KENTUCKY v. KING

certiorari to the supreme court of kentucky

No. 09-1272. Argued January 12, 2011--Decided May 16, 2011

Police officers in Lexington, Kentucky, followed a suspected drug dealer to an apartment complex. They smelled marijuana outside an apartment door, knocked loudly, and announced their presence. As soon as the officers began knocking, they heard noises coming from the apartment; the officers believed that these noises were consistent with the destruction of evidence. The officers announced their intent to enter the apartment, kicked in the door, and found respondent and others. They saw drugs in plain view during a protective sweep of the apartment and found additional evidence during a subsequent search. The Circuit Court denied respondent's motion to suppress the evidence, holding that exigent circumstances--the need to prevent destruction of evidence--justified the warrantless entry. Respondent entered a conditional guilty plea, reserving his right to appeal the suppression ruling, and the Kentucky Court of Appeals affirmed. The Supreme Court of Kentucky reversed. The court assumed that exigent circumstances existed, but it nonetheless invalidated the search. The exigent circumstances rule did not apply, the court held, because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence.

Held:

1. The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.

(a) The Fourth Amendment expressly imposes two requirements: All searches and seizures must be reasonable; and a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity. Although " 'searches and seizures inside a home without a warrant are presumptively unreasonable,' " Brigham City v. Stuart, 547 U. S. 398, 403, this presumption may be overcome when " 'the exigencies of the situation' make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment," Mincey v. Arizona, 437 U. S. 385, 394. One such exigency is the need "to prevent the imminent destruction of evidence." Brigham City, supra, at 403.

(b) Under the "police-created exigency" doctrine, which lower courts have developed as an exception to the exigent circumstances rule, exigent circumstances do not justify a warrantless search when the exigency was "created" or "manufactured" by the conduct of the police. The lower courts have not agreed, however, on the test for determining when police impermissibly create an exigency.

(c) The proper test follows from the principle that permits warrantless searches: warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Thus, a warrantless entry based on exigent circumstances is reasonable when the police did not create the exigency by engaging or threatening to engage in conduct violating the Fourth Amendment. A similar approach has been taken in other cases involving warrantless searches. For example, officers may seize evidence in plain view if they have not violated the Fourth Amendment in arriving at the spot from which the observation of the evidence is made, see Horton v.California, 496 U. S. 128, 136-140; and they may seek consent-based encounters if they are lawfully present in the place where the consensual encounter occurs, see INS v. Delgado, 466 U. S. 210, 217, n. 5.

(d) Some courts, including the Kentucky Supreme Court, have imposed additional requirements--asking whether officers " 'deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement,' " 302 S. W. 3d 649, 656 (case below); reasoning that police may not rely on an exigency if " 'it was reasonably foreseeable that [their] investigative tactics ... would create the exigent circumstances,' "ibid.;faulting officers for knocking on a door when they had sufficient evidence to seek a warrant but did not do so; and finding that officers created or manufactured an exigency when their investigation was contrary to standard or good law enforcement practices. Such requirements are unsound and are thus rejected.

(e) Respondent contends that an exigency is impermissibly created when officers engage in conduct that would cause a reasonable person to believe that entry was imminent and inevitable, but that approach is also flawed. The ability of officers to respond to an exigency cannot turn on such subtleties as the officers' tone of voice in announcing their presence and the forcefulness of their knocks. A forceful knock may be necessary to alert the occupants that someone is at the door, and unless officers identify themselves loudly enough, occupants may not know who is at their doorstep. Respondent's test would make it extremely difficult for officers to know how loudly they may announce their presence or how forcefully they may knock without running afoul of the police-created exigency rule. And in most cases, it would be nearly impossible for a court to determine whether that threshold had been passed.

2. Assuming that an exigency existed here, there is no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment.

(a) Any question about whether an exigency existed here is better addressed by the Kentucky Supreme Court on remand.

(b) Assuming an exigency did exist, the officers' conduct--banging on the door and announcing their presence--was entirely consistent with the Fourth Amendment. Respondent has pointed to no evidence supporting his argument that the officers made any sort of "demand" to enter the apartment, much less a demand that amounts to a threat to violate the Fourth Amendment. If there is contradictory evidence that has not been brought to this Court's attention, the state court may elect to address that matter on remand. Finally, the record makes clear that the officers' announcement that they were going to enter the apartment was made after the exigency arose.

302 S. W. 3d 649, reversed and remanded.

More info at Findlaw: In a Fourth Amendment dispute involving the scope of the exigency rule, judgment of the state supreme court is reversed where the rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendmen

STATE OF NEW JERSEY VS. G.L. A-1380-08T1

STATE OF NEW JERSEY VS. G.L. A-1380-08T1

Because it appeared that defendant, a juvenile, had not been adequately advised of the Megan's Law consequences of his plea of guilty to conduct that, if he were an adult, would constitute aggravated sexual assault, his plea was vacated and he was permitted to plead guilty to fourth-degree child abuse, an offense that was not subject to Megan's Law. Following this second plea, defendant moved to vacate two convictions for failure to register that had occurred in the interval between the first and second pleas. His motion was denied, and we affirmed that determination, basing our opinion on California and United States Supreme Court precedent. 5-20-11

