NOT FOR PUBLICATION WITHOUT THE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-2711-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JONATHAN CRUZ, a/k/a JOMATHAN CRUZ,
Defendant-Appellant.
________________________________
Submitted April 25, 2017 – Decided June 19, 2017
Before Judges Leone and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
14-10-1621.
Joseph E. Krakora, Public Defender, attorney
for appellant (Laura B. Lasota, Assistant
Deputy Public Defender, of counsel and on the
brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Kerry J. Salkin,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Jonathan Cruz appeals his December 4, 2015 judgment
of conviction. He challenges the trial court's denial of his
motion to suppress the air pellet gun found during a protective
sweep of his home. We affirm.
I.
The following facts were found by the trial court. At
approximately 6:00 a.m. on April 22, 2014, law enforcement officers
executed an arrest warrant for defendant at his home in Jersey
City. The arrest warrant stemmed from a complaint alleging
defendant laid a small handgun in front of a woman and threatened
to kill her. Officers knocked at the door and heard male and
female voices behind the door. Approximately one to two minutes
after they knocked, defendant's girlfriend answered the door and
confirmed defendant was in the apartment. However, defendant did
not make himself visible, and the officers did not know where
defendant was. The lights were off and the officers could not see
defendant from the door.
The officers entered the five-room apartment and split up to
look for defendant. In his search for defendant, Sergeant John
Joy entered the kitchen and opened the cabinet under the kitchen
sink. He found an air pellet gun in plain view. Ten to twenty
seconds later, other officers found defendant in the bathroom and
arrested him. Joy seized the handgun.
Defendant was charged with unlawful possession of a handgun
in violation of N.J.S.A. 2C:39-5(b); possession of a firearm for
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an unlawful purpose in violation of N.J.S.A. 2C:39-4(a); and
terroristic threats in violation of N.J.S.A. 2C:12-3.1
Defendant moved to suppress the handgun. Sergeant Joy and
defendant testified at the hearing. The trial court also viewed
photos of the kitchen cabinet where Joy found the handgun. The
court found Joy credible and rejected the alternative version of
events proffered by defendant.2 The court specifically credited
Joy's assertion that a person could hide in the cabinet.
Judge Joseph V. Isabella denied defendant's motion to
suppress in an April 10, 2015 order. The court stated in its
accompanying written opinion that "the protective sweep of
[d]efendant's apartment . . . was not unnecessarily invasive and
only extended to a 'cursory inspection of those spaces where a
person may be found'" (quoting Maryland v. Buie, 494 U.S. 325,
335, 110 S. Ct. 1093, 1099, 108 L. Ed. 2d 276, 287 (1990)).
Defendant subsequently pled guilty to an amended count
charging fourth-degree aggravated assault with a firearm.
1
Under the Criminal Code, an air pellet gun can be a "firearm"
and thus a "handgun." N.J.S.A. 2C:39-1(f), (k).
2
Defendant claimed that the police arrested him, asked him where
the handgun was, and that he revealed it was under the kitchen
sink after they threatened his girlfriend.
3 A-2711-15T4
N.J.S.A. 2C:12-1(b)(4). The trial court imposed an eighteen-month
sentence and dismissed the remaining charges.
Defendant appeals, claiming:
THE OFFICER'S ACT OF OPENING THE CABINET WAS
NOT JUSTIFIED UNDER THE PROTECTIVE SWEEP
DOCTRINE AND CONSTITUTED AN ILLEGAL
WARRANTLESS SEARCH. AS A RESULT, THE PELLET
GUN FOUND IN THE CABINET MUST BE SUPPRESSED.3
II.
We must hew to our standard of review. An appellate court
is "bound to uphold a trial court's factual findings in a motion
to suppress provided those 'findings are "supported by sufficient
credible evidence in the record."'" State v. Watts, 223 N.J. 503,
516 (2015) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)).
"Deference to those findings is particularly appropriate when the
trial court has the '"opportunity to hear and see the witnesses
and to have the feel of the case, which a reviewing court cannot
enjoy."'" Ibid. (quoting Elders, supra, 192 N.J. at 244).
"Nevertheless, we are not required to accept findings that are
'clearly mistaken' based on our independent review of the record."
Ibid. (quoting Elders, supra, 192 N.J. at 244). "We owe no
deference to a trial . . . court's interpretation of the law, and
3
Defendant's claim was preserved, despite his guilty plea,
pursuant to Rule 3:5-7(d).
4 A-2711-15T4
therefore our review of legal matters is de novo." State v.
Hathaway, 222 N.J. 453, 467 (2015).
III.
The Fourth Amendment of the United States Constitution and
Article I, Paragraph 7 of the New Jersey Constitution both provide
"[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated" and that no warrants shall issue except
upon probable cause. U.S. Const. amend. IV; N.J. Const. art. I,
§ 7. "Our constitutional jurisprudence expresses a clear
preference for government officials to obtain a warrant issued by
a neutral and detached judicial officer before executing a search."
