STATE OF NEW JERSEY VS. EDWARD R. COLLINS (16-05-0442, MERCER COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-5220-16T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    EDWARD R. COLLINS,
    Defendant-Appellant.
    _____________________________
    Submitted November 5, 2018 – Decided January 7, 2019
    Before Judges Fasciale and Gooden Brown.
    On appeal from Superior Court of New Jersey, Law
    Division, Mercer County, Indictment Nos. 16-05-0442.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Stephen W. Kirsch, Assistant Deputy Public
    Defender, of counsel and on the brief).
    Angelo J. Onofri, Mercer County Prosecutor, attorney
    for respondent (Timothy P. McCann, Assistant
    Prosecutor, of counsel and on the brief).
    PER CURIAM
    Defendant Edward Collins appeals from a June 26, 2017 judgment of
    conviction for second-degree certain persons not to possess weapons, N.J.S.A.
    2C:39-7(b).      Defendant moved to suppress the handgun seized without a
    warrant, which formed the evidential basis for the charge. When his motion was
    denied, defendant entered a negotiated guilty plea, and was sentenced to a five-
    year term of imprisonment with a five-year period of parole ineligibility, in
    accordance with the Graves Act, N.J.S.A. 2C:43-6(c).1
    On appeal, defendant challenges the denial of his suppression motion as
    permitted under Rule 3:5-7(d), raising the following single point for our
    consideration:
    POINT I
    THE MATTER SHOULD BE REMANDED FOR
    ADDITIONAL FACTUAL FINDINGS AND A NEW
    DECISION REGARDING SUPPRESSION OF
    EVIDENCE.    THE JUDGE INEXPLICABLY
    DECLARED THAT SHE WAS NOT OBLIGATED TO
    RESOLVE A CRITICAL FACTUAL DISPUTE IN
    THE TESTIMONY.
    Having considered the argument and applicable law, we affirm.
    1
    As part of the plea agreement, defendant was also sentenced to two three-year
    concurrent terms of imprisonment for violating his probation sentence imposed
    on two separate indictments.
    A-5220-16T4
    2
    The following facts were adduced at the suppression hearing conducted
    on February 22, 2017, during which Trenton Police Detective Katherine Cox
    and New Jersey State Police Detective Christopher Talar testified for the State.
    Defendant and his cousin, Linda Romero, testified for the defense.
    After receiving information from a confidential informant that defendant
    had recently moved to Beatty Street and was "known to distribute narcotics and
    possess firearms[,]" Detective Cox, who was then assigned to the violent crimes
    unit, began an investigation. In the course of the investigation, Cox learned that
    defendant had active arrest warrants for motor vehicle violations and non-
    payment of child support, and contacted the U.S. Marshals for assistance in his
    apprehension.
    At approximately 12:30 p.m. on January 20, 2016, Cox confirmed
    defendant's presence in the residence when she observed him open the front door
    of the Beatty Street address "without knocking or announcing his presence," and
    walk inside. Cox promptly alerted the U.S. Marshals, and a team of marshals,
    as well as fellow officers and members of the New Jersey State Police,
    responded to the scene. Given defendant's criminal history, which included
    prior convictions for "weapons offenses, narcotics offenses [and] eluding[,]" the
    officers used safety precautions in entering the residence. There were two doors
    A-5220-16T4
    3
    at the front of the residence, an outside screen door, which was closed, and "[a]
    regular . . . wood door[,]" which was open. The officers entered the residence
    without knocking or announcing their entry. Upon entering, the officers initially
    encountered Romero at the doorway and observed defendant in "the back of the
    living room."
    Detective Talar was a member of the team of officers who entered the
    residence and was positioned towards the back of the "stack" of officers. Once
    inside the residence "less than a minute" after the initial officers made entry,
    Talar observed defendant already handcuffed and on the floor, "in the kitchen
    area." According to Talar, "there[] [was] a living room [at the front of the
    residence], a very narrow hallway, and then the kitchen; . . . all very close
    together. And [defendant] was in the back of that hallway in . . . the kitchen
    area."
    As the officers conducted a protective sweep to "clear[] the residence" for
    "safety[,]" an officer in the kitchen area yelled out that "there was a weapon
    located on the top of the refrigerator[,]" which was within one foot of the
    entrance to the kitchen. The weapon, which was described as a loaded "black,
    [h]i-point 40-caliber semiautomatic handgun[,]" was seized and secured. In
    addition to observing the handgun, Talar also observed and seized heroin "in
    A-5220-16T4
    4
    plain view" in the "back portion of the kitchen[,] in [an open] cabinet" above the
    sink area.2 After the seizures, defendant was administered Miranda3 warnings.
    He admitted that the handgun and the drugs belonged to him, and consented to
    a search of the residence, which uncovered drug paraphernalia "in a cabinet" in
    the "mudroom."
    Defendant testified he moved to the Beatty Street address about one month
    earlier and asked Romero to babysit his infant son on the date in question.