STATE OF NEW JERSEY VS. MICHAEL STEELE A-3295-09T1

STATE OF NEW JERSEY VS. MICHAEL STEELE A-3295-09T1

As required by the plain language of the new mandatory pension forfeiture statute, we interpreted N.J.S.A. 43:1-3.1a as mandating forfeiture of only the portion of the defendant's pension that was earned as a member of the retirement fund that he participated in at the time he committed the offense and that covered the position involved in the offense. We rejected the trial court's determination that it had the discretion to limit the forfeiture to the credit earned from the date of the first criminal act alleged in the indictment forward, and the State's interpretation that the statute requires forfeiture of all pension credit, including credit earned as a member of a separate pension system that did not cover the position involved in the offense. 5-19-11

STATE OF NEW JERSEY VS. JULIO HEISLER A-6281-08T4

STATE OF NEW JERSEY VS. JULIO HEISLER A-6281-08T4

We held that the ten-day period in which a defendant must object to the admission into evidence of a lab certificate, or else waive his right to confront the laboratory analyst, begins to run only after the State has provided "all reports relating to the analysis in question." N.J.S.A. 2C:35-19. We resolved ambiguity in the statute that requires the State to serve its notice of intent to use a lab certificate and supporting data twenty days before trial, but requires a defendant to object within ten days of receiving only the notice of intent. As the defendant's objection was timely under our statutory construction, we reversed his convictions for being under the influence of CDS, and operating a vehicle while knowingly having CDS in his possession or in the vehicle. 5-17-11

STATE OF NEW JERSEY VS. KEITH V. PITTMAN A-5867-08T4

New Jersey has not considered the admissibility in a criminal case of the results of the phenolphthalein presumptive test for the presence of blood on a person or object or any other presumptive test utilized for that purpose. Nonetheless, in this case, evidence of a positive result was introduced, without objection, by a police detective with no prior experience in conducting the test and no understanding of how it functioned or of the possibility of false positive results occurring as the result of the presence of substances other than blood. We found the introduction of the test results to constitute reversible error, and in the course of our discussion of the issue, canvassed precedent from other states discussing the conditions for admissibility of the phenolphthalein test and other presumptive tests for the presence of blood. 05-13-11

STATE OF NEW JERSEY VS. TERRENCE MILLER A-6243-07T4

STATE OF NEW JERSEY VS. TERRENCE MILLER A-6243-07T4

Defendant's conviction need not be reversed merely on the ground that the first time he met the Assistant Public Defender who was substituted to represent him in place of his previous assigned counsel was the date scheduled for a suppression hearing and trial. To be entitled to a new hearing and trial,defendant must show ineffective assistance of counsel or other prejudice in violation of his due process rights.

In dissent, Judge Fuentes would hold that principles of fundamental fairness require a new hearing and trial without a showing of ineffective assistance or prejudice beyond the late initial contact with defendant's trial attorney.

STATE OF NEW JERSEY IN THE INTEREST OF A.D., A MINOR A-3720-09T4; A-3721-09T4

STATE OF NEW JERSEY IN THE INTEREST OF A.D., A MINOR A-3720-09T4; A-3721-09T4

We reverse the trial court's denial of the State's motion to transfer jurisdiction from the Family Part to the Law Division. Both defendants were just shy of eighteen when they were charged with Chart 1 offenses, including murder. Defendants' claims of duress and renunciation do not negate the existence of probable cause to believe they committed a delinquent act and are insufficient to defeat waiver. 05-09-11

STATE OF NEW JERSEY VS. JAMES E. BARLOW A-2593-09T3

STATE OF NEW JERSEY VS. JAMES E. BARLOW A-2593-09T3

We find that counsel rendered ineffective assistance to defendant when she declined to file a motion on his behalf to retract his guilty plea and, at the sentencing hearing when retraction was raised, she denigrated defendant's position by disclosing to the judge the independent investigation that sheand her office had undertaken that demonstrated defendant's guilt. Because the judge's determination regarding retraction was made on the basis of the unfavorable record created by defense counsel, we remanded for reassignment of counsel and a hearing on the issue of retraction before a different judge, using pre-sentencing standards. 05-06-11

STATE OF NEW JERSEY VS. GERALD E. NUNNALLY A-6031-09T1

STATE OF NEW JERSEY VS. GERALD E. NUNNALLY A-6031-09T1

In this appeal we addressed the statute governing refusal by a commercial vehicle driver to submit to a breath test (CDL refusal), N.J.S.A. 39:3-10.24, and the general statute penalizing refusal to submit to a breath test (general refusal), N.J.S.A. 39:4-50.4a. We held that a charge of CDL refusal or general refusal requires, as a predicate, an arrest under the corresponding DUI statute, N.J.S.A. 39:3-10.13 or N.J.S.A. 39:4- 50. Here, where defendant was arrested under the CDL statute, N.J.S.A. 39:3-10.13, and then refused to submit to a breath test, he could not be prosecuted for general refusal, N.J.S.A. 39:4-50.4a. We also held that, because citing the wrong refusal statute is not a technical defect, R. 7:2-5, and because CDLrefusal is not a lesser included offense of general refusal, R. 7:14-2, the State was precluded from amending the complaint to charge defendant with CDL refusal after the ninety-day statute of limitations expired. For future guidance, we noted that a commercial vehicle driver whose conduct violates both the CDL and general DUI statutes may be arrested and charged under either or both statutes. 05-04-11

