STATE OF NEW JERSEY v. JOSE R. MORALES-RIVERA (18-04-0066, 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NOT FOR PUBLICATION WITHOUT THE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-1443-20
STATE OF NEW JERSEY,
Plaintiff-Respondent/
Cross-Appellant,
v.
JOSE R. MORALES-RIVERA,
Defendant-Appellant/
Cross-Respondent.
__________________________
Argued March 14, 2022 – Remanded March 18, 2022
Resubmitted July 19, 2022 – Decided August 4, 2022
Before Judges Sabatino and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No.
18-04-0066.
Mazraani & Liguori, LLP, attorneys for
appellant/cross-respondent (Jeffrey S. Farmer, of
counsel and on the briefs).
Matthew J. Platkin, Acting Attorney General, attorney
for respondent/cross-appellant (Adam D. Klein, Deputy
Attorney General, of counsel and on the briefs).
PER CURIAM
This matter returns to us pursuant to a March 18, 2022 order temporarily
remanding to the trial court "for a ruling on the applicability of the automobile
exception under State v. Witt"1 regarding a motion to suppress physical evidence
filed by defendant Jose R. Morales-Rivera.
Shortly before the March 14, 2022 appellate argument date, we discovered
counsel failed to supply a transcript of the March 19, 2019 suppression hearing
before the trial court. After receiving that transcript, we learned the State had
argued in opposition to the suppression motion that law enforcement's
warrantless search of defendant's car was justified pursuant to the automobile
exception to the warrant requirement under Witt. However, the trial judge did
not address this specific argument.
After hearing counsels' appellate arguments, we allowed the parties to
submit supplemental briefs regarding the applicability of the automobile
exception under Witt to the facts of this case. Subsequently, we issued an order
temporarily remanding the matter to the trial court for the limited purpose of
ruling on whether the Witt exception justified the warrantless search of
defendant's car.
1
223 N.J. 409 (2015).
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We retained jurisdiction and allowed either party to pursue appellate
review after the trial court's remand decision by filing an expanded notice of
appeal on behalf of defendant or a notice of cross-appeal on behalf of the State.
Consistent with our remand order, the trial judge issued an April 4, 2022 written
decision, finding the Witt exception to the warrant requirement inapplicable.
Based on the judge's decision on the remanded issue, the State filed a
cross-appeal. We now address the issues raised in defendant's appeal and the
State's cross-appeal. For the reasons that follow, we reverse the March 21, 2019
order applying the inevitable discovery doctrine to justify the warrantless search
of defendant's car and affirm the April 4, 2022 order finding the automobile
exception under Witt inapplicable.
We summarize the facts from the record on defendant's suppression
motion. Relying on information provided by a confidential informant, the New
Jersey State Police planned a "buy-bust" operation, and arranged for an
undercover detective to purchase cocaine from Jose Ventura-Guardado. On
January 24, 2018, at approximately 6:00 p.m., Ventura-Guardado placed a
telephone call to arrange a drug buy. Around 7:30 p.m., defendant and co-
defendant Gerardo Rivera-Robles arrived by car at the apartment complex
designated for the physical exchange of drugs and money. The police had no
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information regarding the make or model of the car being used to complete the
drug transaction. Rather, the law enforcement team watched every car entering
the apartment complex for indicia of the planned drug deal.
During this timeframe, an undercover officer saw Ventura-Guardado
remove a package from a gray Acura driven by defendant. At that moment, the
undercover officer gave the "go" signal for other officers involved in the buy-
bust operation to arrest all participants. 2 Simultaneously, another officer
deployed a flash-bang device to distract the participants involved in the drug
exchange. Ventura-Guardado purportedly dropped a package containing drugs
into defendant's car when the flash-bang device discharged. Defendant and the
co-defendant were arrested as a result of the buy-bust operation.
Three months after his arrest, defendant was indicted on the following
charges: second-degree conspiracy to distribute cocaine and launder money,
N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1), N.J.S.A.
2C:21-25(a); first-degree possession with intent to distribute cocaine, N.J.S.A.
2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1), and N.J.S.A. 2C:2-6; third-degree
2
There were approximately thirty-six law enforcement officers on site for the
planned buy-bust operation.
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possession of cocaine, N.J.S.A. 2C:35-10(a)(1); and third-degree financial
facilitation of criminal activity, N.J.S.A. 2C:21-25(a) and N.J.S.A. 2C:2-6.
