                        NOT FOR PUBLICATION WITHOUT THE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-4299-14T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

SHAWN NOWICKI, a/k/a COMELLERI
CHARLES, MCGRATH SEAN, MOREIERY
SEAN, NOWICKI SEAN, COMELLERI
CHRLES AND MORIAIRTY SEAN,

     Defendant-Appellant.
________________________________

              Submitted December 20, 2016 – Decided July 18, 2017

              Before Judges Rothstadt and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Indictment No.
              13-09-2268.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Elizabeth C. Jarit, Assistant
              Deputy Public Defender, of Counsel and on
              the brief).

              Christopher S. Porrino, Attorney General of
              New Jersey, attorney for respondent (Emily
              R. Anderson, Deputy Attorney General, of
              Counsel and on the brief).


PER CURIAM

        Defendant Shawn Nowicki appeals his conviction for second-

degree     possession     of   a   controlled    dangerous    substance     (CDS),
oxycodone,      with      the     intent     to       distribute,         N.J.S.A.       2C:35-

10(a)(1).       He pled guilty to the offense following the trial

court's    denial      of   his     motion       to    suppress       evidence.          Having

considered the record and applicable law, we affirm.

                                             I.

     We     discern         the     following          relevant         facts      from       the

suppression hearing.1             As the search in question was warrantless,

the State sought to meet its burden to show that the search was

legal    through    the      testimony       of       the   Lakewood       Police      Officer

Christie Buble.           See State v. Pineiro, 181 N.J. 13, 19 (2004).

No witnesses were presented by the defense.

     On    April     29,     2013,     at     approximately            1:00     a.m.,     Buble

testified that she and fellow officer Michael Delvalle were on

foot patrol around a hotel located in a high crime area in

Lakewood Township.          While walking near the outside of hotel room

"108",    Buble    stated       she   heard       a   female      voice     yell,      "How    am

supposed to make my $26,000 now? I'll have to sell more than

$[8000]    of     these     pills     to    make       some     profit."         The     female

continued stating, "she didn't trust the male because he was

using too much of their supply, and kept berating him for being

a fucking moron and junkie."                The female then spoke about "bars



1
  Defendant filed a motion to suppress the seizure of illegal
drugs, which co-defendant subsequently joined.


                                             2                A-Error! Reference source not found.
and 30s . . . and . . . blues[,]" which Buble explained, are

slang terms for Xanax and Oxycodone pills, respectively.                     At

that point, the officers had to leave the hotel parking lot to

respond to another call.

    After responding to the call, Buble and Delvalle returned

at approximately 3:30 a.m. to conduct surveillance of the hotel

from the hotel parking lot while stationed in their respective

marked police cruisers.      Buble subsequently witnessed a female

exiting the hotel lobby, who matched a "Be on the look-out"

(BOLO),2 "put out from three days prior, [from] a [Lakewood]

detective . . . [who] was investigating prescription fraud at a

CVS [store.]"     The BOLO was for a "white female approximately

[thirty] years old with medium length brown hair and stocky

build."

    Buble and Delvalle stopped and questioned the female, later

identified as co-defendant Tabitha Gudehus, thinking she matched

the BOLO suspect.      According to Buble, Gudehus "appeared to be

very nervous, visibly shaking[,] had blue lips[,] and appeared a

little    agitated."    Buble   stated   that   Gudehus     was     detained

because:




2
   A notification      to police officers providing a physical
description of a       person who allegedly assaulted a police
officer.


                                  3         A-Error! Reference source not found.
           At this time[,] she matched the description
           of the BOLO. As I began to talk to her[,] I
           recognized that her voice sounded like that
           of the female that was yelling outside of
           room 108.     She was walking towards the
           direction of the room. It was a high crime
           area known for CDS violations.       And the
           female that was wanted from the BOLO was
           also wanted for prescription drug fraud, and
           I heard the conversation in the room
           referencing prescription drug fraud.

    When    Gudehus   kept   putting    her   hands     into     her     hooded

sweatshirt pockets, despite being told not to do so, she was

subjected to a pat-down search.       Buble explained that,

           [t]his was a high crime area[,] there have
           [been] multiple arrests made there for
           weapons offenses[,] . . . [Gudehus] was
           potentially the female in the BOLO that had
           previously assaulted an officer just a few
           days before[,] the area wasn’t exactly well
           lit[, a]nd the area [Gudehus] kept reaching
           in her pockets is a common area where
           weapons are placed[.]