STATE OF NEW JERSEY VS. JEROME KENNEDY A-5677-09T3

STATE OF NEW JERSEY VS. JEROME KENNEDY A-5677-09T3

The offense of tampering with physical evidence is "an offense involving dishonesty," which requires the forfeiture of public office or employment under N.J.S.A. 2C:51-2(a)(1). 05-02-11

PORT IMPERIAL CONDOMINIUM ASSOCIATION, INC. VS. K. HOVANIAN PORT IMPERIAL URBAN RENEWAL, INC., ET AL. A-1013-10T1

PORT IMPERIAL CONDOMINIUM ASSOCIATION, INC. VS. K. HOVANIAN PORT IMPERIAL URBAN RENEWAL, INC., ET AL. A-1013-10T1

We uphold summary judgment in favor of defendants under the statute of repose, N.J.S.A. 2A:14-1.1, which precludes construction defect claims against subcontractors who completed improvements to real property more than ten years before the filing of complaints against them, regardless of when the injury occurred or the cause of action otherwise accrued. For the statute to apply, these improvements must have resulted in a defective and unsafe condition that is hazardous to the well- being and safety of persons or property. Here, we reject plaintiff condominium association's contention that ongoing settlement of buildings into the soil created merely expensive and inconvenient repairs. We find the nature of the allegations and the supporting evidence substantiate the finding that defendants' improvements caused both functional impairment, with consequential economic losses, and a hazardous condition, qualifying defendants for protection under the statute. 5-02-11

STATE OF NEW JERSEY VS. WILLIAM REHMANN, JR. A-3291-09T3

STATE OF NEW JERSEY VS. WILLIAM REHMANN, JR. A-3291-09T3

In seeking to prove defendant's blood alcohol content in this DWI prosecution, the State called an expert to testify about the results of a laboratory test performed on defendant's blood sample by another technician. In considering defendant's argument that the failure to produce the other technician violated the rights guaranteed him by the Confrontation Clause of the Sixth Amendment, the court held that in such circumstances the State must call a witness who has made an independent determination as to the results offered. The court concluded that a surrogate witness knowing nothing but what is stated in another's report will not satisfy a defendant's confrontation rights but nevertheless affirmed and found that the State called an appropriate witness because the witness supervised the testing process and signed the laboratory certificate. 04-29-11

E.M.B. VS. R.F.B A-1155-09T1

E.M.B. VS. R.F.B A-1155-09T1

Plaintiff's stated reasons for seeking a final restraining order against her 56 year old son were that he had stolen her car keys, cell phone, bank book, money and some jewelry. Inaddition, plaintiff testified that defendant had locked her out of the house on one occasion and called her a "senile old bitch." The trial court entered a final restraining order based upon harassment. We reverse because theft is not one of the enumerated predicate acts under N.J.S.A. 2C:25-19 and because the evidence was insufficient to prove the thefts or other acts were committed with the requisite purpose to harass. 4-19-11

refusal warning must be given in Spanish STATE v. JUAN LAZO,

refusal warning must be given in Spanish

STATE

v. JUAN LAZO,

Defendant-Appellant. ________________________________

Submitted: May 4, 2011 - Decided: May 18, 2011

Before Judges Axelrad and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5917.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Michelle J. Ghali, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Juan Lazo appeals from an order of the Law

Division finding him guilty of refusing to submit to a

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3171-09T1

breathalyzer,1 on de novo review of a municipal court conviction. Defendant was acquitted in the municipal court of driving while intoxicated. The Law Division imposed the same sentence as had been imposed by the municipal court – thirty days of community service, forty-eight hours in an Intoxicated Driver Resource Center Program, a two-year loss of drivers' license, a $500 fine, and mandatory costs and penalties. We remand.

Defendant was involved in a collision with a parked car. When the police arrived, the odor of an alcoholic beverage was detected on defendant's breath, and the officer observed defendant's movement was slow and his speech was slurred. The officer noticed defendant appeared to speak Spanish and, at the officer's request, a bilingual pedestrian at the scene translated the officer's instructions regarding the field sobriety tests into Spanish. After failing two of the three tests, defendant was arrested and transported to police headquarters. In the Alcotest room, the officer twice read to defendant in English the "Division of Motor Vehicles Standard Statement for Operators of a Motor Vehicle - N.J.S.A. 39:4- 50.2(e)" (standard statement). On both occasions, defendant

1

Defendant was charged and convicted by the municipal court under N.J.S.A. 39:4-50.2. Based on comments in the record, the Law Division appeared to have found defendant guilty of N.J.S.A. 39:4-50.4a.

2

A-3171-09T1

replied "no" to the request he submit to the test. Defendant did not provide any reason for his refusal.

There was a stipulation in municipal court that defendant had consumed three beers on the date he was arrested. Nonetheless, defendant was acquitted of drunk driving but convicted of refusing to submit to a breath test. The Law Division relied, in large part, on our opinion in State v. Marquez, 408 N.J. Super. 273, 286 (App. Div. 2009), in which we upheld a refusal conviction of a defendant who only spoke Spanish and was read the standard statement in English, holding there was no due process requirement the police translate such instruction into Spanish. Specifically, the Law Division found, "[b]ased on the language of Marquez and Widma[i]er,2 the element of a refusal offense does not include proof that the defendant comprehended the police officer's instructions."

