                                NOT FOR PUBLICATION WITHOUT THE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-3822-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMES M. HENRY, a/k/a
HENRY JAMES, and J. HOOD,

     Defendant-Appellant.
___________________________

                    Submitted October 15, 2019 – Decided January 21, 2020

                    Before Judges Rothstadt and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Cumberland County, Indictment No. 15-05-
                    0583.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (John Walter Douard, Assistant Deputy
                    Public Defender, of counsel and on the brief).

                    Jennifer    Webb-McRae,        Cumberland       County
                    Prosecutor, attorney for respondent (Andre R. Araujo,
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant James M. Henry appeals from his conviction for first-degree

aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and third-degree hindering

apprehension, N.J.S.A. 2C:29-3(b)(1). His sole argument on appeal relates to

the trial court's order denying his motion to suppress his cell phone, seized from

his sister's car by a detective without a warrant after police executed an arrest

warrant for defendant and removed him to the police station. He contends:

            THE COURT ERRED IN DENYING THE
            SUPPRESSION   MOTION    BECAUSE   [THE
            DETECTIVE] PHYSICALLY INTRUDED INTO A
            VEHICLE IN ORDER TO INVESTIGATE THE
            NATURE OF AN OBJECT HE HAD SEEN WHILE
            OUTSIDE THE VEHICLE, AND HE LACKED
            PROBABLE CAUSE AT THE TIME OF ENTRY TO
            CONCLUDE    THAT   THE    OBJECT  WAS
            CONTRABAND.

We disagree and affirm.

      Recognizing our obligation "to uphold the motion judge's factual findings

so long as sufficient credible evidence in the record supports those findings ,"

State v. Gonzales, 227 N.J. 77, 101 (2016), we accord a high degree of deference

to the facts that follow, as found by the motion judge, ibid.

      Police developed defendant and a codefendant as suspects in a double

murder and obtained an arrest warrant for defendant, which they executed while

he was a passenger in his sister's car. After defendant was arrested and removed


                                                                          A-3822-17T1
                                        2
from the scene, a detective standing outside the vehicle speaking with

defendant's sister noticed a cell phone on the dashboard. The detective asked

defendant's sister if the phone was hers. She advised him it was defendant's

phone. The detective reached inside the car and seized the phone. He did not

search the phone or the vehicle.           He later obtained and executed a

communications data warrant, gleaning incriminating evidence from the phone

that linked defendant to the murders.       Defendant sought to suppress that

evidence.

      We agree with the motion judge that the search was justified under the

plain view exception to the warrant requirement which allows seizures if the

police officer is "lawfully . . . in the area where he observed and seized the

incriminating item or contraband, and it [is] immediately apparent that the

seized item is evidence of a crime." Gonzales, 227 N.J. at 101. The detective,

standing outside the vehicle, was able to see the phone. The "simple observation

into the interior of an automobile by a police officer located outside the

automobile is not a 'search' within the meaning of the Fourth Amendment." State

v. Reininger, 430 N.J. Super. 517, 534 (App. Div. 2013) (quoting State v. Foley,

218 N.J. Super. 210, 215 (App. Div. 1987)).




                                                                        A-3822-17T1
                                       3
      Further, we are unpersuaded by defendant's contention the State failed to

demonstrate "that the incriminating nature of the phone was immediately

apparent"; specifically, claiming the detective's belief that the phone may have

contained incriminating text messages, emails, or photos "amounted to no more

than a hunch" that the device contained evidence of a crime. Even if an item

seen in plain view is not per se contraband, police may still be entitled to seize

it if the officer has "[a] 'practical, nontechnical' probability that [the item

contains] incriminating evidence[.]" Texas v. Brown, 460 U.S. 730, 742 (1983)

(quoting Brinegar v. U.S., 338 U.S. 160, 176 (1949)). As our Supreme Court

pointed out in State v. Bruzzese, a police officer does not need to be certain that

an item is or contains evidence of a crime for probable cause to exist justifying

its seizure. 94 N.J. 210, 237-38 (1983). Rather:

            "Probable cause exists if at the time of the police action
            there is a 'well grounded' suspicion that a crime has
            been or is being committed." State v. Sullivan, 169 N.J.
            204, 211 (2001). It requires nothing more than "a
            practical, common-sense decision whether, given all
            the circumstances . . . there is a fair probability that
            contraband or evidence of a crime will be found in a
            particular place." State v. Demeter, 124 N.J. 374, 380-
            81 (1991). The flexible, practical totality of the
            circumstances standard has been adopted because
            probable cause is a "fluid concept—turning on the
            assessment of probabilities in particular factual
            contexts—not readily, or even usefully, reduced to a
            neat set of legal rules." Schneider v. Simonini, 163 N.J.

                                                                           A-3822-17T1
                                        4
            336, 361 (2000). Probable cause "merely requires that
            'the facts available to the officer would warrant a man
            of reasonable caution in the belief' . . . that certain items
            may be contraband . . . or useful as evidence of a crime,
            it does not demand any showing that such belief be
            correct or more likely true than false." Bruzzese, 94
            N.J. at 237.

            [State v. Johnson, 171 N.J. 192, 214 (2002) (first and
            third alterations in original).]

      The motion judge correctly determined that, under the totality of the

circumstances, the detective had probable cause to believe defendant's phone

contained evidence linked to the murders. The judge credited the detective's

testimony that he seized defendant's phone because "a lot of stuff is captu red"

on a smart phone that could be useful to an investigation, and that information

regarding the suspect's location at the time of the crime can be obtained by

accessing the phone's GPS system. As the judge found from the detective's

testimony, "smart phones are typically mini-computers which will house photos,

text messages, audio messages, videos, calls made and received and other

information relative to criminal activity." The judge placed "substantial weight

on the credibility of the detective and his expertise [as a twenty-two-year law-

enforcement veteran] in the recognition of the smart phone and their use during

crimes," experience which the judge said "cannot be ignored." See Demeter,

124 N.J. at 382 (holding a court may take into account a police officer's training

                                                                            A-3822-17T1
                                         5
and experience in associating "intrinsically innocent" objects with criminal

activity).