During the pat-down on "the outside of [Gudehus's] clothes[,]"

she continued to "put her hand back into her pocket[,]" while

clenching an object in her hand.        Buble then forcefully removed

Gudehus's hand from her pocket         revealing that she had three

prescription pill bottles with the her name and the names of

defendant and another person printed on each bottle.               The bottle

with defendant's name contained pills of different colors and

sizes that were different from and more than identified on the

prescription label.



                                  4           A-Error! Reference source not found.
       Buble then contacted Detective Gregg,3 who issued the BOLO

report, to determine if Gudehus was the BOLO suspect.                           Buble,

however, could not confirm Gudehus as the suspect and requested

her identification (ID).          Gudehus replied that she left her ID

in her hotel room, so Buble and Delvalle accompanied Gudehus to

her hotel room.        As the officers stood outside her hotel room

doorway, Gudehus went inside the room to get her ID from her

pocketbook.     Through the unopened door, Buble observed "a male

sleeping or laying in the bed" identified in-court as defendant.

He immediately woke up, and "became very agitated and irate with

[Gudehus]     for    bringing    [Buble     and   Delvalle]      there."         Buble

further testified that from the door, she "could see, in plain

view, four pill bottles on the nightstand[,]" while standing in

the doorway.        Defendant called Buble "a pussy and told [her] to

shut the fuck up and tried to get [Gudehus's] pocketbook . . .

in order to obstruct [the officers'] investigation."

       When   defendant    attempted        to    grab   Gudehus's        pocketbook

again, Buble and Delvalle "entered the [hotel] room to place

[defendant]    under    arrest    for     obstruction[,]"       and    removed      him

from the room.       After viewing and sending a picture of Gudehus's

driver's license to Gregg, Buble received confirmation from




3
    The record does not mention his first name.


                                        5            A-Error! Reference source not found.
Gregg that Gudehus was not the BOLO suspect.                     The police then

asked Gudehus for permission to search the room by providing her

a "consent to search form" and advising her "that she had the

right to refuse the search at any time; that she can stop the

search at any time; and that she would be present while the

search was happening."          Gudehus signed the consent form, and the

search      revealed   large    amounts     of   prescription      pills     in    four

bottles, some with torn-off labels, and one with defendant's

name   on    the   label   containing       "30-milligram     Oxycodone       pills".

Gudehus was arrested following the search.4

       The motion judge reserved decision, and issued orders and a

single written decision on July 29, 2014, denying defendant's

and    Gudehus's    motions     to   suppress.       In    denying      defendant's

motion, the judge rejected the contention that Buble had no

reasonable      suspicion      for   detaining     Gudehus,      and    that      Buble

exceeded the scope of the pat down search of Gudehus after it

was apparent that Gudehus had no weapons.               The judge found that



4
  Defendant and Gudehus were jointly charged with third-degree
possession of Oxycodone, N.J.S.A 2C:35-10(b)(4), second-degree
possession of Oxycodone with intent to distribute, N.J.S.A.
2C:35-5(b)(4), third-degree possession of Buprenorphine, N.J.S.A
2C:35-10(a)(1), third-degree possession of Diazepam, N.J.S.A
2C:35-10(a)(1), third-degree possession of Carisoprodol, N.J.S.A
2C:35-10(a)(1), and third-degree possession of Alprazolam,
N.J.S.A 2C:35-10(a)(1). In addition, defendant was individually
charged with fourth-degree obstruction, N.J.S.A. 2C:29-1.



                                        6            A-Error! Reference source not found.
under     the    totality       of    circumstances,           there    was     reasonable

suspicion       to     detain    Gudehus      and     confirm     her     identification

because she appeared to match the BOLO suspect description.                                 In

particular,       the    judge       noted    that    Gudehus     "appeared        slightly

disoriented and had blue-colored lips[,]" it was a high-crime

area, she continued to reach into her pockets, despite being

advised not to do so, she was "visibly nervous, her body was

shaking, and she would not make eye contact with the officers."

The judge found that Buble's pat-down was proper under State v.

Lund, 119 N.J. 35, 48 (1990), because based on Buble's training

it became "immediately apparent" that Gudehus had contraband.

        Next,     the    motion       judge       found   no   merit    in    defendant's

argument    that        the     police    were       unreasonable       to    investigate

further    once        they   found      contraband       on   Gudehus.         The    judge

reasoned        that    "[i]t     was     objectively          reasonable      for     [the]

officers to request identification from [Gudehus]" because she

only provided her first name, the officers needed to dispel

their suspicion that she was not the BOLO suspect, and it was

routine for officers to request ID to ensure that Gudehus had no

active warrants out for her arrest.                        Consequently, the judge

determined that Buble and Delvalle had a legitimate reason to go

with Gudehus to her hotel room so that she could obtain her ID.




