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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Appellant, v. JOSEPH A. SALLADINO, Defendant–Respondent.

DOCKET NO. A–2175–12T4

Decided: September 25, 2013

Before Judges Reisner and Hayden. Robert L. Taylor, Cape May County Prosecutor, attorney for appellant (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).

A grand jury indicted defendant Joseph A. Salladino for third-degree theft of movable property, N.J.S.A. 2C:20–3, and third-degree possession of a Schedule II controlled dangerous substance (Oxycodone), N.J.S.A. 2C:35–10(a)(1).   Prior to the trial, the court granted defendant's motion to suppress the Oxycodone seized from him during a warrantless search.   We granted the State's motion to appeal from that December 3, 2012 order.   We reverse and remand for further proceedings.

We discern the following facts from the record of the suppression hearing.   Detective Michael P. Majane of the Lower Township Police Department, testified that at approximately 5:15 p.m. on January 7, 2011, he received a radio dispatch reporting a robbery at a home on Meadowview Road. En route, Majane received a report from the crime scene that the victim, Mark Koehler, alleged that two Caucasian males wearing black coats and ski masks had assaulted him in his home, stolen his wallet, and then fled on foot along a nearby bike path.   Koehler stated that he could identify the suspects.

Majane drove along the bike path, but did not see anyone.   As he drove past Weeks Landing Road, approximately 500 yards from Koehler's home, he saw two men wearing black coats and walking together near the bike path.   Majane turned his vehicle around, but when he reached Weeks Landing Road, he found only one man, co-defendant Anthony Revak, who was out of breath, sweating, and had leaves stuck to the back of his jacket.   Majane stopped Revak to question him.

Shortly thereafter, Patrolman Robert Fessler arrived at the Weeks Landing Road location.   Majane told Fessler that the other subject may have fled west on Weeks Landing Road, which becomes Nummytown Road. Fessler located defendant, a Caucasian male wearing a black leather jacket, walking on Nummytown Road, approximately 150 to 300 yards from Majane's location.   Fessler radioed the crime scene and asked for a more detailed description of the subjects.   A patrolman responded that one of the subjects was wearing a black leather jacket with a large emblem on the back that resembled “a motorcycle gang emblem.”   Fessler confirmed that defendant was wearing a jacket that matched that description.   Majane then instructed him to transport defendant to the Weeks Landing Road location for a show-up identification by Koehler.

At approximately 5:27 p.m., Fessler exited his vehicle and approached defendant, who did not attempt to run away, or make any threatening gestures, and was not was winded, sweaty, or wearing or carrying a ski mask.   Before placing defendant in the rear seat of his police vehicle, Fessler conducted a pat-down search of defendant to ensure that defendant was not carrying a weapon.   During the frisk, Fessler felt a “hard bulge” somewhere on defendant's person.   Fessler did not suggest that he believed the “hard bulge” was a weapon.   He retrieved the object, which was an orange pill bottle with no label or lid, containing what was later determined to be eighty-three Percocet pills.   Fessler, whose main focus was the robbery, seized the pills and placed them in the center console of his vehicle for safekeeping and later investigation.   He did not arrest defendant for possession of the pills, or otherwise count or attempt to identify the pills.

Fessler transported defendant the 150 yards to the Weeks Landing Road location within seconds of Majane's instruction to do so.   When Koehler arrived at the location, he identified Revak and defendant as men who had been at his residence, which Majane understood meant the men who had robbed him.

At that point, the officers decided to place both defendant and Revak under arrest for the alleged robbery.   The police searched defendant incident to the arrest.   Fessler testified that if he had not removed the pill bottle and pills from defendant's person at the time of the pat-down, the items “absolutely” would have been found during the search incident to arrest.

Defendant moved to suppress the pills found during the pat-down search.   The judge, in an oral opinion, granted the motion.   Finding Majane credible and Fessler “credible for the most part,” 1 the judge determined that although Fessler had a reasonable and articulable suspicion to believe that defendant had engaged in criminal activity sufficient “to conduct a Terry [ 2 ] type stop,” the pat-down was unlawful because he did not have a reasonable basis to conclude that defendant, who was compliant and was not wearing a ski mask, was armed.   Further, the search exceeded the limited parameters of a Terry frisk because there was no evidence that Fessler believed the “hard bulge” was a weapon.

