STATE OF NEW JERSEY VS. NATHANIEL HARVEY (85-11-1568, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3752-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERIK BEHEN, a/k/a
ERIK P. BEHEN,
Defendant-Appellant.
________________________________
Submitted February 27, 2017 – Decided March 10, 2017
Before Judges Haas and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
12-12-1751.
Joseph E. Krakora, Public Defender, attorney
for appellant (John Douard, Assistant Deputy
Public Defender, of counsel and on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Lila B. Leonard,
Deputy Attorney General, and Steven A. Yomtov,
Deputy Attorney General, of counsel and on the
brief).
PER CURIAM
After the trial judge denied his motion to suppress evidence,
defendant Erik Behen pled guilty to fourth-degree possession of
an imitation firearm, N.J.S.A. 2C:39-4(e), and fourth-degree
unlawful possession of a knife, N.J.S.A. 2C:39-5(d). In accordance
with the negotiated plea, the judge sentenced defendant to two
years of probation on each charge, to run concurrently with each
other. The judge also assessed appropriate fines and penalties.
On appeal, defendant raises the following contentions:
POINT I
THE PHYSICAL EVIDENCE MUST BE SUPPRESSED
BECAUSE THE POLICE HAD NO CONSTITUTIONALLY
VALID REASON TO STOP AND DETAIN THE CAR OR
SEIZE ANYTHING FOUND ON [DEFENDANT'S] PERSON
OR INSIDE THE CAR.
A. Even If [The Police Officer] Was
Justified In Stopping [Defendant's] Car
When It Went The Wrong Way On A One-Way
Street, He Did Not Have Reasonable,
Articulable Suspicion To Remove
[Defendant] From The Car.
B. The Seizure Of Items In The Car Was Not
Appropriate Under The "Plain View"
Doctrine.
POINT II
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS IMPAIRED
BY THE POLICE OFFICERS' FAILURE TO PRESERVE
THE AUDIO AND VIDEO RECORDING OF THE EVENTS
THAT OCCURRED OUTSIDE THE CAR AFTER THE STOP,
WHICH COULD HAVE IMPEACHED THE POLICE ACCOUNT
OF EVENTS AND LED TO EXCULPATORY INFORMATION.
2 A-3752-14T2
After reviewing the record in light of the contentions advanced
on appeal, we affirm.
I.
We derive the following facts from the evidentiary hearing
conducted by the trial judge. At approximately 3:45 a.m. on a hot
August night in 2012, Officer Michael Schwarz1 was patrolling a
neighborhood in a marked police car. At that time, a dispatcher
called Officer Schwarz and told him that a resident had seen a man
in his yard who was wearing a jacket and a ski mask. The officer
responded to the area, but the dispatcher called again to report
that the masked man had left the yard and was no longer in sight.
Officer Schwarz began driving around the area in search of the
suspect.
A few minutes later, Officer Schwarz saw a car driving toward
him. When the car was approximately 200 to 300 yards away, its
driver stopped, backed the car up, and turned down a side street.
Based upon the driver's actions, Officer Schwarz suspected that
the driver had seen his patrol car. Therefore, the officer
followed the other car down the side street.
The driver of the other car then made another turn and started
driving the wrong way on a one-way street in violation of N.J.S.A.
1
Officer Schwarz was the only witness at the suppression hearing.
3 A-3752-14T2
39:4-85.1. Based upon this traffic violation that occurred in his
presence, Officer Schwarz effectuated a motor vehicle stop of the
vehicle. Officer Schwarz reported to the dispatcher that he had
stopped the car and that there were two occupants in it.
Officer Schwarz testified that he walked up to the car and
found the driver, who was later identified as defendant, wearing
"an Army type heavy jacket" even though it was "very hot and
humid." There was a woman sitting in the front passenger seat.
The officer asked them some questions about where they were coming
from and where they were heading. As he spoke to the couple,
Officer Schwarz saw what appeared to be a rolled-up knit hat or a
ski mask on the front seat, beside the center console.
