                        NOT FOR PUBLICATION WITHOUT THE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-3351-14T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

HOWARD S. THOMAS,

        Defendant-Appellant.

_____________________________________

              Submitted January 19, 2017 – Decided            July 26, 2017

              Before Judges Fuentes and Gooden Brown.

              On appeal from the Superior Court of New
              Jersey,   Law  Division,   Monmouth County,
              Indictment No. 14-04-0604.

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

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Keri-
              Leigh Schaefer, Assistant Prosecutor, of
              counsel and on brief).

PER CURIAM

        Following the denial of his motion to suppress evidence seized

in a warrantless search of his bag, defendant Howard Thomas entered
a negotiated plea of guilty to second-degree certain persons not

to have weapons, N.J.S.A. 2C:39-7(b)(1), and was sentenced to a

five-year prison term with a mandatory five-year period of parole

ineligibility.    Pursuant to Rule 3:5-7(d), defendant appeals from

the October 20, 2014 order denying his motion to suppress the

handgun.    We affirm.

                                        I.

      The only witness at the suppression hearing was one of the

responding    officers,    Patrolman        Allen   Williams,   a    twelve-year

veteran with the Asbury Park Police Department.                     According to

Williams, at about 9:30 a.m. on June 15, 2013, he was dispatched

to   an   apartment   to   check   on   a    report   of   "physical    domestic

assault." The two-story apartment was located in a large apartment

complex and shared a front porch with an adjoining apartment.                   To

access the apartments, there were two steps from the sidewalk onto

the porch, which then lead to the front door of each apartment.

      When Williams arrived, another officer was already on scene.

Williams knocked on the screen door and entered the apartment

through the main door, which was open.                Once inside, Williams

observed an individual, later identified as defendant, "coming

down the stairs carrying a large black nylon bag and a tan canvas

bag."     Defendant walked past Williams and out the front door.



                                        2                                A-3351-14T1
Williams also observed a woman in the living room area on the

first floor who identified herself as defendant's girlfriend.

      Defendant's girlfriend reported to Williams that defendant

had assaulted her.     She informed Williams about prior unreported

domestic violence incidents between herself and defendant and told

Williams that "ever since [defendant] has been living with her,

her kids have . . . seen arguing, fighting and guns."           Williams

inquired whether there were "any guns in the premises" to which

she responded "no, not that I know of because I check him from

head to toe when he comes inside the house."              Although she

consented to a search of her apartment, Williams never conducted

the search because she told him that she was pregnant and showed

him physical injuries from the assault consisting of "a laceration

to her upper lip" and "her swollen right hand[.]"          Despite her

injuries, she refused first aid.

      When   another   officer   arrived   and    began   interviewing

defendant's girlfriend, Williams went outside to the porch where

a   different   officer   arrested   defendant   for   simple   assault.

Defendant was permitted to use his cell phone to contact his mother

to come and retrieve his belongings, consisting of the black and

tan bags that were located outside on the porch.          Although the

bags were in proximity to defendant on the porch, they were not

searched incident to defendant's arrest.

                                     3                           A-3351-14T1
       After defendant was transported to police headquarters, the

bags remained on the porch awaiting the arrival of defendant's

mother.     As Williams prepared to depart the scene to respond to

other service calls, he decided to place the bags inside the

apartment    for   safekeeping       until    defendant's       mother     arrived.

Williams    testified   that    he    was    not    expecting    to    detect     any

contraband and his only motivation in removing the bags was to

prevent defendant's property from being stolen.

       Williams testified that he picked up the black bag first.

The motion judge described the black bag as about "the size of a

pillowcase with a drawstring at the top" and Williams testified

that the bag was partially open and filled with items.                     According

to Williams, when he picked up the black bag with his left hand

and then grabbed the bag with his right hand, he felt a handgun

on the right side of the bag close to the top.              Williams testified

he did not manipulate the bag in any way but believed he felt a

handgun    based   on   his    "training      and    experience       in   handling

firearms."