Additionally, the judge found that defendant “was most probably under arrest” because he was not free to walk away after Fessler received clarification that one of the suspects was wearing a black leather jacket with an emblem on it.   The judge found that Fessler was then instructed to transport defendant to the Weeks Landing Road location “for a possible identification by the alleged victim.   And what flowed therefrom was the pat down, which on this record I am incapable of concluding was predicated upon the facts that need to be found for any of the exceptions to the warrant requirement to exist.”

Further, the judge, without addressing the elements of the inevitable discovery doctrine as established in State v. Sugar, 100 N.J. 214, 238 (1985) (Sugar II ), concluded that he was “not able to find that ․ but for the discovery of that pill bottle and pills at the scene that by some independent and otherwise predictably reliable circumstance that discovery of that evidence was inevitable.”   The judge reasoned that because the arrest occurred after the illegal search, it was mere speculation whether, without the illegal search, defendant would have been arrested after being identified by Koehler.

On appeal, the State raises the following arguments for our consideration.




We defer to the trial court's findings of fact in reviewing a motion to suppress, “provided those factual findings are ‘supported by sufficient credible evidence in the record.’ ”  State v. Smith, 212 N.J. 365, 387 (2012) (quoting State v. Handy, 206 N.J. 39, 44 (2011)), cert. denied, _ U.S. _, 133 S.Ct. 1504, 185 L. Ed.2d 558 (2013).   We do not, however, defer to a trial court's interpretation of the law, and conduct a de novo plenary review of legal issues.  State v. Rockford, 213 N.J. 424, 440 (2013);  State v. Shaw, 213 N.J. 398, 411 (2012).

“The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution both guarantee ‘[t]he right of the people to be secure ․ against unreasonable searches and seizures [.]’ ”  Shaw, supra, 213 N.J. at 409 (quoting U.S. Const. amend.   IV;  N.J. Const. art.   I, ¶ 7).   Warrantless searches and seizures by law enforcement officers, including the seizure of an individual, are presumptively invalid.   State v. Pineiro, 181 N.J. 13, 19 (2004).   The State bears the burden of proving that such searches and seizures are “justified by one of the ‘well-delineated exceptions' to the warrant requirement.”  Shaw, supra, 213 N.J. at 409 (citations omitted).

One such narrowly-drawn exception to the warrant requirement was recognized in Terry, supra, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L. Ed.2d at 909.  “An investigatory police stop, sometimes referred to as a Terry stop, is permissible ‘if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.’ ”  Shaw, supra, 213 N.J. at 410 (quoting Pineiro, supra, 181 N.J. at 20).   Here, as the judge found, the police clearly had an objectively reasonable and articulable suspicion to believe defendant was involved in the robbery, and it is undisputed that the brief investigatory stop was constitutionally permissible.  Ibid.

A valid Terry stop, does not, however, necessarily justify a limited pat-down or Terry frisk.  State v. Privott, 203 N.J. 16, 26 (2010).   In this case, the judge found that the warrantless pat-down search of defendant was not justified because the officer lacked a specific basis for an objectively reasonable suspicion that defendant was armed and dangerous.   See Rockford, supra, 213 N.J. at 443–44;  State v. Roach, 172 N.J. 19, 27 (2002).

Further, the judge found, and the State concedes, that under the totality of the circumstances the seizure of the “hard bulge” from somewhere on defendant's person exceeded the permissible scope of a Terry search for weapons and was thus unlawful.   We agree that the search was illegal.

Nevertheless, the State argues that the evidence was still admissible because its discovery was inevitable when defendant was searched after being arrested for the robbery.   We have carefully considered the record and accept the trial judge's factual findings as supported by the substantial credible evidence.   However, we conclude that those facts support admission of the evidence under the inevitable discovery doctrine, and thus that the motion to suppress should not have been granted.

“The exclusionary rule generally bars the State from introducing into evidence the ‘fruits' of an unconstitutional search or seizure.”  Shaw, supra, 213 N.J. at 412–13 (quoting Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L. Ed.2d 441, 454 (1963)).  “Under the exclusionary rule, ‘the prosecution is not to be put in a better position than it would have been in if no illegality had transpired.’ ”  Smith, supra, 212 N.J. at 388 (quoting Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2508, 81 L. Ed.2d 377, 387 (1984)).

An exception to the judicially-created exclusionary rule is the inevitable discovery doctrine.  Nix, supra, 467 U.S. at 444, 104 S.Ct. at 2509, 81 L. Ed.2d at 387;  Smith, supra, 212 N.J. at 389.   Under this doctrine, unlawfully obtained evidence is admissible, if it “would inevitably have been discovered without reference to the police error or misconduct, [because] there is no nexus sufficient to provide a taint[.]”  Nix, supra, 467 U.S. at 448, 104 S.Ct. at 2511, 81 L. Ed.2d at 390.   The analysis “ensures that the prosecution is not put in a worse position simply because of some earlier police error or misconduct.”  Id. at 443, 104 S.Ct. at 2508, 81 L. Ed.2d at 387;  see also Sugar II, supra, 100 N.J. at 237 (deterrent purposes of exclusionary rule are not served by excluding evidence that would inevitably been discovered).

