                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5229-17T1


STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

ANISHA LEVETT,

          Defendant-Respondent,

and

JERMAINE JONES,

     Defendant.
____________________________

                    Submitted November 29, 2018 – Decided March 20, 2019

                    Before Judges O'Connor, Whipple and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 17-08-2166.

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for appellant (Linda A. Shashoua, Assistant
                    Prosecutor, of counsel and on the brief).
              The Wolf Law Firm, attorneys for respondent (Robert
              C. Wolf, on the brief).

PER CURIAM

        On leave granted, the State appeals from the April 20, 2018 Law Division

order granting defendant Anisha Levett's 1 motion to suppress evidence obtained

from the search of her cellphone. We affirm.

        On May 2, 2017, defendant's friend, F.F.,2 posted a photograph on social

media of $2200 in cash spread out on her bed. That night, F.F. was at home

with her five-month-old son and defendant. F.F. and defendant were lying on

F.F.'s bed watching television when defendant went to the bathroom to make a

telephone call. F.F. heard the door to her apartment open; when she went to

check the door, she encountered two men with handguns dressed in dark clothing

and wearing masks. F.F. recognized one of the men as "Maine," whom she had

known for several months and dated. Later inspection of the door showed no

signs of forced entry.

        The men ordered F.F. and her son to the floor at gunpoint and demanded

money. One intruder pointed a gun at defendant, who was facing a wall and did


1
  For the balance of the opinion, we refer to Anisha Levett as "defendant"
unless otherwise noted.
2
    We use initials to protect the identity of the non-party victim.
                                                                        A-5229-17T1
                                          2
not get a good look at the men. F.F.'s wallet was on the ground, and the men

took the $2200 in cash from the wallet, along with F.F.'s cellphone. The men

took nothing from defendant and fled.

      Detective Swan and Patrol Officers Bryson and Parker responded to F.F.'s

apartment. F.F. told Swan she routinely locked the apartment door's three locks.

Defendant explained to Swan that shortly before the men entered, she unlocked

and put her purse by the front door because she was waiting for a ride. Swan

did not include defendant's statement in his police report. He also observed

F.F.'s wallet open, empty of cash, with cards spread out on the floor.

      Bryson took defendant to the police station to continue questioning her.

While still at the apartment, F.F. told Parker she believed defendant was

involved. Swan called Bryson and asked him to seize defendant's cellphone

because it might contain evidence. Defendant refused to consent to a search of

her phone and requested counsel, but Bryson still seized it. Defendant was

released after she gave a statement.

      On May 12, 2017, the police sought and were granted a communications

data warrant (CDW) to search defendant's phone. The supporting affidavit

recounts that defendant made a phone call just prior to the robbery, though this




                                                                         A-5229-17T1
                                        3
fact was only known to the police after the seizure of defendant's phone. A

warrant was issued for defendant's arrest.

      In August 2017, defendant was charged with first-degree armed robbery,

N.J.S.A. 2C:15-1(a)(2); second-degree conspiracy to commit robbery, N.J.S.A.

2C:5-2 and N.J.S.A. 2C:15-1(a)(2); second-degree burglary, N.J.S.A. 2C:18-

2(a)(1); second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and

N.J.S.A. 2C:18-2(a)(1); second-degree possession of a handgun for an unlawful

purpose, N.J.S.A. 2C:39-4(a)(1); and second-degree unlawful possession of a

handgun, N.J.S.A. 2C:39-5(b)(1).

      Defendant moved to suppress the evidence extracted from her phone. On

January 19 and March 22, 2018, the motion judge heard testimony and

subsequently granted defendant's motion to suppress the cellphone evidence

because no probable cause existed to search it. On April 20, 2018, the judge

denied the State's unopposed motion for reconsideration but made supplemental

findings.

      The judge found defendant's phone was searched based on mere "raw

suspicion," not probable cause. Instead of conducting further investigation to

determine defendant's role in the robbery, Swan ordered defendant's phone

searched to confirm his hunch she was involved. However, the judge found the


                                                                       A-5229-17T1
                                       4
only piece of information indicating defendant's involvement was F.F.'s

statement, which conflicted with defendant's explanation. The judge said it

"strained credulity" that Swan believed probable cause existed to search

defendant's phone.

      On April 23, 2018, the judge granted the State's motion to stay the court's

order pending the outcome of the State's motion for leave to appeal. On July

18, 2018, we granted the State leave to appeal. The State argues the following:

            I.   THIS COURT SHOULD REVERSE THE
            SUPPRESSION ORDER IN THIS CASE, AS THE
            MOTION JUDGE ERRED IN FAILING TO
            CONSIDER    THE    TOTALITY    OF  THE
            CIRCUMSTANCES AND IN HOLDING THE STATE
            TO A HIGHER BURDEN THAN PROBABILITY IN
            FINDING THAT THE SEIZURE OF DEFENDANT'S
            PHONE LACKED PROBABLE CAUSE.

