STATE OF NEW JERSEY VS. JONATHAN CRUZÂ (14-10-1621, HUDSON COUNTY AND STATEWIDE) ( 2017 )


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                          APPROVAL OF THE APPELLATE DIVISION
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          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-2711-15T4
    
    STATE OF NEW JERSEY,
    
            Plaintiff-Respondent,
    
    v.
    
    JONATHAN CRUZ, a/k/a JOMATHAN CRUZ,
    
            Defendant-Appellant.
    
    ________________________________
    
                  Submitted April 25, 2017 – Decided           June 19, 2017
    
                  Before Judges Leone and Moynihan.
    
                  On appeal from Superior Court of New Jersey,
                  Law Division, Hudson County, Indictment No.
                  14-10-1621.
    
                  Joseph E. Krakora, Public Defender, attorney
                  for appellant (Laura B. Lasota, Assistant
                  Deputy Public Defender, of counsel and on the
                  brief).
    
                  Esther Suarez, Hudson County Prosecutor,
                  attorney for respondent (Kerry J. Salkin,
                  Assistant Prosecutor, on the brief).
    
    PER CURIAM
    
            Defendant Jonathan Cruz appeals his December 4, 2015 judgment
    
    of conviction.         He challenges the trial court's denial of his
    motion to suppress the air pellet gun found during a protective
    
    sweep of his home.    We affirm.
    
                                       I.
    
         The following facts were found by the trial court.             At
    
    approximately 6:00 a.m. on April 22, 2014, law enforcement officers
    
    executed an arrest warrant for defendant at his home in Jersey
    
    City.    The arrest warrant stemmed from a complaint alleging
    
    defendant laid a small handgun in front of a woman and threatened
    
    to kill her.     Officers knocked at the door and heard male and
    
    female voices behind the door.      Approximately one to two minutes
    
    after they knocked, defendant's girlfriend answered the door and
    
    confirmed defendant was in the apartment.     However, defendant did
    
    not make himself visible, and the officers did not know where
    
    defendant was.   The lights were off and the officers could not see
    
    defendant from the door.
    
         The officers entered the five-room apartment and split up to
    
    look for defendant.    In his search for defendant, Sergeant John
    
    Joy entered the kitchen and opened the cabinet under the kitchen
    
    sink.   He found an air pellet gun in plain view.     Ten to twenty
    
    seconds later, other officers found defendant in the bathroom and
    
    arrested him.    Joy seized the handgun.
    
         Defendant was charged with unlawful possession of a handgun
    
    in violation of N.J.S.A. 2C:39-5(b); possession of a firearm for
    
                                       2                         A-2711-15T4
    an unlawful purpose in violation of N.J.S.A. 2C:39-4(a); and
    
    terroristic threats in violation of N.J.S.A. 2C:12-3.1
    
         Defendant moved to suppress the handgun.                 Sergeant Joy and
    
    defendant testified at the hearing.             The trial court also viewed
    
    photos of the kitchen cabinet where Joy found the handgun.                        The
    
    court found Joy credible and rejected the alternative version of
    
    events proffered by defendant.2             The court specifically credited
    
    Joy's assertion that a person could hide in the cabinet.
    
         Judge    Joseph   V.    Isabella       denied     defendant's       motion    to
    
    suppress in an April 10, 2015 order.                 The court stated in its
    
    accompanying    written     opinion     that    "the     protective       sweep    of
    
    [d]efendant's apartment . . . was not unnecessarily invasive and
    
    only extended to a 'cursory inspection of those spaces where a
    
    person may be found'" (quoting Maryland v. Buie, 
    494 U.S. 325
    ,
    
    335, 
    110 S. Ct. 1093
    , 1099, 
    108 L. Ed. 2d 276
    , 287 (1990)).
    
         Defendant    subsequently    pled        guilty    to   an   amended     count
    
    charging     fourth-degree    aggravated        assault      with    a    firearm.
    
    
    
    
    1
      Under the Criminal Code, an air pellet gun can be a "firearm"
    and thus a "handgun." N.J.S.A. 2C:39-1(f), (k).
    2
      Defendant claimed that the police arrested him, asked him where
    the handgun was, and that he revealed it was under the kitchen
    sink after they threatened his girlfriend.
    
    
                                            3                                   A-2711-15T4
    N.J.S.A. 2C:12-1(b)(4).    The trial court imposed an eighteen-month
    
    sentence and dismissed the remaining charges.
    