Defendant appealed. While the appeal was pending, the Supreme Court decided the Marquez case, reversing our judgment and vacating the portion of the defendant's sentence relating to his refusal conviction. State v. Marquez, 202 N.J. 485, 515 (2010). The Court held "that to 'inform,' within the meaning of the implied consent and refusal statutes, is to convey information in a language the person speaks or understands."

2 State v. Widmaier, 157 N.J. 475, 497 (1999).

3

A-3171-09T1

Id. at 509. On appeal, defendant argues, among other points, that he was not guilty by virtue of the Supreme Court decision in Marquez. We are satisfied this appeal is governed by Marquez. See State v. Rodriguez-Alejo, __ N.J. Super. __ (App. Div. 2011) (slip op. at 8-9) (providing pipeline retroactivity to Marquez). We decline to exercise original jurisdiction and make factual findings in this instance. R. 2:10-5; cf. State v. Rodriquez-Alejo, supra, slip op. at 10. Accordingly, we remand to the Law Division to consider defendant's arguments in light of the principles enunciated by the Supreme Court in Marquez. We take no position on the merits.

Reversed and remanded. We do not retain jurisdiction.

4

A-3171-09T1

Municipal Court Practice program May 19 Thursday 1-2:30pm NJSBA Annual Meeting Borgata Hotel Atlantic City

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Speakers: Kenneth Vercammen, Edison

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Send email to VercammenLaw@Njlaws.com. and select up to five forms or motions you request. The materials will be sent to you within 4 days, or fax your email address to

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Name ___________________

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02 Lt of rep only

02 Discovery letter

02a DISC to DMV/MVC

02d Disc Complainant

03D Retainer-MUN COURT

04 Hearing notice

Bail reduce Motion

Brief post convict vacate plea

Conditional Discharge Pet Cl

constructive poss

Court cannot handle discovery

DISC to Client from Prosecutor

DUI Motions non disc- jury

DWI- Blood defense brief

DWI- expert letter

MIRANDA brief

More disc brief

Motion for Civil Reservation

Motion for Slap

Motion- Dismiss No disc mun Pros

Mun Ct Interview

MVC points list

No discovery dismiss Brief

OBJ TO LAB CERT

Order mark try or dismiss

Pros- missing abstract

Refusal Brief wrong statement

Suppression-Miranda

SUPPRESSION MOTION

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Chun discovery brief

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DWI STATE v PATRICIA DRISCOLL DOCKET NO. A-5842-08T4

DWI STATE v PATRICIA DRISCOLL

DOCKET NO. A-5842-08T4

February 24, 2011

Before Judges Payne and Koblitz.

Latham & Watkins, LLP, attorneys for appellant (Scott G. Kobil and Matthew N. Gibbon, on the briefs).Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Special Deputy Attorney General/Assistant Essex County Prosecutor, of counsel and on the brief).

Defendant Patricia Driscoll appeals her second conviction of driving while intoxicated, N.J.S.A. 39:4-50.   She was sentenced to thirty days of community service, forty-eight hours of Intoxicated Driver Resource Center (IDRC) classes, and her driving privileges were revoked for two years.   Appropriate fees, fines and penalties were assessed.   On appeal, defendant argues that the Law Division erred in finding her guilty on the basis that she could not prove her defense beyond a reasonable doubt.¹  After reviewing the argument in light of the applicable law, we are constrained to agree and reverse.

At trial in the municipal court, Detective Charles Zampino of the Fairfield Police Department testified to the following facts.   At 12:24 a.m. on June 2, 2007, he observed defendant driving at a very slow rate of speed on Route 46.   Defendant then exited Route 46, and in doing so, she drove over the solid line and onto the shoulder of the roadway.   The car then made a slow, wide left turn, and the car's front tire hit the curb.   Zampino said the car then drove through a red light, stopping suddenly to make a right turn.   Zampino stopped the car and spoke to defendant.   She informed him that she came from a club where she had been dancing with friends and was now lost.

Defendant appeared disoriented, her pupils were constricted, her speech was slow and slurred, and she kept licking her lips and sticking out her tongue.   Zampino conducted road-side sobriety tests, noting that defendant swayed when walking.   Zampino found no nystagmus (involuntary eye movements thought to be brought on by alcohol intoxication ² ) after administering the horizontal gaze nystagmus test (HGN).  Defendant told him that she suffered from Lyme disease and could not perform the “walk and turn” test.   She could not stand on one foot while counting as instructed.   She was unable to recite the alphabet beginning at the letter “K.” After the “finger count” test was demonstrated by Zampino, defendant also failed two attempts at that field sobriety test.   Defendant was arrested and taken to police headquarters.

Fairfield Police Officer Christopher Nicholas testified that defendant had a zero reading on the breathalyzer.   He testified that he administered the Miranda warnings.  Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L. Ed.2d 694, 706-07 (1966).   Defendant then indicated she had slept only two and one-half hours the previous night, had Lyme disease, and was under the care of a doctor who had prescribed Paxil and Fioricet with codeine.   Defendant indicated she had most recently taken one Fioricet with codeine pill on the morning of June 1.

Nicholas testified that defendant was cooperative, polite and calm, but her coordination was poor, her face flushed and her speech slurred.   She had watery eyes and droopy eyelids.   However, he testified that her eyes were able to focus on stimuli and follow quickly.   Nicholas testified that he again administered field sobriety tests, which defendant was unable to complete successfully.   Nicholas said that he measured defendant's pupils as constricted in darkness and in room light, and they showed little to no reaction to a flashlight.   Defendant's blood pressure and temperature were at the low-normal range.   He also found no nystagmus after again administering the HGN. Nicholas, a certified drug recognition expert, testified that the combined results of all of the tests he administered indicated that defendant “was impaired and was unable to operate a motor vehicle safely due to the fact that she was under the influence of a narcotic.”

