STATE OF NEW JERSEY VS. EDWARD R. COLLINS (16-05-0442, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-5220-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD R. COLLINS,

Defendant-Appellant.
_____________________________

Submitted November 5, 2018 – Decided January 7, 2019

Before Judges Fasciale and Gooden Brown.

On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Indictment Nos. 16-05-0442.

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

Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Timothy P. McCann, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant Edward Collins appeals from a June 26, 2017 judgment of

conviction for second-degree certain persons not to possess weapons, N.J.S.A.

2C:39-7(b). Defendant moved to suppress the handgun seized without a

warrant, which formed the evidential basis for the charge. When his motion was

denied, defendant entered a negotiated guilty plea, and was sentenced to a five-

year term of imprisonment with a five-year period of parole ineligibility, in

accordance with the Graves Act, N.J.S.A. 2C:43-6(c).1

On appeal, defendant challenges the denial of his suppression motion as

permitted under Rule 3:5-7(d), raising the following single point for our

consideration:

POINT I

THE MATTER SHOULD BE REMANDED FOR
ADDITIONAL FACTUAL FINDINGS AND A NEW
DECISION REGARDING SUPPRESSION OF
EVIDENCE. THE JUDGE INEXPLICABLY
DECLARED THAT SHE WAS NOT OBLIGATED TO
RESOLVE A CRITICAL FACTUAL DISPUTE IN
THE TESTIMONY.

Having considered the argument and applicable law, we affirm.

1
As part of the plea agreement, defendant was also sentenced to two three-year
concurrent terms of imprisonment for violating his probation sentence imposed
on two separate indictments.
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 The following facts were adduced at the suppression hearing conducted

on February 22, 2017, during which Trenton Police Detective Katherine Cox

and New Jersey State Police Detective Christopher Talar testified for the State.

Defendant and his cousin, Linda Romero, testified for the defense.

After receiving information from a confidential informant that defendant

had recently moved to Beatty Street and was "known to distribute narcotics and

possess firearms[,]" Detective Cox, who was then assigned to the violent crimes

unit, began an investigation. In the course of the investigation, Cox learned that

defendant had active arrest warrants for motor vehicle violations and non-

payment of child support, and contacted the U.S. Marshals for assistance in his

apprehension.

At approximately 12:30 p.m. on January 20, 2016, Cox confirmed

defendant's presence in the residence when she observed him open the front door

of the Beatty Street address "without knocking or announcing his presence," and

walk inside. Cox promptly alerted the U.S. Marshals, and a team of marshals,

as well as fellow officers and members of the New Jersey State Police,

responded to the scene. Given defendant's criminal history, which included

prior convictions for "weapons offenses, narcotics offenses [and] eluding[,]" the

officers used safety precautions in entering the residence. There were two doors

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at the front of the residence, an outside screen door, which was closed, and "[a]

regular . . . wood door[,]" which was open. The officers entered the residence

without knocking or announcing their entry. Upon entering, the officers initially

encountered Romero at the doorway and observed defendant in "the back of the

living room."

Detective Talar was a member of the team of officers who entered the

residence and was positioned towards the back of the "stack" of officers. Once

inside the residence "less than a minute" after the initial officers made entry,

Talar observed defendant already handcuffed and on the floor, "in the kitchen

area." According to Talar, "there[] [was] a living room [at the front of the

residence], a very narrow hallway, and then the kitchen; . . . all very close

together. And [defendant] was in the back of that hallway in . . . the kitchen

area."

As the officers conducted a protective sweep to "clear[] the residence" for

"safety[,]" an officer in the kitchen area yelled out that "there was a weapon

located on the top of the refrigerator[,]" which was within one foot of the

entrance to the kitchen. The weapon, which was described as a loaded "black,

[h]i-point 40-caliber semiautomatic handgun[,]" was seized and secured. In

addition to observing the handgun, Talar also observed and seized heroin "in

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plain view" in the "back portion of the kitchen[,] in [an open] cabinet" above the

sink area.2 After the seizures, defendant was administered Miranda3 warnings.

He admitted that the handgun and the drugs belonged to him, and consented to

a search of the residence, which uncovered drug paraphernalia "in a cabinet" in

the "mudroom."

