STATE OF NEW JERSEY VS. TIMOTHY C. SOTO, JR. (15-05-0582, 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NOT FOR PUBLICATION WITHOUT THE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-3622-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY C. SOTO, JR.,

Defendant-Appellant.
_________________________

Submitted January 8, 2019 – Decided January 30, 2019

Before Judges Hoffman and Geiger.

On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 15-05-
0582.

Joseph E. Krakora, Public Defender, attorney for
appellant (Michele E. Friedman, Assistant Deputy
Public Defender, of counsel and on the brief).

Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie D. Piderit, Assistant
Prosecutor, on the brief).

PER CURIAM
 Defendant Timothy C. Soto, Jr. appeals from an October 11, 2016 order

denying his motion to suppress a handgun seized from his vehicle. We affirm.

Following a motor vehicle accident, defendant took out a gun and fired

several shots into the air. At his plea hearing, however, defendant testified he

only pointed his unregistered handgun in the direction of the victim. Defendant

then fled the scene, driving down Route 1 South at more than 100 miles per

hour.

Officer Badawy of the North Brunswick Police Department received a

report of possible shots fired and responded to the scene. Badawy saw a young

man, Gbenga Oyetimbo, walking down the street, talking on his cell phone.

Badawy testified Oyetimbo appeared "very frantic."

Badawy testified Oyetimbo stated he was involved in an automobile

collision where gunshots were fired. Oyetimbo told Badawy he was on the

phone with a friend who was pursuing the shooter, and that both vehicles were

on Route 1 South in the area of Finnegan's Lane. Badawy testified Oyetimbo

told him defendant was driving a black pickup truck, and Oyetimbo's friend, the

driver following the truck, was in a black Mercedes with his hazard lights on.

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 Officer Badawy got back into his vehicle and drove towards the area of

the civilian car chase. Officer Pormilli of the North Brunswick Police

Department followed in a separate police car.

In the interim, Officer Gassman of the South Brunswick Police

Department was dispatched to the area of Route 522 and Route 1, with

instructions to stop a black pickup track potentially involved in the same shots

fired incident in North Brunswick. When Gassman arrived in the area, he saw

the truck driving at a fast speed and began following it. Although Gassman

initially stopped following the truck because it was driving too fast, at some

point, he reinitiated the pursuit when he saw the truck with its headlights off.

The truck drove the wrong direction onto Independence Way. Gassman

followed the truck the wrong way down the road. The truck stopped, and

Gassman stopped about ten feet behind it. Officer Sites of the South Brunswick

Police Department, who had driven the correct direction down Independence

Way at the same time, also arrived. Badawy also arrived on the scene at around

this time and saw the black pickup truck on the grassy island on a jug-handle.

From his loudspeaker, Gassman ordered defendant to step out of the truck

and get onto the ground. Defendant complied and Gassman ran over and

handcuffed him.

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 While Gassman was handcuffing defendant, Sites approached the truck at

gunpoint, where he saw co-defendant John M. Haley in the front passenger's

seat, and ordered him to show his hands. Sites testified Haley appeared to be

intoxicated and had difficulty complying with the order. Gassman helped Sites

get Haley out of the truck, onto the ground, and into handcuffs.

Officer Badawy testified the truck's back windshield and back passenger

windows were tinted, making it difficult to see in through the rear windows.

Badawy then proceeded to clear the truck to ensure there were "no other armed

subjects or any other threat inside" since Gassman and Sites had not. Badawy

looked through the truck's non-tinted windows and did not see any movement

inside the truck. Fifteen seconds later, Badawy can be heard on the motor

vehicle recording (MVR) saying: "looks clear"– a statement he later testified

was only meant to refer to the driver's seat and front passenger seat. Badawy

testified he could not see into the backseat from his view through the front

windshield, because the front seat's headrests obstructed his view.

Badawy believed there was a weapon in the car and needed to ascertain

whether there might be someone hiding in the back section of the passenger

compartment. In order to unlock the pickup truck's smaller rear door, Badawy

had to first open the front door. When Badawy opened both doors he saw a

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handgun with a partially-inserted magazine and empty magazine next to it on

the driver's side floorboard by the brake and gas pedals. A bullet was seen on

the seat.

After announcing there was a gun, Badawy continued to clear the

remainder of the truck, including the passenger side, and the enclosed pickup

bed. Because no one was hiding in the truck, the gun was no longer a threat so

it was left inside of the vehicle. Badawy did not conduct a formal search of the

vehicle nor take anything out of the vehicle at the scene.

Defendant and Haley were transported to police headquarters. Badawy

testified defendant provided consent to search his truck during his interview at

headquarters.

Defendant was indicted for second-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(b) (count one); second-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); three counts

of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts three

through five); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count six);

and second-degree eluding, N.J.S.A. 2C:29-2(b) (count seven).

