                        NOT FOR PUBLICATION WITHOUT THE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-3752-14T2



STATE OF NEW JERSEY,

              Plaintiff-Respondent,

v.

ERIK BEHEN, a/k/a
ERIK P. BEHEN,

          Defendant-Appellant.
________________________________

              Submitted February 27, 2017 – Decided March 10, 2017

              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
      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.



                                   2                             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.

                                  3                           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

                                  4                          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.


                                      5                            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).

                                         6                               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.

                                    7                               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.

                                      8                              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

                                             9                                    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.

                                      10                               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.



                                      11                            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.


                                  12                            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


                                   13                            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).

                                  14                             A-3752-14T2
