" Ibid. (quoting Pierson, supra, 223 N.J. Super. at 67). A court must determine "whether a reasonable innocent person in such circumstances would conclude that after brief questioning he or she would or would not be free to leave." Pierson, supra, 223 N.J. Super. at 67 (citation omitted).
Miranda warnings are not, however, required when the detention and questioning are part of an investigatory process, rather than a custodial interrogation. Id. at 66 (citations omitted). A field inquiry "occurs when a police officer approaches an individual and asks 'if [the person] is willing to answer some questions.'" Pineiro, supra, 181 N.J. at 20 (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). "A field inquiry is permissible so long as the questions are not harassing, overbearing, or accusatory in nature." Ibid. (citation, internal quotation marks and alteration omitted).
Here, the judge determined that defendant's statements were admissible because they were made during a field inquiry rather than during a custodial interrogation. As we stated previously, defendant was questioned in the apartment where he had been living. Defendant's encounter with the police began when he approached and initiated the conversation by asking what was going on.
The officer asked defendant four basic questions, and the judge found that the officer did not ask the questions in a harassing, overbearing or accusatory manner. The officers escorted defendant into the apartment, and they remained with him. Furthermore, defendant was not told he could not leave, and there is no evidence the officers blocked his means of egress.
We are convinced that the trial judge's findings of fact are entitled to our deference because they are supported by sufficient credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We conclude that, based on the facts as found by the court, defendant was not in custody at the time he was questioned, the questioning was part of a valid field inquiry, and the officers were not required to inform defendant of his Miranda rights before asking him the questions.
Accordingly, we affirm the denial of defendant's motion to suppress his statements to the police.
IV.
Finally, we address defendant's contention that the trial judge erred by affirming the prosecutor's decision denying defendant entry into PTI.
As we stated previously, defendant was indicted on August 13, 2009. He applied for admission to PTI on October 1, 2009. Criminal Case Management for Essex County initially denied the application, and on November 11, 2009, the prosecutor reaffirmed that decision. Defendant did not seek review of the prosecutor's decision by the Law Division.
Defendant was tried in May 2010. The judge dismissed the second-degree offenses, and found defendant guilty of two third-degree offenses. At the trial court's direction, the prosecutor reconsidered and again denied defendant's PTI application. Defendant then sought review by the trial court of the prosecutor's decision.
The judge held that defendant's initial application for PTI admission was untimely, since it should have been made by September 11, 2009, and was not filed until October 1, 2009. The judge also found that defendant's appeal from that decision was untimely, but nevertheless considered the appeal on the merits. The judge affirmed the prosecutor's decision.
On appeal, defendant argues that the judge should have construed any procedural time bars in his favor. He further argues that he should have been admitted to PTI because he had been charged initially with two second-degree offenses, but those charges were later downgraded to third-degree offenses. Thus, any presumption against admission of persons charged with second-degree offenses did not apply. Defendant also contends he should have been admitted to PTI because the prosecutor did not consider all of the relevant statutory factors pertaining to PTI admission.
We are convinced that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We note, however, that even if we assume that defendant's applications for PTI admission and post-trial appeal to the trial court were timely filed, defendant failed to "'clearly and convincingly establish that the prosecutor's refusal to sanction [his] admission into the program was based on a patent and gross abuse of . . . discretion.'" State v. Roseman, 221 N.J. 611, 624-25 (2015) (quoting State v. Wallace, 146 N.J. 576, 582 (1996)) (citations omitted).
Here, the prosecutor considered all relevant factors for PTI admission, and did not base his decision on any irrelevant or inappropriate factor. Id. at 627. Defendant was not denied PTI admission because he was initially charged with second-degree crimes. Admission was denied primarily because defendant was involved in a large-scale scheme to distribute heroin, as evidenced by the 330 glassine envelopes of heroin and $3780 in cash found in the apartment.
Furthermore, the prosecutor considered numerous factors that provided some support for defendant's application, including the facts that: defendant is forty-nine years old, has no prior criminal record or history of violence, had been gainfully employed, the offense did not involve deliberate violence, and defendant was not a member of a gang or other criminal organization. The prosecutor determined, however, that PTI admission should be denied in order to further the prosecutor's policy to vigorously prosecute heroin distribution offenses. That decision was not a patent and gross abuse of discretion. Id. at 624-25.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).