State v. Edmonds, 211 N.J. 117, 129 (2012). Moreover, "physical
entry of the home is the chief evil against which the wording of
the Fourth Amendment is directed." State v. Vargas, 213 N.J. 301,
313 (2013) (quoting United States v. U.S. Dist. Court for the E.
Dist. of Mich., 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed.
2d 752, 764 (1972)).
A.
Here, the officers had a valid arrest warrant. "An arrest
warrant 'implicitly carries with it the limited authority to enter
a dwelling' where the suspect lives when there is reason to believe
the suspect is inside." State v. Brown, 205 N.J. 133, 145 (2011)
5 A-2711-15T4
(quoting Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371,
1388, 63 L. Ed. 2d 639, 661 (1980)); see, e.g., State v. Jones,
143 N.J. 4, 15 (1995). It is undisputed the officers lawfully
entered defendant's residence because they had an arrest warrant
enabling them to enter and search for him.
"[T]he scope of a lawful search is 'defined by the object of
the search and the places in which there is probable cause to
believe that it may be found.'" State v. Marshall, 199 N.J. 602,
611 (2009) (quoting Maryland v. Garrison, 480 U.S. 79, 84, 107 S.
Ct. 1013, 1016, 94 L. Ed. 2d 72, 80-81 (1987)). Thus, "until the
point of [the defendant]'s arrest the police had the right, based
on the authority of the arrest warrant, to search anywhere in the
house that [he] might have been found." Buie, supra, 494 U.S. at
330, 110 S. Ct. at 1096, 108 L. Ed. 2d at 283.
Here, the trial court found that Sergeant Joy "only looked
in places in the kitchen where it was possible that a person could
be found." The court also determined defendant was not found
until "moments after" Joy opened the cabinet beneath the kitchen
sink and saw the handgun. Thus, the search was authorized by the
arrest warrant. Id. at 332-33, 110 S. Ct. at 1097, 108 L. Ed. 2d
at 285.
Defendant argues the police could not reasonably expect to
find a person hiding in the cabinet under the kitchen sink. The
6 A-2711-15T4
trial court believed Sergeant Joy's testimony that he had twice
before found people hiding in similar cabinets under kitchen sinks
and that the two-foot-high, three-foot-wide cabinet was large
enough for defendant to fit inside. The court reached the same
conclusion after viewing photos of the cabinet. We cannot say the
trial court was clearly mistaken. Accordingly, Joy was permitted
to open the cabinet in search of defendant pursuant to the arrest
warrant.
B.
The trial court found opening the cabinet was also permissible
as part of a protective sweep. "[A] 'protective sweep' is a quick
and limited search of premises, incident to an arrest and conducted
to protect the safety of police officers or others. It is narrowly
confined to a cursory visual inspection of those places in which
a person might be hiding." State v. Davila, 203 N.J. 97, 102
(2010) (quoting Buie, supra, 494 U.S. at 327, 110 S. Ct. at 1094,
108 L. Ed. 2d at 281).
"[A] protective sweep incident to an in-home arrest is
permissible under the following circumstances." State v. Cope,
224 N.J. 530, 548 (2016). "First, the police may sweep the 'spaces
immediately adjoining the place of arrest from which an attack'
might be launched even in the absence of probable cause or
reasonable suspicion." Ibid. (quoting Buie, supra, 494 U.S. at
7 A-2711-15T4
334, 110 S. Ct. at 1098, 108 L. Ed. 2d at 286). "The officers may
'look in closets and other spaces'" in that area. Id. at 547
(quoting Buie, supra, 494 U.S. at 334, 110 S. Ct. at 1098, 108 L.
Ed. 2d at 286). "Any wider sweep must be justified by 'specific
facts that would cause a reasonable officer to believe there is
an individual within the premises who poses a danger' to the
arresting officers." Id. at 548 (quoting Davila, supra, 203 N.J.
at 115).
"Second, the sweep must be 'narrowly confined to a cursory
visual inspection of those places in which a person might be
hiding.'" Ibid. (quoting Buie, supra, 494 U.S. at 327, 110 S. Ct.
at 1094, 108 L. Ed. 2d at 281). Third, "the sweep should last 'no
longer than is necessary to dispel the reasonable suspicion of
danger' or 'to complete the arrest and depart the premises.'"
Ibid. (quoting Davila, supra, 203 N.J. at 115).
Here, as in Cope, "[t]he police executed the arrest warrant
for defendant while he was present in his apartment." Ibid. The
trial court also found the officers' sweep lasted only about one
minute and merely involved "a cursory visual inspection of those
places in which a person might be hiding." Buie, supra, 494 U.S.
at 327, 110 S. Ct. at 1094, 108 L. Ed. 2d at 281.
Unlike Buie and Cope, the officers here conducted the
protective sweep immediately before the arrest. Our Supreme Court
8 A-2711-15T4
has held "a protective sweep conducted on private property is not
per se invalid merely because it does not occur incident to an
arrest." Davila, supra, 203 N.J. at 120. That Buie approved
protective sweeps "incident to an arrest does not appear
significant to its reasoning, except, of course, that the arrest
demonstrated lawful police presence in the home and enhanced the
perceptible danger to the officers on the scene." Id. at 117.