         Defendant appeals, claiming:
    
                THE OFFICER'S ACT OF OPENING THE CABINET WAS
                NOT JUSTIFIED UNDER THE PROTECTIVE SWEEP
                DOCTRINE   AND    CONSTITUTED   AN    ILLEGAL
                WARRANTLESS SEARCH. AS A RESULT, THE PELLET
                GUN FOUND IN THE CABINET MUST BE SUPPRESSED.3
    
                                      II.
    
         We must hew to our standard of review.            An appellate court
    
    is "bound to uphold a trial court's factual findings in a motion
    
    to suppress provided those 'findings are "supported by sufficient
    
    credible evidence in the record."'"        State v. Watts, 
    223 N.J. 503
    ,
    
    516 (2015) (quoting State v. Elders, 
    192 N.J. 224
    , 243-44 (2007)).
    
    "Deference to those findings is particularly appropriate when the
    
    trial court has the '"opportunity to hear and see the witnesses
    
    and to have the feel of the case, which a reviewing court cannot
    
    enjoy."'"     Ibid.   (quoting   Elders,    supra,     192    N.J.   at     244).
    
    "Nevertheless, we are not required to accept findings that are
    
    'clearly mistaken' based on our independent review of the record."
    
    Ibid. (quoting Elders, supra, 192 N.J. at 244).                  "We owe no
    
    deference to a trial . . . court's interpretation of the law, and
    
    
    
    
    3
      Defendant's claim was preserved,           despite    his    guilty       plea,
    pursuant to Rule 3:5-7(d).
    
                                       4                                      A-2711-15T4
    therefore our review of legal matters is de novo."               State v.
    
    Hathaway, 
    222 N.J. 453
    , 467 (2015).
    
                                        III.
    
             The Fourth Amendment of the United States Constitution and
    
    Article I, Paragraph 7 of the New Jersey Constitution both provide
    
    "[t]he right of the people to be secure in their persons, houses,
    
    papers, and effects, against unreasonable searches and seizures,
    
    shall not be violated" and that no warrants shall issue except
    
    upon probable cause.      U.S. Const. amend. IV; N.J. Const. art. I,
    
    §   7.      "Our   constitutional   jurisprudence    expresses   a     clear
    
    preference for government officials to obtain a warrant issued by
    
    a neutral and detached judicial officer before executing a search."
    
    State v. Edmonds, 
    211 N.J. 117
    , 129 (2012).          Moreover, "physical
    
    entry of the home is the chief evil against which the wording of
    
    the Fourth Amendment is directed."         State v. Vargas, 
    213 N.J. 301
    ,
    
    313 (2013) (quoting United States v. U.S. Dist. Court for the E.
    
    Dist. of Mich., 
    407 U.S. 297
    , 313, 
    92 S. Ct. 2125
    , 2134, 
    32 L. Ed. 2d
     752, 764 (1972)).
    
                                         A.
    
             Here, the officers had a valid arrest warrant.       "An arrest
    
    warrant 'implicitly carries with it the limited authority to enter
    
    a dwelling' where the suspect lives when there is reason to believe
    
    the suspect is inside."      State v. Brown, 
    205 N.J. 133
    , 145 (2011)
    
                                         5                               A-2711-15T4
    (quoting Payton v. New York, 
    445 U.S. 573
    , 603, 
    100 S. Ct. 1371
    ,
    
    1388, 
    63 L. Ed. 2d 639
    , 661 (1980)); see, e.g., State v. Jones,
    
    
    143 N.J. 4
    , 15 (1995).      It is undisputed the officers lawfully
    
    entered defendant's residence because they had an arrest warrant
    
    enabling them to enter and search for him.
    
         "[T]he scope of a lawful search is 'defined by the object of
    
    the search and the places in which there is probable cause to
    
    believe that it may be found.'"    State v. Marshall, 
    199 N.J. 602
    ,
    
    611 (2009) (quoting Maryland v. Garrison, 
    480 U.S. 79
    , 84, 107 S.
    
    Ct. 1013, 1016, 
    94 L. Ed. 2d 72
    , 80-81 (1987)).   Thus, "until the
    
    point of [the defendant]'s arrest the police had the right, based
    
    on the authority of the arrest warrant, to search anywhere in the
    
    house that [he] might have been found."   Buie, supra, 494 U.S. at
    
    330, 110 S. Ct. at 1096, 108 L. Ed. 2d at 283.
    
