NOT FOR PUBLICATION WITHOUT THE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-0715-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHELBY E. HUTCHINS,
Defendant-Appellant.
Argued June 4, 2019 – Decided June 20, 2019
Before Judges Fasciale and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Indictment Nos. 15-09-2222
and 15-10-2632.
Stephen P. Hunter, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Stephen P. Hunter, of
counsel and on the briefs).
Lauren Bonfiglio, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Lauren Bonfiglio, of counsel and on
the brief).
PER CURIAM
Following denial of her motion to suppress evidence seized without a
search warrant, defendant Shelby Hutchins pled guilty to multiple charges of an
Atlantic County indictment, including second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b). The charges emanated from defendant's
involvement in the burglary of her ex-boyfriend's residence, from which several
firearms were stolen. Defendant was sentenced to an aggregate term of
imprisonment of three years with one year of parole ineligibility pursuant to the
Graves Act, N.J.S.A. 2C:43-6(c). Defendant now appeals, claiming the motion
judge erred by failing to suppress incriminating paperwork seized from her bag
during the search of her friend's vehicle, and by finding defendant lacked
standing to challenge the search. For the reasons that follow, we revers e and
remand.
I.
We summarize the salient facts from the suppression hearing, during
which the State presented the testimony of four members of the Egg Harbor
Police Department (EHPD). Defendant did not testify nor present any evidence.
While attempting to locate defendant two days after the burglary, EHPD
Detectives Kyle Warren, Robert Harte and Shawn Owen approached a red
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minivan owned by defendant's friend, Nicole Cooper. After passing the
detectives' unmarked car, the minivan pulled over to the side of a roadway in the
vicinity of the hotel where Cooper and defendant were reportedly staying.
Cooper and defendant's then-current boyfriend, Elmer Burgos, 1 were the only
occupants of the vehicle.
While speaking with Cooper, Owen detected an odor of raw marijuana.
Mindful that "the case was a firearm case," Owen asked Cooper whether she
wished to surrender anything in the vehicle. Cooper turned over a small bag of
marijuana from her purse, and consented to a search of the vehicle at roadside.
When Warren opened a drawstring bag and discovered what appeared to be
several bundles of heroin, Cooper disclaimed ownership of that bag and all other
bags in the minivan, except for her purse. Notably, Cooper told Warren she and
Burgos were en route to defendant's mobile home "to drop the bags off" when
the minivan pulled over.
Rather than resuming the search, Warren contacted his supervisors, who
directed him to tow the vehicle to the police station to photograph and record
the items seized during the search. Thereafter, police considered obtaining a
1
Burgos was charged as a codefendant in the present matter. He participated
in the suppression hearing, but is not a party to this appeal. Cooper was not
indicted in this matter.
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3
search warrant to resume the search of the minivan, including the remainder of
the bags that had not been opened. However, "a legal advisor from the
Prosecutor's Office" said a search warrant was unnecessary. Instead, Warren
again asked Cooper for her consent to continue searching the minivan, including
the bags, of which she had denied ownership. Cooper's consent was video and
audio recorded.
During the second search of the minivan, detectives opened another
drawstring bag, containing female clothing and "paperwork for the stolen
handgun that was removed from the residence." Police determined that bag
belonged to defendant.
Following the suppression hearing, the motion judge issued a written
decision. Relevant here, the judge initially determined the search conducted at
the police station was valid because drugs had been found in one of the bags
during the roadside search:
After the car was towed to [EHPD] headquarters,
police officers resumed the search of Ms. Cooper's
vehicle. Finding the drugs in one bag created probable
cause to believe more drugs would be found in other
similar container[s]; thus, the search of the other bag
would also be permissible.
A-0715-17T4
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Further, the motion judge found defendant lacked standing to challenge
the search of Cooper's minivan because "at the time of the stop, [defendant] had
fled to Northern New Jersey." According to the judge:
The fact that [defendant] was not present when the
vehicle was searched, nor in the vicinity of the stop,
further exemplifies an absence of . . . defendant's
proprietary, possessory and participatory [sic]. The
record is void of any evidence to support the contention
that defendant retained any interest in the victim's
permit to purchase firearms and paperwork for [the
stolen] handgun at the time of the search. Further the
[c]ourt finds that the[re] was seemingly no connection
[between] the search of the car and [defendant]. While
the police may have initially stopped the vehicle to
investigate into the whereabouts of [defendant], the
search was commenced after marijuana was found and
Ms. Cooper consented to the search of the vehicle. The
police stopped the car to learn if [defendant] was in the
car, but the police were not searching the car with the
purpose to find [defendant].
