STATE OF NEW JERSEY VS. HOWARD S. THOMAS (14-04-0604, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3351-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HOWARD S. THOMAS,
Defendant-Appellant.
_____________________________________
Submitted January 19, 2017 – Decided July 26, 2017
Before Judges Fuentes and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 14-04-0604.
Joseph E. Krakora, Public Defender, attorney
for appellant (Rochelle Watson, Assistant
Deputy Public Defender, of counsel and on the
brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Keri-
Leigh Schaefer, Assistant Prosecutor, of
counsel and on brief).
PER CURIAM
Following the denial of his motion to suppress evidence seized
in a warrantless search of his bag, defendant Howard Thomas entered
a negotiated plea of guilty to second-degree certain persons not
to have weapons, N.J.S.A. 2C:39-7(b)(1), and was sentenced to a
five-year prison term with a mandatory five-year period of parole
ineligibility. Pursuant to Rule 3:5-7(d), defendant appeals from
the October 20, 2014 order denying his motion to suppress the
handgun. We affirm.
I.
The only witness at the suppression hearing was one of the
responding officers, Patrolman Allen Williams, a twelve-year
veteran with the Asbury Park Police Department. According to
Williams, at about 9:30 a.m. on June 15, 2013, he was dispatched
to an apartment to check on a report of "physical domestic
assault." The two-story apartment was located in a large apartment
complex and shared a front porch with an adjoining apartment. To
access the apartments, there were two steps from the sidewalk onto
the porch, which then lead to the front door of each apartment.
When Williams arrived, another officer was already on scene.
Williams knocked on the screen door and entered the apartment
through the main door, which was open. Once inside, Williams
observed an individual, later identified as defendant, "coming
down the stairs carrying a large black nylon bag and a tan canvas
bag." Defendant walked past Williams and out the front door.
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Williams also observed a woman in the living room area on the
first floor who identified herself as defendant's girlfriend.
Defendant's girlfriend reported to Williams that defendant
had assaulted her. She informed Williams about prior unreported
domestic violence incidents between herself and defendant and told
Williams that "ever since [defendant] has been living with her,
her kids have . . . seen arguing, fighting and guns." Williams
inquired whether there were "any guns in the premises" to which
she responded "no, not that I know of because I check him from
head to toe when he comes inside the house." Although she
consented to a search of her apartment, Williams never conducted
the search because she told him that she was pregnant and showed
him physical injuries from the assault consisting of "a laceration
to her upper lip" and "her swollen right hand[.]" Despite her
injuries, she refused first aid.
When another officer arrived and began interviewing
defendant's girlfriend, Williams went outside to the porch where
a different officer arrested defendant for simple assault.
Defendant was permitted to use his cell phone to contact his mother
to come and retrieve his belongings, consisting of the black and
tan bags that were located outside on the porch. Although the
bags were in proximity to defendant on the porch, they were not
searched incident to defendant's arrest.
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After defendant was transported to police headquarters, the
bags remained on the porch awaiting the arrival of defendant's
mother. As Williams prepared to depart the scene to respond to
other service calls, he decided to place the bags inside the
apartment for safekeeping until defendant's mother arrived.
Williams testified that he was not expecting to detect any
contraband and his only motivation in removing the bags was to
prevent defendant's property from being stolen.
Williams testified that he picked up the black bag first.
The motion judge described the black bag as about "the size of a
pillowcase with a drawstring at the top" and Williams testified
that the bag was partially open and filled with items. According
to Williams, when he picked up the black bag with his left hand
and then grabbed the bag with his right hand, he felt a handgun
on the right side of the bag close to the top. Williams testified
he did not manipulate the bag in any way but believed he felt a
handgun based on his "training and experience in handling
firearms."
Once Williams detected the handgun, he "opened up the bag and
. . . [saw] the butt of the gun inside the bag[.]" He immediately
called another officer and had the gun photographed inside the
bag. The gun was then removed from the bag and identified as a
Ruger 40 caliber handgun. Inside the gun was a magazine loaded
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with bullets. A subsequent National Crime Information Center
(NCIC) search revealed that the gun was stolen.
The motion judge credited Williams' testimony, describing his
testimony as "clear, candid, and convincing." The judge found
that Williams "was honest and very straightforward" about his
observations. Accordingly, the judge made factual findings
consistent with Williams' testimony and concluded that
"[d]efendant's gun was lawfully seized under the plain-feel
doctrine, as an exception to the warrant requirement."
Initially, the judge distinguished State v. Perkins, 358 N.J.
