SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3752-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIK BEHEN, a/k/a

ERIK P. BEHEN,

Defendant-Appellant.

________________________________

Submitted February 27, 2017 – Decided

Before Judges Haas and Currier.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Indictment No. 

12-12-1751.

Joseph E. Krakora, Public Defender, attorney 

for appellant (John Douard, Assistant Deputy 

Public Defender, of counsel and on the brief).

Christopher S. Porrino, Attorney General, 

attorney for respondent (Lila B. Leonard, 

Deputy Attorney General, and Steven A. Yomtov, 

Deputy Attorney General, 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NOT FOR PUBLICATION WITHOUT THE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 

parties in the case and its use in other cases is limited. R.1:36-3.

March 10, 2017
2 A-3752-14T2

After the trial judge denied his motion to suppress evidence, 

defendant Erik Behen pled guilty to fourth-degree possession of 

an imitation firearm, N.J.S.A. 2C:39-4(e), and fourth-degree 

unlawful possession of a knife, N.J.S.A. 2C:39-5(d). In accordance 

with the negotiated plea, the judge sentenced defendant to two 

years of probation on each charge, to run concurrently with each 

other. The judge also assessed appropriate fines and penalties.

On appeal, defendant raises the following contentions:

POINT I

THE PHYSICAL EVIDENCE MUST BE SUPPRESSED 

BECAUSE THE POLICE HAD NO CONSTITUTIONALLY 

VALID REASON TO STOP AND DETAIN THE CAR OR 

SEIZE ANYTHING FOUND ON [DEFENDANT'S] PERSON 

OR INSIDE THE CAR.

A. Even If [The Police Officer] Was 

Justified In Stopping [Defendant's] Car 

When It Went The Wrong Way On A One-Way 

Street, He Did Not Have Reasonable, 

Articulable Suspicion To Remove 

[Defendant] From The Car.

B. The Seizure Of Items In The Car Was Not 

Appropriate Under The "Plain View" 

Doctrine.

POINT II

DEFENDANT'S RIGHT TO A FAIR TRIAL WAS IMPAIRED 

BY THE POLICE OFFICERS' FAILURE TO PRESERVE 

THE AUDIO AND VIDEO RECORDING OF THE EVENTS 

THAT OCCURRED OUTSIDE THE CAR AFTER THE STOP, 

WHICH COULD HAVE IMPEACHED THE POLICE ACCOUNT 

OF EVENTS AND LED TO EXCULPATORY INFORMATION.
3 A-3752-14T2

After reviewing the record in light of the contentions advanced 

on appeal, we affirm.

I.

We derive the following facts from the evidentiary hearing 

conducted by the trial judge. At approximately 3:45 a.m. on a hot 

August night in 2012, Officer Michael Schwarz1 was patrolling a 

neighborhood in a marked police car. At that time, a dispatcher 

called Officer Schwarz and told him that a resident had seen a man 

in his yard who was wearing a jacket and a ski mask. The officer 

responded to the area, but the dispatcher called again to report 

that the masked man had left the yard and was no longer in sight. 

Officer Schwarz began driving around the area in search of the 

suspect.

A few minutes later, Officer Schwarz saw a car driving toward 

him. When the car was approximately 200 to 300 yards away, its 

driver stopped, backed the car up, and turned down a side street. 

Based upon the driver's actions, Officer Schwarz suspected that 

the driver had seen his patrol car. Therefore, the officer 

followed the other car down the side street.

The driver of the other car then made another turn and started 

driving the wrong way on a one-way street in violation of N.J.S.A.

 

1 Officer Schwarz was the only witness at the suppression hearing.
4 A-3752-14T2

39:4-85.1. Based upon this traffic violation that occurred in his 

presence, Officer Schwarz effectuated a motor vehicle stop of the 

vehicle. Officer Schwarz reported to the dispatcher that he had 

stopped the car and that there were two occupants in it.

Officer Schwarz testified that he walked up to the car and 

found the driver, who was later identified as defendant, wearing 

"an Army type heavy jacket" even though it was "very hot and 

humid." There was a woman sitting in the front passenger seat. 

The officer asked them some questions about where they were coming 

from and where they were heading. As he spoke to the couple, 

Officer Schwarz saw what appeared to be a rolled-up knit hat or a 

ski mask on the front seat, beside the center console. 