Accordingly, the judge concluded defendant's "alleged connection to the vehicle
searched and the items seized simply [wa]s far too attenuated to support a
constitutional right to object to the search and seizure."
On appeal, defendant renews the arguments she raised before the motion
judge:
POINT I
THE PAPERWORK RELATED TO THE THEFT OF
THE HANDGUNS SHOULD HAVE BEEN
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SUPRESSED BECAUSE COOPER'S CONSENT TO
SEARCH THE VAN COULD NOT REASONABLY
EXTEND TO CLOSED BAGS ONCE THE POLICE
WERE INFORMED THAT THE BAGS DID NOT
BELONG TO HER. STATE V. SUAZO, 133 N.J. 315,
320 (1993).
POINT II
THE JUDGE'S CONCLUSION THAT DEFENDANT
LACKED STANDING BECAUSE "SHE WAS NOT
PRESENT WHEN THE ITEMS WERE
DISCOVERED" VIOLATED NEW JERSEY'S
AUTOMATIC STANDING RULE. STATE V.
RANDOLPH, 228 N.J. 566 (2017).
In response, the State abandons its third-party consent argument for the
bags searched after the minivan was impounded, claiming "the continued search
at police headquarters was justified by the automobile exception [to the warrant
requirement] . . . ." Indeed, at oral argument before us, the State conceded the
validity of Cooper's second consent to search no longer was an issue, but claimed
exigent circumstances supported the warrantless search of the minivan at the
police station. In its merits brief, the State mentioned in passing that the search
was also proper under the inevitable discovery exception to the warrant
requirement. The State did not advance that point at oral argument.
II.
In reviewing a suppression ruling, we are mindful that we must uphold a
trial court's factual findings if they are supported by sufficient credible evidence
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in the record. State v. Dunbar, 229 N.J. 521, 538 (2017). "We accord no
deference, however, to a trial court's interpretation of law, which we review de
novo." Ibid.
"Warrantless seizures and searches are presumptively invalid as contrary
to the United States and the New Jersey Constitutions." State v. Pineiro, 181
N.J. 13, 19 (2004). To overcome this presumption, the State must show by a
preponderance of evidence that the search falls within one of the well-
recognized exceptions to the warrant requirement. State v. Bryant, 227 N.J. 60,
69-70 (2016). The warrant requirement "is not lightly to be dispensed with, and
the burden is on the State, as the party seeking to validate a warrantless search,
to bring it within one of those recognized exceptions." State v. Alston, 88 N.J.
211, 230 (1981).
As the motion judge noted in the present case, the State opposed
defendant's suppression motion on four grounds. Pertinent to this appeal, 2 the
State argued "Cooper's consent was valid[,]" and defendant lacked "standing to
contest the evidence seized." Indeed, much of the testimony adduced at the
motion hearing pertained to the propriety of the searches conducted at the
2
The State also contended the stop was valid and the protective pat-down search
of Cooper and Burgos was lawful. Defendant does not contest those points on
appeal.
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roadside and police station. Nonetheless, the State now concedes Cooper's
consent did not validate the search of the bags after the vehicle was impounded.
Because we agree, we merely acknowledge the motion judge erroneously
upheld the search of the bags at the police station where, as here, Cooper
disclaimed ownership of the bags; expressly advised police the bags belonged
to defendant; and stated she and Burgos had been en route to drop off the bags
at defendant's residence before the search. As our Supreme Court explained in
State v. Suazo 3:
A third party who possesses the authority to
consent to a search of premises generally, however,
may lack the authority to consent to a search of specific
containers found on those premises. [The] consent does
not extend to containers in which the consenting party
has disclaimed ownership[, or] to property within the
exclusive use and control of another.
[133 N.J. at 320 (emphasis added) (citations omitted).]
3
In Suazo, the third-party driver consented to a search of his vehicle, which
revealed a closed bag in the trunk. 133 N.J. at 318. Prior to the search, the
defendant-passenger claimed ownership of the bag. Ibid. Relying on the driver's
consent, police opened the bag and discovered narcotics. Ibid. The Court held
the defendant's ownership claim of the bag rendered the officer's reliance on the
driver's consent unreasonable. Id. at 322. Rather, the defendant's
"acknowledgment that he owned the . . . bag impelled [the officer] either to seek
[the] defendant's consent or to make further inquiry before opening the bag."
