STATE OF NEW JERSEY VS. M.E.D.(12-04-0882, OCEAN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

NOT FOR PUBLICATION WITHOUT THE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-1801-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HUGO RAMIREZ,

Defendant-Appellant.
______________________________

Submitted November 28, 2016 – Decided March 7, 2017

Before Judges Sabatino and Nugent.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
12-12-1741.

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

Christopher S. Porrino, Attorney General,
attorney for respondent (Jennifer E. Kmieciak,
Deputy Attorney General, of counsel and on the
brief).

PER CURIAM

Following the denial of his motion to suppress a crowbar

seized from a vehicle in which he was a passenger, defendant Hugo

Ramirez pled guilty to third-degree attempted burglary, N.J.S.A.
2C:18-2, and a judge sentenced him to a three-year term of

probation and ordered him to pay certain fines and assessments.

Defendant appeals from the denial of his suppression motion. We

affirm.

Two law enforcement officers testified at the suppression

hearing. Officer Luis Perez testified that at approximately 11:42

p.m. on June 15, 2012, he responded to a report of a burglary in

progress at a Perth Amboy address. When he arrived at the

location, a first floor resident pointed down the street and said,

"they're trying to get away." Perez looked down the street and

observed a man run toward and enter a blue Ford Explorer parked

in front of a neighboring home. Between ten and twelve additional

officers arrived moments later.

Perez and the other officers conducted a "felony stop" of the

vehicle and ordered the occupants out. Defendant and four others

exited with their hands raised. The officers then handcuffed them

and put them in squad cars. The side doors of the Ford remained

open.

Although light from the patrol cars and the officers' handheld

flashlights illuminated the Explorer, the officers could not see

2 A-1801-14T2
into the vehicle's cargo area because the rear window was tinted.1

Apprehensive that someone might be hiding in the cargo area,

several officers lined up in tactical formation while Perez opened

the vehicle's rear door. No one else was in the Explorer. When

the officers opened the vehicle's rear door, they were not looking

for physical evidence and did not observe the crowbar.

Perez returned to the location of the attempted burglary and

observed pry marks on the residence's rear basement door. He also

interviewed the resident who called the police as well as another

neighbor who witnessed the attempted break-in. The witnesses

reported they heard loud banging noises and observed three men

attempting to break into the residence. When confronted, the trio

fled and the witnesses called the police. Both witnesses

identified three arrestees, including defendant, as the

perpetrators.

Detective Brian Kelleher also testified for the State. A

crime scene investigator, he arrived at the scene of the attempted

1
The area inside the Explorer, immediately in front of the rear
door, had a seat or seats that folded down so the space could be
used to transport or store items. Hence the parties' reference
to the "cargo" area. Occasionally, a party or the court referred
to the area as the "trunk."

3 A-1801-14T2
burglary at approximately 12:19 a.m.2 Detective Kelleher

"processed" the burglary scene by photographing the exterior of

the building, the interior of an apartment, and the rear door,

which showed signs of forced entry. Specifically, the door was

broken, the jamb was ajar, and there appeared to be pry marks from

an unknown object around the doorknobs.

After photographing the building where the attempted burglary

occurred, the detective proceeded to the scene of the motor vehicle

stop. According to the detective, the scene consisted of "a car

in the middle of the street." All the doors were open, including

the rear door. Kelleher photographed the cargo area and observed,

in plain view, a crowbar, a black hat,3 and other items. Believing

the crowbar and hat might have been used in the attempted burglary,

Kelleher collected them as evidence.

Following the hearing, the motion judge issued a written

opinion granting defendant's motion as to the hat but denying it

as to the crowbar. Because all occupants had been secured at the

2
When the attorneys questioned the detective, they often referred
to the "scene" without distinguishing between the scene of the
attempted burglary and the scene of the vehicle stop.
Consequently, the record is at times ambiguous.
3
The motion judge granted defendant's motion as to the black
hat, so we need not address the discovery and seizure of that
item. The State has not cross-appealed from the order suppressing
the hat.

