STATE OF NEW JERSEY VS. MOISES PERALES(12-12-0929, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-2347-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MOISES PERALES,
Defendant-Appellant.
_________________________________
Submitted January 18, 2017 – Decided July 18, 2017
Before Judges Koblitz and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
12-12-0929.
Joseph E. Krakora, Public Defender, attorney
for appellant (Brian P. Keenan, Assistant
Deputy Public Defender, of counsel and on the
brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Tom Dominic Osadnik,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Moises Perales appeals his conviction for third-
degree unlawful possession of a weapon, a BB gun, N.J.S.A. 2C:39-
5(b). He pled guilty to the offense following the trial court's
denial of his motion to suppress evidence. On appeal, defendant
contends:
POINT I
THE MOTION JUDGE ERRED IN DENYING DEFENDANT'S
MOTION TO SUPRESS THE BB GUN, PEPPER SPRAY,
BATON, AND HANDCUFFS BECAUSE THE OFFICERS'
TESTIMONY, OFFERED TO ESTABLISH THAT THE ITEMS
WERE SEIZED PURSUANT TO THE PLAIN VIEW
EXCEPTION TO THE WARRANT REQUIREMENT, LACKED
CREDIBLITY.
Having considered the record and applicable law, we affirm.
We discern the following relevant facts from the suppression
hearing. As the search in question was warrantless, the State
sought to meet its burden to show the search was legal through the
testimony of Clifton Police Officers Gene Vincent Hayes and Nick
Hriczov. See State v. Pineiro, 181 N.J. 13, 19 (2004). Defendant
testified on his own behalf.
On July 27, 2012, at approximately 3:30 a.m., Hayes and
Hriczov were on patrol in an unmarked police vehicle, with Hriczov
driving, when they heard loud music coming from defendant's
vehicle. After they activated their emergency lights and siren,
they pulled over defendant's vehicle in a well-lit area with
commercial businesses. The officers were dressed in plain clothes
but were wearing police badges around their necks. Hayes testified
that he approached the passenger's side of defendant's vehicle,
2 A-2347-14T1
and noticed a police duty belt in the vehicle's back seat
containing a canister of chemical spray, handcuffs, a baton, and
a black pistol in a holster. After asking defendant where he was
coming from and why he had the duty belt, Hayes stated that
defendant reached for the duty belt. Concerned about his and his
partner's safety, Hayes reached through the open passenger's
window and grabbed the duty belt before defendant could do so. He
then found out the pistol was a loaded BB gun. Defendant was
placed under arrest and charged with third-degree unlawful
possession of a weapon, as well as various other charges.1
Hirczov's testimony was consistent with Hayes's account.
Hriczov stated that he went to the driver's side of defendant's
vehicle and asked defendant for his driving credentials. He also
noticed the duty belt in the back seat. According to Hriczov,
when defendant reached for the duty belt, he directed defendant
to place his hands on the steering wheel as Hayes secured the duty
belt. Hirczov stated that he did not initially shout a warning
1
Defendant was also indicted for two counts of fourth-degree
possession of a weapon, N.J.S.A 2C:39-5(d), and second-degree
certain persons not to have weapons, N.J.S.A. 2C:39-7(b). In
addition, he was charged with a disorderly persons offense for
possession of handcuffs, N.J.S.A. 22C:39-3(k), and issued
summonses for driving while his license was suspended, N.J.S.A.
39:9-40, and a municipal ordinance violation for playing loud
music.
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about the duty belt to his partner because he did not initially
see a gun in the belt, and defendant was wearing a police type
uniform - blue polo shirt with a gold badge and blue yellow striped
pants uniform. It was later revealed that defendant was a security
officer.
Defendant gave contrary testimony. He stated that Hayes did
not approach his vehicle until five minutes after Hriczov had
asked for his credentials. Defendant denied the duty belt was in
his vehicle's back seat. He testified that after he told the
officers his driver's license was suspended, he complied with
Hayes' request for the key to search the vehicle's trunk. He
stated Hayes found the duty belt in trunk, which contained mace
spray, a baton, and handcuffs. Defendant admitted that the BB gun
was in the trunk, but not in the duty belt.