Ibid. Accordingly, the Court reversed the trial court's denial of defendant's
suppression motion. Id. at 323.
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Moreover, the motion judge erroneously determined defendant lacked standing
to challenge the search and seizure of the bags. Although she was not present
when the minivan was stopped or searched, defendant was the target of the stop;
the bags contained evidence of the burglary; Cooper expressly disclaimed
ownership of the bags; and Cooper identified defendant as the owner. Clearly,
under those circumstances, defendant had automatic standing to challenge the
search of the bags, at least one of which contained evidence implicating her in
the burglary. See State v. Hinton, 216 N.J. 211, 233-34 (2013) (quoting Alston,
88 N.J. at 228) ("Unlike federal law, New Jersey law confers automatic standing
on a defendant 'in cases where the defendant is charged with an offense in which
possession of the seized evidence at the time of the contested search is an
essential element of guilt.'").
Because the State did not raise before the trial judge its newly-minted
argument that the search was justified under the automobile exception to the
warrant requirement, we need not consider that argument on appeal. State v.
Robinson, 200 N.J. 1, 20 (2009). Nonetheless, at oral argument before us, the
State maintained the testimony adduced at the hearing established exigent
A-0715-17T4
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circumstances,4 thereby preventing police from obtaining a warrant. The State
therefore urges us to affirm on grounds other than those relied upon by the
motion judge. See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011).
However, we need look no further than the consistent testimony of the
EHPD detectives, which dispel the State's belated argument that exigent
circumstances justified the warrantless search here:
DEFENSE COUNSEL: . . . you would agree with me,
would you not, Detective [Warren], that you had ample
opportunity to apply for a search warrant at th[e] point
[in which the vehicle was towed to the station], right?
WARREN: I could have, yes.
....
DEFENSE COUNSEL: . . . in your judgment you would
agree, would you not, Detective [Harte], that you or
your team had ample opportunity, . . . the police that
were conducting this investigation had ample
opportunity to apply for a warrant, is that right?
4
Because the search in the present case occurred before the Supreme Court
decided State v. Witt, 223 N.J. 409, 431 (2015), exigent circumstances making
it "impracticable to obtain a warrant when the police have probable cause to
search the car" were still necessary to conduct a warrantless search of Cooper's
minivan. As we recently recognized, "[i]n the aftermath of Witt, the current law
of this State now authorizes warrantless on-the-scene searches of motor vehicles
in situations where: (1) the police have probable cause to believe the vehicle
contains evidence of a criminal offense; and (2) the circumstances giving rise to
probable cause are unforeseeable and spontaneous." State v. Rodriguez, ___
N.J. Super. ___, ___ (App. Div. 2019) (slip op. at 12) (emphasis added)
(footnote omitted) (citing Witt, 223 N.J. at 447-48).
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HARTE: I believe so, sir.
Further, at the time of the search at the police station, Cooper's minivan
was in the exclusive custody of the EHPD, secured at its own sally port, thereby
obviating the risk the bags would be removed or destroyed by passersby as might
be the case at the roadside. Also, the burglary had occurred two days before the
vehicle was stopped and the search occurred during daytime hours. But cf. State
v. Minitee, 210 N.J. 307, 322-23 (2012) (upholding the search of a motor vehicle
under the automobile exception where the car was searched after midnight,
while police were actively investigating a string of robberies). We thus reject
the State's argument that the search was justified under the automobile exception
on substantive as well as procedural grounds.
Finally, the State's fleeting suggestion that "the incriminating evidence
would have inevitably been discovered by the police obtaining a search warrant"
lacks sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(2). We
simply note our Supreme Court recently rejected a similar belated argument in
State v. Shaw, ___ N.J. ___, ___ (2019) (slip op. at 38) (declining to apply the
inevitable discovery doctrine where "[a] review of the record show[ed] the
prosecutor made only passing reference to the inevitable discovery doctrine").
Reversed and remanded. We do not retain jurisdiction.
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STATE OF NEW JERSEY VS. SHELBY E. HUTCHINS (15-09-2222 AND 15-10-2632, ATLANTIC COUNTY AND STATEWIDE)
Combined Opinion