         Here, the trial court found that Sergeant Joy "only looked
    
    in places in the kitchen where it was possible that a person could
    
    be found."   The court also determined defendant was not found
    
    until "moments after" Joy opened the cabinet beneath the kitchen
    
    sink and saw the handgun.    Thus, the search was authorized by the
    
    arrest warrant.   Id. at 332-33, 110 S. Ct. at 1097, 108 L. Ed. 2d
    
    at 285.
    
         Defendant argues the police could not reasonably expect to
    
    find a person hiding in the cabinet under the kitchen sink.      The
    
                                      6                         A-2711-15T4
    trial court believed Sergeant Joy's testimony that he had twice
    
    before found people hiding in similar cabinets under kitchen sinks
    
    and that the two-foot-high, three-foot-wide cabinet was large
    
    enough for defendant to fit inside.             The court reached the same
    
    conclusion after viewing photos of the cabinet.             We cannot say the
    
    trial court was clearly mistaken.           Accordingly, Joy was permitted
    
    to open the cabinet in search of defendant pursuant to the arrest
    
    warrant.
    
                                           B.
    
         The trial court found opening the cabinet was also permissible
    
    as part of a protective sweep.         "[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
    , 102
    
    (2010) (quoting Buie, supra, 494 U.S. at 327, 110 S. Ct. at 1094,
    
    108 L. Ed. 2d at 281).
    
         "[A]    protective   sweep      incident   to    an   in-home    arrest   is
    
    permissible under the following circumstances."                State v. Cope,
    
    
    224 N.J. 530
    , 548 (2016). "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."         Ibid. (quoting Buie, supra, 494 U.S. at
    
                                           7                                A-2711-15T4
    334, 110 S. Ct. at 1098, 108 L. Ed. 2d at 286).           "The officers may
    
    'look in closets and other spaces'" in that area.                Id. at 547
    
    (quoting Buie, supra, 494 U.S. at 334, 110 S. Ct. at 1098, 108 L.
    
    Ed. 2d at 286).      "Any wider sweep must be justified by 'specific
    
    facts that would cause a reasonable officer to believe there is
    
    an individual within the premises who poses a danger' to the
    
    arresting officers."        Id. at 548 (quoting Davila, supra, 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.'"   Ibid. (quoting Buie, supra, 494 U.S. at 327, 110 S. Ct.
    
    at 1094, 108 L. Ed. 2d at 281).       Third, "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 Davila, supra, 203 N.J. at 115).
    
         Here, as in Cope, "[t]he police executed the arrest warrant
    
    for defendant while he was present in his apartment."            Ibid.    The
    
    trial court also found the officers' sweep lasted only about one
    
    minute and merely involved "a cursory visual inspection of those
    
    places in which a person might be hiding."            Buie, supra, 494 U.S.
    
    at 327, 110 S. Ct. at 1094, 108 L. Ed. 2d at 281.
    
         Unlike   Buie    and    Cope,   the   officers    here   conducted   the
    
    protective sweep immediately before the arrest.           Our Supreme Court
    
                                          8                              A-2711-15T4
    has held "a protective sweep conducted on private property is not
    
    per se invalid merely because it does not occur incident to an
    
    arrest."     Davila, supra, 203 N.J. at 120.           That Buie approved
    
    protective    sweeps    "incident   to   an   arrest    does   not    appear
    
    significant to its reasoning, except, of course, that the arrest
    
    demonstrated lawful police presence in the home and enhanced the
    
    perceptible danger to the officers on the scene."              Id. at 117.
    
    Davila extended Buie "to officers who are lawfully present in
    
    private premises for some purpose other than to effect an arrest."
    
    Id. at 116, 125.       To make up for "the absence of probable cause
    
    to arrest" in such circumstances, the Court formulated slightly
    
    different requirements, namely a showing that "(1) law enforcement
    
    officers are lawfully within the private premises for a legitimate
    
    purpose, which may include consent to enter; and (2) the officers
    
    on the scene have a reasonable articulable suspicion that the area
    
    to be swept harbors an individual posing a danger."            Id. at 121,
    
    125.
    
           Here, the distinction between sweeping immediately before and
    
    after the arrest was inconsequential, because the sweep met the
    
    conditions set in Davila as well as Buie.              The officers were
    
    lawfully within the apartment pursuant to the arrest warrant.
    
    Moreover, the apartment was small enough that the kitchen was
    
    immediately adjoining the place of defendant's impending arrest.
    
                                        9                                A-2711-15T4
    See Cope, supra, 224 N.J. at 548-49 (permitting the sweep of a
    
    back porch after the defendant was arrested in the living room).
    
