STATE OF NEW JERSEY VS. ANTHONY L. CONCEPCION (15-02-0184, MERCER COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-4695-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY L. CONCEPCION,
Defendant-Appellant.
_________________________________
Argued September 17, 2018 – Decided October 17, 2018
Before Judges Messano and Gooden Brown.
On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 15-02-0184.
Lauren S. Michaels, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Lauren S. Michaels, of
counsel and on the briefs).
Jane C. Schuster, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jane C. Schuster, of counsel and on
the brief).
PER CURIAM
Defendant Anthony Concepcion appeals from a May 16, 2017 judgment
of conviction for second-degree unlawful possession of a handgun, N.J.S.A.
2C:39-5(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 three-and-one-half year period of parole
ineligibility, in accordance with the Graves Act, N.J.S.A. 2C:43-6(c). On
appeal, defendant challenges the denial of his suppression motion as permitted
under Rule 3:5-7(d). We affirm.
The following facts were adduced at the suppression hearing, during
which Detective Tara Dzurkoc and Officer Noel Santiago, both thirteen-year
veterans of the Trenton Police Department, testified for the State. In September
2014, Dzurkoc and Santiago were part of the Impact Unit, a proactive unit
assembled to target violent offenders and street level narcotics activity. At the
start of their shift on September 30, 2014, they were advised during roll call to
focus their attention on Chestnut Park due to citizen complaints that the park
was being "utilized for dealing narcotics, smoking narcotics and weapon
violations . . . ."
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After roll call, Dzurkoc, Santiago, and other uniformed members of the
unit arrived at the park around 6:30 p.m. in unmarked vehicles. Upon exiting
her vehicle and entering the park, Dzurkoc observed two people on a bench to
the right of her, a few other people in front of the bench, and others standing
around the playground area. Dzurkoc's attention was immediately drawn to one
of the two people seated on the bench, who was later identified as defendant,
"[b]ecause he made a furtive movement" by tossing "a box of Newport
cigarettes." According to Dzurkoc, defendant "tossed" the cigarette box a
"couple [of] inches" "to [his] left" and the box landed on the bench within arm's
reach, about "a foot" away from "[w]here [defendant] was seated."
Dzurkoc, who made the observation from approximately fifteen feet away,
continued to watch defendant and briskly walked towards him, closing the
distance between them within "a couple seconds." When Dzurkoc arrived at the
bench and observed the cigarette box, "[i]t was partially opened" about one-
quarter to one-half inch, allowing her to see "a blue tint" inside the box. Based
on her professional involvement in "[o]ver a thousand" narcotics investigations
and her personal habit of smoking "a pack [of cigarettes] a day," Dzurkoc
immediately associated the blue tint with narcotics packaging and "knew" that
the cigarette box contained "[n]arcotics." According to Dzurkoc, "[b]lue [was]
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a very popular color with marijuana . . . packaging for some odd reason." Upon
seizing and searching the box, Dzurkoc found "[n]ine bags of marijuana"
packaged in "[s]mall blue-tinted Ziploc baggies." She placed defendant under
arrest, conducted a pat down with negative results, handcuffed him, and later
transported him with Santiago to police headquarters.
Upon arriving at police headquarters, Santiago escorted defendant to the
booking area where prisoners were processed by being "logged [into] a book"
and "search[ed]" for personal items, such as "[s]hoe laces, belt[s], [and] cell
phones," which were not permitted "in City lockup" and would be confiscated
prior to commitment. During that process, Santiago conducted a search of
defendant and found a loaded .380 caliber semiautomatic handgun in defendant's
"front waistband area" above the waistline, towards the center of his body.
According to Santiago, when he "felt a hard object in the front, [he] thought it
was a cell phone" but "realized it was a handgun" when he "retrieve[d] the
object."