       Once Williams detected the handgun, he "opened up the bag and

. . . [saw] the butt of the gun inside the bag[.]"                He immediately

called another officer and had the gun photographed inside the

bag.    The gun was then removed from the bag and identified as a

Ruger 40 caliber handgun.        Inside the gun was a magazine loaded

                                        4                                    A-3351-14T1
with bullets.      A subsequent National Crime Information Center

(NCIC) search revealed that the gun was stolen.

    The motion judge credited Williams' testimony, describing his

testimony as "clear, candid, and convincing."             The judge found

that Williams "was honest and very straightforward" about his

observations.      Accordingly,    the   judge    made   factual   findings

consistent   with      Williams'   testimony       and    concluded       that

"[d]efendant's   gun    was   lawfully   seized   under   the   plain-feel

doctrine, as an exception to the warrant requirement."

    Initially, the judge distinguished State v. Perkins, 358 N.J.

Super. 151 (App. Div. 2003), noting:

         As was made clear in this case, Patrolman
         Williams did not seize the gun based on the
         domestic violence call he received from the
         victim.    Although it was elicited through
         Patrolman Williams' testimony that he was
         going to search the apartment for weapons, he
         did not do so. The revelation of the gun in
         [d]efendant's nylon bag was wholly unrelated
         to a "search" of any kind. Patrolman Williams
         seized the gun based on the plain-feel of the
         [d]efendant's nylon bag.   Thus, the Perkins
         case is not applicable.

    The judge also examined whether Williams' conduct in moving

the bag from the porch to the interior of the apartment for

safekeeping was covered under the Fourth Amendment and concluded

that it was not.    The judge explained:

              The victim's porch was shared by another
         apartment and served as a route of access for

                                    5                                 A-3351-14T1
         anyone visiting the premises. As such, it is
         only a semi-private area. [State v. Johnson,
         171 N.J. 192, 209 (2002)].     Once patrolman
         Williams went back outside the victim's
         residence and the [d]efendant was placed under
         arrest, he "came onto private property for a
         legitimate purpose."   The porch that he was
         situated on was a "place visitors could be
         expected to go."       [Ibid.].     Thus, his
         observation of the [d]efendant's nylon bag,
         including the "plain" feel of the gun inside
         the [d]efendant's bag was "made from such a
         vantage point which is not covered by the
         Fourth Amendment." [Ibid.].

    In applying the plain feel doctrine to his factual findings,

the judge reasoned:

              Here, Patrolman Williams was dispatched
         to the victim's ([d]efendant's girlfriend)
         home after receiving a call from the victim
         that [d]efendant punched her in the face. As
         such, Patrolman Williams was lawfully at the
         scene.   While Patrolman Williams was at the
         scene and [d]efendant was placed under arrest,
         [d]efendant left his thin, black, nylon bag
         outside of his apartment for his mother to
         retrieve from his girlfriend's apartment.
         However, the officers who were on scene were
         unable   to   remain  at   the   [d]efendant's
         apartment, and did not want to leave
         [d]efendant's bag outside unattended. . . .
         Thus, Patrolman Williams picked up the bag and
         placed    it   inside   the    apartment   for
         safekeeping. Patrolman Williams did not open
         the bag, look inside the bag, or manipulate
         the bag in any way. He simply picked up the
         bag in a non-intrusive manner to protect it
         from a potential crime of theft. As such, no
         reasonable expectation of privacy was invaded.
         . . . As such, his actions were lawful, in
         that he simply wanted to "put the bag inside
         the house for safekeeping."


                               6                          A-3351-14T1
               Further, the feel of the gun's contour
          or mass in [d]efendant's nylon [b]ag made the
          gun's identity immediately apparent.     Once
          Patrolman Williams picked the nylon bag up,
          without manipulating the nylon bag from the
          outside in any way, he felt an object whose
          "contours and mass he clearly and immediately
          recognized" to be consistent with that of a
          handgun based on his training and experience.