Defendant testified he moved to the Beatty Street address about one month

earlier and asked Romero to babysit his infant son on the date in question.

According to defendant, when the officers entered, he was "kneeling over [the]

sofa"4 in the living room after retrieving a "[h]ot [p]ocket" from the kitchen, and

never moved from that position. He testified that one of the officers went into

the kitchen and returned with the handgun. Romero confirmed that defendant

was "kneeled down" "towards the back of the sectional," eating a hot pocket,

when the officers entered the residence, and defendant never moved from that

position. She also confirmed that one of the officers went into the kitchen and

retrieved the gun "four to five minutes" later.

2
The drug charge was dismissed in accordance with the terms of the plea
agreement.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
4
Defendant testified that at the time, he weighed 280 pounds.
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 Following the hearing, in an oral decision rendered on April 26, 2017, the

judge denied the motion, finding "that the police acted lawfully in entering

defendant's home to execute the arrest warrant," that "the police . . . did not

exceed their right to conduct a protective sweep of the property incident to the

arrest of the defendant[,]" and "that the plain view doctrine [applied] to the

discovery of the guns and drugs." The judge determined that "[m]any of the

relevant facts . . . regarding the police entry into the home [were] not disputed."

However, acknowledging "that there [were] some discrepancies in the . . .

testimony of [Detective] Talar, Ms. Romero, and Mr. Collins as to what

happened when the officers approached and entered [the residence]," the judge

found "that most of those discrepancies [were] not relevant to th[e] decision."

The judge elaborated:

For instance, whether [defendant] was in fact on the
floor partially in the hallway and partially in the kitchen
when [Detective] Talar first saw him as[] Talar
testified; or whether he was kneeling on the floor in the
living room behind the couch and near the hall that
leads to the kitchen, as was testified to by Romero and
defendant, is of no moment. Both areas are in close
proximity and people may honestly remember details
differently.

But whether he was in the hall or behind the
couch, all three witnesses testified that . . . numerous
police officers who entered the house spread out and
did a protective sweep of the other rooms. All three

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 witnesses stated that during that sweep, an officer
called out from the kitchen indicating that he had found
a gun.

Again, while Romero['s] testimony may differ
from [Detective] Talar's in that he says he and another
officer were in the kitchen when the officer called gun,
and she says only one . . . officer was in the kitchen and
called gun, I find that discrepancy is irrelevant. No one
disputes that the gun was found in the kitchen during
the protective sweep.

No . . . testimony was offered to dispute that the
gun was found on the top of the refrigerator. While
defendant testified that it was his gun but that he did
not know it was on top of the refrigerator, he never
testified that it was elsewhere. He never offered
testimony that the gun was not in plain view of the
police when they were conducting a protective sweep
and that they exceeded the scope of the protective
sweep in discovering it.

Turning to another discrepancy between the State's witness and the

defense version, the judge explained:

There is a discrepancy in the time that it took the
police to discover the gun, a discrepancy between
Romero's testimony and the others. Romero testified
that the police officer was in the kitchen four to five
minutes before he brought the gun out. [Detective]
Talar said that the discovery of the gun was almost
immediate to Talar's entry into the house, which was
less than one minute after the first officer entered the
house.

Defendant's version was closer to that of
[Detective] Talar. Defendant stated that he never

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 moved from the spot he was in when the police entered,
and that the officers went [past] him into the kitchen
and he heard an officer say "gun, gun, gun" and then
they brought the gun out.

Defendant's version does not include a five-
minute time . . . lapse from the time of entry until the
gun was found. Again, people remember things
differently, and Romero's testimony could be colored
by her bias in favor of her cousin . . . . I find no credible
evidence to suggest that the police took an inordinate
amount of time to clear the house for officers' safety, to
assure no one else was hiding in the house. That
protective sweep does not need to end immediately
upon the defendant being placed in [hand]cuffs. It is
reasonable to complete it before the officers can turn
their backs and remove the defendant from the
premises.