Defendant moved to suppress drug-related evidence seized from his car.3
The motion judge heard testimony on the suppression motion over three non -
consecutive days in November and December 2018. Detective Sergeant Jeffrey
Gauthier testified for the State. Defendant presented testimony from a private
investigator, David Gamble. During the suppression hearings, the State relied
on the plain view exception to the search warrant requirement to justify the
seizure of the drug evidence found in defendant's car.
Two months prior to the first scheduled suppression hearing, the judge
invited counsel to brief the applicability of the inevitable discovery doctrine as
a separate exception to the search warrant requirement. At that time, the State
maintained the seizure of the cocaine was lawful under the plain view exception.
During the suppression hearings, Detective Gauthier explained his
participation in the buy-bust operation. After he received the "go" signal from
3
Defendant sought to suppress the following seized items: a kilo of cocaine;
bank records; and cash. Law enforcement removed other evidence from
defendant's car during the buy-bust operation. However, the additional evidence
was not the subject of defendant's suppression motion.
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the undercover officer, Gauthier drove from the off-site location where he
parked his car to the apartment complex and assisted in the arrests.
The undercover officer, who did not testify during the suppression
hearings, purportedly saw Ventura-Guardado drop the cocaine into defendant's
car after a flash-bang device deployed. Because Gauthier was not on scene at
the time, the undercover officer reported this information to Gauthier.
With this information, Gauthier turned his attention to defendant's car.
According to Gauthier, because the front passenger door was ajar, he noticed
cocaine on the passenger side floorboard of the car. Gauthier testified he took
several photographs of the cocaine in defendant's car using a personal cell
phone. The photographs were admitted as evidence during the suppression
hearings. After Gauthier photographed the evidence, a different officer secured
defendant's car and removed the cocaine.
Gauthier explained the police towed defendant's car to an impound
location and "kept it there in evidence." Counsel stipulated the police "junk
titled"4 the car ninety-nine days after towing the vehicle to the impound lot.
According to Gauthier, if he had not seen the cocaine in plain view, he was
4
N.J.S.A. 39:10A-8 to -12 permits the issuance of a junk-title certificate so a
vehicle may be sold rather than stored forever.
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"absolutely ready for a search warrant based on the information [they] had
leading up to that point."
At the next suppression hearing, Gauthier testified he deleted some
photographs of the cocaine taken with his personal cell phone. He claimed the
deleted photographs were either blurry or distorted. Gauthier denied moving or
touching the cocaine in defendant's car while photographing the drugs.
During the final suppression hearing, David Gamble, a former crime scene
investigator, produced enhanced versions of Gauthier's original cell phone
photographs. The enhanced photographs proffered by Gamble were "zoomed-
it" and brighter than the original photographs taken with Gauthier's cell phone.
Through Gamble's testimony, defense counsel argued the enhanced photographs
demonstrated the cocaine was not on the floor of defendant's car. Rather,
Gamble testified the drugs were on the passenger seat because the photographs
displayed someone's thumb touching the black plastic bag with the cocaine on
the car's seat. Gamble's testimony challenged the veracity of Gauthier's
testimony regarding the location of the cocaine, suggesting the evidence had
been repositioned before Gauthier photographed it.
At the conclusion of the suppression hearings, counsel presented written
summations. In its written summation and during oral argument on defendant's
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motion, the State asserted the evidence seized from defendant's car was
admissible based on the automobile exception under Witt. While the State
discussed the automobile exception during the March 19 court proceeding, the
judge never ruled on the State's argument the Witt exception supported the
warrantless search of defendant's car.
Based on the testimony, documentary evidence, written submissions, and
oral argument, the judge issued a written decision, finding Gauthier's testimony
was "contradicted" by Gamble's testimony. Relying on Gamble's testimony and
his enhanced photographic evidence, the judge concluded the cocaine in
defendant's car had been "located on the seat, rather than on the floor." The
judge noted, "[t]he State had the opportunity to rebut Mr. Gamble's
interpretation of what was depicted in the photos and they failed to offer any
evidence to rebut the testimony of Mr. Gamble."
Due to "many inconsistencies . . . in the testimony of Det. Sgt. Gauthier[],
especially as to material issues pertaining to whether the CDS was observed in
plain view . . . on the floor in front of the front passenger seat[,]" the judge
sidestepped ruling on the State's plain view exception. Rather, the judge denied
defendant's suppression motion "because the evidence seized [was] admissible
due to the application of the inevitable discovery doctrine."
