NOT FOR PUBLICATION WITHOUT THE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-1880-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASHEED ELEY,
Defendant-Appellant.
————————————————————————————————
Argued September 19, 2017 – Decided October 18, 2017
Before Judges Hoffman and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 14-
01-0024.
Margaret McLane, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Ms. McLane, of counsel and on the briefs).
Emily R. Anderson, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Ms.
Anderson, of counsel and on the brief;
Jennifer E. Kmieciak, Deputy Attorney General,
on the brief).
PER CURIAM
Following the denial of his motion to suppress, defendant
Rasheed Eley pled guilty to second-degree unlawful possession of
a handgun, N.J.S.A. 2C:39-5(b). In accordance with his plea
agreement, the court sentenced defendant to a five-year state
prison term with a forty-two month period of parole ineligibility;
on January 29, 2016, the court amended defendant's prison term to
forty-two months. Defendant now appeals, challenging a March 30,
2015 Law Division order denying his motion to suppress. We affirm.
I.
An Essex County grand jury charged defendant with second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)
(count one), and fourth-degree resisting arrest, N.J.S.A. 2C:29-
2(a) (count two). Thereafter, defendant filed a motion to
suppress. The court conducted an evidentiary hearing on the
motion.
At the hearing, the State presented testimony from Detective
Carlos Alvarado of the Newark Police Department's Gangs and
Narcotics Unit. According to Detective Alvarado, he and a partner
were on a "proactive patrol" on the evening of November 5, 2013.
At approximately 8:45 p.m., he noticed a parked car with its engine
idling and two occupants. He further stated he believed the car
had illegal tinted windows, so he activated his overhead lights
2 A-1880-15T2
and sirens and pulled behind the vehicle. Three other detectives
also stopped to assist.
According to Detective Alvarado, as he approached the
vehicle, defendant opened his door, at which point the detective
requested defendant produce his driving credentials. Defendant
then attempted to leave the vehicle, but the detective ordered him
to remain inside. Detective Alvarado then directed his flashlight
into the car and saw a handgun in the center console. He signaled
this discovery to his fellow detectives, and then retrieved the
gun as the other detectives arrested defendant. Detective Alvarado
further testified that another detective issued defendant a
summons for the tinted windows.
A.W., a friend of defendant for ten years, testified on behalf
of the defense and provided a markedly different account from
Detective Alvarado. According to A.W., defendant was coming to
visit him. As defendant parked his car across the street from his
house, A.W. said "like five or six police cars pulled up next to
him. . . . I just seen the cops jump out with [their] guns and
told him and the guy he was in the car with, 'Get out.'" He stated
the detectives then removed defendant and his passenger from the
car, "started searching the car," and ultimately found "the gun"
in defendant's trunk.
3 A-1880-15T2
In her oral opinion, the motion judge found the State met its
burden in demonstrating, by a preponderance of the evidence, that
the detectives performed a lawful motor-vehicle stop, and pursuant
to the stop, found the handgun in plain view. Accordingly, the
judge denied defendant's motion to suppress. While the judge did
not make an express finding as to credibility, this court infers
the judge implicitly credited Detective Alvarado's testimony over
A.W.'s.1 Before finding the State had met its burden, the judge
reviewed in detail the factors to consider in making credibility
findings. The judge also made clear she found "no actual
contradiction between Detective Alvarado's written report
memorializing what happened that night and his testimony before
this court." Based upon our review of the judge's entire opinion,
we are satisfied the judge credited Detective Alvarado's
testimony.
This appeal followed, with defendant arguing:
POINT I
THE COURT ERRED IN DENYING THE
MOTION TO SUPRESS. THE STATE FAILED
TO ESTABLISH THAT THE CAR'S TINTED
WINDOWS WERE ILLEGAL, POSSESSION OF
A HANDGUN WAS NOT ILLEGAL AT THE
1
"[A] trial court's factual findings . . . should not ordinarily
be disturbed where 'there is substantial evidence to support [its]
implicit finding[s].'" State v. Locurto, 157 N.J. 463, 471 (1999)
(quoting Meshinsky v. Nichols Yacht Sales, Inc. 110 N.J. 464, 475
(1988)).
