STATE OF NEW JERSEY VS. MARCUS S. FORD(14-09-2815, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-2493-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARCUS S. FORD,
Defendant-Appellant.
______________________________
Argued July 11, 2017 – Decided October 24, 2017
Before Judges Nugent and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
14-09-2815.
Stephen P. Hunter, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Mr. Hunter, on the brief).
Arielle E. Katz, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Ms.
Katz, of counsel and on the brief).
PER CURIAM
Following the denial of his motion to suppress evidence
seized in a warrantless search, defendant Marcus S. Ford pled
guilty to unlawful possession of a handgun, N.J.S.A. 2C:39-5b,
and was sentenced in accordance with a negotiated agreement to a
term of five years in State prison with a forty-two month period
of parole ineligibility. Defendant appeals from the denial of
his motion to suppress the handgun found in his car. Finding no
basis to disturb the trial judge's factual findings or legal
conclusions, we affirm.
At the suppression hearing, the arresting officer testified
he stopped defendant for driving without lights after dark and
for turning onto Mickle Boulevard from Third Street in Camden
without signaling. According to the officer, defendant was
alone and talking on his cell phone as the officer approached.
The officer claimed he several times asked defendant for his
license, registration and proof of insurance, but defendant
ignored him and continued talking on the phone.
Defendant concluded his conversation "after approximately a
minute," and the officer again asked for his credentials. The
officer testified defendant became visibly nervous and told him
his license was suspended. The officer asked defendant to step
out of the car and placed him under arrest. According to the
officer, as he began to walk defendant to the patrol car,
defendant "lunged back at his vehicle and said 'I'll get my
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registration.'" The officer told defendant "he was given the
opportunity" to produce those documents and declined.
The officer proceeded to search for the documents himself
in the "common areas" where such documents are kept. He found
the car registration in the sun visor, nothing in the center
console and a locked glove compartment. Using the key that was
in the ignition, the officer opened the glove compartment where
he found a silver revolver and an expired insurance card. No
license was located. The officer impounded the car and
transported defendant to the Camden County Detective Bureau for
processing. There, the officer learned defendant "had several
active warrants out of Camden City for driving on a suspended
license."
The officer testified on cross-examination that neither he
nor his car was equipped with a microphone or camera at the time
of the stop in July 2014. He did not believe the car was stolen
and did not provide defendant the opportunity to call anyone
else to retrieve it. The officer never inquired into the
reasons for defendant's license suspension.
After hearing the testimony, the judge denied defendant's
motion to suppress the gun. Finding the officer's testimony
credible, the judge found the stop reasonably based on the
officer's observations of motor vehicle violations and the
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credential search of the locked glove compartment a lawful
response to defendant's refusal to produce proof of ownership.
The judge rejected defendant's three arguments that his arrest
was illegal because the officer failed to ascertain the reason
for defendant's license suspension, the officer was without
authority to conduct a credentials check in the absence of a
belief the car was stolen, and defendant offered to retrieve the
registration himself. The judge also accepted the State's
alternative argument that the gun would have been discovered in
the normal course of impounding the car, and thus the inevitable
discovery doctrine provided another reason for denying
defendant's motion to suppress.
Defendant appeals, raising two issues.
POINT I
THE POLICE OFFICER'S ENTRY INTO THE GLOVE
COMPARTMENT WAS ILLEGAL BECAUSE THE OFFICER
DID NOT GIVE DEFENDANT A REASONABLE
OPPORTUNITY TO OBTAIN THE REGISTRATION CARD
HIMSELF. STATE V. KEATON, 222 N.J. 438(2015). THESE CIRCUMSTANCES RESULTED FROM
THE ILLEGAL CUSTODIAL ARREST OF DEFENDANT
FOR DRIVING WITHOUT A LICENSE. STATE V.
LARK, 163 N.J. 294 (2000). U.S. Const.
amend. IV, XIV; N.J. Const. art. 1, ¶ 7.