Defendant had in her possession a small pill bottle with six blue-gray tablets.   Her urine test revealed the presence of codeine and butalbital with no quantitative analysis.   She stated that she was under the care of Dr. Nabil Yagzi, who prescribed the medication she took to treat headaches.   She said her prescription for Fioricet with codeine, the blue-gray tablets, called for one pill every four hours as needed.

Defendant testified to the following facts.   She was “fast dancing” with her friends at a club that night.   She felt fine when leaving the club, but had little memory of what followed.   She recalled being disoriented.   She was diagnosed with Lyme disease in 1990 and never made a full recovery.   Her symptoms include headaches, arthritis and joint pain, memory loss, disorientation, flu-like symptoms, difficulty sleeping, and trouble staying awake.

Dr. Yagzi, defendant's treating doctor and an expert in neurology, was unavailable to testify in municipal court as he was attending a funeral outside of the country.   He was allowed to testify at the trial de novo in the Law Division.   R. 3:23-8(a).   Dr. Yagzi testified to the following facts.   Defendant suffered from chronic intractable headaches, which upon occasion caused her to become disoriented and lose her balance.   Beginning in 1998, he had prescribed Fioricet with codeine (also containing caffeine, acetaminophen and butalbital) every four to six hours as needed.   A few years before he added Paxil, to be taken once a day at bedtime.   Paxil may enhance the effects of both the codeine and butalbital contained in Fioricet with codeine.

Although the Physicians' Desk Reference ³ indicates that Fioricet with codeine may impair a patient's mental and/or physical abilities required for driving, Dr. Yagzi concluded that it would not affect defendant's driving if taken as prescribed because her brain had adapted to the medication regimen through long-term use.   He said the codeine would be detectable in urine for up to forty-eight hours and the butalbital for up to seven days.

Dr. Yagzi believed all of defendant's symptoms at the time of the motor vehicle stop on June 2 were due to Lyme disease, fatigue and potential presyncope (which he said was a condition of near-fainting including symptoms of dizziness, disorientation, confusion, loss of balance and mild cognitive dysfunction).   The blood pressure and temperature results were normal for defendant.   Although defendant was successfully treated for Lyme disease, she still suffered from poor balance, lack of coordination and clumsiness, which worsened when she was fatigued or suffering from a headache.

Although initially deciding to let Dr. Yagzi testify in the proceedings in the Law Division so the court could “rule whether, in fact, he produce[d] a reasonable doubt or not with regard to the allegations alleged against defendant,” the court stated on June 9, 2009, after hearing Dr. Yagzi's testimony, that the defense “has the burden of proof with regard to raising the defense in this matter.”

The court gave an oral opinion on the record on June 16, 2009, finding defendant guilty of driving under the influence.   In this oral opinion the court discussed Dr. Yagzi's testimony, stating,

On balance I don't find the doctor's testimony credible.   While there were certain symptoms that were exhibited by the defendant at the time of the traffic stop, this expert could not render an opinion beyond a reasonable doubt that ․ the symptoms were caused by a medical condition and not by the ingestion of a controlled dangerous substance.

․

The observations of the defendant are common in patients with fatigue, headaches, as well as those with alcohol or drug intoxication.   However, the symptoms exhibited may have been the result of use or ingestion of a controlled dangerous substance as confirmed by the lab reports, which are entered into evidence.   Therefore, as a reasonable doubt exists as [to] the [etiology] of the observed symptoms, the defendant cannot sustain the burden of proving beyond a reasonable doubt the defense offered in this case.

[Emphasis added.]

Defendant raises the following arguments on appeal:

THE LAW DIVISION COMMITTED PLAIN ERROR BY IMPOSING ON DEFENDANT THE BURDEN TO PROVE HER INNOCENCE BEYOND A REASONABLE DOUBT, AND BECAUSE THE LAW DIVISION CONCLUDED THAT REASONABLE DOUBT EXISTED, DEFENDANT'S CONVICTION FOR DRIVING WHILE INTOXICATED SHOULD BE OVERTURNED

A.  Standard of Review

B. The Law Division applied an erroneous burden of proof when it imposed upon Defendant the burden of proving her case beyond a reasonable doubt.

C. By incorrectly imposing the burden of proof on Defendant, the Law Division's decision constitutes plain error.

D. Defendant's conviction for driving while intoxicated should be vacated and Defendant should be acquitted on this charge because the State failed to meet its burden of proof beyond a reasonable doubt.

1. Reasonable doubt exists from the record

2.  Because reasonable doubt exists, Defendant must be acquitted

The State argues that because the court indicated at one point that it did not find Dr. Yagzi credible, it did not intentionally shift the burden of proof but was merely somewhat confusing in its verbiage.   Thus, the State argues that, at most, we should remand the matter to the Law Division “so that the court may clarify its findings.”   We agree with the State that the trial court intended to find defendant guilty and did so.   As the State argues, on the evidence presented, the court could have found defendant guilty beyond a reasonable doubt, using the standard of proof that our law requires.   See, e.g., State v. Snyder, 337 N.J.Super. 59, 61-62 (App.Div.2001).   The State presented sufficient evidence to sustain a guilty verdict had the fact-finder been convinced beyond a reasonable doubt of her guilt.