4 A-1801-14T2
time of the search, the judge rejected the State's argument that

the crowbar was seized as part of a search incident to a lawful

arrest. The judge determined, however, that the "automobile"

exception to the warrant requirement permitted police to open the

vehicle's rear door without a search warrant. The judge found the

stop was unexpected, an eyewitness had identified a man entering

the Explorer as the perpetrator of an attempted burglary, and the

incident unfolded at approximately midnight. These circumstances,

according to the motion judge, created an exigency justifying the

warrantless opening of the Explorer's rear door as a "means

necessary to ensure police safety." After determining the motor

vehicle exception permitted Perez and the other officers to open

the rear door, the judge concluded the plain view exception to the

warrant requirement applied to Kelleher's discovery and seizure

of the crowbar.

On appeal, defendant argues:

POINT I

BECAUSE THE POLICE LACKED A WARRANT AND THERE
WAS NEITHER PROBABLE CAUSE NOR EXIGENT
CIRCUMSTANCES, THE COURT BELOW ERRED IN
FINDING THAT THE AUTOMOBILE EXCEPTION TO THE
WARRANT REQUIREMENT JUSTIFIED THE OPENING AND
SEARCH OF THE TRUNK OF THE EXPLORER, AND THE
SEIZURE OF THE CROWBAR FROM THE AUTOMOBILE WAS
UNCONSTITUTIONAL.

5 A-1801-14T2
 POINT II

BECAUSE THE CRIME SCENE DETECTIVE WAS NOT
LAWFULLY IN THE VIEWING AREA AND THE VIEWING
OF THE EVIDENCE WAS NOT INADVERTENT, THE
CROWBAR WAS NOT IN PLAIN VIEW.

In reviewing a motion to suppress, "we accord deference to

the factual findings of the trial court." State v. Scriven, 226

N.J. 20, 32 (2016). That is particularly so as "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. Johnson, 42 N.J. 146, 161 (1964). If satisfied that the trial

court's findings could reasonably have been reached on sufficient,

credible evidence present in the record, our task is complete and

we will not disturb the result. Id. at 162. Our review of the

trial court's legal conclusions is plenary. State v. Rockford,

213 N.J. 424, 440 (2013).

Preliminarily, we note the trial court appropriately rejected

the State's argument the search-incident-to-arrest exception to

the warrant requirement justified the search and seizure of the

crowbar. See State v. Eckel, 185 N.J. 523, 541 (2006) ("Once the

occupant of a vehicle has been arrested, removed and secured

elsewhere, the considerations informing the search incident to

arrest exception are absent and the exception is inapplicable.").

6 A-1801-14T2
 We turn to the State's argument concerning the plain view

exception to the warrant requirement. The plain view exception

has three elements:

(1) "the police officer must be lawfully in
the viewing area"; (2) "the officer has to
discover the evidence 'inadvertently,'
meaning that he did not know in advance where
evidence was located nor intend beforehand to
seize it"; and (3) "it has to be 'immediately
apparent' to the police that the items in
plain view were evidence of a crime,
contraband, or otherwise subject to seizure."

[State v. Reininger, 430 N.J. Super. 517, 535-
36 (App. Div.) (quoting State v. Bruzzese, 94
N.J. 210, 237 (1983), cert. denied, 465 U.S.
1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695
(1984)), certif. denied, 216 N.J. 267
(2013).] 4

As Kelleher made his plain view observation after the

vehicle's rear door had been opened, we must determine whether the

State proved the plain view exception's first element, namely,

whether he was lawfully in the viewing area. Defendant argues he

was not. He asserts "the police had no indication whatsoever, and

certainly no probable cause, that there was a person secreted in

the trunk/hatchback area." Defendant emphasizes the police heard

no noises coming from that area and they had no information from

4
Our Supreme Court has since held prospectively "that an
inadvertent discovery of contraband or evidence of a crime is no
longer a predicate for a plain-view seizure." State v. Gonzales,
227 N.J. 77, 82 (2016).

7 A-1801-14T2
witnesses that more than four males were involved in the attempted

burglary. Consequently, all persons were accounted for once the

five occupants were removed from the Explorer.

Additionally, defendant argues, "[e]ven if there was probable

cause to search the passenger compartment of the car, . . . there

was no exigency that would have made it impractical for the police

to obtain a search warrant[.]" Lastly, defendant contends

Detective Kelleher was not lawfully in the viewing area of the

interior of the Explorer and his discovery of the crowbar was not

inadvertent. Rather, he was processing a scene without a warrant.

