STATE OF NEW JERSEY VS. ELTEREKE DANIELS(15-02-0409, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2024-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELTEREKE DANIELS, a/k/a ELTEREKE
TYRELL DANIELS, ELTEREKE DANILES
and DANIELS T. ELETEREKE,
Defendant-Appellant.
_____________________________
Submitted March 27, 2017 – Decided June 7, 2017
Before Judges Haas and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 15-02-0409.
Joseph E. Krakora, Public Defender, attorney
for appellant (Brian P. Keenan, Assistant
Deputy Public Defender, of counsel and on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Ian C. Kennedy,
Deputy Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Eltereke Daniels pleaded guilty to second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), fourth-
degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d), and
fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39-
3(f). He appeals from the denial of his motion to suppress
evidence resulting from a warrantless search, arguing that the
motion judge's credibility determinations were "fundamentally
illogical" and "fatally flawed." Because there is sufficient
evidence in the record to support the judge's ruling, we affirm.
We glean the following facts from the record developed at the
suppression hearing. Officer David Cohen of the Essex County
Sheriff's Office testified that on November 16, 2014, at 3:30
a.m., he and his partner conducted a motor vehicle stop of
defendant's car after erratic movements of the car caused the
officers to suspect that the driver was driving under the influence
of alcohol. The officers asked defendant to step out of the
vehicle to perform standard field sobriety tests. A woman and a
child remained in the car.
To administer the test, Cohen stood between the rear of
defendant's vehicle and the front of his patrol car while defendant
walked towards him, followed by the other officer. Cohen testified
that he scanned defendant's torso with a flashlight as he walked
into position for the test. Based on his experience and training,
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he observed the butt of a handgun protruding from defendant's
waistband and a bulge just below, which he recognized as the
remaining portion of the weapon. Because the officer did not want
to alert defendant and risk creating a dangerous situation, Cohen
allowed defendant to walk towards him, placed defendant into
position for the sobriety test, and then quickly removed the weapon
from defendant's waistband. Defendant was subsequently arrested.
A search revealed two loaded magazines in defendant's pants pocket.
Defendant also testified at the hearing, wearing the clothes
he had worn at the time of the traffic stop. He stated that after
one sobriety test was completed, the officer swung at the left
side of defendant's jacket with his hand and asked if he had
anything on him. Defendant responded no, but the officer searched
him anyway and found the gun on the right side of defendant's hip.
Defendant testified that the gun was completely hidden under his
untucked shirt and unzipped jacket.
In an oral decision rendered on November 6, 2015, Judge Martin
G. Cronin noted that although defendant's testimony was fairly
consistent with Cohen's, the testimony diverged significantly as
to the physical location of the gun. In finding Cohen to be the
more credible witness, the judge noted that defendant had lied to
the officer when asked if he had anything on him. Judge Cronin
found defendant's untruthfulness to Cohen to be a critical
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determinant in his consideration of the witnesses' credibility.
He stated: "the fact that as to the location of the gun or the
existence of the gun, [defendant] previously lied [to Cohen], I
view that as critical in making a determination that he lied [in
court] as to the exact location of the gun on his body."
The judge concluded that the State had satisfied all of the
requirements of the plain view exception and denied defendant's
motion to suppress the weapon.
On appeal, defendant argues that Cohen's testimony was not
credible because he omitted the fact that he had asked defendant
whether he had anything on him. Defendant contends that if the
officer had to ask this question, then he must not have seen the
gun. Therefore, the plain view exception to a warrantless search
was not satisfied.1 We disagree.
1
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."
[State v. Earls, 214 N.J. 564, 592 (2013)
(quoting State v. Mann, 203 N.J. 328, 341
(2010.)]
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In reviewing a motion to suppress, we defer to the findings
of fact and credibility determinations of the trial judge,
recognizing that he or she has had an 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)
(citing State v. Johnson, 42 N.J. 146, 161 (1964)). We will uphold
the decision below so long as it is "supported by sufficient
credible evidence" and not "so clearly mistaken 'that the interests
of justice demand intervention and correction.'" State v. Scriven,
226 N.J. 20, 32-33 (2016) (citing Elders, supra, at 243-44).
"Our constitutional jurisprudence expresses a decided
preference that government officials first secure a warrant before
conducting a search of a home or a person." State v. Watts, 223
N.J. 503, 513 (2015) (citing State v. Edmonds, 211 N.J. 117, 129
(2012)). A warrantless search or seizure is presumptively invalid
unless it falls within one of the well-delineated exceptions to
the warrant requirement. State v. Bryant, 227 N.J. 60, 69-70
(2016) (citing Johnson, supra, 193 N.J. at 552). The State bears
In State v. Gonzales, 227 N.J. 77 (2016) the 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.
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the burden of proving by a preponderance of the evidence that a
warrantless search or seizure is justified. State v. Cope, 224
N.J. 530, 546 (2016) (citing Edmonds, supra, 211 N.J. at 128.).
Contrary to defendant's argument, there is no evidence that
Cohen omitted anything in his testimony. He was not asked by
either counsel whether he had asked defendant if he had anything
on him. Judge Cronin found Cohen's testimony more credible than
defendant's version of events because of his admission that he had
lied to the officer about carrying a weapon. The judge deemed
defendant's dishonesty critical in his credibility determinations,
and concluded that Cohen's testimony that the gun was located
towards the "right front" of defendant's body such that "he could
see the handle" was more believable. The judge stated:
it was immediately apparent to [Officer Cohen]
as a trained law enforcement officer that it
was a gun. It was inadvertent within the
meaning of a plain view exception because the
initial . . . stop . . . [was] a D.W.I. stop
. . . . All the requirements have been
satisfied as to the plain view exception.
"[T]he appellate court must defer to the credibility
determinations of the trial court between competing factual
testimony." State v. Jefferson, 413 N.J. Super. 344, 349 (App.
Div. 2010) (citing State v. Locurto, 157 N.J. 463, 474 (1999)).
We are satisfied that the judge's denial of defendant's motion to
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suppress is supported by sufficient credible evidence in the
record.
Affirmed.
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