NOT FOR PUBLICATION WITHOUT THE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-0865-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TONY HULLUM, a/k/a JAMES HOLMES,
ANTHONY HULLUM, ANTHONY D. HULLUM,
and TONY D. HOLLUM,
Defendant-Appellant.
________________________________________________________________
Submitted March 21, 2017 – Decided July 18, 2017
Before Judges Rothstadt and Sumners.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County,
Indictment No. 13-07-0412.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).
Michael H. Robertson, Somerset County
Prosecutor, attorney for respondent (Lauren
Martinez, Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
A jury convicted defendant Tony Hullum of third-degree
possession of a controlled dangerous substance (CDS), cocaine,
N.J.S.A. 2C:35-10(a)(1). The court sentenced him to a term of
three years in prison.
On appeal, defendant argues:
POINT I
SINCE THE WARRANTLESS SEARCH OF
DEFENDANT'S INVENTORIED CLOTHING
WAS NOT RELATED TO INSTITUTIONAL
SECURITY AT THE SOMERSET COUNTY
JAIL, AND SINCE THERE DID NOT EXIST
PROBABLE CAUSE OR AN EXIGENCY TO
JUSTIFY THE WARRANTLESS SEARCH, THE
TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS
BECAUSE THE WARRANTLESS SEARCH OF
DEFENDANT'S INVENTORIED CLOTHING
WAS A PRETEXT THAT VIOLATED
DEFENDANT'S FOURTH AND FOURTEENTH
AMENDMENT RIGHTS.
POINT II
DEFENDANT'S CONVICTION SHOULD BE
REVERSED BECAUSE OF PROSECUTORIAL
"OVERZEALOUSNESS" IN SUMMATION (NOT
RAISED BELOW).
POINT III
THE THREE (3) YEAR CUSTODIAL
SENTENCE IMPOSED ON DEFENDANT'S
CONVICTION FOR THIRD DEGREE
POSSESSION OF COCAINE WAS
MANIFESTLY EXCESSIVE.
We conclude from our review of the record and applicable
legal principles that defendant's arguments are without merit.
We affirm.
2 A-0865-15T4
Turning first to defendant's challenge to the denial of his
suppression motion, the undisputed facts established at the
suppression hearing are summarized as follows. Defendant was
stopped by police for a motor vehicle violation. Because he could
not produce a license and failed to properly identify himself, he
was arrested, initially placed in a police headquarters' lock-up,
and then transferred to the county jail. During his arrest and
incarceration, he was subjected to several searches and "pat-
downs" that did not yield any CDS. While he was in the county
jail, his clothes were inspected after he removed them as part of
his processing that included a strip search and changing into jail
clothing. Again, no CDS was discovered. According to the officer
who testified at the hearing, defendant's clothing was placed in
a bag, tagged with his name and "locked in the secured area in
[the jail's] basement[, the] clothing bag storage area."
Thirteen hours after his arrest, and while he was in the
jail, the officer received an anonymous call informing him that
defendant had CDS secreted in his pants, in a compartment located
"in the flap of the jeans, by the zipper, [where] there should be
a cut with possibly drugs hidden in that area." A further
inspection of the pants based upon the information supplied by the
caller revealed CDS. As a result, defendant was charged with
possession.
3 A-0865-15T4
At his suppression hearing defendant argued that the
warrantless search of his clothing violated his constitutional
rights. On March 30, 2015, Judge Julie M. Marino issued a nine-
page written decision denying defendant's motion. Relying on the
reasoning stated in State v. Adams, 132 N.J. Super. 256 (Law Div.
1975) - which followed our Supreme Court's holding in State v.
Mark, 46 N.J. 262, 278 (1966) - and citing to U.S. v. Grill, 484
F. 2d 990 (5th Cir. 1973), cert. denied, 416 U.S. 989, 94 S. Ct.
2396, 40 L. Ed. 2d 767 (1974), the judge concluded that "no
reasonable expectation of privacy was breached by an officer's
taking a second look at the items."
Defendant argues that the judge's legal conclusion was
erroneous. He contends that there was no institutional security
need to reexamine his pants and that the search was merely a
pretext for finding incriminating evidence against him. Moreover,
there was no evidence about the reliability of the anonymous caller
to justify the warrantless search and to allow law enforcement to
search his clothes, which, he asserts, amounted to a violation of
his due process rights. We disagree.
"In our review of the trial court's decision denying the
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.
4 A-0865-15T4
Robinson, ___ N.J. ___, ___ (2017) (slip op. at 23-24) (quoting
State v. Rockford, 213 N.J. 424, 440 (2013)). However, "[w]e owe
no deference to a trial . . . court's interpretation of the law,
and therefore our review of legal matters is de novo." Id. at 24
(quoting State v. Hathaway, 222 N.J. 453, 467 (2015)).
Our de novo review of Judge Marino's application of the
controlling law to her factual findings leads us to conclude that
the judge correctly denied defendant's suppression motion. We
affirm essentially for the reasons expressed by the judge in her
thorough written decision. We add only the following comments.
The Supreme Court of the United States (SCOTUS) has broadly
stated "the Fourth Amendment proscription against unreasonable
searches does not apply within the confines of the prison cell,"
Hudson v. Palmer, 468 U.S. 517, 526, 104 S. Ct. 3194, 3200, 82 L.