Defendant claims the police should have closed the doors of the

car and requested a search warrant before permitting Detective

Kelleher to photograph the Explorer's interior.

Concerning the motion judge's decision, the State asserts

that

[w]hile he found [the police] action
reasonable under State v. Pena-Flores, . . .
the police were not even searching for
criminal evidence and thus the automobile
exception as set forth in Pena-Flores is not
relevant. Instead, the opening of the
hatchback/trunk area was a lawful protective
sweep for hidden people who may pose a danger
to the officers on the scene.

The motion judge analyzed the State's proofs under precedent

applicable when the motion judge rendered his opinion. The

relevant law upheld warrantless searches of a vehicles "where (1)

8 A-1801-14T2
the stop [was] unexpected; (2) the police [had] probable cause to

believe that the vehicle contain[ed] contraband or evidence of a

crime; and (3) exigent circumstances exist[ed] under which it

[was] impracticable to obtain a warrant." State v. Pena-Flores,

198 N.J. 6, 28 (2009)(citations omitted).5 Defendant argues the

judge misapplied this exception to the warrant requirement. The

State argues this exception was irrelevant. We need not, however,

decide whether the facts of this case, including the concern for

the safety of the law enforcement officers, constituted exigent

circumstances. We conclude the need for a protective sweep

justified the officers' conduct.

The concept of the protective sweep was announced by the

United States Supreme Court in Maryland v. Buie, 494 U.S. 325, 110

S. Ct. 1093, 108 L. Ed. 2d 276 (1990), and adopted by the New

Jersey Supreme Court in State v. Davila, 203 N.J. 97, 115-16

(2010). "[W]hile the protective sweeps in Buie and Davila were

aimed at protecting officers from danger that may be encountered

in a home from individuals lurking therein, this rationale applies

5
The judge analyzed the State's proofs under State v. Pena-
Flores, 198 N.J. 6 (2009). Defendant's case predated State v.
Witt, 223 N.J. 409 (2015), which modified the State's required
showing to satisfy the motor vehicle exception to the warrant
requirement. The Court stated the new rule of law it announced
in Witt was to be applied "purely prospectively." Id. at 449.

9 A-1801-14T2
equally to limited protective searches of vehicles[.]" State v.

Gamble, 218 N.J. 412, 433 (2014) (citing Davila, supra, 203 N.J.

at 129).

Here, the motion judge found credible Perez's testimony that

the police searched the Explorer's cargo area out of concern for

the officers' safety. The State's evidence supported the judge's

credibility determination as well as his conclusion that the

concern for the officers' safety justified opening the Explorer's

rear door.

Defendant argues that even if the officers were justified in

opening the door, when they found no one inside, they should have

closed the doors and secured the Explorer. After doing so, if

they wished to have a crime scene investigator process the

Explorer, they should have attempted to obtain a search warrant.

We are unpersuaded by this argument.

We have concluded the officers lawfully opened the Explorer's

rear door. The motion record discloses no significant delay

between the time police opened the door and the time Kelleher,

while photographing the rear cargo compartment, observed the

crowbar in plain view. See State v. O'Donnell, 408 N.J. Super.

177, 187 (App. Div. 2009) (finding a period of thirty to forty-

five minutes between the time officers secured an apartment and

an investigator arrived to process the crime scene to be a "mere

10 A-1801-14T2
continuation of the original entry"), aff'd o.b., 203 N.J. 160

(2010), cert. denied, 562 U.S. 1094, 131 S. Ct. 803, 178 L. Ed.

2d 537 (2010).6

Defendant's remaining arguments are without sufficient merit

to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

6
Opening the Explorer's rear door and looking in is arguably a
lesser intrusion than a protective sweep. In State v. Mai, 202
N.J. 12, 23 (2010), the Supreme Court noted, "[p]lain logic demands
that the principles that govern whether a passenger of a vehicle
lawfully can be ordered out of the vehicle must apply with equal
force to whether a police officer is entitled, as a corollary and
reasonable safety measure, to open the door as part of issuing a
proper order to exit." Here, defendant does not contend the police
lacked authority to stop the Explorer and order the occupants to
exit.

11 A-1801-14T2