STATE OF NEW JERSEY VS. SHAWN NOWICKIÂ (13-09-2268, OCEAN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4299-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAWN NOWICKI, a/k/a COMELLERI
CHARLES, MCGRATH SEAN, MOREIERY
SEAN, NOWICKI SEAN, COMELLERI
CHRLES AND MORIAIRTY SEAN,
Defendant-Appellant.
________________________________
Submitted December 20, 2016 – Decided July 18, 2017
Before Judges Rothstadt and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No.
13-09-2268.
Joseph E. Krakora, Public Defender, attorney
for appellant (Elizabeth C. Jarit, Assistant
Deputy Public Defender, of Counsel and on
the brief).
Christopher S. Porrino, Attorney General of
New Jersey, attorney for respondent (Emily
R. Anderson, Deputy Attorney General, of
Counsel and on the brief).
PER CURIAM
Defendant Shawn Nowicki appeals his conviction for second-
degree possession of a controlled dangerous substance (CDS),
oxycodone, with the intent to distribute, N.J.S.A. 2C:35-
10(a)(1). He pled guilty to the offense following the trial
court's denial of his motion to suppress evidence. Having
considered the record and applicable law, we affirm.
I.
We discern the following relevant facts from the
suppression hearing.1 As the search in question was warrantless,
the State sought to meet its burden to show that the search was
legal through the testimony of the Lakewood Police Officer
Christie Buble. See State v. Pineiro, 181 N.J. 13, 19 (2004).
No witnesses were presented by the defense.
On April 29, 2013, at approximately 1:00 a.m., Buble
testified that she and fellow officer Michael Delvalle were on
foot patrol around a hotel located in a high crime area in
Lakewood Township. While walking near the outside of hotel room
"108", Buble stated she heard a female voice yell, "How am
supposed to make my $26,000 now? I'll have to sell more than
$[8000] of these pills to make some profit." The female
continued stating, "she didn't trust the male because he was
using too much of their supply, and kept berating him for being
a fucking moron and junkie." The female then spoke about "bars
1
Defendant filed a motion to suppress the seizure of illegal
drugs, which co-defendant subsequently joined.
2 A-Error! Reference source not found.
and 30s . . . and . . . blues[,]" which Buble explained, are
slang terms for Xanax and Oxycodone pills, respectively. At
that point, the officers had to leave the hotel parking lot to
respond to another call.
After responding to the call, Buble and Delvalle returned
at approximately 3:30 a.m. to conduct surveillance of the hotel
from the hotel parking lot while stationed in their respective
marked police cruisers. Buble subsequently witnessed a female
exiting the hotel lobby, who matched a "Be on the look-out"
(BOLO),2 "put out from three days prior, [from] a [Lakewood]
detective . . . [who] was investigating prescription fraud at a
CVS [store.]" The BOLO was for a "white female approximately
[thirty] years old with medium length brown hair and stocky
build."
Buble and Delvalle stopped and questioned the female, later
identified as co-defendant Tabitha Gudehus, thinking she matched
the BOLO suspect. According to Buble, Gudehus "appeared to be
very nervous, visibly shaking[,] had blue lips[,] and appeared a
little agitated." Buble stated that Gudehus was detained
because:
2
A notification to police officers providing a physical
description of a person who allegedly assaulted a police
officer.
3 A-Error! Reference source not found.
At this time[,] she matched the description
of the BOLO. As I began to talk to her[,] I
recognized that her voice sounded like that
of the female that was yelling outside of
room 108. She was walking towards the
direction of the room. It was a high crime
area known for CDS violations. And the
female that was wanted from the BOLO was
also wanted for prescription drug fraud, and
I heard the conversation in the room
referencing prescription drug fraud.
When Gudehus kept putting her hands into her hooded
sweatshirt pockets, despite being told not to do so, she was
subjected to a pat-down search. Buble explained that,
[t]his was a high crime area[,] there have
[been] multiple arrests made there for
weapons offenses[,] . . . [Gudehus] was
potentially the female in the BOLO that had
previously assaulted an officer just a few
days before[,] the area wasn’t exactly well
lit[, a]nd the area [Gudehus] kept reaching
in her pockets is a common area where
weapons are placed[.]