Defendant moved to suppress the handgun. Three officers testified at the

suppression hearing. The MVR that captured the encounter was admitted into

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evidence. At the conclusion of the hearing, the trial court ruled the police had

the right to reenter defendant's vehicle after observing the gun in plain view

during the protective sweep. In its ruling, the trial court described Badawy's

actions in clearing the vehicle:

Now what's very significant here is what's
observed on the video. When Officer Badawy
approached the vehicle to look for other occupants, he
had, and it's clearly observed, he had his flashlight in
one hand and he had his gun out in the other hand. He
went to open the door. He first holstered his weapon
and opened the door. As soon as he opened the door,
he pulled his gun out again with his flashlight in the
other hand and he had two other officers assisting him.
It was clearly evident that there was another officer
behind him as he looked in with his gun drawn and his
flashlight out. He looks in the front. It appears that
he's looking quickly . . . . He says he observes . . . a
gun on the floorboard, [and] then he looks in the back.
And he's looking in the back with his gun drawn and
with his flashlight out. Now, why is that significant?

For a couple reasons. Number one, if he's
looking for evidence of a crime, there's no need for him
to have his gun out, pointed in the backseat as he's
looking at backseat. . . . [unless h]e was looking to see
if there [was] anyone there so he could secure the
backseat. . . . Number two, it's evident based on how
quick and cursory the search is that all he's doing is
trying to secure the vehicle because within seconds,
within seconds, he peeks his head in, sees it's secure,
and he's out of the vehicle and there's no more search.

So I think that video reveals a lot. It reveals that
the officer was attempting to secure the area. That's

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 evidenced by the fact that he's looking in with his gun
drawn into the vehicle and he's backed up by another
officer with gun drawn. That . . . reveals that these
officers were more concerned about their safety than to
look for evidence of a crime. If they were looking for
evidence of a crime, no gun would be drawn and they
would have been in that vehicle, tearing that vehicle
apart.

The trial court judge found the officers credible. In particular, the trial

court found Badawy's testimony "consistent," "logical," and "highly credible,"

noting: "It didn't seem exaggerated or contrived. It was forthcoming. I didn't

find any inherent inconsistencies in his testimony, nor did I find his testimony

inconsistent with the testimony of the other officers." The trial court also found

"his explanation reasonable and it had a ring of truth of it. So in all measures, I

find his testimony highly credible. I don't find that it had been impeached in

any manner or any significant manner by the defense."

With regard to conducting a protective sweep of the vehicle, the trial court

engaged in the following analysis. The stop was made at 2:00 a.m. The officers

knew a firearm was involved and had been fired. They did not know if they had

all the people involved in the incident. The officers could not see in the

backseat. The police have a right and a responsibility to secure their safety and

had the right to enter and secure the vehicle without a warrant. The trial court

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later clarified that the reference to securing the vehicle meant a protective sweep

to secure the officer's safety.

The trial court concluded: (1) the police discovered the gun inadvertently

since their purpose in entering the vehicle was to determine if there was someone

in the backseat who posed a risk, not to find the gun; (2) the gun could be seized

under the plain view doctrine; (3) the police had probable cause to believe the

gun they saw was the gun that had been fired in North Brunswick; and (4) the

gun is admissible in evidence.

Following the denial of his suppression motion, defendant entered into a

plea agreement, pleading guilty to counts one and three in exchange for a

recommended sentence of a five-year term with three and one-half years of

parole ineligibility on count one, a concurrent eighteen-month term on count

three, and the dismissal of the remaining counts. Defendant was sentenced in

accordance with the plea agreement. This appeal followed.

Defendant argues:

POINT I

THE COURT COMMITTED REVERSIBLE ERROR
IN RULING THAT THE OFFICER WAS
PERMITTED TO SWEEP THE TRUCK FOR PEOPLE
THAT MIGHT BE HIDING IN THE BACKSEAT,
AND THAT HIS DISCOVERY OF EVIDENCE
DURING THAT SO-CALLED "SWEEP" FELL

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 WITHIN THE SCOPE OF THE PLAIN VIEW
DOCTRINE.

A. The Search of the Truck Falls Outside the
Purview of a Protective Person-Sweep,
Because the Officer Lacked a Reasonable,
Articulable Basis to Suspect There Were
People Hiding in the Truck's Backseat, and
He Searched and Found the Gun in an Area
Where an Average Person Could Not Be
Hiding.

B. The Plain View Doctrine is Inapplicable,
Because the Officer Was Not Lawfully in
the Viewing Area When He Found the
Evidence, and His Discovery of It Was Not
Inadvertent.

Having reviewed the facts in light of the applicable principles of law, we

find no merit in defendant's arguments.

