STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RICARDO WEBB,
Defendant-Respondent.
_________________________________
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION |
|
Submitted May 11, 2010 – Decided
Before Judges Lihotz and Ashrafi.
On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Hunterdon County, Indictment No. 08-09-00205-S.
Paula T. Dow, Attorney General, attorney for appellant (Russell J. Curley, Deputy Attorney General, of counsel and on the brief).
McDonald & Rogers, L.L.C., attorneys for respondent (Michael J. Rogers, on the brief).
PER CURIAM
Defendant Ricardo Webb and co-defendant Brian Bennett were charged in a two count indictment with two second-degree offenses: money laundering, N.J.S.A. 2C:21-25(a) and N.J.S.A. 2C:2-6, and conspiracy, N.J.S.A. 2C:5-2. The two were stopped for a traffic violation when the police noted the odor of raw marijuana. Arresting the defendants, the police searched the vehicle and its contents without a warrant. The trial court granted defendant's motion to suppress the evidence seized in the warrantless search. By leave granted, the State appeals, arguing the search was proper, and exigent circumstances were presented so that the warrantless search falls within the automobile exception to the warrant requirement. We disagree and affirm.
The facts were elicited from the arresting officer, who was the sole witness testifying at the suppression hearing. The times of the various events stated below were taken from a video, recorded by a dashboard mounted motor vehicle recorder in the patrol car. The video tape was admitted into evidence.
On May 5, 2005, Patrol Corporal Joseph Greco of the Readington Township Police Department, while working the 6:00 p.m. to 6:00 a.m. night shift, responded to a central dispatch radio call from a citizen who reported an erratic driver in a white Chevrolet Suburban with a New York license plate traveling west on Route 202, then turning southbound onto Old York Road. When Greco received the call at 2:20 a.m., he was approximately 200 yards from that intersection and immediately proceeded to the area. He saw a white Suburban turning east from Old York Road onto Pleasant Run Road. When Greco pulled out, the Suburban "accelerated very quickly." Greco was driving sixty miles an hour in an effort to cut off the Suburban and effectuate a stop. The posted speed limit on rural, residential Pleasant Run Road is twenty-five miles per hour.
Greco stopped the Suburban, approached the driver, later determined to be defendant, and requested he produce his credentials. Greco testified, "As soon as [defendant] opened up the window, I smelled marijuana, raw marijuana, coming from inside the car. It was really strong."
Greco radioed for back-up, which arrived at 2:32 a.m. That evening, three police officers, including Greco, were on duty in Readington Township. The other two duty officers, Sergeant Campbell and Patrolman Corsentino, responded to Greco's request.
Greco told defendant he smelled marijuana and asked if there was marijuana in the car. Defendant said no and was asked to step out of the car to the front of the vehicle, where the officers read him his Miranda[1] rights. Greco then approached Bennett, the passenger, asked him to step to the rear of the car and queried what he knew about marijuana in the vehicle. Bennett did not respond and also, was read his rights.
Defendant and Bennett were detained and standing behind the Suburban when Greco began to search the interior of the vehicle. In the back seat, Greco found "a backpack filled with cash[,]" which he seized at 2:39 a.m. The sum seized was $104,990. Patrolman Corsentino handcuffed defendant and Greco handcuffed Bennett. The two were arrested and placed in separate patrol cars. The officers continued to search the vehicle and its contents.
Greco called the canine unit requesting a trained drug-sniffing dog. Sergeant Izzo, Readington's on-call detective, arrived at 3:22 a.m. and Sheriff's Officer Pino arrived with the county canine at 3:59 a.m. Pino requested the backpack be returned to the back seat of the Suburban. The canine reacted to the backpack; however, no marijuana was found in defendant's vehicle. The Suburban was impounded, and the defendants were taken to the police station for processing at 4:24 a.m.[2] Neither Greco nor the two back-up officers applied for a search warrant.
In a written opinion, the trial court concluded the evidence must be suppressed. The court considered the totality of the circumstances, in light of the three-pronged test set forth in State v. Peña-Flores, 198 N.J. 6, 28 (2009). The court found the State had not shown the impracticality of obtaining a warrant and, therefore, had not satisfied the necessary exigent circumstances justifying a warrantless search of defendant's vehicle.
We granted the State's motion for leave to appeal. The State argues the trial court erred in suppressing the seized evidence as the automobile exception to the warrant requirement was properly supported by the undisputed facts.
