STATE OF NEW JERSEY VS. JOSEPH A. BROWN (16-08-2417, 17-04-0900, 17-05-1425, AND 17-06-1601, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-2896-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH A. BROWN,
Defendant-Appellant.
____________________________
Argued November 18, 2019 – Decided December 10, 2019
Before Judges Fasciale and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 16-08-2417,
17-04-0900, 17-05-1425, and 17-06-1601.
Peter Thomas Blum, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Peter Thomas Blum, of
counsel and on the brief).
Emily M. M. Pirro, Special Deputy Attorney General/
Acting Assistant Prosecutor, argued the cause for
respondent (Theodore N. Stephens II, Acting Essex
County Prosecutor, attorney; Frank J. Ducoat, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
After pleading guilty, defendant appeals from four counts of second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); one count
fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); one count second-degree
eluding, N.J.S.A. 2C:29-2(b); one count third-degree possession of a controlled
dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1);
and five counts of second-degree possession of a firearm while committing a
CDS offense, N.J.S.A. 2C:39-4.1(a). Defendant challenges the denial of two
motions to suppress evidence seized at different times: one during a traffic stop;
and the other about six months later, during a foot chase after a drug transaction.
We affirm.
On appeal, defendant argues:
POINT I
THE TWO GUNS FOUND INSIDE THE CONSOLE
OF [DEFENDANT'S] CAR SHOULD HAVE BEEN
SUPPRESSED BECAUSE THE PROSECUTOR
FAILED TO PRESENT ANY EVIDENCE THAT THE
SEARCHING OFFICER - - WHO DID NOT TESTIFY
- - HAD ACTED REASONABLY IN BREAKING
THE CONSOLE TO LOOK INSIDE. U.S. CONST.
AMENDS. IV, XIV; N.J. CONST. ART. I, PARA. 7.
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POINT II
THE DENIAL OF SUPPRESSION SHOULD BE
REVERSED BECAUSE THE PROSECUTOR
FAILED TO JUSTIFY THE STOP THAT RESULTED
IN THE DISCOVERY OF THE GUN. U.S. CONST.
AMENDS. IV, XIV; N.J. CONST. ART. I, PARA. 7.
A. The Prosecutor Failed to Prove Reasonable
Suspicion to Justify the Stop in the Absence of Any
Testimony From The Surveillance Officer and of Any
Adequately Detailed Hearsay as to What the
Surveillance Officer Had Observed.
B. The Suspicionless Stop Was the Proximate Cause
of [Defendant's] Tossing of the Gun, Requiring It to Be
Suppressed.
POINT III
ALTERNATIVELY, A NEW SUPPRESSION
HEARING SHOULD OCCUR BECAUSE THE
HEARING [JUDGE] DEPRIVED [DEFENDANT] OF
DUE PROCESS BY ACCEPTING UNRELIABLE
HEARSAY ABOUT THE SURVEILLANCE
OFFICER'S OBSERVATIONS AND BY NOT
REQUIRING AN EXPLANATION FOR THAT
OFFICER'S ABSENCE. U.S. CONST. AMEND. XIV;
N.J. CONST. ART. I, PARA. 1.
"[O]n appellate review, a trial [judge's] factual findings in support of
granting or denying a motion to suppress must be upheld when 'those findings
are supported by sufficient credible evidence in the record.'" State v. S.S., 229
N.J. 360, 374 (2017) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)). We
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"accord deference to those factual findings because they 'are substantially
influenced by [an] opportunity to hear and see the witnesses and to have the
"feel" of the case, which a reviewing court cannot enjoy.'" State v. Lamb, 218
N.J. 300, 313 (2014) (quoting State v. Elders, 192 N.J. 224, 243 (2007) (citation
omitted)). This court "should not disturb a trial [judge's] factual findings unless
those findings are 'so clearly mistaken that the interests of justice demand
intervention and correction.'" S.S., 229 N.J. at 374 (quoting Gamble, 218 N.J.
at 425). But the trial judge'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. Instead, we review legal conclusions de novo. Lamb,
218 N.J. at 313.
A.
We begin by addressing the denial of defendant's first motion to suppress.
As part of that motion, defendant argued that the judge should have suppressed
two of the handguns seized from defendant's vehicle after police performed a
traffic stop. We conclude that the stop was valid, that probable cause existed,
and that two exceptions to the warrant requirement apply.
Police stopped the car after they observed it swerve and make a right turn
without signaling. As police approached the car, they detected an odor of
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marijuana. As a result, police ordered the four passengers out of the vehicle,
one by one, and patted them down, starting with defendant and ending with the
front seat passenger. Upon patting down the last passenger, Detective Jose Perez
noticed bullets on the passenger seat in plain view. Detective Perez then called
for backup.
When the other officer units arrived, Detective Allen noticed⸺in plain
view⸺"the buttocks of a gun . . . protruding from the console of the vehicle."