When defendant and the woman could not explain why they were
in the area, Officer Schwarz asked defendant to exit the car so
he could speak to him. As defendant got out of the car, Officer
Schwarz saw that defendant was carrying two knives in "a double
sheath" he was wearing on the right side of his belt. Officer
Schwarz then grabbed defendant, put him on the hood of the car,
and handcuffed him.
By this time, at least one back-up officer had arrived at the
scene. Officer Schwarz then received a radio report from another
officer who was speaking to the victim who had earlier called
dispatch. The victim described the suspect as a large male, who
4 A-3752-14T2
was approximately six-feet, two-to-three inches tall. Officer
Schwarz saw that defendant matched this description. In addition,
the victim reported that someone had broken into his vehicle and
taken a Coach purse, a matching wallet, and a red compact disc
("CD") case.
Officer Schwarz then asked the female passenger to exit the
car in order to check her for weapons. After the passenger got
out of the car, the officer saw a purse and a red CD case on the
floor of the front passenger seat. Officer Schwarz then reached
into the car and removed the hat, the purse, and the CD case.
When the officer unrolled the hat, he saw that it was a ski mask.
Officer Schwarz then used a flashlight to look into the car.
The officer observed that part of the back seat was pushed down,
which created an opening into the trunk space of the car. The
officer next saw what appeared to be the barrel of a rifle
protruding half-way from the trunk into the backseat. After seeing
the weapon, Officer Schwarz entered defendant's car and removed
it. When he did so, the officer learned that the weapon was a
loaded Daisy air rifle BB gun. The police then impounded
defendant's car.2
2
Defendant and the passenger were later charged in a seven-count
indictment with second-degree conspiracy to commit burglary,
N.J.S.A. 2C:5-2 (count one); second-degree burglary, N.J.S.A.
5 A-3752-14T2
At the conclusion of the hearing, the trial judge denied
defendant's motion to suppress the items Officer Schwarz seized
from defendant and his car. In a thorough oral opinion, the judge
found that the officer had a reasonable basis for stopping
defendant's car after he saw defendant driving the wrong way on a
one-way street. When he began speaking to defendant, the officer
saw that he was wearing a heavy coat that was "inconsistent with
the weather[,]" but entirely consistent with the victim's report
that the masked man in his yard had been wearing a jacket. Officer
Schwarz also saw what appeared to be a rolled-up ski mask in plain
view near the front console. Based upon this information, the
judge found that the officer properly asked defendant to get out
of the car.
When defendant exited the car, the officer immediately saw
that he was carrying two knives in a double sheath attached to his
belt. Thus, the judge concluded that the seizure of the knives
was proper. When the passenger left the car at the officer's
request, he saw a purse and a red CD case similar to what the
2C:18-2 (count two); second-degree possession of a firearm for an
unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); fourth-degree
possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d)
(count four); fourth-degree unlawful possession of a knife,
N.J.S.A. 2C:39-5(d) (count five); third-degree theft, N.J.S.A.
2C:20-3(a) (count six); and third-degree receipt of stolen
property, N.J.S.A. 2C:20-7 (count seven).
6 A-3752-14T2
victim reported as having been stolen in plain view on the floor
of the front passenger seat. Therefore, the judge found that the
seizure of these items was also proper.
Finally, Officer Schwarz used a flashlight to look into the
back seat of the car and saw the air rifle in plain view sticking
out from the trunk into the back seat of the car. Accordingly,
the judge concluded that the seizure of this weapon was also
permissible.3
II.
In Point I of his brief, defendant argues that the trial
judge erred by denying his motion to suppress the evidence seized
from his person and from his car. We disagree.
Our review of a trial judge's decision on a motion to suppress
is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing
a motion to suppress evidence, we must uphold the judge's factual
findings, "so long as those findings are supported by sufficient
credible evidence in the record." State v. Rockford, 213 N.J.
424, 440 (2013) (quoting Robinson, supra, 200 N.J. at 15).
3
As noted above, defendant then pled guilty to unlawful possession
of an imitation firearm, as a lesser-included offense to count
three of the indictment, and to fourth-degree unlawful possession
of a knife under count five. Pursuant to the plea agreement, the
trial judge dismissed the remaining charges against defendant.
Defendant's plea agreement also provided that all of the charges
against the passenger would be dismissed.