Super. 151 (App. Div. 2003), noting:
As was made clear in this case, Patrolman
Williams did not seize the gun based on the
domestic violence call he received from the
victim. Although it was elicited through
Patrolman Williams' testimony that he was
going to search the apartment for weapons, he
did not do so. The revelation of the gun in
[d]efendant's nylon bag was wholly unrelated
to a "search" of any kind. Patrolman Williams
seized the gun based on the plain-feel of the
[d]efendant's nylon bag. Thus, the Perkins
case is not applicable.
The judge also examined whether Williams' conduct in moving
the bag from the porch to the interior of the apartment for
safekeeping was covered under the Fourth Amendment and concluded
that it was not. The judge explained:
The victim's porch was shared by another
apartment and served as a route of access for
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anyone visiting the premises. As such, it is
only a semi-private area. [State v. Johnson,
171 N.J. 192, 209 (2002)]. Once patrolman
Williams went back outside the victim's
residence and the [d]efendant was placed under
arrest, he "came onto private property for a
legitimate purpose." The porch that he was
situated on was a "place visitors could be
expected to go." [Ibid.]. Thus, his
observation of the [d]efendant's nylon bag,
including the "plain" feel of the gun inside
the [d]efendant's bag was "made from such a
vantage point which is not covered by the
Fourth Amendment." [Ibid.].
In applying the plain feel doctrine to his factual findings,
the judge reasoned:
Here, Patrolman Williams was dispatched
to the victim's ([d]efendant's girlfriend)
home after receiving a call from the victim
that [d]efendant punched her in the face. As
such, Patrolman Williams was lawfully at the
scene. While Patrolman Williams was at the
scene and [d]efendant was placed under arrest,
[d]efendant left his thin, black, nylon bag
outside of his apartment for his mother to
retrieve from his girlfriend's apartment.
However, the officers who were on scene were
unable to remain at the [d]efendant's
apartment, and did not want to leave
[d]efendant's bag outside unattended. . . .
Thus, Patrolman Williams picked up the bag and
placed it inside the apartment for
safekeeping. Patrolman Williams did not open
the bag, look inside the bag, or manipulate
the bag in any way. He simply picked up the
bag in a non-intrusive manner to protect it
from a potential crime of theft. As such, no
reasonable expectation of privacy was invaded.
. . . As such, his actions were lawful, in
that he simply wanted to "put the bag inside
the house for safekeeping."
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Further, the feel of the gun's contour
or mass in [d]efendant's nylon [b]ag made the
gun's identity immediately apparent. Once
Patrolman Williams picked the nylon bag up,
without manipulating the nylon bag from the
outside in any way, he felt an object whose
"contours and mass he clearly and immediately
recognized" to be consistent with that of a
handgun based on his training and experience.
. . . .
Further, the victim informed Patrolman
Williams that since the [d]efendant has been
to her apartment, her kids "have seen arguing,
fighting, and guns." She also stated that she
previously told the [d]efendant to "get it out
of her house," referring to the [d]efendant's
alleged gun. Thus, based on the totality of
the circumstances, including Patrolman
Williams' training and experience with
handguns, the victim's prior statements, and
the feel of a hard metal object, he was
immediately able to recognize the object he
felt inside the [d]efendant's bag as a gun.
Accordingly, the judge denied defendant's motion to suppress
the handgun and signed a memorializing order on October 20, 2014.
This appeal followed.
II.
On appeal, defendant raises the following arguments for our
consideration.
POINT I
THE PLAIN FEEL DOCTRINE DOES NOT JUSTIFY THE
WARRANTLESS SEIZURE OF THE HANDGUN IN
DEFENDANT'S BAG.
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A. BECAUSE DEFENDANT MADE HIS OWN
ARRANGEMENTS FOR THE SAFEKEEPING OF
HIS PERSONAL PROPERTY FOLLOWING HIS
ARREST, THE POLICE ACTED
UNREASONABLY IN SEIZING HIS
PROPERTY TO PLACE IT BACK INSIDE THE
HOME OF THE COMPLAINANT.
B. BECAUSE THE ILLEGALITY OF THE
FIREARM WAS NOT IMMEDIATELY
APPARENT, THE POLICE LACKED
PROBABLE CAUSE TO SEIZE THE FIREARM
PURSUANT TO THE PLAIN FEEL DOCTRINE.