In order to invoke the doctrine in New Jersey, the State must show by clear and convincing evidence that:

(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case;  (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence;  and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.

[Sugar II, supra, 100 N.J. at 238]

In other words, the State must show that “had the illegality not occurred, it would have pursued established investigatory procedures that would have inevitably resulted in the discovery of the controverted evidence, wholly apart from its unlawful acquisition.”  Id. at 240;  see also State v. Johnson, 120 N.J. 263, 290 (1990) (inevitable discovery applied where detective was in process of preparing affidavit in support of search warrant based on information independent of tainted source);  State v. Sugar, 108 N.J. 151, 157 (1987) (Sugar III ) (body buried in shallow ground behind house would have inevitably been discovered);  State v. Finesmith, 406 N.J.Super. 510, 523–24 (App.Div.2009) (laptop computer admissible under inevitable discovery exception).

“[T]he central question to be addressed in invoking the ‘inevitable discovery’ rule ‘is whether that very item of evidence would inevitably have been discovered, not merely whether evidence roughly comparable would have been so discovered.’ ”  State v. Worthy, 141 N.J. 368, 390 (1995) (quoting Wayne LaFave, Search and Seizure, § 11.4(a), at 380 (1987)).   However, “the State [does] not have to prove clearly and convincingly ‘under what precise circumstances the [evidence] would have been inevitably discovered.’ ”   Smith, supra, 212 N.J. at 392 (quoting Sugar III, supra, 108 N.J. at 158).  “A number of possibilities may cumulatively constitute clear and convincing evidence that the evidence would be discovered.”  Sugar III, supra, 108 N.J. at 159.

In applying the undisputed facts established at the suppression hearing, we find that the State proved by clear and convincing evidence the three elements of the inevitable discovery doctrine.   First, prior to discovering the pills Majane directed Fessler to transport defendant to a show-up identification, a normal and specific investigatory procedure that the police would have pursued in order to complete the investigation of the robbery allegation.  Sugar II, supra, 100 N.J. at 238.   During the approximately fifteen minutes from the time of the radio dispatch of the robbery to the investigatory stop of defendant, the police investigation of the robbery was ongoing.   As the officer testified, even if the pills had not been illegally seized during the pat-down, Fessler would have continued to transport defendant 150 yards back to Majane for the show-up identification.

Second, in considering all of the surrounding circumstances, pursuit of the show-up would have inevitably resulted in defendant's arrest and the discovery of the evidence.  Ibid. Koehler indicated when reporting the crime that he could identify the subjects who assaulted and robbed him.   In fact, he identified defendant, who matched the victim's description and was walking in close proximity to the bike path and the crime scene.   Under these circumstances it was inevitable that defendant would be arrested for robbery, based not on the discovery of the pills but on Koehler's identification, and would have been subjected to a search incident to arrest.   As Koehler did not report a robbery of a schedule II controlled dangerous substance, the officers would not, at the time of the show-up, have made any connection between the seized pills and the robbery.

Finally, we find the State proved that “the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.”  Ibid. It is well established that the search incident to arrest exception to the warrant requirement permits the police to seize and search a container found in an arrestee's possession.   State v. Minitee, 210 N.J. 307, 318 (2012);  see also State v. Oyenusi, 387 N.J.Super. 146, 154 (App.Div.2006) (authority to search arrestee and area within immediate control includes authority to search a container found in arrestee's possession), certif. denied, 189 N.J. 426 (2007).

The State presented clear and convincing evidence that defendant would have been arrested, wholly independently of the discovery of the pills by unlawful means, and the pills would have been discovered in defendant's possession during a search incident to arrest.   Consequently, as the evidence would inevitably have been discovered without the police misconduct, it was admissible and the motion to suppress was erroneously granted.

Reversed and remanded for further proceedings.   We do not retain jurisdiction.


FN1. The judge did not identify any particular testimony of Fessler that he found incredible..  FN1. The judge did not identify any particular testimony of Fessler that he found incredible.

FN2. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L. Ed.2d 889, 906 (1968)..  FN2. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L. Ed.2d 889, 906 (1968).


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