On the other hand, defendant presented evidence that she suffered from Lyme disease, headaches and fatigue, which could explain her poor driving and poor performance on field sobriety tests.   She had a prescription for a medication that explained the presence of drugs in her urine.   This evidence could have easily raised a reasonable doubt in the fact-finder's mind.   The fact-finder found a reasonable doubt yet convicted defendant nonetheless.   If we remand to the fact-finder for clarification, we would be inviting the court to make a finding inconsistent with its stated finding of reasonable doubt.   Findings are not formulaic phrases lacking serious import.   When the trial court finds a reasonable doubt, we accord great weight to that finding.   We do not accept that a finding of reasonable doubt is merely a poor word choice or result of some confusion in the court's mind.

Because the court incorrectly transferred the burden of proof to defendant at the end of the testimony on June 9, 2009, without objection by the defense, defendant frames her argument in terms of “plain error.”   We do not agree that a plain error analysis pursuant to Rule 2:10-2 is appropriate where the trial court shifts the burden of proof in its oral decision.   At this point the trial is over, and defense counsel is not required to interrupt the court to register an objection.   Moreover, even in a “plain error” analysis, finding defendant guilty because defendant has raised a reasonable doubt but failed to prove her defense beyond a reasonable doubt is “clearly capable of producing an unjust result.”   R. 2:10-2.   Based on the trial court's findings, defendant is not guilty of driving under the influence.

Reversed.

FOOTNOTES

1. FN1. She was also convicted in municipal court of careless driving, N.J.S.A. 39:4-97, and failure to observe traffic signals, N.J.S.A. 39:4-81.   The court merged the failure to obey traffic signals conviction into the conviction for careless driving.   Defendant does not appeal this conviction.

2. FN2. See State v. Doriguzzi, 334 N.J.Super. 530, 536-38 (App.Div.2000) (explaining that HGN tests are not generally accepted by the scientific community).

3. FN3. Physicians' Desk Reference is a reference book that lists potential side effects of prescription medication.   See Feldman v. Lederle Labs, 97 N.J. 429, 436 (1984).

PER CURIAM

Commercial DWI Refusal and General Refusal distinct statutues STATE v NUNNALLY A-6031-09T1

STATE v NUNNALLY A-6031-09T1

In this appeal we addressed the statute governing refusal by a commercial vehicle driver to submit to a breath test (CDL refusal), N.J.S.A. 39:3-10.24, and the general statute penalizing refusal to submit to a breath test (general refusal), N.J.S.A. 39:4-50.4a. We held that a charge of CDL refusal or general refusal requires, as a predicate, an arrest under the corresponding DUI statute, N.J.S.A. 39:3-10.13 or N.J.S.A. 39:4- 50. Here, where defendant was arrested under the CDL statute, N.J.S.A. 39:3-10.13, and then refused to submit to a breath test, he could not be prosecuted for general refusal, N.J.S.A. 39:4-50.4a. We also held that, because citing the wrong refusal statute is not a technical defect, R. 7:2-5, and because CDL refusal is not a lesser included offense of general refusal, R. 7:14-2, the State was precluded from amending the complaint to charge defendant with CDL refusal after the ninety-day statute of limitations expired. For future guidance, we noted that a commercial vehicle driver whose conduct violates both the CDL and general DUI statutes may be arrested and charged under either or both statutes.5-04-11

DWI reversed , pause a green light not sufficient to stop car STATE v BRACKIN, DOCKET NO. A-5994-09T2

DWI reversed , pause a green light not sufficient to stop car

STATE v BRACKIN, DOCKET NO. A-5994-09T2

Defendant-Appellant. _________________________________________________

Submitted February 3, 2011 - Decided May 4, 2011 Before Judges Wefing, Payne and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-097.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Franzblau Dratch, attorneys for appellant (Brian M. Dratch, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for defendant (Matheu D. Nunn, Assistant Prosecutor, on the brief).

PER CURIAM Defendant, Sean Brackin, appeals from an order of the Law

Division, following a trial de novo on the municipal court record, finding him guilty of driving while intoxicated (DWI). N.J.S.A. 39:4-50. On appeal, he makes the following arguments:

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5994-09T2

POINT I

OFFICER TOBIN LACKED THE REQUISITE REASONABLE AND ARTICULABLE SUSPICION TO STOP BRACKIN'S VEHICLE WHICH REQUIRES A DISMISSAL OF THE SUMMONSES ISSUED TO BRACKIN.

POINT II

THE TRIAL JUDGE'S RELIANCE ON STATE v. MAHON AN UNPUBLISHED OPINION, WITHOUT PRIOR NOTICE OF SUCH RELIANCE, DEPRIVED BRACKIN OF HIS CONSTITUTIONAL RIGHTS OF NOTICE AND AN OPPORTUNITY TO BE HEARD, IN ANY EVENT THAT OPINION IS CLEARLY DISTINGUISHABLE FROM THE FACTS HEREIN.