7 A-3752-14T2
Additionally, we defer to a trial judge's findings that are
"substantially influenced by [the trial judge's] opportunity to
hear and see the witnesses and to have the 'feel' of the case,
which a reviewing court cannot enjoy." Ibid. (alteration in
original) (quoting Robinson, supra, 200 N.J. at 15). We do not,
however, defer to a trial judge's legal conclusions, which we
review de novo. Ibid.
The police may, without a warrant, temporarily detain a person
if they have a reasonable and articulable suspicion that the person
is engaged in unlawful activity. State v. Elders, 192 N.J. 224,
247 (2007). Similarly, the police may stop a motor vehicle based
on a "reasonable and articulable suspicion that an offense,
including a minor traffic offense, has been or is being committed."
State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, 556 U.S.
1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). The State bears
the burden of establishing by a preponderance of the evidence that
it possessed sufficient information to give rise to a reasonable
and articulable suspicion. Ibid.
Here, Officer Schwarz was investigating a report of a man
wearing a jacket and a ski mask at 3:45 a.m. on a hot and humid
night in a resident's yard. As he was canvassing the area, the
officer saw defendant's car stop, back up, and turn down a side
street. Defendant then turned the wrong way down a one-way street.
8 A-3752-14T2
This obvious traffic violation committed in the officer's presence
gave Officer Schwarz a reasonable basis for stopping defendant's
car. Ibid.
As he was speaking to defendant and the passenger, Officer
Schwarz saw that defendant was wearing a heavy coat and that there
was a rolled-up knit hat or ski mask in the front seat. Thus, the
officer had a reasonable basis to suspect that defendant was the
masked man who was in the resident's yard and, contrary to
defendant's contention, the officer was justified in asking
defendant to step out of the car to talk to him. State v. Bacome,
___ N.J. ___ (2017) (slip op. at 12) (noting that the United States
Supreme Court has held since 1977 that it is "objectively
reasonable for officers to order a driver out of a lawfully stopped
vehicle, finding removal only a minor intrusion into a driver's
personal liberty") (citing Pennsylvania v. Mimms, 434 U.S. 106,
111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331, 337 (1977)); see also
State v. Pena-Flores, 198 N.J. 6, 31 n.7 (2009) (describing right
of officer to remove driver from lawfully stopped vehicle as
"established precedent").
When defendant got out of the car, Officer Schwarz saw that
he was carrying two knives in a double sheath hanging from his
belt. Because the officer was "lawfully . . . in the area where
he observed and seized the" knives, and because it was readily
9 A-3752-14T2
apparent that the knives were either contraband or possible
evidence of a crime, the officer properly seized the weapons under
the plain view doctrine. State v. Gonzalez, 227 N.J. 77, 101
(2016).
After seizing the knives from defendant and handcuffing him,
Officer Schwarz properly asked the passenger to get out of the
car. Clearly, the circumstances "present[ed] reason for
heightened caution." Bacome, supra, (slip op. at 17) (reaffirming
the principle first established in State v. Smith, 134 N.J. 599,
618-20 (1994) that a police officer making a traffic stop may
order a passenger to get out of the car "when the circumstances
warrant heightened caution"). By that time, the officer knew that
the resident had reported that his car was broken into and that
defendant's clothing and physical stature matched the description
of the suspect. The passenger's presence in the car just minutes
after the resident called the police strongly indicated that she
may have also been involved in the offense. In addition, defendant
was carrying two knives when he exited the vehicle, which further
justified removing the passenger from the car to check her for
weapons in order to protect the officer's safety.
After the passenger got out of the car, Officer Schwarz made
another plain view observation of a purse and red CD case, which
matched the description of the items taken from the victim's car.
10 A-3752-14T2
Therefore, the seizure of these items, together with the previously
observed ski mask, was clearly appropriate. Gonzalez, supra, 227
N.J. at 101.
Finally, Officer Schwarz saw the air rifle by shining a
flashlight into the back seat while he was standing from a legal
vantage point outside the car. Again, his plain view observation
of the rifle, which was obviously contraband, permitted him to
seize the weapon. Ibid.
Therefore, we conclude that the trial judge correctly denied
defendant's motion to suppress.