    According to defendant, when the officers entered, he was "kneeling over [the]
    sofa"4 in the living room after retrieving a "[h]ot [p]ocket" from the kitchen, and
    never moved from that position. He testified that one of the officers went into
    the kitchen and returned with the handgun. Romero confirmed that defendant
    was "kneeled down" "towards the back of the sectional," eating a hot pocket,
    when the officers entered the residence, and defendant never moved from that
    position. She also confirmed that one of the officers went into the kitchen and
    retrieved the gun "four to five minutes" later.
    2
    The drug charge was dismissed in accordance with the terms of the plea
    agreement.
    3
    Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    4
    Defendant testified that at the time, he weighed 280 pounds.
    A-5220-16T4
    5
    Following the hearing, in an oral decision rendered on April 26, 2017, the
    judge denied the motion, finding "that the police acted lawfully in entering
    defendant's home to execute the arrest warrant," that "the police . . . did not
    exceed their right to conduct a protective sweep of the property incident to the
    arrest of the defendant[,]" and "that the plain view doctrine [applied] to the
    discovery of the guns and drugs." The judge determined that "[m]any of the
    relevant facts . . . regarding the police entry into the home [were] not disputed."
    However, acknowledging "that there [were] some discrepancies in the . . .
    testimony of [Detective] Talar, Ms. Romero, and Mr. Collins as to what
    happened when the officers approached and entered [the residence]," the judge
    found "that most of those discrepancies [were] not relevant to th[e] decision."
    The judge elaborated:
    For instance, whether [defendant] was in fact on the
    floor partially in the hallway and partially in the kitchen
    when [Detective] Talar first saw him as[] Talar
    testified; or whether he was kneeling on the floor in the
    living room behind the couch and near the hall that
    leads to the kitchen, as was testified to by Romero and
    defendant, is of no moment. Both areas are in close
    proximity and people may honestly remember details
    differently.
    But whether he was in the hall or behind the
    couch, all three witnesses testified that . . . numerous
    police officers who entered the house spread out and
    did a protective sweep of the other rooms. All three
    A-5220-16T4
    6
    witnesses stated that during that sweep, an officer
    called out from the kitchen indicating that he had found
    a gun.
    Again, while Romero['s] testimony may differ
    from [Detective] Talar's in that he says he and another
    officer were in the kitchen when the officer called gun,
    and she says only one . . . officer was in the kitchen and
    called gun, I find that discrepancy is irrelevant. No one
    disputes that the gun was found in the kitchen during
    the protective sweep.
    No . . . testimony was offered to dispute that the
    gun was found on the top of the refrigerator. While
    defendant testified that it was his gun but that he did
    not know it was on top of the refrigerator, he never
    testified that it was elsewhere. He never offered
    testimony that the gun was not in plain view of the
    police when they were conducting a protective sweep
    and that they exceeded the scope of the protective
    sweep in discovering it.
    Turning to another discrepancy between the State's witness and the
    defense version, the judge explained:
    There is a discrepancy in the time that it took the
    police to discover the gun, a discrepancy between
    Romero's testimony and the others. Romero testified
    that the police officer was in the kitchen four to five
    minutes before he brought the gun out. [Detective]
    Talar said that the discovery of the gun was almost
    immediate to Talar's entry into the house, which was
    less than one minute after the first officer entered the
    house.
    Defendant's version was closer to that of
    [Detective] Talar. Defendant stated that he never
    A-5220-16T4
    7
    moved from the spot he was in when the police entered,
    and that the officers went [past] him into the kitchen
    and he heard an officer say "gun, gun, gun" and then
    they brought the gun out.
    Defendant's version does not include a five-
    minute time . . . lapse from the time of entry until the
    gun was found. Again, people remember things
    differently, and Romero's testimony could be colored
    by her bias in favor of her cousin . . . . I find no credible
    evidence to suggest that the police took an inordinate
    amount of time to clear the house for officers' safety, to
    assure no one else was hiding in the house. That
    protective sweep does not need to end immediately
    upon the defendant being placed in [hand]cuffs. It is
    reasonable to complete it before the officers can turn
    their backs and remove the defendant from the
    premises.
    Next, citing State v. Bruzzese, 
    94 N.J. 210
    , 236 (1983), the judge noted
    that
    [t]he plain view exception at the time of this incident
    require[d] three prongs to be met: [o]ne, that the seizing
    officer must have lawful authority to be in the location
    where the evidence is found; two, that the discovery of
    the evidence must be inadvertent; and three, that it must
    be immediately apparent to the officer that the items
    seized are contraband or evidence. 5
    5
    While our Supreme Court prospectively removed the inadvertence requirement
    in State v. Gonzales, 
    227 N.J. 77
    , 101 (2016), because the search predated
    Gonzales, the judge correctly applied the previous three-part test.
    A-5220-16T4
    8
    The judge concluded that because the police did not exceed their right to conduct
    a protective sweep of the property incident to defendant's arrest, and the
    discovery of the evidence, which was immediately identifiable as contraband,
    was inadvertent, all three prongs were satisfied.          The judge entered a
    memorializing order and this appeal followed.