4 A-1880-15T2
TIME THE GUN WAS SEIZED, AND THERE
WAS NO JUSTIFICATION TO SEIZE THE
HANDGUN FROM INSIDE MR. ELEY'S CAR.
We reject these contentions and affirm.
II.
Our review of a trial judge's decision on a motion to suppress
is limited. State v. Adubato, 420 N.J. Super. 167, 176 (App. Div.
2011), certif. denied, 209 N.J. 430 (2012). 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. Lamb, 218 N.J. 300, 313 (2014)
(citing State v. Elders, 192 N.J. 224, 243 (2007)). 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." State v. Rockford, 213 N.J. 424, 440 (2013)
(quoting State v. Robinson, 200 N.J. 1, 15 (2009)). We do not,
however, defer to a trial judge's legal conclusion, which we review
de novo. State v. K.W., 214 N.J. 499, 507 (2013) (citing Manalapan
Realty, LP v. Twp Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Applying these standards, we discern no reason to disturb the
judge's ruling.
5 A-1880-15T2
A.
The United States and New Jersey Constitutions permit a
brief investigative stop of a vehicle based on reasonable suspicion
"that an offense, including a minor traffic offense, has been or
is being committed." State v. Amelio, 197 N.J. 207, 211 (2008)
(quoting State v. Carty, 170 N.J. 632, 639-40, modified by 174
N.J. 351 (2002), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173
L. Ed. 2d 1297 (2009)). An investigatory stop "is valid if it is
based on specific and articulable facts which, taken together with
rational inferences from those facts, give rise to a reasonable
suspicion of criminal activity." State v. Mann, 203 N.J. 328, 338
(2010) (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)). "The
burden is on the State to demonstrate by a preponderance of the
evidence that it possessed sufficient information to give rise to
the required level of suspicion." Amelio, supra, 197 N.J. at 211
(citing Pineiro, supra, 181 N.J. at 19-20).
Reasonable suspicion of "[a] motor[-]vehicular violation, no
matter how minor, justifies a stop [even] without any reasonable
suspicion that the motorist has committed a crime or other unlawful
act." State v. Bernokeits, 423 N.J. Super. 365, 370 (App. Div.
2011). "To satisfy the articulable and reasonable suspicion
standard, the State is not required to prove that the suspected
motor-vehicle violation occurred." Locurto, supra, 157 N.J. at
6 A-1880-15T2
470. That is "the State need prove only that the police lawfully
stopped the car, not that it could convict the driver of the motor-
vehicle offense." State v. Heisler, 422 N.J. Super. 399, 413
(App. Div. 2011) (quoting State v. Williamson, 138 N.J. 302, 304
(1994)) (superseded by Rule 3:23-8(a), which regards the Law
Division's review of municipal appeals).
The State must also show that an officer has an objective
belief that a traffic violation actually occurred. State v. Puzio,
379 N.J. Super. 378, 383-84 (App. Div. 2005). However, "the fact
that information an officer considers is ultimately determined to
be inaccurate . . . does not invalidate a seizure." State v.
Pitcher, 379 N.J. Super. 308, 318 (App. Div. 2005), certif. denied,
186 N.J. 242 (2006).
Here, Detective Alvarado testified he stopped defendant's car
because he observed the vehicle had tinted front and side windows,
which he described as "a motor[-]vehicle infraction." Notably,
this court held in State v. Cohen, 347 N.J. Super. 375, 380 (App.
Div. 2002), "that N.J.S.A. 39:3-74 prohibits the use of tinted
windows [that] fail to meet the applicable standard now set forth
in N.J.A.C. 13:20-33.7." Moreover, "it matters not whether the
equipment used violates N.J.S.A. 39:3-74, because the fact that a
defendant is later found not guilty does not denigrate the
propriety of the initial stop so long as it is based upon a
7 A-1880-15T2
reasonable articulable suspicion that a motor[-]vehicle violation
has occurred." Ibid.
