SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3999- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. LUIS RODRIGUEZ, Defendant-Appellant.

________________________

Argued February 13, 2024

– Decided April 11, 202 4 Before Judges Whipple and Paganelli. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 20- 11 -0242. Paul Condon argued the cause for appellant. Timothy P. Kerrigan, Jr., Chief Assistant Prosecuto r, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Timothy P. Kerrigan, Jr., of counsel and on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3999

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Defendant Luis Rodriguez appeals from the denial of his motion to suppress the seizure of a motor vehicle, without a warrant , and the evidence the State found after obtaining a search warrant six da ys later. We affirm. We glean the facts from the motion record. The St ate summoned Officer Frank Caravella and Detective Alonso Bermudez of th e Paterson Police Department to testify at the suppression hearing. Officer Caravella testified that on January 8, 2020, he was dispatched to the area o f 518 East 40th Street in Paterson, New Jersey. An anonymous caller reported having heard "approximately two shots fired in the area" and obs erved "two Hispanic males running from that area." The anonymous caller prov ided clothing descriptions for both individuals, stating that one person wore a pair of black Adidas

swe atpants, and the second person wore a light-colored green sweater. Further , the caller "stated that as the two Hispanic males w ere running up the street, . . . one of them brandish[ed] and point[ed] a handgun at a bright-color[ed] vehicle and . . . [shot] one round off . . . at the vehicle." Upon arrival, Officer Caravella observed a red Hon da Accord stopped in the middle of the street. He observed a person sitting in the driver's seat of the vehicle, later identified as defendant; and a male standing outside the driver's side of the vehicle, later identified as defendant' s brother. Defendant and his3 A- 3999

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brother were apparently having a conversation. Off icer Caravella testified the brother wore black pants with an Adidas logo consis tent with the description provided by the anonymous caller. Further, Officer Caravella testified defendant wore a light green colored sweater that m atched the description provided by the anonymous caller. Defendant moved the vehicle to a parking area. Of ficer Caravella observed "numerous " rounds of live ammunition "close by" in the street. He also observed a "magazine" and a "spring for a maga zine" "destroyed" in the street. Defendant and his brother were detained be cause they matched the description by the anonymous caller, and there was ammunition whe re the vehicle was stopped in the street and where the bro ther was standing. Officer Caravella detained the brother. While det ained, the brother explained that defendant told him he was in their m other 's vehicle when he was approached by three unidentified males that tried t o rob him. As he drove away , the would

- be robbers "shot" or "fired off a few rounds" at the vehicle. A different officer attempted to detain defendant, ho wever, defendant fled the

scene. After the scene was secured, Officer Caravella obs erved bullet holes on both sides of the vehicle and, because of the bullet holes, the vehicle was towed4 A- 3999

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away. Detective Bermudez testified that he made the same observations of the scene as Officer Caravella. Moreover, he testified the vehicle was towed to a

se cured facility. Six days later, a search warrant was obtained for the vehicle. Detec tive Bermudez testified the vehicle was not tampered wit h before the search, and that he was present during the search. He explained the following items were found in the vehicle : (1) two handguns, one with an extended magazine; (2) 8,250 pieces of heroin; (3) two bags of fentanyl; (4) ove r $3,400 in cash; and (5) defendant's driver's license. Thereafter, the brothe r was arrested, and defendant ultimately "turned himself in." On November 9, 2020, a grand jury returned a twent y-count indictment against defendant. Defendant filed a motion to suppress the items foun d in the vehicle. After hearing the testimony from Officer Caravella and Detective Bermudez the court determined there was probable ca use to seize the vehicle because: (1) the car was actually part of the crim e scene; (2) defendant 's and his brother's clothing matched the description prov ided by the anonymous caller ; (3) shell casings were observed in the area of the vehicle , (4) the bullet holes in the vehicle; and (5) the brother's statement indica ted "something had gone on." The judge found the police had probable cause to se ize the vehicle because the5 A- 3999

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vehicle constituted an instrumentality or fruit of a crime. Moreover, the judge found that "absent immediate impoundment[,] the veh icle [could have ] be [en] removed by a third party ," like the vehicle's owner, the brothers' mother. B y order dated January 21, 2022, the judge denied the motion to suppress

. On Ju ne 6, 2022, defendant pled guilt y to "second-degree possession of [controlled dangerous substances] with intent to di stribute and second-degree certain persons not to have a weapon." Defendant d id not waive his right to appeal the denial of his suppression motion. On appeal defendant argues:

THE TRIAL COURT ERRED IN HOLDING THE SEIZURE OF THE HONDA ACCORD WITHOUT A WARRANT WAS CONSTITUTIONAL. THE SIX[-]DAY DELAY IN THE SEARCH WARRANT WAS EXCESSIVE AND IMPERMISSIBLE. 1 Our "review of a trial court's decision on a suppr ession motion is [circumscribed]." State v. Washington, 475 N.J. Su per. 292, 300 (App. Div. 2023). We "defer to the [trial] court's factual an d credibility findings provided