The detectives placed the four men in handcuffs and called for a crime scene
unit. The crime scene officer took pictures of the inside of the vehicle, including
inside the console, in which the officer noticed two additional handguns. That
officer also discovered a cigar wrapper inside the car, which Detective Perez
said is used to wrap marijuana.
The Fourth Amendment of the United States Constitution and Article I,
paragraph 7 of the New Jersey Constitution protects individuals from
unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I,
¶ 7. Warrantless searches are "presumptively unreasonable," and thus, "the State
bears the burden of proving the validity of a warrantless search." State v.
Cushing, 226 N.J. 187, 199 (2016). Generally, evidence seized in violation of
the warrant requirement must be suppressed. Mapp v. Ohio, 367 U.S. 643, 655
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(1961); In Interest of J.A., 233 N.J. 432, 446 (2018). "To be valid, a warrantless
search must fit into a recognized exception to the warrant requirement."
Cushing, 226 N.J. at 199 (citing State v. Watts, 223 N.J. 503, 513 (2015)).
The first applicable exception to the warrant requirement—the automobile
exception—authorizes a police officer to conduct a warrantless on-scene search
of a motor vehicle only when police have probable cause to believe the vehicle
contains contraband or evidence of an offense and circumstances giving rise to
this probable cause are "unforeseeable and spontaneous." State v. Witt, 223 N.J.
409, 447 (2015). The judge found, in accordance with Witt, that police had
probable cause to believe that the vehicle contained contraband or evidence of
an offense and that the circumstances giving rise to probable cause were
"unforeseeable and spontaneous." Indeed, the record demonstrates that police
had probable cause to believe the vehicle contained contraband. Moreover, the
judge found that as police pulled defendant over for a motor vehicle violation,
they saw bullets, a handgun, and evidence of marijuana use in plain view.
The plain view doctrine—the second applicable exception—allows police
to seize contraband without a warrant. State v. Mann, 203 N.J. 328, 341 (2010).
The doctrine has a three-prong test. "First, the police officer must be lawfully
in the viewing area." State v. Bruzzese, 94 N.J. 210, 236 (1983). Second, the
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officer's discovery of the evidence must be "inadvertent[], meaning that he did
not know in advance where evidence was located nor intend[ed] beforehand to
seize it." Bruzzese, 94 N.J. at 236 (internal quotations and citation omitted).
Third, "it has to be immediately apparent to the police that the items in plain
view were evidence of crime, contraband, or otherwise subject to seizure."
Bruzzese, 94 N.J. at 236 (internal quotations and citation omitted). There is no
expectation of privacy in areas visible through windows to a police officer
outside of the vehicle. State v. Reininger, 430 N.J. Super. 517, 534 (App. Div.
2013).
The judge found Detective Perez credible. At the suppression hearing,
Detective Perez stated that as he approached the rear of the vehicle he "smelled
a strong odor of marijuana coming out of the vehicle." He said that Detective
Allen, the other officer with him, asked defendant who was smoking, and
defendant stated that he "just finished smoking a blunt." The smell of marijuana
itself constitutes probable cause. State v. Vanderveer, 285 N.J. Super. 475, 479
(App. Div. 1995); State v. Rodriguez, 459 N.J. Super. 13, 25 (App. Div. 2019)
(denying suppression of evidence discovered during a warrantless automobile
search because the officer smelled raw marijuana); see also State v. Nishina, 175
N.J. 502, 517-18 (2003) (finding probable cause to search the defendant's
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vehicle where police smelled marijuana on defendant's person, discovered drug
paraphernalia on the defendant's person, and observed in plain view a plastic
bag protruding from the console). The judge noted that the "strong smell of
marijuana" gave probable cause that there was contraband in the vehicle.
Defendant argues that the guns discovered during the vehicle search
should be suppressed because the officer who broke the console did not testify.
However, Detective Perez's credible testimony established that probable cause
existed. "Probable cause exists where the facts and circumstances within . . .
[the officers'] knowledge and of which they had reasonably trustworthy
information [are] sufficient in themselves to warrant a man of reasonable caution
in the belief that an offense has been or is being committed." Schneider v.
Simonini, 163 N.J. 336, 361 (2000) (alterations in original) (citations and
internal quotations omitted). Detective Perez himself smelled the marijuana that
led to the initial pat down of the passengers. He himself was the one who spotted
the bullet on the front seat, suggesting that there was likely to be more evidence
of illegal activity found in the car. That Detective Perez himself did not conduct
the search that rendered two additional handguns is irrelevant, as he can testify
to the probable cause that led to the search of the automobile.
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B.
We now turn to the second incident six months later, which led to the
recovery of another gun. On this point, defendant maintains that the police
lacked reasonable suspicion to stop him. Like the earlier suppression motion,
probable cause existed.
Lieutenant Whitaker responded to complaints of narcotics transactions.
He was conducting surveillance from an "[u]nconventional vehicle" in "plain
clothes," with an arrest team nearby. Lieutenant Whitaker observed two
individuals, one later identified as defendant, engage in an exchange of money
for CDS. After the exchange of drugs, the other man was approached by police
and dropped an item to the ground, which police seized and identified as heroin.