    We review a motion judge's factual findings in a suppression hearing with
    great deference. Gonzales, 227 N.J. at 101. In our review of a "grant or denial
    of a motion to suppress[,] [we] must uphold the factual findings underlying the
    trial court's decision so long as those findings are supported by sufficient
    credible evidence in the record." State v. Gamble, 
    218 N.J. 412
    , 424 (2014).
    We defer "'to those findings of the trial judge which 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.'" State v. Elders, 
    192 N.J. 224
    ,
    244 (2007) (quoting State v. Johnson, 
    42 N.J. 146
    , 161 (1964)). We owe no
    deference, however, to the trial court's legal conclusions or interpretation of the
    legal consequences that flow from established facts. Thus, our review in that
    regard is de novo. State v. Watts, 
    223 N.J. 503
    , 516 (2015).
    Applying that standard of review, we discern substantial credible evidence
    in the record to support the judge's findings of fact and we agree with the judge's
    A-5220-16T4
    9
    interpretation of the legal consequences that flow from those facts. We conclude
    that the State's proofs established by a preponderance of the evidence, State v.
    Mann, 
    203 N.J. 328
    , 337-38 (2010), that the warrantless seizure of the gun and
    drugs was justified by the plain view doctrine in conjunction with a permissible
    protective sweep. See State v. Cope, 
    224 N.J. 530
     (2016). Defendant argues
    that because the motion judge refused "to resolve the factual dispute" regarding
    "where the arrest took place - - in the living room or down the hallway on the
    edge of the kitchen - - it is impossible to evaluate" whether the protective sweep
    "was valid."    Consequently, according to defendant, "the matter should be
    remanded for the judge to make the necessary factual finding." We disagree.
    "[A] 'protective sweep' is a quick and limited search of premises, incident
    to an arrest[,] and conducted to protect the safety of police officers or others. It
    is narrowly confined to a cursory visual inspection of those places in which a
    person might be hiding." State v. Davila, 
    203 N.J. 97
    , 113 (2010) (quoting
    Maryland v. Buie, 
    494 U.S. 325
    , 327 (1990)).
    [A] protective sweep incident to an in-home arrest is
    permissible under the following circumstances. First,
    the police may sweep the "spaces immediately
    adjoining the place of arrest from which an attack"
    might be launched even in the absence of probable
    cause or reasonable suspicion. [Buie, 
    494 U.S. at 334
    ].
    Any wider sweep must be justified by "specific facts
    that would cause a reasonable officer to believe there is
    A-5220-16T4
    10
    an individual within the premises who poses a danger"
    to the arresting officers. [Davila, 
    203 N.J. at 115
    ].
    Second, the sweep must be "narrowly confined to a
    cursory visual inspection of those places in which a
    person might be hiding." [Buie, 
    494 U.S. at 327
    ].
    Although the sweep "is not a search for weapons or
    contraband," such items may be seized if observed "in
    plain view" during the sweep. [Davila, 
    203 N.J. at 115
    ].
    Last, the sweep should last "no longer than is necessary
    to dispel the reasonable suspicion of danger" or "to
    complete the arrest and depart the premises." 
    Ibid.
    (quoting [Buie, 
    494 U.S. at 335-36
    ]).
    [Cope, 224 N.J. at 548.]
    In Cope, officers arrested the defendant pursuant to an arrest warrant in
    his living room, but, after sighting the defendant on the porch immediately
    before the arrest, one of the officers "conducted a protective sweep of the
    bedroom, bathroom, and back porch to prevent a surprise attack." 
    224 N.J. 548
    -
    49. The officer seized a rifle bag containing a rifle from the porch because he
    knew that defendant was barred from possessing firearms based on his prior
    convictions. Id. at 549. In upholding the trial court's finding that the protective
    sweep was reasonable, the Court concluded "that the porch was in such close
    proximity to the place of arrest—indeed, immediately adjoining it—that a
    protective sweep of that area was permissible even without probable cause or
    reasonable suspicion." Ibid.
    A-5220-16T4
    11
    Here, the protective sweep satisfied the conditions set forth in Buie,
    Davila, and Cope. The officers were lawfully inside the residence executing
    valid arrest warrants, the officers swept the areas "immediately adjoining" the
    place of arrest, the sweep was narrowly confined to a cursory visual inspection
    of those areas, the sweep was no longer than was necessary to complete the
    arrest, and the seizure of the evidence met the plain view exception to the
    warrant requirement. The "officers had the right to be where they were—in
    defendant's house effectuating a valid arrest warrant—and to seize any evidence
    of crime that was within their plain view." Bruzzese, 
    94 N.J. at 242
    .
    Contrary to defendant's contention, the motion judge did not refuse to
    resolve the factual dispute but properly determined based on the testimony that
    the kitchen and living room were immediately adjacent to each other. Thus,
    because the kitchen and the living room were "in such close proximity," whether
    the arrest location was the kitchen or the "immediately adjoining" living room
    would have no effect on the legality of the protective sweep. Cope, 224 N.J. at
    549.
    Affirmed.
    A-5220-16T4
    12