During the pat-down on "the outside of [Gudehus's] clothes[,]"
she continued to "put her hand back into her pocket[,]" while
clenching an object in her hand. Buble then forcefully removed
Gudehus's hand from her pocket revealing that she had three
prescription pill bottles with the her name and the names of
defendant and another person printed on each bottle. The bottle
with defendant's name contained pills of different colors and
sizes that were different from and more than identified on the
prescription label.
4 A-Error! Reference source not found.
Buble then contacted Detective Gregg,3 who issued the BOLO
report, to determine if Gudehus was the BOLO suspect. Buble,
however, could not confirm Gudehus as the suspect and requested
her identification (ID). Gudehus replied that she left her ID
in her hotel room, so Buble and Delvalle accompanied Gudehus to
her hotel room. As the officers stood outside her hotel room
doorway, Gudehus went inside the room to get her ID from her
pocketbook. Through the unopened door, Buble observed "a male
sleeping or laying in the bed" identified in-court as defendant.
He immediately woke up, and "became very agitated and irate with
[Gudehus] for bringing [Buble and Delvalle] there." Buble
further testified that from the door, she "could see, in plain
view, four pill bottles on the nightstand[,]" while standing in
the doorway. Defendant called Buble "a pussy and told [her] to
shut the fuck up and tried to get [Gudehus's] pocketbook . . .
in order to obstruct [the officers'] investigation."
When defendant attempted to grab Gudehus's pocketbook
again, Buble and Delvalle "entered the [hotel] room to place
[defendant] under arrest for obstruction[,]" and removed him
from the room. After viewing and sending a picture of Gudehus's
driver's license to Gregg, Buble received confirmation from
3
The record does not mention his first name.
5 A-Error! Reference source not found.
Gregg that Gudehus was not the BOLO suspect. The police then
asked Gudehus for permission to search the room by providing her
a "consent to search form" and advising her "that she had the
right to refuse the search at any time; that she can stop the
search at any time; and that she would be present while the
search was happening." Gudehus signed the consent form, and the
search revealed large amounts of prescription pills in four
bottles, some with torn-off labels, and one with defendant's
name on the label containing "30-milligram Oxycodone pills".
Gudehus was arrested following the search.4
The motion judge reserved decision, and issued orders and a
single written decision on July 29, 2014, denying defendant's
and Gudehus's motions to suppress. In denying defendant's
motion, the judge rejected the contention that Buble had no
reasonable suspicion for detaining Gudehus, and that Buble
exceeded the scope of the pat down search of Gudehus after it
was apparent that Gudehus had no weapons. The judge found that
4
Defendant and Gudehus were jointly charged with third-degree
possession of Oxycodone, N.J.S.A 2C:35-10(b)(4), second-degree
possession of Oxycodone with intent to distribute, N.J.S.A.
2C:35-5(b)(4), third-degree possession of Buprenorphine, N.J.S.A
2C:35-10(a)(1), third-degree possession of Diazepam, N.J.S.A
2C:35-10(a)(1), third-degree possession of Carisoprodol, N.J.S.A
2C:35-10(a)(1), and third-degree possession of Alprazolam,
N.J.S.A 2C:35-10(a)(1). In addition, defendant was individually
charged with fourth-degree obstruction, N.J.S.A. 2C:29-1.
6 A-Error! Reference source not found.
under the totality of circumstances, there was reasonable
suspicion to detain Gudehus and confirm her identification
because she appeared to match the BOLO suspect description. In
particular, the judge noted that Gudehus "appeared slightly
disoriented and had blue-colored lips[,]" it was a high-crime
area, she continued to reach into her pockets, despite being
advised not to do so, she was "visibly nervous, her body was
shaking, and she would not make eye contact with the officers."
The judge found that Buble's pat-down was proper under State v.
Lund, 119 N.J. 35, 48 (1990), because based on Buble's training
it became "immediately apparent" that Gudehus had contraband.
Next, the motion judge found no merit in defendant's
argument that the police were unreasonable to investigate
further once they found contraband on Gudehus. The judge
reasoned that "[i]t was objectively reasonable for [the]
officers to request identification from [Gudehus]" because she
only provided her first name, the officers needed to dispel
their suspicion that she was not the BOLO suspect, and it was
routine for officers to request ID to ensure that Gudehus had no
active warrants out for her arrest. Consequently, the judge
determined that Buble and Delvalle had a legitimate reason to go
with Gudehus to her hotel room so that she could obtain her ID.