                 . . . .

               Further, the victim informed Patrolman
          Williams that since the [d]efendant has been
          to her apartment, her kids "have seen arguing,
          fighting, and guns." She also stated that she
          previously told the [d]efendant to "get it out
          of her house," referring to the [d]efendant's
          alleged gun. Thus, based on the totality of
          the    circumstances,   including    Patrolman
          Williams'   training   and   experience   with
          handguns, the victim's prior statements, and
          the feel of a hard metal object, he was
          immediately able to recognize the object he
          felt inside the [d]efendant's bag as a gun.

     Accordingly, the judge denied defendant's motion to suppress

the handgun and signed a memorializing order on October 20, 2014.

This appeal followed.

                               II.

     On appeal, defendant raises the following arguments for our

consideration.

          POINT I

          THE PLAIN FEEL DOCTRINE DOES NOT JUSTIFY THE
          WARRANTLESS   SEIZURE  OF  THE   HANDGUN  IN
          DEFENDANT'S BAG.



                                7                          A-3351-14T1
                  A. BECAUSE DEFENDANT MADE HIS OWN
                  ARRANGEMENTS FOR THE SAFEKEEPING OF
                  HIS PERSONAL PROPERTY FOLLOWING HIS
                  ARREST,     THE     POLICE     ACTED
                  UNREASONABLY    IN    SEIZING    HIS
                  PROPERTY TO PLACE IT BACK INSIDE THE
                  HOME OF THE COMPLAINANT.

                  B.   BECAUSE THE ILLEGALITY OF THE
                  FIREARM    WAS    NOT    IMMEDIATELY
                  APPARENT,    THE    POLICE    LACKED
                  PROBABLE CAUSE TO SEIZE THE FIREARM
                  PURSUANT TO THE PLAIN FEEL DOCTRINE.

      When a motion judge has denied a suppression motion, our

review   of     the   motion   judge's     factual    findings   "is    highly

deferential." State v. Gonzales, 227 N.J. 77, 101 (2016) (citation

omitted).      Because the motion judge has the "opportunity to hear

and see the witnesses and to have the 'feel' of the case," Ibid.

(quoting State v. Johnson, 42 N.J. 146, 161 (1964)), the motion

judge's factual findings will be upheld so long as "sufficient

credible evidence in the record" supports those findings.                State

v.   Elders,    192   N.J.   224,   243-44   (2007)   (citations   omitted).

However, we review issues of law de novo.              State v. Watts, 223

N.J. 503, 516 (2015).

      Applying that standard of review, we discern substantial

credible evidence in the record to support the judge's findings

of fact and we agree with the judge's application of those facts

to the law.       Defendant argues that the motion judge erred in

sustaining the warrantless search under the plain feel doctrine.

                                       8                               A-3351-14T1
Defendant asserts that the seizure failed to meet two elements of

the plain feel doctrine.     First, Williams knew defendant left his

bag on the porch for his mother to retrieve, rendering the police

conduct   unreasonable    under   the   circumstances.           "Second,   the

illegality of the handgun was not immediately apparent because it

was discovered on the porch of a private residence, and its

possession was presumptively legal under N.J.S.A. 2C:39-6(e)."                On

the latter point, defendant asserts that the illegality of the

handgun was not discovered until after it was seized and an NCIC

search at headquarters revealed that the gun had been reported

stolen.   We are unpersuaded by defendant's arguments.

     "A   warrantless    search   [or   seizure]   is     presumed   invalid,

unless it falls within one of the recognized exceptions to the

warrant requirement" and there exists probable cause.                State v.