In reviewing a motion to suppress evidence, this court must defer to the trial court's fact findings underlying its decision, "'so long as those findings are supported by sufficient credible evidence in the record.'" State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We may not substitute our own conclusions regarding the evidence, even in a "close" case. State v. Locurto, 157 N.J. 463, 471 (1999); accord Robinson, supra, 200 N.J. at 15; Elders, supra, 192 N.J. at 243-44. We specifically defer to the credibility determinations of the trial court, particularly its review of competing factual testimony, Locurto, supra, 157 N.J. at 474; State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966), as these factual determinations "are substantially influenced by [the trial court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We reverse only when the determination is "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. However, we need not defer to any legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990) (holding that if "the trial court acts under a misconception of the applicable law," we need not defer to its ruling). The trial court's application of the law is subject to plenary review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).
The Fourth Amendment to the United States Constitution, and Article I, paragraph 7 of the New Jersey Constitution require "police officers 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. Cassidy, 179 N.J. 150, 160 (2004) (internal quotations omitted); see also Peña-Flores, supra, 198 N.J. at 18; Robinson, supra, 200 N.J. at 3 ("The warrant requirement embodied in both" the State and Federal Constitutions "limits the power of the sovereign to enter our homes and seize our persons or our effects."). A warrantless search is presumed invalid, and places the burden on the State to prove that the search "falls within one of the few well-delineated exceptions to the warrant requirement." State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)); State v. Patino, 83 N.J. 1, 7 (1980).
New Jersey's application of the automobile exception to the warrant requirement permissibly allows a search upon the finding of probable cause to believe the vehicle contains evidence of criminal activity and "exigent circumstances," including "the unforeseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile stopped on the highway." State v. Alston, 88 N.J. 211, 233 (1981) (citing Chambers v. Maroney, 399 U.S. 42, 50-51 90 S. Ct. 1975, 1980-81, 26 L. Ed. 2d 419, 428 (1970)); accord State v. Cooke, 163 N.J. 657, 664 (2000).
In Peña-Flores, the Court reaffirmed the automobile exception to the warrant requirement, as well as the absolute necessity that the State prove exigent circumstances to justify a warrantless search.
[I]n accordance with "our unwavering precedent," the warrantless search of an automobile in New Jersey is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant. The notion of exigency encompasses far broader considerations than the mere mobility of the vehicle.
[Peña-Flores, supra, 198 N.J. at 28 (citations omitted).]
The Court observed that exigency must be determined on a "case-by-case basis" and "[n]o one factor is dispositive; courts must consider the totality of the circumstances." Ibid. However, the analysis remains constant because "the issues of officer safety and the preservation of evidence [are] the fundamental inquiry." Id. at 29.
Although "[t]here is no magic formula -- it is merely the compendium of facts that make it impracticable to secure a warrant[,]" ibid., the Court identified a non-exhaustive list of considerations when determining the existence of exigent circumstances, including:
the location of the [search]; the nature of the neighborhood; the unfolding of the events establishing probable cause; . . . whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.
[Ibid.]
Here, the testimony presented at the suppression hearing was shown to provide probable cause supporting Greco's unexpected motor vehicle stop. Further, the aroma of raw marijuana wafting from the vehicle after defendant opened the window satisfactorily supported the probable cause requirement that criminal evidence was likely contained in the vehicle. These findings are not challenged. Accordingly, we center our review on the third prong necessary to obviate the warrant requirement, whether exigent circumstances were presented.
The State argues the events at hand unfolded quickly, the area of the stop was dark and rural, and the possibility of confederates was likely. Moreover, the State argues that because the police had probable cause to believe the vehicle contained evidence of a crime, coupled with its mobility and the vehicle owner's "'lessened expectation of privacy[,]'" the warrantless search was justified. State v. Hammer, 346 N.J. Super. 359, 366 (App. Div. 2001) (quoting Cooke, supra, 163 N.J. at 670).
The State's focus is on the mobility of the vehicle and the potential for interference if left unattended. These facts alone, which likely would be present in all motor vehicle stops accompanied by probable cause to suspect criminal activity, are insufficient to support a finding of exigency. The Supreme Court has instructed that although these factors must be considered, a lawful warrantless search is dependent on the impracticality of obtaining a warrant. Peña-Flores, supra, 198 N.J. at 28.
Further, these facts cannot be isolated from the totality of the circumstances presented. State v. Dunlap, 185 N.J. 543, 551 (2006); Cooke, supra, 163 N.J. at 675. Other considerations identified by Judge Rubin in his careful analysis of the facts presented in light of Peña-Flores, included the police outnumbered the suspects throughout the period, traffic in the area was very light, and the rural neighborhood was generally quiet. These additional facts evince a diminished concern for the officers' safety. Further, although police suggested there was no place to tow the vehicle, the number of officers -- which at one point totaled five -- strongly suggested an ability to secure the vehicle where it was stopped while a warrant was secured.