7 A-Error! Reference source not found.
The motion judge also rejected defendant's argument that
the search was unlawful because defendant had a reasonable
expectation of privacy in the hotel room, and did not consent to
the search. The judge determined that, as a "guest," defendant
did not have a reasonable expectation of privacy. Nevertheless,
assuming defendant had a reasonable expectation of privacy, the
judge found that the search of the hotel room did not offend
defendant's right to privacy because Gudehus's consent was
justified by the third party exception. Citing State v.
Douglas, 204 N.J. Super. 265, 277 (App. Div. 1985), the judge
found that Gudehus had the right to control access to the hotel
room because the she paid for and registered the room in her
name. Moreover, the judge noted that once the officers noticed
the prescription pill bottles on the nightstand, Gudehus
voluntarily and without coercion consented to search the room.
Defendant subsequently pled guilty to second-degree
possession of oxycodone with intent to distribute and resolved
three other indictments, and was sentenced to an aggregate
prison term of eight years with a forty-month period of parole
ineligibility. This appeal followed.
II.
Defendant raises the following single-point argument for
our consideration:
8 A-Error! Reference source not found.
THE TRIAL COURT ERRED IN DENYING THE MOTION
TO SUPPRESS BECAUSE THE POLICE LACKED
REASONABLE SUSPICION TO CONDUCT THE STOP,
AND BECAUSE THE POLICE EXCEEDED THE SCOPE OF
THE INVESTIGATORY STOP BY SEIZING AND
EXAMINING THE PRESCRIPTION PILL BOTTLES AND
BY ACCOMPANYING THE CO-DEFENDANT TO HER ROOM
TO RETRIEVE HER IDENTIFICATION.5
In our consideration of a trial court's ruling on a motion
to suppress evidence, "[w]e conduct [our] review with
substantial deference to the trial court's factual findings,
which we 'must uphold . . . so long as those findings are
supported by sufficient credible evidence in the record.'"
State v. Hinton, 216 N.J. 211, 228 (2013) (quoting State v.
Handy, 206 N.J. 39, 44 (2011)). "When . . . we consider a
ruling that applies legal principles to the factual findings of
the trial court, we defer to those findings but review de novo
the application of those principles to the factual findings."
Ibid. (citing State v. Harris, 181 N.J. 391, 416 (2004), cert.
denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898
(2005)). However, despite our deferential standard, "if the
trial court's findings are so clearly mistaken 'that the
interests of justice demand intervention and correction,' then
the appellate court should review 'the record as if it were
deciding the matter at inception and make its own findings and
5
We have omitted the sub-points in defendant's brief.
9 A-Error! Reference source not found.
conclusions.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting
State v. Johnson, 42 N.J. 146, 162 (1964)).
Both the United States and New Jersey Constitutions protect
individuals against unreasonable searches and seizures. U.S.
Const. amend. IV; N.J. Const. art. I, ¶ 7. Under the
exclusionary rule, evidence obtained in violation of an
individual's constitutional rights will be excluded as "fruit of
the poisonous tree." State v. Faucette, 439 N.J. Super. 241,
266 (App. Div.), certif. denied, 221 N.J. 492 (2015).
Because the search at issue was executed without a warrant, it
is presumed facially invalid; to overcome this presumption, the
State must show that the search falls within one of the well-
recognized exceptions to the warrant requirement and there
exists probable cause. State v. Moore, 181 N.J. 40, 44 (2004);
State v. Valencia, 93 N.J. 126, 133 (1983). One such exception
is found in the plain-view doctrine.6 The State bears the burden
6
For the plain view exception to apply, the State must prove
that
(1) the officer was "lawfully in the viewing
area," (2) the officer discovered the
evidence "'inadvertently,' meaning that he
did not know in advance where the evidence
was located nor intend beforehand to seize
it," and (3) it was "immediately apparent"
that the items "were evidence of a crime,
contraband, or otherwise subject to
seizure."
(continued)
10 A-Error! Reference source not found.
of demonstrating that the seizure was legal. Valencia, supra,
93 N.J. at 133.
An investigative stop, or a Terry stop, allows police to
"detain an individual temporarily for questioning." State v.
Maryland, 167 N.J. 471, 486 (2001) (citing Terry v. Ohio, 392
U.S. 1, 22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)).