When a motion judge has denied a suppression motion, our
review of the motion judge's factual findings "is highly
deferential." State v. Gonzales, 227 N.J. 77, 101 (2016) (citation
omitted). Because the motion judge has the "opportunity to hear
and see the witnesses and to have the 'feel' of the case," Ibid.(quoting State v. Johnson, 42 N.J. 146, 161 (1964)), the motion
judge's factual findings will be upheld so long as "sufficient
credible evidence in the record" supports those findings. State
v. Elders, 192 N.J. 224, 243-44 (2007) (citations omitted).
However, we review issues of law 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 application of those facts
to the law. Defendant argues that the motion judge erred in
sustaining the warrantless search under the plain feel doctrine.
8 A-3351-14T1
Defendant asserts that the seizure failed to meet two elements of
the plain feel doctrine. First, Williams knew defendant left his
bag on the porch for his mother to retrieve, rendering the police
conduct unreasonable under the circumstances. "Second, the
illegality of the handgun was not immediately apparent because it
was discovered on the porch of a private residence, and its
possession was presumptively legal under N.J.S.A. 2C:39-6(e)." On
the latter point, defendant asserts that the illegality of the
handgun was not discovered until after it was seized and an NCIC
search at headquarters revealed that the gun had been reported
stolen. We are unpersuaded by defendant's arguments.
"A warrantless search [or seizure] is presumed invalid,
unless it falls within one of the recognized exceptions to the
warrant requirement" and there exists probable cause. State v.
Moore, 181 N.J. 40, 44 (2004) (alteration in original) (quoting
State v. Cooke, 163 N.J. 657, 664 (2000)); State v. Valencia, 93
N.J. 126, 133 (1983). Probable cause is supported by the "totality
of the circumstances[,]" State v. Toth, 321 N.J. Super. 609, 614
(App. Div. 1999), certif. denied, 165 N.J. 531 (2000), and
"requires nothing more than 'a practical, common-sense decision
whether, given all the circumstances . . . there is a fair
probability that contraband or evidence of a crime will be found
9 A-3351-14T1
in a particular place.'" Id. at 615 (alteration in original)
(quoting State v. Demeter, 124 N.J. 374, 380-81 (1991)).
One of the recognized exceptions to the warrant requirement
is the plain-feel doctrine. The plain-feel doctrine permits the
warrantless seizure of contraband discovered by an officer through
the sense of touch during an otherwise lawful encounter. Minnesota
v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334(1993). Analogizing the plain-feel doctrine to the plain-view
doctrine, the Dickerson Court explained:
The rationale of the plain-view doctrine is
that if contraband is left in open view and
is observed by a police officer from a lawful
vantage point, there has been no invasion of
a legitimate expectation of privacy and thus
no "search" within the meaning of the Fourth
Amendment – or at least no search independent
of the initial intrusion that gave the
officers their vantage point. The warrantless
seizure of contraband that presents itself in
this manner is deemed justified by the
realization that resort to a neutral
magistrate under such circumstances would
often be impracticable and would do little to
promote the objectives of the Fourth
Amendment. The same can be said of tactile
discoveries of contraband. If a police
officer lawfully pats down a suspect's outer
clothing and feels an object whose contour or
mass makes its identity immediately apparent,
there has been no invasion of the suspect's
privacy beyond that already authorized by the
officer's search for weapons; if the object
is contraband, its warrantless seizure would
be justified by the same practical
considerations that inhere in the plain view
context.
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[Id. at 375-76, 113 S. Ct. at 2137-38, 124 L.
Ed. 2d at 345-46 (citations omitted).]
The Dickerson Court emphasized that, for the plain-feel
exception to apply, the incriminating character of the object must
be "immediately apparent." Ibid. In State v. Jackson, 276 N.J.
Super. 626 (App. Div. 1994), we explained that since the plain-
feel exception is "a corollary to the plain view doctrine[,]" the
same public policy concerns undergirding the plain-view exception
applied. See id. at 628, 630-31; see also Toth, supra, 321 N.J.
Super. at 615 (stating "[t]here is no reason in law, logic, or
policy that would justify a different analysis when analyzing a
plain feel matter."), certif. denied, 165 N.J. 531 (2000).
Because the plain-feel doctrine assumes an otherwise lawful
encounter, an analysis of its applicability must, of necessity,
evaluate the circumstances of the police encounter. While the
plain-feel doctrine ordinarily arises in the context of a Terry1
stop, its application is not limited to such circumstances. Cf.
State v. Evans, 449 N.J. Super. 66, 82-86 (App. Div. 2017)
(concluding that the plain feel doctrine did not satisfy the
1
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889(1968).