Moore, 181 N.J. 40, 44 (2004) (alteration in original) (quoting

State v. Cooke, 163 N.J. 657, 664 (2000)); State v. Valencia, 93

N.J. 126, 133 (1983). Probable cause is supported by the "totality

of the circumstances[,]" State v. Toth, 321 N.J. Super. 609, 614

(App.   Div.   1999),   certif.   denied,   165    N.J.    531    (2000),   and

"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



                                    9                                  A-3351-14T1
in a particular place.'"      Id. at 615 (alteration in original)

(quoting State v. Demeter, 124 N.J. 374, 380-81 (1991)).

     One of the recognized exceptions to the warrant requirement

is the plain-feel doctrine.    The plain-feel doctrine permits the

warrantless seizure of contraband discovered by an officer through

the sense of touch during an otherwise lawful encounter. Minnesota

v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334

(1993).   Analogizing the plain-feel doctrine to the plain-view

doctrine, the Dickerson Court explained:

          The rationale of the plain-view doctrine is
          that if contraband is left in open view and
          is observed by a police officer from a lawful
          vantage point, there has been no invasion of
          a legitimate expectation of privacy and thus
          no "search" within the meaning of the Fourth
          Amendment – or at least no search independent
          of the initial intrusion that gave the
          officers their vantage point. The warrantless
          seizure of contraband that presents itself in
          this manner is deemed justified by the
          realization   that   resort   to   a   neutral
          magistrate under such circumstances would
          often be impracticable and would do little to
          promote   the   objectives   of   the   Fourth
          Amendment. The same can be said of tactile
          discoveries of contraband.       If a police
          officer lawfully pats down a suspect's outer
          clothing and feels an object whose contour or
          mass makes its identity immediately apparent,
          there has been no invasion of the suspect's
          privacy beyond that already authorized by the
          officer's search for weapons; if the object
          is contraband, its warrantless seizure would
          be   justified    by   the   same    practical
          considerations that inhere in the plain view
          context.

                                10                         A-3351-14T1
             [Id. at 375-76, 113 S. Ct. at 2137-38, 124 L.
             Ed. 2d at 345-46 (citations omitted).]

     The     Dickerson   Court     emphasized   that,   for   the   plain-feel

exception to apply, the incriminating character of the object must

be "immediately apparent."          Ibid.    In State v. Jackson, 276 N.J.

Super. 626 (App. Div. 1994), we explained that since the plain-

feel exception is "a corollary to the plain view doctrine[,]" the

same public policy concerns undergirding the plain-view exception

applied.     See id. at 628, 630-31; see also Toth, supra, 321 N.J.

Super. at 615 (stating "[t]here is no reason in law, logic, or

policy that would justify a different analysis when analyzing a

plain feel matter."), certif. denied, 165 N.J. 531 (2000).

     Because the plain-feel doctrine assumes an otherwise lawful

encounter, an analysis of its applicability must, of necessity,

evaluate the circumstances of the police encounter.                  While the

plain-feel doctrine ordinarily arises in the context of a Terry1

stop, its application is not limited to such circumstances.                  Cf.

State   v.   Evans,   449   N.J.    Super.   66,   82-86   (App.    Div.   2017)

(concluding that the plain feel doctrine did not satisfy the




1
  Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).


                                      11                               A-3351-14T1
statutory criteria for a strip search under N.J.S.A. 2A:161A-

1(b)).

     Here,     Williams'    physical       contact     with   defendant's       bag

occurred after Williams had responded to a domestic violence

service call during which defendant was arrested and left his bag

for his mother's retrieval on a shared porch of a large apartment

complex.     Williams had no intention of searching defendant's bag

when he moved it to the interior of the apartment for safekeeping.