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Because defendant did not dispute the cocaine was in his car and the police
towed the car to an impound lot, the judge concluded the police inevitably would
have discovered the cocaine during an inventory search. The judge, relying on
the two-part inquiry under State v. Mangold, 82 N.J. 575 (1980), determined an
inventory search would have been reasonable under the circumstances. To
invoke the inevitable discovery doctrine for a warrantless search, the State must
prove: (1) impoundment of the property was justified and (2) the inventory
procedure was legal. Id. at 583.
In his analysis, the judge held the State satisfied the first prong of the
Mangold analysis because there was reasonable and proper justification for the
impoundment of defendant's car under N.J.S.A. 2C:43-2.4(a)(5), allowing law
enforcement to impound a motor vehicle used in the commission of an offense
under N.J.S.A. 2C:35-10(a) or N.J.S.A 2C:25-5. Additionally, citing N.J.S.A.
2C:64-1, the judge found impoundment of defendant's car was proper because
"it was subject to forfeiture in light of the fact that it was allegedly used in the
course of criminal activity."
After determining impoundment of defendant's car was justified, the judge
wrote, "[t]here can be no doubt that even if the contraband was hidden in the
vehicle, an inventory search would have resulted in the discovery of the
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evidence" and "the discovery of this evidence would have occurred wholly
independent of the issue of plain view." However, the State presented no
evidence regarding law enforcement's procedure associated with an inventory
search of impounded vehicles. Consequently, the judge made no fact findings
under Mangold's second prong addressing the legality of an inventory search.
Despite the absence of any evidence supporting the lawfulness of an inventory
search of defendant's car, the judge denied defendant's suppression motion,
declaring the evidence seized without a warrant was justified based on the
inevitable discovery doctrine.
Defendant moved for reconsideration of the judge's denial of his
suppression motion. In an April 26, 2019 order, the judge denied the motion.
Thereafter, defendant pleaded guilty to second-degree possession with
intent to distribute cocaine. Defendant reserved the right to appeal the denial of
his motion to suppress evidence. In accordance with the negotiated plea, on
January 11, 2021, the judge sentenced defendant to an eight-year state prison
term.
On appeal, defendant argued the following:
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS
EVIDENCE AS THERE WAS [NO] TESTIMONY IN
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THE RECORD CONCERNING EFFORTS TO
IMPOUND THE VEHICLE.
When reviewing a motion to suppress, we will "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. Handy, 206 N.J. 39, 44
(2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). This is especially
true of findings "which are substantially influenced by [the trial judge's]
opportunity to hear and see the witnesses and to have the 'feel' of the case . . . ."
State v. Johnson, 42 N.J. 146, 161 (1964). We review a trial court's legal
conclusions de novo. Handy, 206 N.J. at 45.
To invoke the inevitable discovery doctrine, the State must clearly and
convincingly show the evidence obtained from the illegal police activity would
have been discovered independent of a constitutional violation. State v. Sugar
(III), 108 N.J. 151, 157 (1987); see also Nix v. Williams, 467 U.S. 431, 443
(1984). Applying this standard, the State must prove that (1) proper
investigatory procedures would have been followed; (2) those methods would
have inevitably resulted in the discovery of the evidence; and (3) the discovery
would have occurred independent of the unlawful seizure. Sugar (III), 108 N.J.
at 156-57.
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Under the inevitable discovery doctrine, the State must justify both
impoundment of the vehicle and an inventory search of the vehicle. Mangold,
82 N.J. at 583. Here, defendant conceded impoundment of his car was
authorized by N.J.S.A. 2C:43-2.4(a)(5). Additionally, because defendant used
the car in the commission of a crime, possession of drugs with the intent to
distribute, defendant forfeited his property interest in the vehicle . See N.J.S.A.
2C:64-1(a)(2). The police were not required to obtain his consent to search the
vehicle or allow defendant to make alternative arrangements before impounding
the car. Ibid.However, even where impounding a vehicle is lawful pursuant to a statute,
we must determine whether the judge correctly applied the inevitable discovery
doctrine and inventory search exception to justify the warrantless search of
defendant's car. The purpose of an inventory search is "protection of the
inventoried property while in police custody, shielding the police and storage
bailees from false property claims, and safeguarding the police from potential
danger." Mangold, 82 N.J. at 581-82 (citing South Dakota v. Opperman, 428
U.S. 364, 369 (1976)). The judge is required to scrutinize the record to
determine the reasonableness of an inventory search before admitting evidence
seized under this exception to the search warrant requirement. Id. at 584.