POINT II
THE STATE CANNOT MEET ITS BURDEN TO SHOW BY
CLEAR AND CONVINCING EVIDENCE THAT THE
INEVITABLE DISCOVERY DOCTRINE APPLIES. U.S.
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Const. amend. IV, XIV; N.J. Const. art. I,
¶ 7.
We are not persuaded by defendant's first argument.
Our standard of review on a motion to suppress is limited.
State v. Gamble, 218 N.J. 412, 424-25 (2014). We defer to the
trial court's factual findings on the motion, unless they were
"clearly mistaken" or "so wide of the mark" that the interests
of justice require appellate intervention. State v. Elders, 192
N.J. 224, 245 (2007). Our review of the trial court's
application of the law to the facts, of course, is plenary.
State v. Hubbard, 222 N.J. 249, 263 (2015). Applying those
standards, we find no basis to disturb the trial court's factual
findings or legal conclusions here.
Our Supreme Court has recently reiterated its view that a
police officer may undertake a limited search of a car for
evidence of ownership when the driver has been unable to produce
proof of registration. See State v. Keaton, 222 N.J. 438, 448
(2015). The Court has made clear, however, that such a
warrantless search "is only permissible after the driver has
been provided the opportunity to produce his credentials and is
either unable or unwilling to do so." Id. at 450.
Defendant contends the search of his glove compartment was
illegal because he was arrested immediately upon advising the
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officer his license was suspended, in violation of State v.
Lark, 163 N.J. 294, 296 (2000), and prevented from retrieving
his registration himself "even though defendant stated that he
could obtain the registration card." We reject his argument.
First, we do not agree that defendant's arrest violated
Lark. In Lark, the Court held that "[r]outine or simple motor
vehicle offenses will usually warrant only the issuance of a
summons," and "[t]hus, driving without a license, without more,
would not constitute sufficient grounds for a custodial arrest."
Ibid. Defendant, however, was not simply driving without a
license, he was driving on a suspended license in an uninsured
car. As we noted in State v. Roberson, 156 N.J. Super. 551,
554-55 (App. Div.), certif. denied, 77 N.J. 487 (1978), although
"police should and normally do proceed by summons" in the case
of most traffic violations, permitting "a suspended operator to
drive away in an uninsured vehicle" would countenance serious
continuing violations. In our view, defendant's admission to
driving while suspended and his failure to produce proof of
current insurance was "more" than merely driving without a
license under Lark, and justified his arrest.1
1
We further note the officer's subsequent discovery of "several
outstanding warrants" would have compelled defendant's arrest in
any event. See Utah v. Strieff, U.S. , 136 S. Ct. 2056,
195 L. Ed. 2d 400 (2016).
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Second, defendant ignores the trial court's finding that he
failed to respond to the officer's several requests for license,
registration and proof of insurance before the officer placed
him under arrest. As that finding is supported by what the
judge deemed was the officer's credible testimony, it is binding
on this appeal. See State v. Reece, 222 N.J. 154, 166 (2015).
We agree with the trial judge that, under those circumstances,
the officer was not obligated to permit defendant back into the
car to retrieve his registration following his arrest. Cf.
State v. Hamlett, 449 N.J. Super. 159, 165, 174 (App. Div.)
(upholding a limited search for credentials, including a rental
agreement, following the defendant's apparent inability to
produce them, notwithstanding his statement that the person
renting the truck "was on her way"), certif. granted, __ N.J. __
(2017).
Because we conclude the officer's search of defendant's
glove compartment was lawful, we need not consider whether the
inevitable discovery exception would permit admission of the gun
otherwise. See State v. Robinson, 228 N.J. 529, 551-53 (2017)
(explaining the doctrine). We note only that the officer's
testimony that he did not provide defendant an opportunity to
secure the car and have someone else retrieve it, raises at
least a question as to whether the car was validly impounded
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under State v. Slockbower, 79 N.J. 1 (1979), and thus whether
the State carried its clear and convincing burden to establish
the gun would have inevitably been discovered by lawful means.
See State v. Sugar, 100 N.J. 214, 240 (1985).
Affirmed.
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