                                              7            A-Error! Reference source not found.
      The motion judge also rejected defendant's argument that

the   search     was    unlawful     because          defendant    had    a    reasonable

expectation of privacy in the hotel room, and did not consent to

the search.         The judge determined that, as a "guest," defendant

did not have a reasonable expectation of privacy.                         Nevertheless,

assuming defendant had a reasonable expectation of privacy, the

judge found that the search of the hotel room did not offend

defendant's      right     to     privacy       because    Gudehus's        consent      was

justified      by    the   third    party        exception.         Citing      State      v.

Douglas, 204 N.J. Super. 265, 277 (App. Div. 1985), the judge

found that Gudehus had the right to control access to the hotel

room because the she paid for and registered the room in her

name.     Moreover, the judge noted that once the officers noticed

the     prescription       pill    bottles        on     the     nightstand,       Gudehus

voluntarily and without coercion consented to search the room.

      Defendant        subsequently         pled        guilty     to     second-degree

possession of oxycodone with intent to distribute and resolved

three    other      indictments,     and        was    sentenced     to   an    aggregate

prison term of eight years with a forty-month period of parole

ineligibility.         This appeal followed.

                                           II.

      Defendant raises the following                    single-point argument for

our consideration:



                                            8             A-Error! Reference source not found.
            THE TRIAL COURT ERRED IN DENYING THE MOTION
            TO   SUPPRESS   BECAUSE   THE   POLICE   LACKED
            REASONABLE SUSPICION TO CONDUCT THE STOP,
            AND BECAUSE THE POLICE EXCEEDED THE SCOPE OF
            THE   INVESTIGATORY   STOP   BY   SEIZING   AND
            EXAMINING THE PRESCRIPTION PILL BOTTLES AND
            BY ACCOMPANYING THE CO-DEFENDANT TO HER ROOM
            TO RETRIEVE HER IDENTIFICATION.5

       In our consideration of 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)).              "When . . . we consider a

ruling that applies legal principles to the factual findings of

the trial court, we defer to those findings but review de novo

the application of those principles to the factual findings."

Ibid. (citing State v. Harris, 181 N.J. 391, 416 (2004), cert.

denied, 545       U.S. 1145, 125      S. Ct. 2973, 162          L. Ed. 2d 898

(2005)).      However, despite our deferential standard, "if the

trial    court's    findings    are    so   clearly    mistaken        'that     the

interests of justice demand intervention and correction,' then

the appellate court should review 'the record as if it were

deciding the matter at inception and make its own findings and



5
    We have omitted the sub-points in defendant's brief.


                                      9           A-Error! Reference source not found.
conclusions.'"     State v. Mann, 203 N.J. 328, 337 (2010) (quoting

State v. Johnson, 42 N.J. 146, 162 (1964)).

      Both the United States and New Jersey Constitutions protect

individuals against unreasonable searches and seizures.                              U.S.

Const.   amend.    IV;    N.J.   Const.      art.     I,    ¶    7.       Under      the

exclusionary      rule,   evidence        obtained     in       violation       of    an

individual's constitutional rights will be excluded as "fruit of

the poisonous tree."        State v. Faucette, 439 N.J. Super. 241,

266   (App.    Div.),     certif.    denied,         221    N.J.      492     (2015).

Because the search at issue was executed without a warrant, it

is presumed facially invalid; to overcome this presumption, the

State must show that the search falls within one of the well-

recognized    exceptions    to   the      warrant     requirement         and     there

exists probable cause.       State v. Moore, 181 N.J. 40, 44 (2004);

State v. Valencia, 93 N.J. 126, 133 (1983).                  One such exception

is found in the plain-view doctrine.6           The State bears the burden



6
  For the plain view exception to apply, the State must prove
that

          (1) the officer was "lawfully in the viewing
          area,"   (2)  the  officer    discovered the
          evidence "'inadvertently,' meaning that he
          did not know in advance where the evidence
          was located nor intend beforehand to seize
          it," and (3) it was "immediately apparent"
          that the items "were evidence of a crime,
          contraband,   or    otherwise    subject  to
          seizure."
                                                     (continued)

                                     10              A-Error! Reference source not found.
of demonstrating that the seizure was legal.                       Valencia, supra,

93 N.J. at 133.

       An investigative stop, or a Terry stop, allows police to

"detain an individual temporarily for questioning."                           State v.

Maryland, 167 N.J. 471, 486 (2001) (citing Terry v. Ohio, 392

U.S. 1, 22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)).

To   justify   an     investigative      stop,    the       police    must    have     "a

'particularized suspicion' based upon an objective observation

that   the   person    stopped    has    been    or    is    about    to     engage    in

criminal wrongdoing."        State v. Davis, 104 N.J. 490, 504 (1986).