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To establish the inevitable discovery of evidence through a valid
inventory search, we consider the following factors: "the scope of the search,
the procedure used, and the availability of less intrusive alternatives . . . ." Ibid.
"Mere lawful custody of an impounded vehicle does not ipso facto dispense with
the constitutional requirement of reasonableness mandated in all warrantless
search and seizure cases." Ibid. Although the State "need not establish the
exclusive path leading to the discovery" of the evidence, it must "present facts
sufficient to persuade the court, by a clear and convincing standard, that the
[evidence] would be discovered." Sugar (III), 108 N.J. at 158.
Here, the State proffered no evidence related to the reasonableness of an
inventory search of defendant's car. Despite the lack of any information
regarding an inventory search, the judge concluded, "[t]here can be no doubt
that even if the contraband was hidden in the vehicle, an inventory search would
have resulted in the discovery of the evidence." The judge offered no
explanation why an inventory search in this case would have been reasonable.
We reject the State's argument the police inevitably would have
discovered the cocaine and other drug evidence in defendant's car through a
lawful inventory search after impounding the vehicle. In this case, law
enforcement clearly had the ability to obtain a valid search warrant as part of
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the buy-bust operation. The operation involved substantial advanced planning,
and such planning could have included securing a vehicle suspected to be
transporting drugs while law enforcement applied for a search warrant.
Approximately thirty-six law enforcement officers participated in this buy-bust
operation. Based on the significant number of law enforcement personnel at the
scene, on-site officers could have easily secured defendant's car while another
officer contacted a judge to obtain a search warrant. In fact, Detective Gauthier
testified that had he not seen the cocaine in plain view on the floor of defendant's
car, he was prepared to obtain a search warrant.
Based on the evidence adduced during the suppression hearings, we are
satisfied the inevitable discovery doctrine did not justify the warrantless search
of defendant's car because the State presented no testimony related to the
procedure of the inventory search of defendant's car after it was impounded.
Thus, we reverse the judge's admission of the drug evidence found in defendant's
car under the inevitable discovery doctrine and related inventory search.
During the oral argument on appeal, the State contended our decision in
State v. Ford, 278 N.J. Super. 351, 355-56 (App. Div. 1995) justified the
warrantless seizure of the drug evidence from defendant's car because any
privacy interest was extinguished when the officers saw the cocaine dropped
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into the car. Because the issue was not briefed, we invited the parties to submit
supplemental briefs on this limited issue. Having reviewed the supplemental
briefs, we reject the State's argument relying on Ford.
The Ford case involved a surveillance operation where police officers
observed the defendant walking along the outside of a house, kneeling down to
retrieve an item hidden in a plastic bag, subsequently returning the bag to the
location outside of the house, and completing a drug transaction. Id. at 353.
After the defendant's arrest, an officer retrieved a bag containing cocaine from
the side of the house. Id. at 353-54. In upholding the warrantless search for
drugs in Ford, we concluded the "officers' visual observations of the defendants
during [commission of the drug transaction], and given the observation of the
contraband and its place of attempted concealment in an exterior portion of [a]
house accessible by anyone from the outside without entering the house, no
compelling constitutional interests require suppression of the seized contraband
from its known location." Id. at 357.
The facts in Ford differ from the facts before us on appeal. Here, while
the undercover officer saw a black plastic bag dropped into defendant's car when
a flash-bang device deployed, there remained a reasonable expectation of
privacy in the car's interior. See State v. Hempele, 120 N.J. 182, 215 (1990)
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(rejecting the warrantless seizure of curbside garbage because the contents of
the closed garbage bag were not exposed to the public). Once the bag dropped
into defendant's car, there was no longer potential public exposure to any drug-
related activities, unlike in Ford where the drugs located outside a home
remained readily accessible to the public.
We next consider whether the warrantless search and subsequent seizure
of drug-related evidence from defendant's car was justified under the automobile
exception to the warrant requirement enunciated in Witt. On remand, the judge
rejected the State's argument the warrantless search of defendant's car was
permissible under Witt because the circumstances were not "unforeseeable and
spontaneous." Witt, 223 N.J. at 450.