"Appellate review of a motion judge's factual findings in a suppression

hearing is highly deferential." State v. Gonzales, 227 N.J. 77, 101 (2016) (citing

State v. Hubbard, 222 N.J. 249, 262 (2015)). "[A]n appellate court reviewing a

motion to suppress must 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. Rockford, 213 N.J. 424, 440 (2013) (alteration in

original) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). "Those findings

warrant particular deference when they are 'substantially influenced by [the trial

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judge's] opportunity to hear and see the witnesses and to have the "feel" of the

case, which a reviewing court cannot enjoy.'" Ibid. (alteration in original)

(quoting Robinson, 200 N.J. at 15). "Thus, appellate courts should reverse only

when the trial court's determination is 'so clearly mistaken "that the interests of

justice demand intervention and correction."'" State v. Gamble, 218 N.J. 412,

425 (2014) (quoting State v. Elders, 192 N.J. 224, 244 (2007)).

Defendant's vehicle was lawfully stopped "based on a reasonable and

articulable suspicion that an 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-

640, modified by 174 N.J. 351 (2002)). This includes "the facts known to the

officers from personal observation," Alabama v. White, 496 U.S. 325, 330

(1990), and the information known to or communicated by police dispatch, State

v. Crawley, 187 N.J. 440, 457 (2006).

The reasonable suspicion for an investigatory stop then blossomed into

probable cause for a warrantless arrest. The police observed defendant driving

recklessly during the ensuing pursuit as evidenced by the fact that defendant 's

vehicle was facing the wrong direction on Independence Way at the time of the

stop. Defendant's vehicle matched the description of the vehicle involved in the

road rage incident. It had been followed by the victim's friend.

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 "A warrantless search is presumed invalid unless it falls within one of the

recognized exceptions to the warrant requirement." 1 State v. Gamble, 218 N.J.

412, 425 (2014) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)). Evidence

seized when found in plain view is one exception. Id. at 425-26 (citing State v.

Mann, 203 N.J. 328, 340-41 (2010)). In order for the plain view exception to

apply, the State must demonstrate:

(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) (quoting State
v. Mann, 203 N.J. 328, 341 (2010)).]

Another recognized exception to the warrant requirement is the protective

sweep, which permits a warrantless vehicle "search for weapons based on an

1
Although Badawy briefly testified defendant consented to the search of the
vehicle, the State did not sustain its burden to show consent. The State did not
adduce testimony demonstrating defendant knowingly and voluntarily
consented to the search. An executed consent to search was not admitted into
evidence. The State does not argue on appeal that defendant consented to the
search.
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objectively-reasonable belief that an occupant of the vehicle is dangerous and

may gain access to weapons." Gamble, 218 N.J. at 426 (quoting State v. Pierce,

136 N.J. 184, 205 (1994)). Under those circumstances, the "police may conduct

a 'protective search of the passenger compartment' of a vehicle based on a

reasonable belief 'that the vehicle contain[s] weapons potentially dangerous to

the officers.'" Gamble, 218 N.J. at 427 (alteration in original) (quoting Michigan

v. Long, 463 U.S. 1032, 1034-35 (1983)). See also State v. Lund, 119 N.J. 35,

48 (1990) (adopting the rule set forth in Long). A limited protective sweep is

justified "when articulable facts are present that justify taking [such a]

precaution" due to the "serious concern for officer safety." Gamble, 218 N.J. at

426 (quoting State v. Davila, 203 N.J. 97, 117 (2010)).

Here, the police were justified in conducting a limited protective sweep of

the passenger compartment of the vehicle. The police had no reason to know if

additional people were still inside the vehicle. Once defendant and Haley were

removed from the vehicle, and it was clear the weapon defendant was suspected

of firing at Oyetimbo was not on defendant or Haley's person, it was reasonable

to conclude the weapon was still in the vehicle. Thus, it was also reasonable for

the police to ensure there was no one else in the vehicle who could use the

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weapon against them. Therefore, it was lawful for the police to conduct a limited

protective sweep of the passenger compartment of the vehicle.

Upon entry to conduct the protective sweep, the gun and magazine were

immediately observed in plain view on the floorboard by the gas and brake

pedals. The police had not exceeded the scope of the permissible protective

sweep at the time the gun and magazine were observed in plain view.

The remaining issue is whether the right to seize the gun and magazine

was lost because the police waited until after the vehicle was impounded and

taken to police headquarters to remove those items. The seizure of the gun and

magazine at police headquarters were authorized under the reasonable

continuation doctrine. See State v. O'Donnell, 408 N.J. Super. 177, 178-79

(App. Div. 2009) (holding evidence observed in plain view during warrantless

entry can be lawfully seized during warrantless reentry as a "reasonable

continuation of the initial entry to provide emergency aid"). The reentry of the

vehicle at police headquarters to remove the gun and magazine previously

observed in plain view was merely another "component[] of a single,

continuous, and integrated police action" under the protective sweep and plain

view exceptions to the warrant requirement. State v. Henry, 133 N.J. 104, 116

(1993).

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 Having discovered the gun and magazine in plain view during a

permissible limited protective sweep of the vehicle after defendant and Haley

were arrested, the right to seize the weapons was not lost because the items were

removed subsequently shortly after the vehicle was impounded.

Affirmed.

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