Rather, his intention was to protect defendant's belongings and

the detection of the gun was entirely inadvertent.2

     "One    seeking   to   invoke     the   protection       of    the   [F]ourth

[A]mendment    must    establish     that    a   reasonable        or   legitimate

expectation of privacy was invaded by government action."                    State

v. Marshall, 123 N.J. 1, 66 (1991), supp. 130 N.J. 109 (1992)

(citing Smith v. Md., 442 U.S. 735, 740, 99 S. Ct. 2577, 2580, 61

L. Ed. 2d 220, 226 (1979)).        "The resolution of that issue depends

on   whether    the    person   'exhibited        an    actual      (subjective)

expectation of privacy,' and whether the expectation of privacy


2
 We note that in State v. Gonzales, 227 N.J. 77 (2016), our Supreme
Court discarded the prior requirement of the plain-view exception
that evidence be discovered inadvertently, and determined that,
prospectively, as long as the 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[,]" the exception applies.      Id. at 101.
The same analysis would apply to the plain-feel doctrine.

                                      12                                   A-3351-14T1
is 'one that society is prepared to recognize as reasonable.'"

Id. at 66-67 (citations omitted).

     Here, although defendant expected his mother to retrieve his

bag, he nonetheless placed it on a shared porch of a large

apartment complex.   It is well settled that

          a portion of the curtilage, being the normal
          route of access for anyone visiting the
          premises, is only a semi-private area. . . .
          Thus, when the police come on to private
          property to conduct an investigation or for
          some other legitimate purpose and restrict
          their movements to places visitors could be
          expected to go (e.g., walkways, driveways,
          porches), observations made from such vantage
          points are not covered by the Fourth
          Amendment.

          [State v. Johnson, 171 N.J. 192, 209 (2002)
          (citations omitted).]

Moreover, "[t]he curtilage concept has limited applicability with

respect to multi-occupancy premises because none of the occupants

can have a reasonable expectation of privacy in areas that are

also used by other occupants."   Ibid.   (quoting State v. Ball, 219

N.J. Super. 501, 506-07 (App. Div. 1987)).

     We next consider whether the removal of the bag nevertheless

constituted a seizure for fourth-amendment purposes.   "A 'seizure'

of property occurs when there is some meaningful interference with

an individual's possessory interests in that property."   Marshall,

supra, 123 N.J. at 67 (quoting U.S. v. Jacobsen, 466 U.S. 109,


                                 13                          A-3351-14T1
113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85, 94 (1984)).                          "The

[F]ourth [A]mendment prohibits not all searches and seizures but

only those that are deemed unreasonable."                Ibid.      (citing State

v. Campbell, 53 N.J. 230, 233 (1969)).            It bears noting that "the

reasonableness of a search is determined 'by assessing, on the one

hand, the degree to which it intrudes upon an individual's privacy

and, on the other, the degree to which it is needed for the

promotion   of   legitimate    governmental        interests.'"           U.S.       v.

Knights, 534 U.S. 112, 118-119, 122 S. Ct. 587, 591, 151 L. Ed.

2d 497, 505 (quoting Wyo. v. Houghton, 526 U.S. 295, 300, 119 S.

Ct. 1297, 1300, 143 L. Ed. 2d 408, 414 (1999)).

     Applying these principles, we agree with the motion judge

that, in the totality of the circumstances, Williams' conduct was

objectively   reasonable    and    the    seizure       of    the    handgun      from

defendant's   bag   was   justified      under    the    plain-feel     doctrine.

Williams' handling and movement of defendant's bag was not covered

by the Fourth Amendment and did not constitute a seizure for

Fourth-Amendment    purposes      because    he    did       not    intrude     on    a

reasonable expectation of privacy or meaningfully interfere with

defendant's possessory interest in the property.                     Further, the

character of the contraband was "immediately apparent."                  Williams

testified that, based on his training and experience with firearms,

it was "immediately apparent" that the object was a handgun based

                                    14                                        A-3351-14T1
upon mere touch, rather than any manipulation.      Additionally, the

victim's statement that there had been prior unreported incidents

of domestic violence and that her children had witnessed "arguing,

fighting and guns" as a result of defendant's presence in the

apartment,    lend   further   support   to   Williams'   belief   that

contraband or evidence of a crime would be found in defendant's

bag.

       Affirmed.




                                  15                           A-3351-14T1