After the one-day suppression hearing, Judge Donna Gallucio
reserved decision. On January 6, 2014, the judge issued an oral
decision denying defendant's motion to suppress.2 In doing so,
she found the police officers' testimony credible. Taking into
consideration defendant's two prior convictions in 2006 and 2008
for eluding the police and terroristic threats, respectively,
2
According to the transcript of Judge Gallucio's decision, the
State was to submit a form of order to be executed by the judge.
However, the record does not include the order memorializing the
denial of the motion to suppress.
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solely for the purposes of assessing his credibility, the judge
did not believe defendant's testimony. Citing to Delaware v.
Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979),
Judge Gallucio found that the officers had probable cause to stop
defendant's vehicle for an alleged noise violation of a municipal
ordinance. She noted that defendant did not deny that he was
playing loud music. The judge determined that once the officers
stopped defendant and asked him for his driving credentials, they
had the right to seize the duty belt containing the loaded BB gun,
chemical spray, handcuffs and baton, under the plain view exception
recognized in Coolidge v. Hampshire, 403 U.S. 443, 91 S. Ct. 2022,
29 L. Ed. 2d 564 (1971), and State v. Bruzzese, 94 N.J. 210 (1983).
Defendant subsequently pled guilty to third-degree unlawful
possession of a BB gun, and was sentenced to a four-year prison
term. This appeal ensued.
Before us, defendant contends that the police officers'
testimony was not credible, and his account of his interaction
with them was accurate. In his version, the duty belt and BB gun
were in the trunk, thus the plain view exception to obtaining a
warrant did not apply. Furthermore, having no articulable
suspicion to ask defendant to search his trunk, there was no valid
consent search under State v. Frankel, 179 N.J. 586, 598, cert.
5 A-2347-14T1
denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004).
We are unpersuaded.
We begin by noting our standard of review. It is well
understood that when considering a trial court's ruling on a motion
to suppress evidence, "[w]e conduct [our] review with substantial
deference to the trial court's factual findings, which we 'must
uphold . . . so long as those findings are supported by sufficient
credible evidence in the record.'" State v. Hinton, 216 N.J. 211,
228 (2013) (quoting State v. Handy, 206 N.J. 39, 44 (2011)).
"Those findings warrant particular deference when they are
'substantially influenced by [the motion judge's] opportunity to
hear and see the witnesses and to have the 'feel' of the case,
which a reviewing court cannot enjoy.'" State v. Rockford, 213
N.J. 424, 440 (2013) (alteration in original) (quoting State v.
Robinson, 200 N.J. 1, 15 (2009)). We review de novo the trial
court's determinations of law, State v. Mann, 203 N.J. 328, 337
(2010) (citation omitted), as well as the application of legal
principles to factual findings. State v. Harris, 181 N.J. 391,
416 (2004) (citing State v. Marshall, 148 N.J. 89, 185, cert.
denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)),
cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898
(2005).
6 A-2347-14T1
In accordance with the Fourth Amendment to the United States
Constitution and Article 1, paragraph 7 of the New Jersey
Constitution, "police 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)).
One such exception to the warrant requirement is the plain
view doctrine, which allows law enforcement to seize contraband
without a warrant. 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 Mann, supra, 203 N.J. at 341).]3
3
In State v. Gonzales, 227 N.J. 77, 82 (2016), our 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." This suppression motion pre-dated Gonzales, and
therefore the element must be satisfied in this case.
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Our court has held that there is no reasonable expectation
of privacy in those areas of a vehicle viewable through the windows
by a police officer located outside the vehicle. State v.
Reininger, 430 N.J. Super. 517, 534 (App. Div.), certif. denied,
216 N.J. 367 (2013) (citation omitted). Thus, the seizure of
suspected illegal weapons seen by illuminating the backseat of a
vehicle was valid under the plain view exception to the search
warrant requirement. Id. at 526, 536.
Guided by these principles, we conclude that the seizure of
the BB gun, chemical spray, handcuffs, and baton was constitutional
under the plain view exception. Judge Gallucio found credible
Hayes' and Hriczov's testimony that they saw defendant's duty
belt, containing a gun in its holster, in plain view in the back
seat of defendant's vehicle after defendant's vehicle was legally
stopped for a noise violation. We discern no reason not to defer
to her credibility findings. Thus, we conclude the motion to
suppress was properly denied because there was a lawful detention
of defendant's motor vehicle followed by a legal search and
seizure.
Affirmed.
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