To justify an investigative stop, the police must have "a
'particularized suspicion' based upon an objective observation
that the person stopped has been or is about to engage in
criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).
Additionally, "[t]he 'articulable reasons' or 'particularized
suspicion' of criminal activity must be based upon the law
enforcement officer's assessment of the totality of
circumstances . . . ." Ibid. "Reasonable suspicion necessary
to justify an investigatory stop is a lower standard than the
(continued)
[State v. Earls, 214 N.J. 564, 592 (2013)
(quoting Mann, supra, 203 N.J. at 341).]
In State v. Gonzales, 227 N.J. 77 (2016), our Supreme Court held
prospectively "that an inadvertent discovery of contraband or
evidence of a crime is no longer a predicate for a plain view
seizure." Id. at 82. This suppression motion pre-dated
Gonzales, and therefore the element must be satisfied in this
case.
11 A-Error! Reference source not found.
probable cause necessary to sustain an arrest." State v.
Stovall, 170 N.J. 346, 356 (2002) (citing State v. Citarella,
154 N.J. 272, 279 (1998)).
We evaluate the "totality of the circumstances surrounding
the police-citizen encounter" when determining the
reasonableness of the stop. State v. Privott, 203 N.J. 16, 25-
26 (2010) (quoting Davis, supra, 104 N.J. at 504). We consider
"a police officer's 'common and specialized experience,' and
evidence concerning the high-crime reputation of an area."
Moore, supra, 181 N.J. at 46 (citations omitted). While a high
crime area alone is not a sufficient basis to justify the stop,
"the location of the investigatory stop can reasonably elevate a
police officer's suspicion that a suspect is armed." State v.
Valentine, 134 N.J. 536, 547 (1994).
We begin by noting there is no dispute that Gudehus
voluntarily signed a written consent-to-search form to allow the
search of the hotel room registered in her name.7 Defendant,
7
The fact that the search in question occurred in a motel room
is of no consequence. While "the reasonable privacy
expectations in a hotel room differ from those in a
residence[,]" United States v. Agapito, 620 F.2d 324, 331 (2d
Cir.), cert. denied, 449 U.S. 834, 101 S. Ct. 107, 66 L. Ed. 2d
40 (1980), occupants of a hotel room are nevertheless entitled
to the protection of the Fourth Amendment. See Hoffa v. United
States, 385 U.S. 293, 301, 87 S. Ct. 408, 413, 17 L. Ed. 2d 374,
381 (1966); State v. Alvarez, 238 N.J. Super. 560, 571 (App.
Div. 1990). "Under our constitutional jurisprudence, when it is
(continued)
12 A-Error! Reference source not found.
however, contends that, by virtue of fruit-of-the-poisonous-tree
doctrine, evidence of his possession of a CDS was unlawfully
obtained from the unlawful stop, search and seizure, and
detention conducted on Gudehus. We disagree.
Here, the police officers were conducting an investigatory
stop based upon several articulable and objective facts.
Gudehus was in a high crime area and sounded like the female
that the police had heard earlier that evening in the same
vicinity who was discussing the plan to make illegal sales of
prescription drugs. When stopped, Gudehus was nervous, shaking,
and agitated. Moreover, she appeared to match the description
of a BOLO suspect involved with prescription drug fraud.
Because she refused the officers' command to stop putting her
hands in her pockets due to the concern that she was concealing
a weapon, a pat-down search was conducted. Finding that she was
in possession of drugs prescribed to three individuals, the
officers properly requested proof of her identification. When
she responded that she had to retrieve her ID from her hotel
room, the officers followed her to her room. Notably, the
(continued)
practicable to do so, the police are generally required to
secure a warrant before conducting a search of certain places,
. . . such as a hotel room." State v. Hathaway, 222 N.J. 453,
468 (2015).
13 A-Error! Reference source not found.
officers did not enter the room until defendant became agitated
and intervened by trying to prevent her from getting her ID.
Gudehus's ensuing written consent to search the room when other
prescription drugs were seen in plain view resulted in the
seizure of evidence that consequently led to defendant's plea.
Thus, we conclude, as did the motion judge, that the motion to
suppress should be denied as the totality of the circumstances
justified the investigative stop, which led to a plain view
observation of illegal prescription drugs and a consent to
search.
Affirmed.
14 A-Error! Reference source not found.