In an oral decision following the hearing, the motion judge denied the
motion, finding that "the State . . . met its burden" and established that both the
search at the park and at headquarters were "reasonable under the
circumstances." Although the judge found Dzurkoc's "ability to make
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judgments in terms of distance" "absolutely horrendous," he found both officers
"credible" and made factual findings consistent with their respective testimony.
The judge determined that Dzurkoc's plain view observation of the "blue
plastic," which she had seen "many times . . . in connection with drugs," allowed
her to seize the Newport cigarette box, search it, and place defendant under
arrest. He explained:
So she had, number one, a belief that there[]
[were] issues in the park, and that[] [was] what the
briefing was all about. That[] [was] why they were
there. They came [en] masse, probably eight officers,
give or take one, but there were four cars. She was there
first. She was observing things. She described furtive
movement. Not a lot of furtive movement, but enough
to have the defendant in her view distancing himself
from something that had been in his hand. That
prompted her to walk, as she said, briskly to the area
and to make certain observations, and she did. The
observations that she made were consistent entirely
with the type of drug trafficking that she is used to day
in and day out. Her suspicions in this [c]ourt's
judgment did rise to the level of probable cause to make
a seizure of that package and to look at it further. And,
of course, once that was done[,] the defendant is under
arrest.
Turning to the search at police headquarters, the judge determined that
although the handgun was not found by Dzurkoc during the search at the park,
"there was cause, of course, to conduct a further search at the station be fore the
defendant was placed in his holding cell . . . ." The judge reasoned,
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[Santiago] conducted a search consistent with practices
that are required and are in place at the police station
and there appears to be no reason to think that he
deviated in any way from the type of responsibilities he
has [as] a police officer checking someone into the
police headquarters and having someone in a detention
type facility.
This appeal followed.
On appeal, defendant raises the following points for our consideration:
POINT I
SUPPRESSION IS REQUIRED BECAUSE THE
STATE FAILED TO PROVE THAT THE PLAIN-
VIEW EXCEPTION JUSTIFIED OFFICER
[DZURKOC'S] SEIZURE AND SEARCH OF THE
CIGARETTE BOX.
POINT II
EVIDENCE SEIZED FROM [DEFENDANT'S]
PERSON MUST BE SUPPRESSED BECAUSE THE
STATE FAILED TO PROVE THAT THE
STATIONHOUSE SEARCH WAS A PROPER
INVENTORY SEARCH.
We review a motion judge's factual findings in a suppression hearing with
great deference. State v. Gonzales, 227 N.J. 77, 101 (2016). 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
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(2014). We defer "to those findings of the trial judge which are substantially
influenced by his 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. 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
application of those facts to the law. We conclude that the State's proofs
established the applicable exceptions to the warrant requirement by a
preponderance of the evidence. Defendant argues that the motion judge erred
in sustaining the warrantless search "of the cigarette box under the plain view
doctrine" because the State failed to meet the "inadvertence" and "immediately
apparent" conditions. We disagree.
"A police officer may seize evidence in plain view without a warrant if
the officer is 'lawfully . . . in the viewing area' when he discovers the evidence,
and it is immediately apparent the object viewed is 'evidence of a crime,
contraband, or otherwise subject to seizure.'" State v. Keaton, 222 N.J. 438, 448
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(2015) (quoting State v. Johnson, 171 N.J. 192, 206-07 (2002)). Additionally,
"[t]he officer must discover the evidence 'inadvertently,' 'meaning that he did
not know in advance where evidence was located nor intend beforehand to seize
it.'" Johnson, 171 N.J. at 206 (quoting State v. Bruzzese, 94 N.J. 210, 236
(1983)). So long as these three elements are satisfied, a police officer may seize
the evidence without a warrant. 1 State v. Mann, 203 N.J. 328, 341 (2010).
"The purpose of the inadvertence requirement" was "to prevent the police
from engaging in planned warrantless searches where they know in advance the
location of certain evidence and intend to seize it, relying on the 'plain view'
exception as a pretext." State v. Padilla, 321 N.J. Super. 96, 109 (App. Div.