When defendant and the woman could not explain why they were 

in the area, Officer Schwarz asked defendant to exit the car so 

he could speak to him. As defendant got out of the car, Officer 

Schwarz saw that defendant was carrying two knives in "a double 

sheath" he was wearing on the right side of his belt. Officer 

Schwarz then grabbed defendant, put him on the hood of the car, 

and handcuffed him.

By this time, at least one back-up officer had arrived at the 

scene. Officer Schwarz then received a radio report from another 

officer who was speaking to the victim who had earlier called 

dispatch. The victim described the suspect as a large male, who 
5 A-3752-14T2

was approximately six-feet, two-to-three inches tall. Officer 

Schwarz saw that defendant matched this description. In addition, 

the victim reported that someone had broken into his vehicle and 

taken a Coach purse, a matching wallet, and a red compact disc 

("CD") case.

Officer Schwarz then asked the female passenger to exit the 

car in order to check her for weapons. After the passenger got 

out of the car, the officer saw a purse and a red CD case on the 

floor of the front passenger seat. Officer Schwarz then reached 

into the car and removed the hat, the purse, and the CD case. 

When the officer unrolled the hat, he saw that it was a ski mask.

Officer Schwarz then used a flashlight to look into the car. 

The officer observed that part of the back seat was pushed down, 

which created an opening into the trunk space of the car. The 

officer next saw what appeared to be the barrel of a rifle 

protruding half-way from the trunk into the backseat. After seeing 

the weapon, Officer Schwarz entered defendant's car and removed 

it. When he did so, the officer learned that the weapon was a 

loaded Daisy air rifle BB gun. The police then impounded 

defendant's car.2

 

2 Defendant and the passenger were later charged in a seven-count 

indictment with second-degree conspiracy to commit burglary, 

N.J.S.A. 2C:5-2 (count one); second-degree burglary, N.J.S.A.
6 A-3752-14T2

At the conclusion of the hearing, the trial judge denied 

defendant's motion to suppress the items Officer Schwarz seized 

from defendant and his car. In a thorough oral opinion, the judge 

found that the officer had a reasonable basis for stopping 

defendant's car after he saw defendant driving the wrong way on a 

one-way street. When he began speaking to defendant, the officer 

saw that he was wearing a heavy coat that was "inconsistent with 

the weather[,]" but entirely consistent with the victim's report 

that the masked man in his yard had been wearing a jacket. Officer 

Schwarz also saw what appeared to be a rolled-up ski mask in plain 

view near the front console. Based upon this information, the 

judge found that the officer properly asked defendant to get out 

of the car.

When defendant exited the car, the officer immediately saw 

that he was carrying two knives in a double sheath attached to his 

belt. Thus, the judge concluded that the seizure of the knives 

was proper. When the passenger left the car at the officer's 

request, he saw a purse and a red CD case similar to what the 

 

2C:18-2 (count two); second-degree possession of a firearm for an 

unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); fourth-degree 

possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) 

(count four); fourth-degree unlawful possession of a knife, 

N.J.S.A. 2C:39-5(d) (count five); third-degree theft, N.J.S.A.

2C:20-3(a) (count six); and third-degree receipt of stolen 

property, N.J.S.A. 2C:20-7 (count seven).
7 A-3752-14T2

victim reported as having been stolen in plain view on the floor 

of the front passenger seat. Therefore, the judge found that the 

seizure of these items was also proper.

Finally, Officer Schwarz used a flashlight to look into the 

back seat of the car and saw the air rifle in plain view sticking 

out from the trunk into the back seat of the car. Accordingly, 

the judge concluded that the seizure of this weapon was also 

permissible.3

II.

In Point I of his brief, defendant argues that the trial 

judge erred by denying his motion to suppress the evidence seized 

from his person and from his car. We disagree.

Our review of a trial judge's decision on a motion to suppress 

is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing 

a motion to suppress evidence, we must uphold the judge's factual 

findings, "so long as those findings are supported by sufficient 

credible evidence in the record." State v. Rockford, 213 N.J.

424, 440 (2013) (quoting Robinson, supra, 200 N.J. at 15). 

 

3 As noted above, defendant then pled guilty to unlawful possession 

of an imitation firearm, as a lesser-included offense to count 

three of the indictment, and to fourth-degree unlawful possession 

of a knife under count five. Pursuant to the plea agreement, the 

trial judge dismissed the remaining charges against defendant. 

