STATE OF NEW JERSEY VS. JAMES M. HENRY (15-05-0583, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-3822-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES M. HENRY, a/k/a
HENRY JAMES, and J. HOOD,
Defendant-Appellant.
___________________________
Submitted October 15, 2019 – Decided January 21, 2020
Before Judges Rothstadt and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 15-05-
0583.
Joseph E. Krakora, Public Defender, attorney for
appellant (John Walter Douard, Assistant Deputy
Public Defender, of counsel and on the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Andre R. Araujo,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant James M. Henry appeals from his conviction for first-degree
aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and third-degree hindering
apprehension, N.J.S.A. 2C:29-3(b)(1). His sole argument on appeal relates to
the trial court's order denying his motion to suppress his cell phone, seized from
his sister's car by a detective without a warrant after police executed an arrest
warrant for defendant and removed him to the police station. He contends:
THE COURT ERRED IN DENYING THE
SUPPRESSION MOTION BECAUSE [THE
DETECTIVE] PHYSICALLY INTRUDED INTO A
VEHICLE IN ORDER TO INVESTIGATE THE
NATURE OF AN OBJECT HE HAD SEEN WHILE
OUTSIDE THE VEHICLE, AND HE LACKED
PROBABLE CAUSE AT THE TIME OF ENTRY TO
CONCLUDE THAT THE OBJECT WAS
CONTRABAND.
We disagree and affirm.
Recognizing our obligation "to uphold the motion judge's factual findings
so long as sufficient credible evidence in the record supports those findings ,"
State v. Gonzales, 227 N.J. 77, 101 (2016), we accord a high degree of deference
to the facts that follow, as found by the motion judge, ibid.
Police developed defendant and a codefendant as suspects in a double
murder and obtained an arrest warrant for defendant, which they executed while
he was a passenger in his sister's car. After defendant was arrested and removed
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from the scene, a detective standing outside the vehicle speaking with
defendant's sister noticed a cell phone on the dashboard. The detective asked
defendant's sister if the phone was hers. She advised him it was defendant's
phone. The detective reached inside the car and seized the phone. He did not
search the phone or the vehicle. He later obtained and executed a
communications data warrant, gleaning incriminating evidence from the phone
that linked defendant to the murders. Defendant sought to suppress that
evidence.
We agree with the motion judge that the search was justified under the
plain view exception to the warrant requirement which allows seizures if the
police 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." Gonzales, 227 N.J. at 101. The detective,
standing outside the vehicle, was able to see the phone. The "simple observation
into the interior of an automobile by a police officer located outside the
automobile is not a 'search' within the meaning of the Fourth Amendment." State
v. Reininger, 430 N.J. Super. 517, 534 (App. Div. 2013) (quoting State v. Foley,
218 N.J. Super. 210, 215 (App. Div. 1987)).
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Further, we are unpersuaded by defendant's contention the State failed to
demonstrate "that the incriminating nature of the phone was immediately
apparent"; specifically, claiming the detective's belief that the phone may have
contained incriminating text messages, emails, or photos "amounted to no more
than a hunch" that the device contained evidence of a crime. Even if an item
seen in plain view is not per se contraband, police may still be entitled to seize
it if the officer has "[a] 'practical, nontechnical' probability that [the item
contains] incriminating evidence[.]" Texas v. Brown, 460 U.S. 730, 742 (1983)
(quoting Brinegar v. U.S., 338 U.S. 160, 176 (1949)). As our Supreme Court
pointed out in State v. Bruzzese, a police officer does not need to be certain that
an item is or contains evidence of a crime for probable cause to exist justifying
its seizure. 94 N.J. 210, 237-38 (1983). Rather:
"Probable cause exists if at the time of the police action
there is a 'well grounded' suspicion that a crime has
been or is being committed." State v. Sullivan, 169 N.J.
204, 211 (2001). It 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 in a
particular place." State v. Demeter, 124 N.J. 374, 380-
81 (1991). The flexible, practical totality of the
circumstances standard has been adopted because
probable cause is a "fluid concept—turning on the
assessment of probabilities in particular factual
contexts—not readily, or even usefully, reduced to a
neat set of legal rules." Schneider v. Simonini, 163 N.J.
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336, 361 (2000). Probable cause "merely requires that
'the facts available to the officer would warrant a man
of reasonable caution in the belief' . . . that certain items
may be contraband . . . or useful as evidence of a crime,
it does not demand any showing that such belief be
correct or more likely true than false." Bruzzese, 94
N.J. at 237.
[State v. Johnson, 171 N.J. 192, 214 (2002) (first and
third alterations in original).]
The motion judge correctly determined that, under the totality of the
circumstances, the detective had probable cause to believe defendant's phone
contained evidence linked to the murders. The judge credited the detective's
testimony that he seized defendant's phone because "a lot of stuff is captu red"
on a smart phone that could be useful to an investigation, and that information
regarding the suspect's location at the time of the crime can be obtained by
accessing the phone's GPS system. As the judge found from the detective's
testimony, "smart phones are typically mini-computers which will house photos,
text messages, audio messages, videos, calls made and received and other
information relative to criminal activity." The judge placed "substantial weight
on the credibility of the detective and his expertise [as a twenty-two-year law-
enforcement veteran] in the recognition of the smart phone and their use during
crimes," experience which the judge said "cannot be ignored." See Demeter,
124 N.J. at 382 (holding a court may take into account a police officer's training
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and experience in associating "intrinsically innocent" objects with criminal
activity).