Davila extended Buie "to officers who are lawfully present in
private premises for some purpose other than to effect an arrest."
Id. at 116, 125. To make up for "the absence of probable cause
to arrest" in such circumstances, the Court formulated slightly
different requirements, namely a showing that "(1) law enforcement
officers are lawfully within the private premises for a legitimate
purpose, which may include consent to enter; and (2) the officers
on the scene have a reasonable articulable suspicion that the area
to be swept harbors an individual posing a danger." Id. at 121,
125.
Here, the distinction between sweeping immediately before and
after the arrest was inconsequential, because the sweep met the
conditions set in Davila as well as Buie. The officers were
lawfully within the apartment pursuant to the arrest warrant.
Moreover, the apartment was small enough that the kitchen was
immediately adjoining the place of defendant's impending arrest.
9 A-2711-15T4
See Cope, supra, 224 N.J. at 548-49 (permitting the sweep of a
back porch after the defendant was arrested in the living room).
"[A] protective sweep incident to an in-home arrest [does not]
require[] reasonable suspicion even when the sweep is of 'spaces
immediately adjoining the place of arrest.'" Id. at 550-51 (citing
Davila, supra, 203 N.J. at 114).
In any event, Sergeant Joy had "'articulable facts' and
'rational inferences' drawn from those facts that 'would warrant
a reasonably prudent officer in believing that the area to be
swept harbor[ed] an individual posing a danger to those on the
arrest scene.'" Id. at 547 (quoting Buie, supra, 494 U.S. at 334,
110 S. Ct. at 1098, 108 L. Ed. 2d at 286). As in Cope, "the noise
coming from the apartment," here the male and female voices, gave
the officers reason to "believe[] 'multiple people [were] inside
the apartment.'" Id. at 548 (second alteration in original).4 "No
one in the apartment responded immediately to the officers' door
knocks," and the one to two minute delay gave people time to hide
in places from which attacks could be launched. Ibid.
Given that only the girlfriend came to the door, the officers
had additional reason to believe defendant was concealing himself.
4
Defendant argues that in Cope the officers also heard a
"'commotion.'" Cope, supra, 224 N.J. at 548. Nothing in Cope
indicates that is a prerequisite to a protective sweep.
10 A-2711-15T4
They also knew defendant was wanted for a crime of threatening
someone with a firearm. Thus, the trial court properly found the
officers had a reasonable suspicion the unlocated defendant might
pose a danger. This was an additional danger not present in Cope
where the defendant had already been "handcuffed and placed under
arrest" before the sweep. Id. at 538.
Moreover, Sergeant Joy had previously found people hiding in
cabinets under kitchen sinks. That articulated fact, together
with the other facts related above, gave rise to a rational
inference that defendant could hide under the sink and pose a
threat to the officers. Accordingly, it was permissible to conduct
a protective sweep and to open the cabinet.
C.
Under either of these scenarios, the officers were legally
permitted to open the cabinet under the kitchen sink. When
Sergeant Joy did so, the handgun within was in plain view.
"Although [a protective] sweep 'is not a search for weapons or
contraband,' such items may be seized if observed 'in plain view'
during the sweep." Id. at 548. Here, "the police officers had
the right to be where they were — in defendant's house effectuating
a valid arrest warrant — and to seize any evidence of crime that
was within their plain view." State v. Bruzzese, 94 N.J. 210, 242
11 A-2711-15T4
(1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed.
2d 695 (1984).
Under the doctrine of plain view, a warrantless seizure by
the police is justified when:
(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)
(citation omitted).]5
Sergeant Joy was lawfully in a position to view the handgun
in the cabinet under the kitchen sink because he was both executing
the arrest warrant and conducting a protective sweep. Joy
discovered the gun inadvertently because he was searching for
defendant, not a handgun, and had no knowledge before the search
of what the cabinet contained, whether a handgun was in the
apartment, or where it might have been located. See Gonzales,
supra, 227 N.J. at 103. Finally, it was immediately apparent the
handgun was evidence of a crime or contraband. "[E]vidence of a
crime is 'immediately apparent' under the plain-view doctrine when
5
While our Supreme Court prospectively removed the inadvertence
requirement in State v. Gonzales, 227 N.J. 77, 101 (2016), the
present appeal arises from a judgment that predates Gonzales, so
we apply the previous three-part test.
12 A-2711-15T4
the officer possesses 'probable cause to associate the property
with criminal activity.'" Id. at 93 (quoting Texas v. Brown, 460
U.S. 730, 741-42, 103 S. Ct. 1535, 1543, 75 L. Ed. 2d 502, 513
(1983)). The arrest warrant gave the officers probable cause to
believe defendant used a handgun to threaten a woman. Thus, they
could seize the handgun.
Affirmed.
13 A-2711-15T4