      When considering a trial court's ruling on a motion to suppress evidence,

"[w]e conduct [our] review with substantial deference to the trial court's factual

findings, which we 'must uphold . . . so long as those findings are supported by

sufficient credible evidence in the record.'" State v. Hinton, 216 N.J. 211, 228

(2013) (quoting State v. Handy, 206 N.J. 39, 44 (2011)). "Those findings

warrant particular deference when they 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.'" State v. Rockford, 213 N.J. 424,

                                                                          A-5229-17T1
                                        5
440 (2013) (alteration in original) (quoting State v. Robinson, 200 N.J. 1, 15

(2009)). We review de novo the trial court's determinations of law, State v.

Mann, 203 N.J. 328, 337 (2010), as well as the application of legal principles to

factual findings. State v. Harris, 181 N.J. 391, 415 (2004).

      Pursuant to the Fourth Amendment to the United States Constitution and

the New Jersey Constitution, Article I, Paragraph 7, "police officers must obtain

a warrant . . . before searching a person's property, unless the search falls within

one of the recognized exceptions to the warrant requirement." State v. DeLuca,

168 N.J. 626, 631 (2001) (quotation omitted). Among possible exceptions

excusing the need for a warrant are searches incident to arrest and exigent

circumstances. See, e.g., State v. Brown, 456 N.J. Super. 352, 364-65 (App.

Div. 2018); State v. Sencion, 454 N.J. Super. 25, 32 (App. Div. 2018).

      The State contends the trial judge erred by holding it to a higher standard

than probable cause, arguing the judge found the officer credible and accepted

all facts proffered by the State as true, yet discounted the officer's expertise and

overvalued defendant's self-serving explanation for her actions.         The State

contends a reasonable detective with requisite expertise would have concluded

there was probable cause to search defendant's phone based on F.F.'s statement

and defendant's and the robbers' suspicious actions.


                                                                            A-5229-17T1
                                         6
      Probable cause, or an officer's "well-grounded suspicion that a crime has

been or is being committed," State v. Nishina, 175 N.J. 502, 515 (2003),

"requires nothing more than 'a practical, common-sense decision whether, given

all [of] the circumstances, . . . there is a fair probability'" that a crime has been

committed.    State v. Johnson, 171 N.J. 192, 214 (2002) (quoting State v.

Demeter, 124 N.J. 374, 380-81 (1991)). Probable cause is not determined by

"rigid rules, bright-line tests, and mechanistic inquiries [but rather by] a more

flexible, all-things-considered approach." Florida v. Harris, 568 U.S. 237, 244

(2013).

      Defendant's phone was searched without a warrant, and under New Jersey

law, the search was presumptively invalid unless it fell within a recognized

exception to the warrant requirement. State v. Cooke, 163 N.J. 657, 664 (2000),

overruled on other grounds by State v. Witt, 223 N.J. 409 (2015). The probable

cause analysis is relevant only to the extent required by the applicable warrant

exception. Here, the only applicable exception is search incident to arrest.

             When the police search an individual before placing
             him [or her] under arrest as part of a single
             uninterrupted transaction, it does not matter whether
             the arrest precedes the search. It is the right to arrest,
             rather than the actual arrest that must pre-exist the
             search. As long as the right to arrest pre-existed the
             search, and the arrest is valid independently of, and is
             not made to depend on, the search or its result, the

                                                                             A-5229-17T1
                                         7
            search will not be invalidated simply because [at that]
            precise point of time the arrest does not precede the
            search.

            [State v. O'Neal, 190 N.J. 601, 614-15 (2007) (citations
            omitted) (quotations omitted).]

      Here, the judge made specific, itemized findings setting forth the timeline

up and until defendant's phone was searched.        Although the judge found

defendant made a phone call shortly before the robbery, that fact was learned by

the police only after the decision was made to search defendant's cellphone. We

discern no error in the judge's decision to exclude the fruits of the search from

the probable cause calculus.

      Thus, the right to arrest defendant arose only after her phone was

searched. But even then, Swan admitted the police did not charge defendant

when they searched her phone in order "to wait until [they] had concrete proof

that there was definitive involvement by Ms. Levett in setting up the robbery."

This was not a single uninterrupted transaction. Therefore, the search was

properly suppressed.

      We have carefully reviewed the State's remaining arguments and have

determined they are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

      Affirmed.

                                                                         A-5229-17T1
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