When defendant's sister, two days after the murders, told the detective the
phone on the dashboard belonged to defendant, the detective soundly concluded
the phone could provide evidence of the crimes for which defendant's arrest
warrant had been issued. Defendant was alleged to have acted with a
codefendant. The phone could have provided communications between the two
before, during and immediately after the crimes. And, as the detective noted,
the phone could provide defendant's location at the time of the crimes. State v.
Earls, 214 N.J. 564, 577 (2013) (recognizing that "[t]oday, cell-phone providers
can pinpoint the location of a person's cell phone with increasing accuracy").
The detective need not have been certain the phone would reveal evidence
of criminality. Bruzzese, 94 N.J. at 237-38. Just as the officer who arrested the
defendant in Bruzzese need not have known if the heel imprint of the boots he
picked up in the defendant's bedroom would match the imprint left at the scene
of the burglary in which the defendant was "a prime suspect," id. at 238-39, the
detective here need not have been certain that the phone would yield evidence
useful to defendant's prosecution. As the Bruzzese Court ruled, "[w]e do not
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believe that a police officer lawfully in the viewing area must close his eyes to
suspicious evidence in plain view." Id. at 237.
We are also unpersuaded by defendant's argument that the detective
impermissibly intruded into the interior of the car without a search warrant to
seize the phone, requiring suppression of the evidence seized from the phone.
"[I]n determining the constitutionality of a [plain view] seizure, our courts must
look to whether 'the [seizure] was objectively reasonable.'" Gonzales, 227 N.J.
at 81 (quoting State v. Edmonds, 211 N.J. 117, 133 (2012)); see also Bruzzese,
94 N.J. at 238-39.
In Bruzzese, the Court discerned that the officer, after seizing the boots,
was justified in turning them over to inspect the heel imprint because the
defendant had a minimal privacy interest in the boot soles, and that it was
sensible to allow "this de minimus intrusion to investigate shoe-bottoms for their
possible connection with footprints left at the scene of a crime." 94 N.J. at 238-
39 (emphasis in original). The Court ruled the officer, after noticing the boot-
heel was consistent with the imprint left at the crime scene, "was entitled to take
the boots to headquarters to determine if the pattern matched the imprint" at that
scene. Id. at 239.
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Similarly, the detective's act of reaching into the automobile for the sole
purpose of seizing the phone was a minimal intrusion into an area in which
defendant's sister had only a diminished expectation of privacy. See State v.
Mandel, 455 N.J. Super. 109, 116 (App. Div. 2018). Importantly, the intrusion
did not reveal the evidence of criminality; the detective had already seen the
phone before he entered the car. See id. at 116-117. The detective did not
impermissibly "conduct[] a[n] . . . inspection of what would otherwise be
hidden[.]" Id. at 116 (second and third alterations in original) (quoting People
v. Aquino, 500 N.Y.S.2d 677, 679 (N.Y. App. Div. 1986)).
We also conclude the brief intrusion to seize the phone was reasonable
under the exigent circumstances the detective faced. The "preservation of
evidence remain[s one of] the preeminent determinants of exigency." In Interest
of J.A., 233 N.J. 432, 448 (2018) (quoting State v. Dunlap, 185 N.J. 543, 551
(2006)). When our Supreme Court reinstated the automobile exception in State
v. Witt, 223 N.J. 409 (2015), it recognized the United States Supreme Court's
tripartite rationale for the exception, among which were "the inherent mobility
of the vehicle," and "the lesser expectation of privacy in an automobile
compared to a home," id. at 422-23 (citations omitted). The Court harkened to
its prior decision, stating, "[i]n Alston, we determined that a warrantless search
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of an automobile was constitutionally permissible, provided that the police had
probable cause to search the vehicle and that the police action was prompted by
the 'unforeseeability and spontaneity of the circumstances giving rise to
probable cause.'" Id. at 414 (quoting State v. Alston, 88 N.J. 211, 233 (1981)).
Those same principles apply here. The detective did not anticipate that
defendant's phone would be on the car's dashboard following his arrest.
Defendant's sister was not arrested and was free to leave in the vehicle—with
the phone. The portability and disposability of the phone is obvious, as is the
ease with which data on the phone can be removed. The motion judge
recognized the stop and arrest of defendant by "[eight] or [nine] officers with
black vests and guns drawn" was "traumatic" for his sister. As the judge stated,
she testified she was "snatched" from her car by the officers and placed in
handcuffs before she was released. The judge found she "was obviously
distraught and fearful when the police arrested her brother" on murder charges.
Under those circumstances, the detective need not have trusted that defendant's
sister would have turned over the phone upon their later request and was justified
in immediately seizing it. See State v. Martin, 87 N.J. 561, 569 (1981)
(recognizing an exigency independent of the automobile exception—that at-
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large suspects "might have returned at any moment to move the car or remove
the car's contents"—warranted an immediate search of an automobile).
Reviewing de novo the motion judge's application of his findings to the
law, State v. Watts, 223 N.J. 503, 516 (2016), we conclude the phone was
properly seized and defendant's motion to suppress evidence was correctly
denied.
Affirmed.
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