Defendant's plea agreement also provided that all of the charges 

against the passenger would be dismissed.
8 A-3752-14T2

Additionally, we defer to a trial judge's findings that are 

"substantially influenced by [the trial judge's] opportunity to 

hear and see the witnesses and to have the 'feel' of the case, 

which a reviewing court cannot enjoy." Ibid. (alteration in 

original) (quoting Robinson, supra, 200 N.J. at 15). We do not, 

however, defer to a trial judge's legal conclusions, which we 

review de novo. Ibid.

The police may, without a warrant, temporarily detain a person 

if they have a reasonable and articulable suspicion that the person 

is engaged in unlawful activity. State v. Elders, 192 N.J. 224, 

247 (2007). Similarly, the police may stop a motor vehicle based 

on a "reasonable and articulable suspicion that an offense, 

including a minor traffic offense, has been or is being committed." 

State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, 556 U.S.

1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). The State bears 

the burden of establishing by a preponderance of the evidence that 

it possessed sufficient information to give rise to a reasonable 

and articulable suspicion. Ibid.

Here, Officer Schwarz was investigating a report of a man 

wearing a jacket and a ski mask at 3:45 a.m. on a hot and humid 

night in a resident's yard. As he was canvassing the area, the 

officer saw defendant's car stop, back up, and turn down a side 

street. Defendant then turned the wrong way down a one-way street. 
9 A-3752-14T2

This obvious traffic violation committed in the officer's presence 

gave Officer Schwarz a reasonable basis for stopping defendant's 

car. Ibid.

As he was speaking to defendant and the passenger, Officer 

Schwarz saw that defendant was wearing a heavy coat and that there 

was a rolled-up knit hat or ski mask in the front seat. Thus, the 

officer had a reasonable basis to suspect that defendant was the 

masked man who was in the resident's yard and, contrary to 

defendant's contention, the officer was justified in asking 

defendant to step out of the car to talk to him. State v. Bacome, 

___ N.J. ___ (2017) (slip op. at 12) (noting that the United States 

Supreme Court has held since 1977 that it is "objectively 

reasonable for officers to order a driver out of a lawfully stopped 

vehicle, finding removal only a minor intrusion into a driver's 

personal liberty") (citing Pennsylvania v. Mimms, 434 U.S. 106, 

111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331, 337 (1977)); see also

State v. Pena-Flores, 198 N.J. 6, 31 n.7 (2009) (describing right 

of officer to remove driver from lawfully stopped vehicle as 

"established precedent").

When defendant got out of the car, Officer Schwarz saw that 

he was carrying two knives in a double sheath hanging from his 

belt. Because the officer was "lawfully . . . in the area where 

he observed and seized the" knives, and because it was readily 
10 A-3752-14T2

apparent that the knives were either contraband or possible 

evidence of a crime, the officer properly seized the weapons under 

the plain view doctrine. State v. Gonzalez, 227 N.J. 77, 101 

(2016).

After seizing the knives from defendant and handcuffing him, 

Officer Schwarz properly asked the passenger to get out of the 

car. Clearly, the circumstances "present[ed] reason for 

heightened caution." Bacome, supra, (slip op. at 17) (reaffirming 

the principle first established in State v. Smith, 134 N.J. 599, 

618-20 (1994) that a police officer making a traffic stop may 

order a passenger to get out of the car "when the circumstances 

warrant heightened caution"). By that time, the officer knew that 

the resident had reported that his car was broken into and that 

defendant's clothing and physical stature matched the description 

of the suspect. The passenger's presence in the car just minutes 

after the resident called the police strongly indicated that she 

may have also been involved in the offense. In addition, defendant 

was carrying two knives when he exited the vehicle, which further 

justified removing the passenger from the car to check her for 

weapons in order to protect the officer's safety.

After the passenger got out of the car, Officer Schwarz made 

another plain view observation of a purse and red CD case, which 

matched the description of the items taken from the victim's car. 
11 A-3752-14T2

Therefore, the seizure of these items, together with the previously 

observed ski mask, was clearly appropriate. Gonzalez, supra, 227 

N.J. at 101.

Finally, Officer Schwarz saw the air rifle by shining a 

flashlight into the back seat while he was standing from a legal 

vantage point outside the car. Again, his plain view observation 

of the rifle, which was obviously contraband, permitted him to 

seize the weapon. Ibid. 

Therefore, we conclude that the trial judge correctly denied 

defendant's motion to suppress.

III.