Additionally,       "[t]he   'articulable       reasons'      or     'particularized

suspicion'     of    criminal    activity     must    be     based    upon    the     law

enforcement         officer's     assessment          of     the      totality         of

circumstances . . . ."           Ibid.       "Reasonable suspicion necessary

to justify an investigatory stop is a lower standard than the




(continued)

             [State v. Earls, 214 N.J. 564, 592 (2013)
             (quoting Mann, supra, 203 N.J. at 341).]

In State v. Gonzales, 227 N.J. 77 (2016), our Supreme Court held
prospectively "that an inadvertent discovery of contraband or
evidence of a crime is no longer a predicate for a plain view
seizure."    Id. at 82.      This suppression motion pre-dated
Gonzales, and therefore the element must be satisfied in this
case.


                                        11            A-Error! Reference source not found.
probable       cause   necessary     to    sustain    an     arrest."         State    v.

Stovall, 170 N.J. 346, 356 (2002) (citing State v. Citarella,

154 N.J. 272, 279 (1998)).

        We evaluate the "totality of the circumstances surrounding

the      police-citizen         encounter"           when      determining            the

reasonableness of the stop.               State v. Privott, 203 N.J. 16, 25-

26 (2010) (quoting Davis, supra, 104 N.J. at 504).                         We consider

"a    police    officer's    'common      and   specialized      experience,'         and

evidence       concerning    the     high-crime      reputation       of    an    area."

Moore, supra, 181 N.J. at 46 (citations omitted).                       While a high

crime area alone is not a sufficient basis to justify the stop,

"the location of the investigatory stop can reasonably elevate a

police officer's suspicion that a suspect is armed."                          State v.

Valentine, 134 N.J. 536, 547 (1994).

        We     begin   by   noting    there     is   no     dispute    that      Gudehus

voluntarily signed a written consent-to-search form to allow the

search of the hotel room registered in her name.7                           Defendant,



7
  The fact that the search in question occurred in a motel room
is   of  no   consequence.     While   "the  reasonable   privacy
expectations   in  a   hotel  room   differ  from   those  in   a
residence[,]" United States v. Agapito, 620 F.2d 324, 331 (2d
Cir.), cert. denied, 449 U.S. 834, 101 S. Ct. 107, 66 L. Ed. 2d
40 (1980), occupants of a hotel room are nevertheless entitled
to the protection of the Fourth Amendment. See Hoffa v. United
States, 385 U.S. 293, 301, 87 S. Ct. 408, 413, 17 L. Ed. 2d 374,
381 (1966); State v. Alvarez, 238 N.J. Super. 560, 571 (App.
Div. 1990). "Under our constitutional jurisprudence, when it is
                                                      (continued)

                                          12          A-Error! Reference source not found.
however, contends that, by virtue of fruit-of-the-poisonous-tree

doctrine, evidence of his possession of a CDS was unlawfully

obtained         from   the        unlawful    stop,      search        and    seizure,       and

detention conducted on Gudehus.                    We disagree.

           Here, the police officers were conducting an investigatory

stop       based    upon      several       articulable          and     objective        facts.

Gudehus was in a high crime area and sounded like the female

that       the   police      had    heard     earlier     that     evening      in    the    same

vicinity who was discussing the plan to make illegal sales of

prescription drugs.                When stopped, Gudehus was nervous, shaking,

and agitated.           Moreover, she appeared to match the description

of     a    BOLO    suspect         involved       with   prescription           drug     fraud.

Because she refused the officers' command to stop putting her

hands in her pockets due to the concern that she was concealing

a weapon, a pat-down search was conducted.                          Finding that she was

in   possession         of    drugs    prescribed         to    three     individuals,        the

officers properly requested proof of her identification.                                     When

she responded that she had to retrieve her ID from her hotel

room, the officers followed her to her room.                           Notably, the




(continued)
practicable to do so, the police are generally required to
secure a warrant before conducting a search of certain places,
. . . such as a hotel room." State v. Hathaway, 222 N.J. 453,
468 (2015).


                                              13               A-Error! Reference source not found.
officers did not enter the room until defendant became agitated

and intervened by trying to prevent her from getting her ID.

Gudehus's ensuing written consent to search the room when other

prescription   drugs   were   seen   in   plain   view   resulted       in   the

seizure of evidence that consequently led to defendant's plea.

Thus, we conclude, as did the motion judge, that the motion to

suppress should be denied as the totality of the circumstances

justified the investigative stop, which led to a plain view

observation    of   illegal   prescription   drugs    and    a   consent       to

search.

    Affirmed.




                                  14          A-Error! Reference source not found.
