November 16, 2016

State v. Xiomara Gonzales (A-5-1

State v. Gonzales
   State v. Xiomara Gonzales (A-5-15) (075911)
Argued September 12, 2016 -- Decided November 15, 2016
Albin, J., writing for a unanimous Court.
In this appeal, the Court considers the proper scope of the plain-view exception to the warrant requirement under Article I, Paragraph 7 of the New Jersey Constitution and whether inadvertent discovery of contraband or evidence of a crime should remain a predicate for a plain-view seizure.
The constitutional question in this case arises out of defendant Xiomara Gonzales’s appeal from the denial of her motion to suppress evidence seized by police from the vehicle she was driving on February 7, 2009. Pursuant to their ongoing investigation of a drug-distribution scheme, the police learned that Gonzales and a codefendant were going to retrieve a package that day that the Prosecutor’s Office suspected would contain a large quantity of heroin. After Gonzales and the codefendant made two stops in separate cars, the codefendant placed two blue plastic bags on Gonzales’s back seat, and Gonzales headed toward the Garden State Parkway.
Two officers followed Gonzales. They saw her speed, turn left on a red light, and pass through a toll on the Garden State Parkway without paying. The officers pulled Gonzales over to the shoulder of the Parkway.
As Officer Perez approached Gonzales’s car, he saw that items had spilled from the blue bags onto the rear floorboard. He “immediately identified” the spilled items as “bricks of heroin.” Gonzales was arrested and the bags sealed. At a secure site, it was determined that the bags contained 270 bricks of heroin.
Gonzales was charged with first-degree distribution of more than five ounces of heroin, first-degree possession of heroin with the intent to distribute, third-degree possession of heroin, and second-degree conspiracy to commit racketeering. Gonzales moved to suppress the evidence.
The trial court denied the motion to suppress, determining that the plain-view exception to the warrant requirement justified the warrantless seizure of the heroin because Officer Perez (1) was lawfully present beside Gonzales’s car; (2) discovered the heroin “inadvertently” due to the spillage; and (3) had specialized training and experience in narcotics detection that made the incriminating nature of the packaged heroin “immediately apparent” to him. The trial court therefore upheld the constitutionality of the search.
The Appellate Division reversed. Adhering to the plain-view test established in State v. Bruzzese, 94 N.J. 210, 236–38 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984), the appellate panel concluded that, because the motor-vehicle stop was a pretext to enable police to seize drugs they knew to be present in Gonzales’s car, Officer Perez’s discovery of the heroin did not meet the inadvertence prong of the plain-view exception. In reaching this conclusion, the panel did not address the fact that, since Bruzzese, the United States Supreme Court has expressly held that the “inadvertent” discovery of incriminating evidence is not a prerequisite for plain-view seizure. The panel also found that exigent circumstances did not justify the search because the police had time to obtain a warrant while pursuing Gonzales’s car.
The panel thus remanded the case for further proceedings.
The Court granted the State’s petition for certification. 223 N.J. 164 (2015).
    HELD: The Court now excises the inadvertence requirement from the plain-view doctrine. Because it is setting forth a new rule of law, the Court will apply the reformulated plain-view doctrine prospectively. Nevertheless, the Court holds that the trial court’s finding of inadvertence is supported by credible evidence in the record. The Court therefore reverses the judgment of the Appellate Division and reinstates the trial court’s denial of the motion to suppress. 2

1. The Court notes that both the New Jersey and Federal Constitutions protect against “unreasonable searches and seizures” and forbid the issuance of a warrant absent “probable cause.” N.J. Const. art. I, ¶ 7; see U.S. Const. amend. IV. Warrantless searches are prohibited unless an exception to the warrant requirement applies such as the plain-view doctrine, which authorizes an officer to seize evidence or contraband that is in plain view.  
2. The United States Supreme Court established the factual predicates necessary to satisfy the plain-view exception in Coolidge v. New Hampshire, 403 U.S. 443, 465-72, 91 S. Ct. 2022, 2037-41, 29 L. Ed. 2d 695, 582-87 (1984). In that decision, a plurality of the Court established three requirements for the exception: (1) The officer must be lawfully in the viewing area when making the observation; (2) the evidence must be discovered inadvertently; and (3) the incriminating nature of the evidence to be seized must be immediately apparent to the officer. The purpose of the inadvertence requirement was to ensure that police obtain warrants when they have advance knowledge of incriminating evidence or contraband subject to seizure. The requirement was never adopted by a majority of the Court.   
3. In Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990), the United States Supreme Court interred the inadvertence requirement as a predicate for a plain-view seizure of evidence. The majority of the Court found that other aspects of search-and-seizure jurisprudence protect against the concerns that the inadvertence requirement aimed to address. The Court also rejected the inadvertence requirement because it necessitated a subjective inquiry into the officer’s state of mind. The Court thus explicitly stated that inadvertence was not a necessary predicate to a plain-view seizure, a position that a majority of states have since adopted.   
4. Before Horton was decided, this Court adopted the Coolidge plurality’s formulation of plain view in Bruzzese. Even in espousing the three-prong plain-view standard, however, the Court expressed the view that the standard of objective reasonableness governs the validity of a search or seizure. This Court continued to apply the three-part test in the post-Horton era, but without occasion to assess whether a plain-view seizure would pass muster in the absence of inadvertence.   
5. The Court stresses the preference for objective standards over subjective inquiries in both federal and New Jersey search-and-seizure jurisprudence.  
6. The Court now excises the inadvertence requirement from the plain-view doctrine. The Court finds subjective inquiry into an officer’s motives to be at odds with the standard of objective reasonableness that applies to a police officer’s conduct under the New Jersey Constitution. The Court notes that the constitutional limiting principle of the plain-view doctrine is that the officer must lawfully be in the area where he observed and seized the item, and that it must be immediately apparent that the seized item is evidence of a crime. Because the Court sets forth a new rule of law, the Court will apply the reformulated plain-view doctrine prospectively.
7. Thus, the Court applies the now-defunct three-part plain-view test to the facts of this case. The Court concludes that all three parts of the test were met. The motor-vehicle violations gave the officers a reasonable and articulable suspicion to stop Gonzales’s car, and Officer Perez’s training made the nature of the spilled items “immediately apparent.” Finally, the trial court’s finding that the discovery was inadvertent was supported by sufficient credible evidence in the record, and the appellate panel should have deferred to that finding.
8. The Court observes that the appellate panel also erred in finding that the police lacked exigent circumstances to act, stressing that the officers were not required to watch helplessly as Gonzales drove away with what the authorities reasonably believed was a cache of drugs. Here, again, the plain-view observation of the spilled heroin provided the basis for the seizure of the contraband. (pp 35-36)
9. The Court provides guidance as to the limits of the plain-view exception and the continuing need to obtain a warrant when there is sufficient time to do so.
The judgment of the Appellate Division is REVERSED and the trial court’s denial of the motion to suppress is REINSTATED. The matter is REMANDED to the Appellate Division for consideration of the remaining sentencing issue.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s opinion.