III.
At the suppression hearing, Officer Schwarz answered a number
of questions from both the prosecutor and defense counsel
concerning whether any recording made by the Mobile Video Recorder
(MVR) attached to his patrol car had been preserved. The officer
could not recall whether his MVR was working on the night of the
incident. The officer stated that when he activated his overhead
lights to effectuate the traffic stop of defendant's car, his MVR
should have been activated. However, the officer testified that
he had not been trained that he had to personally do anything to
secure the recording at the end of his shift and he could not
explain why the MVR recording was not available.
11 A-3752-14T2
In Point II of his brief, defendant argues for the first time
on appeal that "that the trial judge committed prejudicial error
in failing to dismiss the indictment since the State failed to
preserve evidence which would have allowed . . . defendant to
challenge the State's case against him." This contention lacks
merit for two reasons.
First, defendant never made a motion to dismiss the
indictment. Although under the plain error rule we will consider
allegations of error not brought to the trial court's attention
that have a clear capacity to produce an unjust result, see Rule
2:10-2; State v. Macon, 57 N.J. 325, 337-39 (1971), we generally
decline to consider issues that were not presented at trial.
Nieder v. Royal Indem. Ins. Co. 62 N.J. 229, 234 (1973). As the
Supreme Court has cogently explained:
Appellate review is not limitless. The
jurisdiction of appellate courts rightly is
bounded by the proofs and objections
critically explored on the record before the
trial court by the parties themselves.
Although "[o]ur rules do not perpetuate mere
ritual[,]" . . . a litigant "must make known
his position to the end that the trial court
may consciously rule upon it." State v.
Abbott, 36 N.J. 63, 76 (1961). This is so
because "[t]he important fact is that the
trial court was alerted to the basic
problem[.]" Id. at 68. In short, the points
of divergence developed in the proceedings
before a trial court define the metes and
bounds of appellate review.
12 A-3752-14T2
[State v. Robinson, 200 N.J. 1, 19 (2009); See
also State v. Witt, 223 N.J. 409, 418-19
(2015) (holding that the "mere filing of a
motion to suppress under Rule 3:5-7(a)" does
not "require[] the State 'to justify every
aspect of the warrantless search'" and that a
defendant "must make known [his or her]
positions at the suppression hearing so that
the trial court can rule on the issues before
it").]
As noted, defendant's present contention that the indictment
should have been dismissed because a MVR recording may not have
been made or produced was not raised before the trial court.
Therefore, we need not review it.
Just as importantly, defendant entered an unconditional
guilty plea in this case. It is well established that "a guilty
plea constitutes a waiver of all issues which were or could have
been addressed by the trial judge before the guilty plea." State
v. Davila, 443 N.J. Super. 577, 585 (App. Div. 2016) (quoting
State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988).
This principle even prohibits "a defendant who pleads guilty
. . . from raising, on appeal, the contention that the State
violated his constitutional rights prior to the plea." State v.
Knight, 183 N.J. 449, 470 (2005) (quoting State v. Crawley, 149
N.J. 310, 316 (1997)).4 In Knight, the Supreme Court held that
4
However, a defendant who pleads guilty may always appeal the
denial of a motion to suppress evidence on the grounds of unlawful
13 A-3752-14T2
"[w]hen a criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is charged,
he may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the
entry of the guilty plea." Id. at 470 (quoting Tollett v.
Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d
235, 243 (1973)).
We therefore conclude that because defendant entered an
unconditional guilty plea, he waived his right to contest the
indictment on appeal. Therefore, we reject defendant's contention
on this point.
Affirmed.
search and seizure. Knight, supra, 183 N.J. at 471; R. 3:5-7(d).
A defendant may also "appeal after a guilty plea from an order
denying entry into the pre-trial intervention program." Davila,
supra, 443 N.J. Super. at 586 (citing Knight, supra, 183 N.J. at
471. "Lastly, pursuant to Rule 3:9-3(f), a defendant may appeal
those adverse decisions specifically reserved by a conditional
guilty plea entered in accordance with the Rule." Ibid. (citing
Knight, supra, 183 N.J. at 471).
14 A-3752-14T2