As such, the State need not establish that the car's windows
were tinted with "non-transparent material," as defendant argues.
Rather, the State need only demonstrate, as the record reflects,
that Detective Alvarado had a reasonable suspicion the car's
windows were illegally tinted. Accordingly, defendant's argument
lacks merit, and we affirm the trial court's holding regarding the
stop's legality.
B.
A warrantless search is presumptively invalid unless the
State demonstrates the search "falls within a recognized exception
to the warrant requirement." State v. Wright, 221 N.J. 456, 468
(2015). Here, the detectives justified their seizure of the
handgun using the plain view exception. The rationale for the
plain view doctrine is that "a police officer lawfully in the
viewing area" need not "close his [or her] eyes to suspicious
evidence in plain view." State v. Johnson, 171 N.J. 192, 207
(2002) (quoting State v. Bruzzese, 94 N.J. 210, 237 (1983),
overruled in part by State v. Gonzales, 227 N.J. 77 (2016)). For
the plain view exception to apply, the State must show that "the
officer [was] lawfully . . . in the area where he [or she] observed
and seized the incriminating item or contraband, and it must be
8 A-1880-15T2
immediately apparent that the seized item is evidence of a crime."
State v. Evans, 449 N.J. Super. 66, 82-83 n.7 (App. Div.) (quoting
Gonzales, supra, 227 N.J. at 101) certif. granted, ____ N.J. ____
(2017).
Here, defendant argues his possessing the handgun did not
immediately evidence a crime because New Jersey's gun amnesty law, 2
which allowed those in possession of illegal guns to legally
dispose of them within 180 days, shielded him. L. 2013, c. 117.
Notably, defendant raises this issue for the first time on appeal.
Our Supreme Court recently addressed this issue in Harper, and
held, "A defendant . . . has the burden to raise the defense at
trial." Harper, supra, 229 N.J. at 241. Defendant's failure to
raise this issue in the trial court constitutes a waiver of this
defense.3
2
"The Legislature passed an amnesty bill in 2013 that, 'for a
period of not more than 180 days from the effective date of [the]
act,' L. 2013, c. 117, enabled people to dispose of guns they
possessed illegally. During that time, the law allowed individuals
to transfer or voluntarily surrender firearms." State v. Harper,
229 N.J 228, 231-32 (2017).
3
Even if defendant had invoked this defense in the Law Division,
it did not present defendant with a viable defense since it is
illegal to transport a firearm if it is not, "unloaded and
contained in a closed and fastened case, gunbox, securely tied
package, or locked in the trunk of the automobile in which it is
being transported." N.J.S.A. 2C:39-6g.
9 A-1880-15T2
In contrast, the record before us supports the motion judge's
findings confirming the existence of the revised plain view factors
under Gonzales.4 The judge's determination of Detective Alvarado's
credibility is sufficient to establish that he was lawfully in the
viewing area investigating the car's tinted windows. Furthermore,
the illicit nature of the handgun was immediately obvious to
Detective Alvarado, based on his training and experience as a
police detective. Accordingly, we find that the motion judge
correctly denied defendant's motion to suppress evidence.
Affirmed.
4
"In Gonzales, . . . our Supreme Court reviewed the plain view
exception to the warrant requirement under Article I, Paragraph 7
of the New Jersey Constitution [and] discarded the prior
requirement that evidence be discovered inadvertently to conform
to federal jurisprudence." Evans, supra, 449 N.J. Super. at n.7
(citing Gonzales, supra, 227 N.J. at 95-97, 99-101).
10 A-1880-15T2
STATE OF NEW JERSEY VS. RASHEED ELEY(14-01-0024, ESSEX COUNTY AND STATEWIDE)
Combined Opinion