Ed. 2d 393, 402-03 (1984), but a pre-trial detainee is protected
by a "diminished expectation of privacy," that must yield to an
institution's security interests. Bell v. Wolfish, 441 U.S. 520,
557, 99 S. Ct. 1861, 1883, 60 L. Ed. 2d 447, 480 (1979). In
Hudson, SCOTUS concluded that determining the reasonableness of
an expectation of privacy "entails a balancing of interests," and,
in the prison setting, the penal institution's interest in
maintaining security outweighs the prisoner's privacy interests
5 A-0865-15T4
in his cell. Hudson, supra, 468 U.S. at 527-28, 104 S. Ct. at
3200-01, 82 L. Ed. 2d at 403-04.
The New Jersey Supreme Court has taken a similar approach.
Our Court has recognized that "[p]rison walls do not form a barrier
separating prison inmates from the protections of the
Constitution." In re Rules Adoption Regarding Inmate Mail to
Attys., 120 N.J. 137, 146-47 (1990) (alteration in original)
(quoting Turner v. Safley, 482 U.S. 78, 84, 107 S. Ct. 2254, 2259,
96 L. Ed. 2d 64, 75 (1987)); see also Jackson v. Dep't of Corr.,
335 N.J. Super. 227, 232 (App. Div. 2000) ("Inmates do not shed
all of their constitutional rights at the prison gate."), certif.
denied, 167 N.J. 630 (2001). Nonetheless, the special needs of
the institution have been held to justify intrusions that would
not be permitted outside the institution. Hamilton v. N.J. Dep't
of Corr., 366 N.J. Super. 284, 291-92 (App. Div. 2004) (rejecting
challenge to taking of a urine sample of a convicted inmate,
without a warrant, based on an anonymous tip).
A pre-trial detainee is "cloaked with the presumption of
innocence. While that cloak may not shield him or his property
from the prying eyes of his jailors in their efforts to maintain
institutional security, it will insulate him from surreptitious
attempts of the prosecutor to obtain evidence without the benefit
of a warrant." State v. Jackson, 321 N.J. Super. 365, 379 (Law
6 A-0865-15T4
Div. 1999); see also United States v. Cohen, 796 F.2d 20 (2d Cir.)
(holding that search of pretrial detainee's cell at the behest of
the prosecutor for the purpose of finding incriminating evidence
was unconstitutional), cert. denied, 479 U.S. 854, 107 S. Ct. 189,
93 L. Ed. 2d 122 (1986). It will not insulate a pre-trial detainee
from searches seeking "weapons, drugs and other contraband [that]
present a serious danger to institutional order within the prison
environment." Jackson, supra, 321 N.J. Super. at 373.
Applying these guiding principles, we conclude that there was
nothing pretextual about the search of defendant's clothing or
that it was done at the behest of a prosecutor seeking to gather
evidence. Rather, the sheriff's department, having already
searched and properly taken custody of defendant's clothing and
having then received information that the clothes might contain
CDS, did not violate defendant's constitutional right of privacy
while he was incarcerated. The removal of CDS from the jail,
wherever it was located, justified the search.
Next, we address defendant's contention about the impropriety
of the prosecutor's remarks about the CDS found in defendant's
pants during summation. Defendant, who did not testify at trial,
takes issue with the prosecutor's reference to there being no
evidence that the pants belonged to someone else or that anyone
tampered with the clothing. According to defendant, these
7 A-0865-15T4
references were tantamount to the prosecutor improperly commenting
on defendant's right to not testify or produce any other evidence
in his defense. We disagree.
Initially, we observe that defendant did not object at trial
to the prosecutor's comments. When a defendant raises an issue
for the first time on appeal, we review the issue for plain error,
that is, error that "is of such a nature as to have been clearly
capable of producing an unjust result." R. 2:10-2. The error
must have been "sufficient to raise a reasonable doubt as to
whether the error led the jury to a result it otherwise might not
have reached." State v. McGuire, 419 N.J. Super. 88, 106-07 (App.
Div.) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)), certif.
denied, 208 N.J. 335 (2011). Additionally, "[t]he failure to
object suggests that defense counsel did not believe the remarks
were prejudicial at the time they were made. The failure to object
also deprives the court of an opportunity to take curative action."
State v. Frost, 158 N.J. 76, 84 (1999).
We discern no error attributable to the prosecutor's remarks
in this case. We acknowledge that we have repeatedly "caution[ed]
against comments by prosecutors which may adversely affect an
accused's Fifth Amendment rights[, stating that a] prosecutor
should not either in subtle or obvious fashion draw attention to
a defendant's failure to testify." State v. Engel, 249 N.J. Super.
8 A-0865-15T4
336, 382 (App. Div.), certif. denied, 130 N.J. 393 (1991).
"Contrary to defendant['s] assertion, [however,] we do not find
in the prosecutor's remarks a studied attempt to comment on [his]
election not to testify." Id. at 381. Rather, the prosecutor
fairly commented upon what the evidence in the case demonstrated,
without attributing the lack of evidence either directly or
indirectly to an obligation on defendant to produce the evidence.
There was no error.
Finally, we address defendant's contentions regarding his
three-year sentence being excessive. As defendant acknowledges,
the sentencing judge found three aggravating factors, the risk
defendant would reoffend, N.J.S.A. 2C:44-1(a)(3), the extent of
defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6), and the
need for deterrence, N.J.S.A. 2C:44-1(a)(9), while also finding
one mitigating factor, defendant's addiction, N.J.S.A. 2C:44-
1(b)(4). Defendant's only challenge to the sentence is that those
findings did not support the sentence he received.
We find defendant's argument to be without sufficed merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice
it to say, we discern no abuse of the judge's discretion in
imposing the three-year term. See State v. Fuentes, 217 N.J. 57,
70 (2014); State v. Roth, 95 N.J. 334, 364-65 (1984).
Affirmed.
9 A-0865-15T4