11 A-3351-14T1
statutory criteria for a strip search under N.J.S.A. 2A:161A-
1(b)).
Here, Williams' physical contact with defendant's bag
occurred after Williams had responded to a domestic violence
service call during which defendant was arrested and left his bag
for his mother's retrieval on a shared porch of a large apartment
complex. Williams had no intention of searching defendant's bag
when he moved it to the interior of the apartment for safekeeping.
Rather, his intention was to protect defendant's belongings and
the detection of the gun was entirely inadvertent.2
"One seeking to invoke the protection of the [F]ourth
[A]mendment must establish that a reasonable or legitimate
expectation of privacy was invaded by government action." State
v. Marshall, 123 N.J. 1, 66 (1991), supp. 130 N.J. 109 (1992)
(citing Smith v. Md., 442 U.S. 735, 740, 99 S. Ct. 2577, 2580, 61
L. Ed. 2d 220, 226 (1979)). "The resolution of that issue depends
on whether the person 'exhibited an actual (subjective)
expectation of privacy,' and whether the expectation of privacy
2
We note that in State v. Gonzales, 227 N.J. 77 (2016), our Supreme
Court discarded the prior requirement of the plain-view exception
that evidence be discovered inadvertently, and determined that,
prospectively, as long as the officer is "lawfully . . . in the
area where he observed and seized the incriminating item or
contraband," and it is "immediately apparent that the seized item
is evidence of a crime[,]" the exception applies. Id. at 101.
The same analysis would apply to the plain-feel doctrine.
12 A-3351-14T1
is 'one that society is prepared to recognize as reasonable.'"
Id. at 66-67 (citations omitted).
Here, although defendant expected his mother to retrieve his
bag, he nonetheless placed it on a shared porch of a large
apartment complex. It is well settled that
a portion of the curtilage, being the normal
route of access for anyone visiting the
premises, is only a semi-private area. . . .
Thus, when the police come on to private
property to conduct an investigation or for
some other legitimate purpose and restrict
their movements to places visitors could be
expected to go (e.g., walkways, driveways,
porches), observations made from such vantage
points are not covered by the Fourth
Amendment.
[State v. Johnson, 171 N.J. 192, 209 (2002)
(citations omitted).]
Moreover, "[t]he curtilage concept has limited applicability with
respect to multi-occupancy premises because none of the occupants
can have a reasonable expectation of privacy in areas that are
also used by other occupants." Ibid. (quoting State v. Ball, 219
N.J. Super. 501, 506-07 (App. Div. 1987)).
We next consider whether the removal of the bag nevertheless
constituted a seizure for fourth-amendment purposes. "A 'seizure'
of property occurs when there is some meaningful interference with
an individual's possessory interests in that property." Marshall,
supra, 123 N.J. at 67 (quoting U.S. v. Jacobsen, 466 U.S. 109,
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113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85, 94 (1984)). "The
[F]ourth [A]mendment prohibits not all searches and seizures but
only those that are deemed unreasonable." Ibid. (citing State
v. Campbell, 53 N.J. 230, 233 (1969)). It bears noting that "the
reasonableness of a search is determined 'by assessing, on the one
hand, the degree to which it intrudes upon an individual's privacy
and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.'" U.S. v.
Knights, 534 U.S. 112, 118-119, 122 S. Ct. 587, 591, 151 L. Ed.
2d 497, 505 (quoting Wyo. v. Houghton, 526 U.S. 295, 300, 119 S.
Ct. 1297, 1300, 143 L. Ed. 2d 408, 414 (1999)).
Applying these principles, we agree with the motion judge
that, in the totality of the circumstances, Williams' conduct was
objectively reasonable and the seizure of the handgun from
defendant's bag was justified under the plain-feel doctrine.
Williams' handling and movement of defendant's bag was not covered
by the Fourth Amendment and did not constitute a seizure for
Fourth-Amendment purposes because he did not intrude on a
reasonable expectation of privacy or meaningfully interfere with
defendant's possessory interest in the property. Further, the
character of the contraband was "immediately apparent." Williams
testified that, based on his training and experience with firearms,
it was "immediately apparent" that the object was a handgun based
14 A-3351-14T1
upon mere touch, rather than any manipulation. Additionally, the
victim's statement that there had been prior unreported incidents
of domestic violence and that her children had witnessed "arguing,
fighting and guns" as a result of defendant's presence in the
apartment, lend further support to Williams' belief that
contraband or evidence of a crime would be found in defendant's
bag.
Affirmed.
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