    "[A] protective sweep incident to an in-home arrest [does not]
    
    require[] reasonable suspicion even when the sweep is of 'spaces
    
    immediately adjoining the place of arrest.'" Id. at 550-51 (citing
    
    Davila, supra, 203 N.J. at 114).
    
         In any event, Sergeant Joy had "'articulable facts' and
    
    'rational inferences' drawn from those facts that 'would warrant
    
    a reasonably prudent officer in believing that the area to be
    
    swept harbor[ed] an individual posing a danger to those on the
    
    arrest scene.'"    Id. at 547 (quoting Buie, supra, 494 U.S. at 334,
    
    110 S. Ct. at 1098, 108 L. Ed. 2d at 286).   As in Cope, "the noise
    
    coming from the apartment," here the male and female voices, gave
    
    the officers reason to "believe[] 'multiple people [were] inside
    
    the apartment.'"   Id. at 548 (second alteration in original).4   "No
    
    one in the apartment responded immediately to the officers' door
    
    knocks," and the one to two minute delay gave people time to hide
    
    in places from which attacks could be launched.    Ibid.
    
         Given that only the girlfriend came to the door, the officers
    
    had additional reason to believe defendant was concealing himself.
    
    
    
    4
      Defendant argues that in Cope the officers also heard a
    "'commotion.'"   Cope, supra, 224 N.J. at 548.   Nothing in Cope
    indicates that is a prerequisite to a protective sweep.
    
                                     10                          A-2711-15T4
    They also knew defendant was wanted for a crime of threatening
    
    someone with a firearm.       Thus, the trial court properly found the
    
    officers had a reasonable suspicion the unlocated defendant might
    
    pose a danger.    This was an additional danger not present in Cope
    
    where the defendant had already been "handcuffed and placed under
    
    arrest" before the sweep.          Id. at 538.
    
         Moreover, Sergeant Joy had previously found people hiding in
    
    cabinets under kitchen sinks.           That articulated fact, together
    
    with the other facts related above, gave rise to a rational
    
    inference that defendant could hide under the sink and pose a
    
    threat to the officers. Accordingly, it was permissible to conduct
    
    a protective sweep and to open the cabinet.
    
                                           C.
    
         Under either of these scenarios, the officers were legally
    
    permitted to open the cabinet under the kitchen sink.                      When
    
    Sergeant   Joy   did   so,   the    handgun   within   was   in   plain   view.
    
    "Although [a protective] sweep 'is not a search for weapons or
    
    contraband,' such items may be seized if observed 'in plain view'
    
    during the sweep."      Id. at 548.         Here, "the police 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."         State v. Bruzzese, 
    94 N.J. 210
    , 242
    
    
    
                                          11                              A-2711-15T4
    (1983), cert. denied, 
    465 U.S. 1030
    , 
    104 S. Ct. 1295
    , 
    79 L. Ed. 2d
     695 (1984).
    
          Under the doctrine of plain view, a warrantless seizure by
    
    the police is justified when:
    
               (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)
               (citation omitted).]5
    
          Sergeant Joy was lawfully in a position to view the handgun
    
    in the cabinet under the kitchen sink because he was both executing
    
    the   arrest   warrant   and    conducting   a   protective   sweep.     Joy
    
    discovered the gun inadvertently because he was searching for
    
    defendant, not a handgun, and had no knowledge before the search
    
    of what the cabinet contained, whether a handgun was in the
    
    apartment, or where it might have been located.               See Gonzales,
    
    supra, 227 N.J. at 103.        Finally, it was immediately apparent the
    
    handgun was evidence of a crime or contraband.           "[E]vidence of a
    
    crime is 'immediately apparent' under the plain-view doctrine when
    
    
    5
      While our Supreme Court prospectively removed the inadvertence
    requirement in State v. Gonzales, 
    227 N.J. 77
    , 101 (2016), the
    present appeal arises from a judgment that predates Gonzales, so
    we apply the previous three-part test.
    
                                         12                             A-2711-15T4
    the officer possesses 'probable cause to associate the property
    
    with criminal activity.'"   Id. at 93 (quoting Texas v. Brown, 
    460 U.S. 730
    , 741-42, 
    103 S. Ct. 1535
    , 1543, 
    75 L. Ed. 2d 502
    , 513
    
    (1983)).   The arrest warrant gave the officers probable cause to
    
    believe defendant used a handgun to threaten a woman.   Thus, they
    
    could seize the handgun.
    
        Affirmed.
    
    
    
    
                                    13                         A-2711-15T4