Prior to trial in the municipal court in this matter, defendant moved to suppress the evidence of his intoxication and other offenses, arguing that the police had lacked a reasonable suspicion of wrongdoing sufficient to justify the stop of his vehicle. At a hearing on defendant's suppression motion, testimony on behalf of the State was given by Denville Police Officer Scott Tobin. He testified that, on October 9, 2009, at approximately 11:00 p.m., he was stopped at a traffic light on Franklin Road and Route 10, facing south toward Route 10. While there, the Officer observed a vehicle, later determined to be operated by defendant, on Route 10 west, stopped at the light, which was green. When asked how long defendant remained stopped at the light, Tobin responded:

Approximately I believe maybe 10 seconds or so. It wasn't . . . you know, that long of time, but again long enough

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that I believe that when someone has a green light, you know they're going to go through.

Defendant then proceeded on the green,1 but was stopped by Tobin, who thought "[e]ither something was wrong with him or his vehicle that someone would sit . . . at a traffic light." No vehicle was behind defendant's car while he was stopped at the light, and defendant committed no motor vehicle offenses after commencing to proceed through the light.

At the conclusion of Tobin's testimony, counsel for defendant argued that the stop was unjustified. In support of that position, counsel relied on State v. Cryan, 320 N.J. Super. 325 (App. Div. 1999), in which we held that the fact that a vehicle, at 4:25 a.m., remained stopped at a light for five seconds after it turned green, then proceeded slowly to turn left, did not justify a police stop of the vehicle under the police's community caretaking function. Additionally, counsel argued that, to the extent that Tobin claimed defendant's conduct was delaying traffic, he had cited to the wrong statute, N.J.S.A. 39:4-56, which is applicable only to delays caused by the condition, construction or loading of a vehicle, not the

1

Tobin's report of the incident stated: "The vehicle was stationary at the light for some time even though the driver had a green light. A short time later, the vehicle started to accelerate through the intersection and proceed on Route 10 west bound."

3

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conduct of its operator. The State argued that the Officer had merely cited to the wrong statute, and that the proper one was N.J.S.A. 39:4-67, which governed obstruction of the passage of other vehicles. Further, the State sought to distinguish Cryan on the basis that it concerned a five-second infraction, whereas the present case concerned a ten-second one.

The judge denied defendant's motion, although the basis for that denial was not clearly set forth. Thereafter, defendant entered a conditional plea of guilty to a second DWI offense, admitting to a blood alcohol content reading of 0.2 as the result of consuming vodka and cranberry juice. The remaining charges against defendant of reckless driving and obstructing the passage of other vehicles were conditionally dismissed.

On appeal to the Law Division, following a review of the record and oral argument on the law, the judge found that reasonable suspicion sufficient to justify the stop had been demonstrated as the result of defendant's delay in proceeding on a green light. In reaching his conclusion, the judge relied on an unpublished opinion2 affirming a determination that reasonable suspicion was raised by defendant's conduct in remaining stopped after a light turned green for more than sixty seconds and by

2

State v. Mahon, No. A-0288-07 (App. Div. May 12, 2008), certif. denied, 196 N.J. 465 (2008).

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the fact that the defendant looked directly at the police officer before proceeding slowly through the intersection. In that decision, Cryan was distinguished on the basis that the delay in proceeding was much shorter and the driver did not look directly at the police. Despite the fact that the evidence in the present case more closely resembled that of Cryan than the unreported decision upon which the judge relied, he found the stop to have been justified. After finding defendant guilty, the judge imposed fines and surcharges, a two-year loss of license and registration privileges and forty-eight hours of instruction at the Intoxicated Driver's Resource Center. A stay of sentence pending appeal was denied.

On appeal, defendant again argues that, as the result of our opinion in Cryan, charges against him should have been dismissed. Although defendant's blood alcohol content was very high, and his conviction for driving while intoxicated was otherwise justified — a matter that we hope has been fully considered by defendant in determining the future course of his conduct — we agree that a pause of the length that Officer Tobin testified to observing is not of sufficient length to have raised community caretaking concerns, particularly in circumstances in which defendant's driving after commencing to proceed through the light was unexceptionable.

5

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We reject the argument that Officer Tobin's identification of the wrong statute when citing defendant for conduct that obstructed traffic provides an alternative ground for relief. Unlike State v. Puzio, 379 N.J. Super. 378 (App. Div. 2005), upon which defendant relies, in the present case, the Officer did not hold a mistaken view of the law at the time he stopped defendant. Compare id. at 381-84. Rather, he understood the law, but misstated the statutory reference. Nonetheless, Officer Tobin could not have had a reasonable belief that a traffic law had been violated, id. at 383, thereby justifying the stop, because as he testified, no cars followed defendant's, and thus there was indisputably no traffic to obstruct. Thus, we adhere to our conclusion that a reasonable, articulable suspicion that a motor vehicle violation had been committed was not established.

In light of our resolution of defendant's first argument point, we find it unnecessary to address his second argument.

Reversed. Defendant's conviction is vacated.

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A-5994-09T2

STATE v CHRISTIAN BLANCO DOCKET NO. A-4299-07T4

STATE v CHRISTIAN BLANCO DOCKET NO. A-4299-07T4

Decided:

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 03-05-0678; 04-04-0466;[1] 06-10-1521.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

PER CURIAM

Following denial of his motion to suppress evidence seized as a result of a warrantless search of defendant's automobile, defendant Christian Blanco pled guilty to third degree possession of a controlled dangerous substance (marijuana) with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(11). At sentencing, the judge imposed a three-year prison term.[2] On appeal, defendant argues that his motion to suppress should have been granted. We affirm in part and reverse in part.