Police followed defendant as he walked away. They were in unmarked
vehicles, but wore badges and tactical vests with "POLICE" on the front and
back. The officers exited their vehicle and announced they were police as they
approached defendant, who fled on foot. Detective James Cosgrove and
Detective Anthony, who were contacted by Lieutenant Whitaker, followed
defendant in their vehicle. They observed defendant reach into his pocket as he
ran. As defendant ran alongside the car, Detectives Cosgrove and Anthony
observed defendant remove a black handgun from either his waistband or jacket,
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and continue to run while holding it in his hand. The detectives then witnessed
defendant throw the gun over a gate and into an alleyway. Police arrested
defendant, searched him incident to arrest, and seized a container of marijuana
from his jacket pocket.
"[P]olice officers must obtain a warrant . . . before searching a person's
property, unless the search 'falls within one of the recognized exceptions to the
warrant requirement.'" State v. DeLuca, 168 N.J. 626, 631 (2001) (quoting State
v. Cooke, 163 N.J. 657, 664 (2000)). An investigatory stop—like here—is a
valid exception "if it is based on 'specific and articulable facts which, taken
together with rational inferences from those facts,' give rise to a reasonable
suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126-27 (2002)
(quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). The parameters for an
investigatory stop are well-established.
[A] police officer may conduct an investigatory stop of
a person if that officer has particularized suspicion
based upon an objective observation that the person
stopped has been or is about to engage in criminal
wrongdoing. The stop must be reasonable and justified
by articulable facts; it may not be based on arbitrary
police practices, the officer's subjective good faith, or a
mere hunch.
[State v. Coles, 218 N.J. 322, 343 (2014) (internal
quotations and citations omitted).]
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The judge found that the officers had probable cause to arrest defendant
based on the observations of Lieutenant Whitaker, who relayed to them that he
witnessed defendant engage in a narcotics transaction. Detective Cosgrove
testified that "[Lieutenant Whitaker] gave [officers] information regarding:
[defendant], physical description, clothing description, height, weight, where
he's positioned." The judge noted that "[a]t the very least, the officers had
reasonable suspicion sufficient to stop and question [defendant], which ripens
into probable cause on its own when [defendant] begins to flee after the officers
announce themselves."
As Detective Cosgrove followed defendant, he witnessed him "remove[]
a black semiautomatic handgun from either his jacket or his waistband area,
which [he] could then clearly see. And [defendant] continued running towards
the house . . . with the gun in his hand." He saw defendant throw his gun over
the gate. The judge emphasized that Detective Cosgrove's observations
"provide[d] more than sufficient context for the officers to determine that
[defendant] was involved in criminal activity."
Detective Cosgrove testified that he personally saw defendant flee after
defendant saw the police, adding weight to the already existing reasonable
articulable suspicion. See State v. Citarella, 154 N.J. 272, 281 (1998). He
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observed defendant throw the gun over a fence, certainly giving him reasonable
suspicion to conduct an investigatory stop. Detective Cosgrove also gave
detailed testimony describing the events of the stop, which was corroborated by
video testimony.
C.
Finally, defendant argues that his due process rights were violated because
the judge relied on hearsay at a suppression hearing, specifically, that Detective
Cosgrove testified to what Lieutenant Whitaker observed. We need not address
this issue because defendant failed to raise a hearsay objection at the suppression
hearing. State v. Robinson, 200 N.J. 1, 19 (2009); see also Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973). Nevertheless, we make these brief
remarks.
N.J.R.E. 101(a)(2)(E) provides that at a suppression hearing, the rules of
evidence "may be relaxed . . . to admit relevant and trustworthy evidence . . .
[during] proceedings to determine the admissibility of evidence[.]" The New
Jersey Supreme Court has emphasized that "hearsay is permissible in
suppression hearings[.]" Watts, 223 N.J. at 519 n.4; see also State v. Gibson,
429 N.J. Super. 456, 466 (App. Div. 2013) (noting that suppression hearings
"may include evidence inadmissible in the trial on the merits," and that "[t]he
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Rules of Evidence do not apply in the suppression hearing, except as to N.J.R.E .
403 and claims of privilege").
In State v. Williams, 404 N.J. Super. 147, 171 (App. Div. 2008), this court
concluded that the defendant could not invoke his Sixth Amendment right to
challenge the admission of hearsay during a suppression hearing because the
right was "inapplicable" to the proceeding. See United States v. Raddatz, 447
U.S. 667, 679 (1980) (emphasizing that "the process due at a suppression
hearing may be less demanding and elaborate than the protections accorded the
defendant at the trial itself"). Indeed, Detective Cosgrove's testimony was
sufficiently reliable. Lieutenant Whitaker, the declarant, made the statements
to his fellow police officers in the course of a narcotics investigation. Lieutenant
Whitaker made the statements voluntarily during an investigation. He relayed
what he observed, which was corroborated by the video, the heroin found on the
buyer, and defendant's possession of marijuana and a weapon.
Affirmed.
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