At the suppression hearing, Officer Schwarz answered a number 

of questions from both the prosecutor and defense counsel 

concerning whether any recording made by the Mobile Video Recorder 

(MVR) attached to his patrol car had been preserved. The officer 

could not recall whether his MVR was working on the night of the 

incident. The officer stated that when he activated his overhead 

lights to effectuate the traffic stop of defendant's car, his MVR 

should have been activated. However, the officer testified that 

he had not been trained that he had to personally do anything to 

secure the recording at the end of his shift and he could not 

explain why the MVR recording was not available.
12 A-3752-14T2

In Point II of his brief, defendant argues for the first time 

on appeal that "that the trial judge committed prejudicial error 

in failing to dismiss the indictment since the State failed to 

preserve evidence which would have allowed . . . defendant to 

challenge the State's case against him." This contention lacks 

merit for two reasons.

First, defendant never made a motion to dismiss the 

indictment. Although under the plain error rule we will consider 

allegations of error not brought to the trial court's attention 

that have a clear capacity to produce an unjust result, see Rule

2:10-2; State v. Macon, 57 N.J. 325, 337-39 (1971), we generally 

decline to consider issues that were not presented at trial. 

Nieder v. Royal Indem. Ins. Co. 62 N.J. 229, 234 (1973). As the 

Supreme Court has cogently explained:

Appellate review is not limitless. The 

jurisdiction of appellate courts rightly is 

bounded by the proofs and objections 

critically explored on the record before the 

trial court by the parties themselves. 

Although "[o]ur rules do not perpetuate mere 

ritual[,]" . . . a litigant "must make known 

his position to the end that the trial court 

may consciously rule upon it." State v. 

Abbott, 36 N.J. 63, 76 (1961). This is so 

because "[t]he important fact is that the 

trial court was alerted to the basic 

problem[.]" Id. at 68. In short, the points 

of divergence developed in the proceedings 

before a trial court define the metes and 

bounds of appellate review.
13 A-3752-14T2

[State v. Robinson, 200 N.J. 1, 19 (2009); See 

also State v. Witt, 223 N.J. 409, 418-19 

(2015) (holding that the "mere filing of a 

motion to suppress under Rule 3:5-7(a)" does 

not "require[] the State 'to justify every 

aspect of the warrantless search'" and that a 

defendant "must make known [his or her] 

positions at the suppression hearing so that 

the trial court can rule on the issues before 

it").]

As noted, defendant's present contention that the indictment 

should have been dismissed because a MVR recording may not have 

been made or produced was not raised before the trial court. 

Therefore, we need not review it. 

Just as importantly, defendant entered an unconditional 

guilty plea in this case. It is well established that "a guilty 

plea constitutes a waiver of all issues which were or could have 

been addressed by the trial judge before the guilty plea." State 

v. Davila, 443 N.J. Super. 577, 585 (App. Div. 2016) (quoting 

State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988).

This principle even prohibits "a defendant who pleads guilty 

. . . from raising, on appeal, the contention that the State 

violated his constitutional rights prior to the plea." State v. 

Knight, 183 N.J. 449, 470 (2005) (quoting State v. Crawley, 149 

N.J. 310, 316 (1997)).4 In Knight, the Supreme Court held that 

 

4 However, a defendant who pleads guilty may always appeal the 

denial of a motion to suppress evidence on the grounds of unlawful 
14 A-3752-14T2

"[w]hen a criminal defendant has solemnly admitted in open court 

that he is in fact guilty of the offense with which he is charged, 

he may not thereafter raise independent claims relating to the 

deprivation of constitutional rights that occurred prior to the 

entry of the guilty plea." Id. at 470 (quoting Tollett v. 

Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 

235, 243 (1973)).

We therefore conclude that because defendant entered an 

unconditional guilty plea, he waived his right to contest the 

indictment on appeal. Therefore, we reject defendant's contention 

on this point.

Affirmed.

 

search and seizure. Knight, supra, 183 N.J. at 471; R. 3:5-7(d). 

A defendant may also "appeal after a guilty plea from an order 

denying entry into the pre-trial intervention program." Davila, 

supra, 443 N.J. Super. at 586 (citing Knight, supra, 183 N.J. at 

471. "Lastly, pursuant to Rule 3:9-3(f), a defendant may appeal 

those adverse decisions specifically reserved by a conditional

guilty plea entered in accordance with the Rule." Ibid. (citing 

Knight, supra, 183 N.J. at 471).