In the companion case consolidated with Peña-Flores, the Court determined there was no exigency justifying the warrantless search in the matter involving defendant Fuller, noting:
[Officer] Clemens pulled Fuller over for a traffic violation in broad daylight on a city street at 1:15 in the afternoon. Fuller was subsequently arrested and secured inside the cruiser, and thus had no opportunity to gain access to the vehicle or anything it contained. There is nothing in the record to suggest that Fuller had cohorts who might have come on the scene. Clemens was, at all times, assisted by one to three other troopers. The vehicle could have been impounded or one officer could have remained with it while a warrant was sought by telephone or in person. There was simply no urgent, immediate need for the officers to conduct a full search of the automobile. See Dunlap, supra, 185 N.J. at 550.
[Pena-Flores, supra, 198 N.J. at 32.]
Here, the police did not attempt to obtain a warrant of any kind. The initial stop and discovery of possible illegal activity was almost simultaneous. Necessary police back-up responded swiftly and defendants were secured quickly. The record demonstrates this was not a highly volatile situation. The officers waited nearly one and one-half hours for the drug canine. During the suppression hearing, no evidence was presented on the length of time needed to obtain a search warrant. We can only speculate whether an effort in this regard may have yielded success in the time the police spent on scene.
The State minimizes the practical possibility of obtaining a telephonic warrant, arguing that if exigent circumstances are presented to support a telephonic warrant, then those same circumstances support a warrantless search. Despite the simplicity of this logic, we reject it as unpersuasive.
In State v. Valencia, 93 N.J. 126, 139 (1983), the Supreme Court pronounced formal procedural prerequisites for "a search authorized by a judge over the telephone" which "is, for analytical purposes, to be considered a form of warrantless search."[3] Ibid. The Court stated:
Upon a motion to suppress the evidence from such a search, the burden will be upon the State to establish its validity. If the State demonstrates (1) that the issuing judge found both exigent circumstances to excuse the failure to obtain a written warrant and probable cause to conduct the search and (2) that all of the procedural safeguards that we have outlined to assure the underlying reliability of the judge's decision to authorize the search have been met, the telephone authorization to search will then be deemed to be the functional equivalent of a written warrant. The burden of demonstrating the invalidity of the search shall thereafter revert to the defendant, in which event the determination of the issuing judge as to the existence of both exigent circumstances and probable cause shall be accorded substantial deference.
[Ibid.]
Since Valencia, the use of telephonic warrants has expanded, culminating in the Court's amendment of Rule 3:5-3(b) "to underscore that an officer may resort to electronic or telephonic means without the need to prove exigency." Pena-Flores, supra, 198 N.J. at 35.
In conducting a fact-sensitive and objective analysis to discern exigency, "the degree of urgency and the amount of time necessary to obtain a warrant" are always a consideration. Cassidy, supra, 179 N.J. at 160 (internal quotations omitted). The absence of the State's attempt to obtain a warrant precludes such an analysis.
We remain mindful of the multitude of decisions police offices make in encounters with criminal suspects. Police safety remains a dominant concern. Yet, "'[c]ourts in this State consistently have maintained that strict adherence to the protective rules governing search warrants is an integral part of the constitutional armory safeguarding citizens from unreasonable searches and seizures.'" State v. Marshall, 199 N.J. 602, 617 (2009) (quoting Valencia, supra, 93 N.J. at 134). When heightened circumstances are mitigated by subsequent events, as demonstrated here, safeguarding a defendant's constitutional rights becomes paramount.
We find no basis to depart from the deference we owe the trial judge's decision and concur with his conclusion that "[o]nce the police determined there was probable cause based on the odor of marijuana and given the circumstances, . . . a warrant should have been obtained." See Elders, supra, 192 N.J. at 243-44.
Affirmed.
[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[2] In addition to the indicted offenses, defendant was issued a traffic summons for careless driving.
[3] Although formal procedures for telephonic warrants were not adopted until Valencia, "the procedure had long before been readily available to police in truly exigent circumstances." State v. Lewis, 227 N.J. Super. 593, 598-99 (App. Div. 1988), aff'd, 116 N.J. 477 (1989). See, e.g., State v. Liberti, 161 N.J. Super. 575, 578-80 (App. Div. 1978), certif. denied. 79 N.J. 502 (1979).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