Next, citing State v. Bruzzese, 94 N.J. 210, 236 (1983), the judge noted

that

[t]he plain view exception at the time of this incident
require[d] three prongs to be met: [o]ne, that the seizing
officer must have lawful authority to be in the location
where the evidence is found; two, that the discovery of
the evidence must be inadvertent; and three, that it must
be immediately apparent to the officer that the items
seized are contraband or evidence. 5

5
While our Supreme Court prospectively removed the inadvertence requirement
in State v. Gonzales, 227 N.J. 77, 101 (2016), because the search predated
Gonzales, the judge correctly applied the previous three-part test.
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The judge concluded that because the police did not exceed their right to conduct

a protective sweep of the property incident to defendant's arrest, and the

discovery of the evidence, which was immediately identifiable as contraband,

was inadvertent, all three prongs were satisfied. The judge entered a

memorializing order and this appeal followed.

We review a motion judge's factual findings in a suppression hearing with

great deference. Gonzales, 227 N.J. at 101. In our review of a "grant or denial

of a motion to suppress[,] [we] 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. Gamble, 218 N.J. 412, 424 (2014).

We defer "'to those findings of the trial judge which are substantially influenced

by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of

the case, which a reviewing court cannot enjoy.'" State v. Elders, 192 N.J. 224,

244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We owe no

deference, however, to the trial court's legal conclusions or interpretation of the

legal consequences that flow from established facts. Thus, our review in that

regard is de novo. State v. Watts, 223 N.J. 503, 516 (2015).

Applying that standard of review, we discern substantial credible evidence

in the record to support the judge's findings of fact and we agree with the judge's

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interpretation of the legal consequences that flow from those facts. We conclude

that the State's proofs established by a preponderance of the evidence, State v.

Mann, 203 N.J. 328, 337-38 (2010), that the warrantless seizure of the gun and

drugs was justified by the plain view doctrine in conjunction with a permissible

protective sweep. See State v. Cope, 224 N.J. 530 (2016). Defendant argues

that because the motion judge refused "to resolve the factual dispute" regarding

"where the arrest took place - - in the living room or down the hallway on the

edge of the kitchen - - it is impossible to evaluate" whether the protective sweep

"was valid." Consequently, according to defendant, "the matter should be

remanded for the judge to make the necessary factual finding." We disagree.

"[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, 113 (2010) (quoting

Maryland v. Buie, 494 U.S. 325, 327 (1990)).

[A] protective sweep incident to an in-home arrest is
permissible under the following circumstances. 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. [Buie, 494 U.S. at 334].
Any wider sweep must be justified by "specific facts
that would cause a reasonable officer to believe there is

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 an individual within the premises who poses a danger"
to the arresting officers. [Davila, 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." [Buie, 494 U.S. at 327].
Although the sweep "is not a search for weapons or
contraband," such items may be seized if observed "in
plain view" during the sweep. [Davila, 203 N.J. at 115].
Last, 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 [Buie, 494 U.S. at 335-36]).

[Cope, 224 N.J. at 548.]

In Cope, officers arrested the defendant pursuant to an arrest warrant in

his living room, but, after sighting the defendant on the porch immediately

before the arrest, one of the officers "conducted a protective sweep of the

bedroom, bathroom, and back porch to prevent a surprise attack." 224 N.J. 548-

49. The officer seized a rifle bag containing a rifle from the porch because he

knew that defendant was barred from possessing firearms based on his prior

convictions. Id. at 549. In upholding the trial court's finding that the protective

sweep was reasonable, the Court concluded "that the porch was in such close

proximity to the place of arrest—indeed, immediately adjoining it—that a

protective sweep of that area was permissible even without probable cause or

reasonable suspicion." Ibid.

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 Here, the protective sweep satisfied the conditions set forth in Buie,

Davila, and Cope. The officers were lawfully inside the residence executing

valid arrest warrants, the officers swept the areas "immediately adjoining" the

place of arrest, the sweep was narrowly confined to a cursory visual inspection

of those areas, the sweep was no longer than was necessary to complete the

arrest, and the seizure of the evidence met the plain view exception to the

warrant requirement. The "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." Bruzzese, 94 N.J. at 242.

Contrary to defendant's contention, the motion judge did not refuse to

resolve the factual dispute but properly determined based on the testimony that

the kitchen and living room were immediately adjacent to each other. Thus,

because the kitchen and the living room were "in such close proximity," whether

the arrest location was the kitchen or the "immediately adjoining" living room

would have no effect on the legality of the protective sweep. Cope, 224 N.J. at

549.

Affirmed.

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