The judge found there was no evidence the location of defendant's car, in
the rear parking lot of an apartment complex, posed "a risk to the travelling
public as well as to the police" to invoke the Witt exception. He noted "the
police had every reason to anticipate and expect that a drug transaction was to
take place at or about the designated time and place." The judge made the
following factual findings: "there was no threat to the police or the travelling
public when the search was performed"; "[t]he search occurred in a parking lot
so there was little or no traffic occurring at the time of the search"; "the scene
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was secured, which mitigated the risk to the travelling public and/or the
officers"; and "[d]efendants were placed under arrest so the [d]efendant's
detention would not cause any additional prejudice due to the time it would take
for either the police to obtain a search warrant or for the vehicle to be impounded
and searched." The judge further explained:
this was a pre-arranged buy-bust operation. There is no
dispute that the police fully expected a drug transaction
to occur. The police knew in advance where and
approximately when the transaction was going to take
place. Law enforcement was prepared to immediately
secure the location once the transaction did take place.
In light of this, the facts fail to establish that the
discovery of drugs occurred in a manner that was
unforeseeable and spontaneous.
As permitted in our March 18, 2022 remand order, we allowed the State
to file a cross-appeal challenging the judge's ruling on the Witt exception to
justify the search of defendant's car. On the cross-appeal, the State argues:
PROBABLE CAUSE TO SEARCH A PARTICULAR
CAR AROSE SPONTANEOUSLY AND
UNFORESEEABLY, AUTHORIZING THE
WARRANTLESS SEIZURE OF THE COCAINE
UNDER THE AUTOMOBILE EXCEPTION.
We disagree and affirm.
In Witt, our Supreme Court addressed whether the exigent circumstances
test for a warrantless search of an automobile "is unsound in principle and
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unworkable in practice." 223 N.J. at 414. Finding the exigent circumstances
test "[did] not provide greater liberty or security to New Jersey's citizens and
has placed on law enforcement unrealistic and impracticable burdens," the Witt
Court announced, "[g]oing forward, searches on the roadway based on probable
cause arising from unforeseeable and spontaneous circumstances are
permissible. However, when vehicles are towed and impounded, absent some
exigency, a warrant must be secured." Id. at 450.
Subsequent to the Court's decision in Witt, we decided State v. Rodriguez,
459 N.J. Super. 13 (App. Div. 2019), finding the decision in Witt "afford[s]
police officers at the scene the discretion to choose between searching the
vehicle immediately if they spontaneously have probable cause to do so, or to
have the vehicle removed and impounded and seek a search warrant later."
Rodriguez, 459 N.J. Super. at 23.
Here, reasonable, articulable suspicion of a drug activity arose prior to
defendant driving his car into the apartment complex parking lot. Specifically,
the police suspected drug activity would take place in that parking lot based on
information provided by a confidential informant and an undercover officer.
The police knew the exact location where the drugs were to be purchased, the
day the transaction would take place, and the approximate time of the sale. The
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police also pre-planned the deployment of a flash-bang device to distract the
participants involved in the drug transaction.
When the flash-bang triggered, the undercover officer saw a package
containing suspected drugs drop into defendant's car. At that moment, l aw
enforcement had sufficient information and probable cause to seek a search
warrant. Given the thirty-six officers involved in the planned operation,
defendant's car easily could have been secured while the police obtained a search
warrant. The failure to obtain a search warrant under these circumstances
supported suppression of the drug evidence seized from defendant's car.
Having reviewed the record, we are satisfied law enforcement participated
in a detailed, well-planned operation involving the sale and purchase of illegal
drugs. Due to the nature of a buy-bust operation, the very purpose of law
enforcement's action was designed to prevent the suspected sale of drugs. The
decision to search defendant's car after the police detonated the flash-bang
device was not unforeseeable and spontaneous simply because law enforcement
did not know the make and model of the car that would be used to transport the
illegal drugs. Thus, the trial judge correctly rejected the State's argument in
support of the warrantless search under Witt.
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The order denying defendant's motion to suppress evidence seized from
his car is reversed and the judgment of conviction is vacated. The charges
dismissed as part of the negotiated plea agreement are reinstated. The matter is
remanded to the trial court for further proceedings regarding the State's charges
against defendant.
Affirmed in part, reversed in part, and remanded. We do not retain
jurisdiction.
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