November 10, 2016

Veteran’s Day - Local military veterans will be holding services and other events this week to commemorate Veterans Day.

Veteran’s Day - Local military veterans will be holding services and other events this week to commemorate Veterans Day. The holiday, originally called Armistice Day, was created to honor veterans of World War I. The armistice effectively ending the war was signed on Nov. 11, 1918. In 1954, Congress passed legislation setting Nov. 11 as a day to honor American veterans of all wars.

         While in college I wrote my senior class project on my grandfather Albert Louis Vercammen who fought in WWI against the German army with the Belgian Army. I wrote how he single handedly defeated the Germans to make the world safe for democracy.
         Decades later, the Red Chinese stormed into North Korea in the Korean War and threatened Communism throughout Asia. The Army summoned my dad, Albert P. Vercammen, to go over and fight the invaders. He was on the Battleship New Jersey crossing the Pacific when the North Koreans and Chinese heard about the fierce Vercammen fighting spirit. The North Koreans started to retreat and wanted to surrender. The cowardly United Nations let them call it a truce. Again, the world was safe for democracy.
         While in Korea, Al Vercammen was promoted to Sergeant. I recall him saying Korea was the coldest place in the world. Also, unlike the TV show MASH that had hot nurses, the ones in Korea were all ugly. The black and white photos taken in Korea my Dad has show barren hills near their Spartan tents. It looked cold. I am glad I did not have to go over there. So as Americans, we thank our Dads and other vets that got the call to duty [draft] and helped turn the tide against the Communists.
         My father in law John Bachenski served in WWII in the Army Air Corp, the forerunner of the Air Force. He help start the sonar radar program for the Army. He successfully helped defend the air base at Boca Raton, Florida from the invading Italian navy. He is a long time member of the American Legion.

         2 Veterans and Sons of Veterans should Join the American Legion
         To honor my dad and other veterans I recently joined the Sons of American Legion. I am now am an Member, Sons of American Legion, Edison Father & Son Post 435, which is located on 43 Oakland Ave, Edison, NJ 08817 near Plainfield Ave and Wick Plaza.

The American Legion was chartered by Congress in 1919 as an organization for wartime veterans. Membership is open only to men and women who served active duty in the US Armed Forces during specific periods designated as “war time” by the US Congress, and who have received an honorable discharge, or are still serving honorably. Eligible veterans would be able to provide a Form DD214 (or similar) to verify their eligibility. If you don’t meet these requirements, you can still support the USA and Posts of the American Legion.
It’s possible that you may be able to join one of the other organizations in the “Legion Family.” The Sons of The American Legion (SAL) is comprised of male descendants, adopted sons and stepsons of American Legion members. (There are no age limitations.) Many posts have an active SAL program and you can contact one near you to learn more. (Visit www.legion.org/sons for more information.)
     Their sister organization is the American Legion Auxiliary. Eligibility is open to mothers, wives, daughters, sisters, granddaughters, great grand daughters, or grandmothers of members of The American Legion, or of deceased veterans who served in the United States Armed Forces during the listed war eras.

    The American Legion was chartered and incorporated by Congress in 1919 as a patriotic veterans organization devoted to mutual helpfulness. It is the nation’s largest wartime veterans service organization, committed to mentoring youth and sponsorship of wholesome programs in our communities, advocating patriotism and honor, promoting strong national security, and continued devotion to our fellow service members and veterans.
Hundreds of local American Legion programs and activities strengthen the nation one community at a time. American Legion Baseball is one of the nation’s most successful amateur athletic programs, educating young people about the importance of sportsmanship, citizenship and fitness. The Operation Comfort Warriors program supports recovering wounded warriors and their families, providing them with "comfort items" and the kind of support that makes a hospital feel a little bit more like home. The Legion also raises millions of dollars in donations at the local, state and national levels to help veterans and their families during times of need and to provide college scholarship opportunities.
To contact the American Legion, Edison Father & Son Post 435 Call (732) 985-9768. Hall Rental also available for events

More details at http://www.legion.org/membership/faq