1999), aff'd o.b., 163 N.J. 3 (2000). Here, because Dzurkoc could not have
reasonably predicted and did not possess advance knowledge that drug
packaging would be revealed in the cigarette box in plain sight, the inadvertence
prong was satisfied. "[A] police officer lawfully in the viewing area [is not
required to] close [her] eyes to suspicious evidence in plain view." Bruzzese,
1
In State v. Gonzales, 227 N.J. at 99, the Supreme Court "reject[ed] the
inadvertence prong of the plain-view doctrine because it requires an inquiry into
a police officer's motives and therefore is at odds with the standard of objective
reasonableness that governs [the Court's] analysis of a police officer's conduct
. . . ." But because the new standard only applies "prospectively[,]" id. at 101,
and the search in this case occurred before the Gonzales decision, we assess the
lawfulness of the seizure pursuant to the pre-existing three-prong standard.
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94 N.J. at 237. See Gonzales, 227 N.J. at 103 (recognizing that the then
applicable inadvertence prong was satisfied when the officer discovered heroin
spilling from bags when he approached the vehicle, despite having suspected the
car occupants of engaging in narcotics activity).
The "immediately apparent" prong requires the court to determine whether
probable cause existed to associate the item in plain view with criminal activity
before opening it. Johnson, 171 N.J. at 213. "[W]hen 'determining whether the
officer has probable cause to associate the item with criminal activity, the court
looks to what the police officer reasonably knew at the time' . . . ." Ibid. (quoting
Bruzzese, 94 N.J. at 237). In Johnson, our Supreme Court held that officers who
saw a clear plastic bag could seize it under the plain view doctrine, even if they
could not see its contents, if the surrounding circumstances gave them probable
cause to believe it contained illegal drugs. 171 N.J. at 199-219. Here, Dzurkoc,
who had extensive experience in narcotics investigations, immediately
suspected the cigarette box contained narcotics based on the blue tint. See State
v. Cope, 224 N.J. 530, 550 (2016) (discussing the third prong and noting that
the "criminal nature of [the] container [was] immediately apparent where [the]
officer '[b]ecause of his previous experience in arrests for drug offenses, . . . was
aware that narcotics frequently were packaged in [similar] balloons'" (quoting
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Texas v. Brown, 460 U.S. 730, 734 (1983))). "[I]n light of [her] experience and
the facts known to [her]," Dzurkoc had probable cause to associate the blue tint
with criminal activity. Johnson, 171 N.J. at 215.
Defendant also argues that the stationhouse search was not a valid
"inventory search" because it was not "conducted according to 'standard
departmental procedure.'" We reject this argument as contrary to the judge's
factual findings, and deem it without sufficient merit to warrant extensive
discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say that "[a]n
inventory search of personal effects of an arrestee at a police station is
permissible under the Fourth Amendment." State v. Paturzzio, 292 N.J. Super.
542, 550 (App. Div. 1996). "A range of governmental interests supports an
inventory process," including deterring arrestees' false claims of loss or stolen
items, inhibiting "theft or careless handling" of arrestees' possessions, reducing
the risk of injury to arrestees from items on their persons, and removing
"[d]angerous instrumentalities—such as razor blades, bombs, or weapons . . . ."
Illinois v. Lafayette, 462 U.S. 640, 646 (1983).
Here, the judge credited Santiago's testimony that the search was
conducted according to "standard departmental procedure." State v. Mangold,
82 N.J. 575, 585 (1980). That finding was based on credible evidence in the
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record and no countervailing facts in this record suggest that the police used an
inventory search as "a subterfuge for a warrantless investigatory search." Ibid.Undoubtedly, "the police have the authority to ensure, at headquarters, that a
person under arrest is not armed with a weapon." State v. Gibson, 218 N.J. 277,
299 (2014).
Affirmed.
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