1 Defendant's Case Information Statement states he "appeals from the final judgment of conviction and length of the court's se ntence of 7/20/22." Since he has not briefed the length of sentence issue, we un derstand it to be waived. See N.J. Dep't of Env tl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 504 n.1 (App. Div. 2015)

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they are supported by sufficient credible evidence in the record." Ibid. ( ci ting State v. Dunbar, 229 N.J. 521, 538 (2017)). Howeve r, "[a] trial court's legal conclusions, . . . and its view of 'the consequence s that flow from established facts' are reviewed de novo." State v. Goldsmith, 2 51 N.J. 384, 398 (2022) (quoting State v. Hubbard, 222 N.J. 249, 263 (2015) ). The Fourth Amendment of the United States Constitu tion guarantees "[t]he right of the people to be secure in their pe rsons, houses, papers, and effects, against unreasonable searches and seizures . . . and no Warrants shall issue, but upon probable cause." U.S. Const. amend . IV. The New Jersey Constitution contains nearly identical language gua ranteeing the same right. See N.J. Const. art. I, ¶ 7. Consequently, "[a] warrantless search is presumed invalid unless it falls within one of the recognized except ions to the warrant requirement." State v. Gamble, 218 N.J. 412, 425 (2 014) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)). "[T]he State bear s the burden of proving by a preponderance of the evidence that [the] warrantl ess search and seizure '[fell] within one of the . . . exceptions to the warrant r equirement.'" Goldsmith, 251 N.J. at 399 (second and third alterations in origina l) ( quoting State v. Shaw, 213 N.J. 398, 409-10 (2012)).7 A- 3999

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"Plain view is one of the recognized exceptions to the warrant requirement." State v. Johnson, 476 N.J. Super. 1, 20 (App. Div. 2023). To rely

on this exception, "the State must prove: (1) 'the of ficer [was] lawfully . . . in the area where he observed and seized the incrimina ting item or contraband'; and (2) 'it must be immediately apparent that the s eized item is evidence of a crime.'" Id. at 20-21 (alteration in original) ( quoting State v. Gonzales, 227 N.J. 77, 101 (2016)). "[I]n order to seize evidence in plain view a police officer must have 'probable cause to associate the property with criminal activity.'" State v. Johnson , 171 N.J. 192, 207 (2002) (quoting State v. Bruzzes e, 94 N.J. 210, 236- 38 (1983) ( quoting Texas v. Brown, 460 U.S. 730, 741-42 (1983))). "Pr obable cause requires more than a mere hunch or bare suspi cion, but less than the legal evidence necessary to convict; it requires a well-g rounded suspicion." State v. Irelan, 375 N.J. Super. 100, 118 (App. Div. 2005) ( citing State v. Burnett, 42 N.J. 377, 386-87 (1964)). Defendant argues the seizure of the vehicle was un constitutional because "there was no probable cause to arrest [him] and thus none f or the seizure of the vehicle." Moreover, "there was no testimony on the record that the vehicle itself constituted an instrumentality or fruit of a crime. " We conclude defendant's argument is misplaced.8 A- 3999

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The State satisfied the plain view exception. Fir st, the police w ere "lawfully . . . in the area where [they] observed a nd seized the [vehicle]. " Johnson , 476 N.J. Super. at 20- 21 . The officers observed the vehicle while on the public road where the vehicle was parked. Second, it was immediately apparent that the vehicl e was evidence of a crime. Ibid. The evidence included: (1) bullet h oles in the vehicle; (2) the brother's statement that defendant had explained he was nearly robbed by several individuals, and then shot at while operating the vehicle ; (3) the anonymous caller's description of he aring gun shots; (4) the anonymous caller's descrip tion of the physical appearance and dress of the individ uals that matched the brothers; and (5) the shell casings and magazine fo und in the street near the original location of the vehicle. In addition, defendant argues the judge erred in "c onclud[ing] that immediate impoundment was necessary to prevent remo val by a third party." Instead, he argues the vehicle could not have been moved because it was blocked by police vehicles, and the police had time to appl y for a warrant. However, "only probable cause[, which existed here,] is need ed to tow and impound a car." Washington, 475 N.J. Super. at 305 ; see also State v. Smart , 253 N.J. 156, 173- 74 (2023).9 A- 3999

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Next, defendant baldly argues "the six[-]day delay [to obtain the search warrant] exceed[ed] any reasonable bounds for an in vestigatory detention." Consequently, he contends, "the continued search of and the evidenc e seized from the unreasonable seizure was the fruit of the illegal conduct of law enforcement." We disagree. The re is no evidence the six-day period between the sei zure of the vehicle and obtaining the search warrant for the vehicle wa s unreasonable. Detective Bermudez testified only police officers had access to the vehicle, and the vehicle had not been tampered with prior to executing the s earch warrant. Moreover, the State explain s "it took the time to review and compile the various accounts of the investigation by different police officers i nto a single account, and then supplement ed it with additional record searches and investigati on, in order to present a complete account of the investigation to the judge." To the extent that we have not addressed any remain ing arguments raised by defendant we conclude they are without sufficien t merit to warrant discussion in a written opinion. R. 2:11 -3(e)(2 ). Affirmed.