      When defendant's sister, two days after the murders, told the detective the

phone on the dashboard belonged to defendant, the detective soundly concluded

the phone could provide evidence of the crimes for which defendant's arrest

warrant had been issued.      Defendant was alleged to have acted with a

codefendant. The phone could have provided communications between the two

before, during and immediately after the crimes. And, as the detective noted,

the phone could provide defendant's location at the time of the crimes. State v.

Earls, 214 N.J. 564, 577 (2013) (recognizing that "[t]oday, cell-phone providers

can pinpoint the location of a person's cell phone with increasing accuracy").

      The detective need not have been certain the phone would reveal evidence

of criminality. Bruzzese, 94 N.J. at 237-38. Just as the officer who arrested the

defendant in Bruzzese need not have known if the heel imprint of the boots he

picked up in the defendant's bedroom would match the imprint left at the scene

of the burglary in which the defendant was "a prime suspect," id. at 238-39, the

detective here need not have been certain that the phone would yield evidence

useful to defendant's prosecution. As the Bruzzese Court ruled, "[w]e do not




                                                                         A-3822-17T1
                                       6
believe that a police officer lawfully in the viewing area must close his eyes to

suspicious evidence in plain view." Id. at 237.

      We are also unpersuaded by defendant's argument that the detective

impermissibly intruded into the interior of the car without a search warrant to

seize the phone, requiring suppression of the evidence seized from the phone.

"[I]n determining the constitutionality of a [plain view] seizure, our courts must

look to whether 'the [seizure] was objectively reasonable.'" Gonzales, 227 N.J.

at 81 (quoting State v. Edmonds, 211 N.J. 117, 133 (2012)); see also Bruzzese,

94 N.J. at 238-39.

      In Bruzzese, the Court discerned that the officer, after seizing the boots,

was justified in turning them over to inspect the heel imprint because the

defendant had a minimal privacy interest in the boot soles, and that it was

sensible to allow "this de minimus intrusion to investigate shoe-bottoms for their

possible connection with footprints left at the scene of a crime." 94 N.J. at 238-

39 (emphasis in original). The Court ruled the officer, after noticing the boot-

heel was consistent with the imprint left at the crime scene, "was entitled to take

the boots to headquarters to determine if the pattern matched the imprint" at that

scene. Id. at 239.




                                                                           A-3822-17T1
                                        7
      Similarly, the detective's act of reaching into the automobile for the sole

purpose of seizing the phone was a minimal intrusion into an area in which

defendant's sister had only a diminished expectation of privacy. See State v.

Mandel, 455 N.J. Super. 109, 116 (App. Div. 2018). Importantly, the intrusion

did not reveal the evidence of criminality; the detective had already seen the

phone before he entered the car. See id. at 116-117. The detective did not

impermissibly "conduct[] a[n] . . . inspection of what would otherwise be

hidden[.]" Id. at 116 (second and third alterations in original) (quoting People

v. Aquino, 500 N.Y.S.2d 677, 679 (N.Y. App. Div. 1986)).

      We also conclude the brief intrusion to seize the phone was reasonable

under the exigent circumstances the detective faced.       The "preservation of

evidence remain[s one of] the preeminent determinants of exigency." In Interest

of J.A., 233 N.J. 432, 448 (2018) (quoting State v. Dunlap, 185 N.J. 543, 551

(2006)). When our Supreme Court reinstated the automobile exception in State

v. Witt, 223 N.J. 409 (2015), it recognized the United States Supreme Court's

tripartite rationale for the exception, among which were "the inherent mobility

of the vehicle," and "the lesser expectation of privacy in an automobile

compared to a home," id. at 422-23 (citations omitted). The Court harkened to

its prior decision, stating, "[i]n Alston, we determined that a warrantless search


                                                                          A-3822-17T1
                                        8
of an automobile was constitutionally permissible, provided that the police had

probable cause to search the vehicle and that the police action was prompted by

the 'unforeseeability and spontaneity of the circumstances giving rise to

probable cause.'" Id. at 414 (quoting State v. Alston, 88 N.J. 211, 233 (1981)).

      Those same principles apply here. The detective did not anticipate that

defendant's phone would be on the car's dashboard following his arrest.

Defendant's sister was not arrested and was free to leave in the vehicle—with

the phone. The portability and disposability of the phone is obvious, as is the

ease with which data on the phone can be removed.             The motion judge

recognized the stop and arrest of defendant by "[eight] or [nine] officers with

black vests and guns drawn" was "traumatic" for his sister. As the judge stated,

she testified she was "snatched" from her car by the officers and placed in

handcuffs before she was released.       The judge found she "was obviously

distraught and fearful when the police arrested her brother" on murder charges.

Under those circumstances, the detective need not have trusted that defendant's

sister would have turned over the phone upon their later request and was justified

in immediately seizing it.    See State v. Martin, 87 N.J. 561, 569 (1981)

(recognizing an exigency independent of the automobile exception—that at-




                                                                          A-3822-17T1
                                        9
large suspects "might have returned at any moment to move the car or remove

the car's contents"—warranted an immediate search of an automobile).

     Reviewing de novo the motion judge's application of his findings to the

law, State v. Watts, 223 N.J. 503, 516 (2016), we conclude the phone was

properly seized and defendant's motion to suppress evidence was correctly

denied.

     Affirmed.




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                                    10