At approximately 4:30 p.m. on July 23, 2006, defendant was driving a rental car eastbound on Leonardine Avenue in South River. Having set up a radar checkpoint at the intersection of Leonardine and Sheinfeine Street, Patrolman Alphonso Saucedo was observing passing vehicles. As defendant's car passed the officer's observation post, the officer noticed defendant look at his car, "and then he did a double take." In doing so, the officer saw defendant turn his body to look at him. At this time, Saucedo noticed defendant was not wearing a seatbelt.

Saucedo stopped defendant's motor vehicle on a portion of Leonardine, where there was a slight bend in the road, and no shoulder. Although Leonardine is a busy thoroughfare, July 23 was a Sunday, so the traffic was not as heavy as it normally is on a weekday. In fact, a line of vehicles never formed to maneuver around the stopped cars, although the stop closed one lane of the road.

After notifying the dispatcher of the stop, Saucedo approached defendant's car and noticed defendant "leaning over towards . . . the passenger seat." As defendant righted himself, Saucedo approached the vehicle, advised defendant of the reason for the stop, and asked him for his license, registration, and insurance card. He also inquired why defendant was moving around so much; defendant replied he was looking for his paperwork. Saucedo noticed paperwork strewn all over the passenger seat of defendant's car.

After receiving defendant's credentials, Saucedo advised him not to move around any more and told him he would return shortly. Saucedo entered the police car to check defendant's credentials. Patrolman Joseph Castellano, the supervisor that day, arrived on the scene as a matter of protocol. Saucedo informed Castellano that defendant was "making movements towards the passenger seat," and asked Castellano to watch defendant as he wrote the ticket.

Castellano stationed himself at the rear passenger side bumper of the defendant's car, where he had an unobstructed view of defendant. Shortly thereafter, he noticed defendant leaning over and yelled at him to stop. Defendant immediately sat up. Saucedo looked up as he was writing the summons and also noticed defendant's actions. Castellano started to walk along the passenger side of the vehicle; Saucedo put down his summons book and approached the driver-side window. Saucedo asked defendant why he was moving around, and "he stated that he was just fixing papers and picked up papers like that . . . he got like upset [a] little bit." When defendant picked up the papers, Saucedo observed approximately three inches of a clear plastic bag. The bag contained "greenish brown vegetation," and was "partially tucked between the passenger [seat] and the middle console area."

Saucedo opened the driver's door, directed defendant to step out of the vehicle and stand by the rear of the car. Castellano then moved from his position on the passenger side towards defendant. Saucedo placed one knee on the driver's seat and reached into the car to retrieve the bag. As he did so, Saucedo smelled the odor of marijuana, but assumed it emanated from the bag he had just retrieved. After showing the bag to defendant, Saucedo placed defendant under arrest, escorted him to his patrol car, conducted a pat down, and secured defendant inside the back of the car.

Saucedo called for a tow after securing defendant because he did not want to leave the car in the bend of the road. Moreover, because the car was rented, there was no owner available to remove the car. Initially, the car was to be towed to a garage, not the police station.

In anticipation of the arrival of the tow truck, Castellano leaned into the car and removed the keys from the ignition. As he pulled the key from the ignition, he smelled raw vegetation. Castellano "took the keys, put them in [his] top pocket and then [he] put more of [his] body in between the driver's side seat and the passenger seat to smell where the odor was coming from." He decided that he needed to search the car further.

Castellano looked around the front seat, but did not see anything; therefore, he focused his attention on the back seat. Castellano entered the back seat, where the odor was the strongest, and laid on the floor. Not finding anything, he attempted to pull down the armrest in the back seat. Because it seemed stuck, he pulled hard and "half of the seat folded down."

Castellano observed a large plastic bag with "a large amount of greenish brown vegetation which looked to be marijuana . . . ." Castellano removed that bag from behind the rear seat. Once he removed the first bag, Castellano was able to see a partially open bag inside the compartment. Using his flashlight, he "saw more greenish brown vegetation." Castellano retrieved that bag as well. Due to the large amount of marijuana found, Castellano contacted the detective bureau, which advised him to have the car towed to police headquarters.

The motion judge found both officers credible and held the search of the interior of the car was reasonable and valid. He found the seizure of the small bag of marijuana was justified by the plain view doctrine because the officer observed it as defendant shuffled and lifted papers. Directing his attention to the large bags of marijuana, the judge found police had probable cause to believe there were additional drugs in the car due to defendant's actions and the smell. The judge found the police actions reasonable in light of probable cause and exigent circumstances. The judge stated, "[t]here is exigent circumstances with a car. It was a rented car. It wasn't even the defendant's car." Therefore, the judge held the stop was reasonable and valid under State v. Flowers, 328 N.J. Super. 205 (App. Div. 2000).

On appeal, defendant raises the following arguments:

POINT I

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE WARRANTLESS VEHICLE SEARCH.

A. THERE WAS NO EXIGENCY JUSTIFYING OFFICER CASTELLANO'S FULL SEARCH OF DEFENDANT'S VEHICLE AFTER THE DEFENDANT HAD BEEN REMOVED FROM HIS CAR, ARRESTED, HANDCUFFED, AND SECURED IN THE POLICE VEHICLE.

B. THE STATE FAILED TO PROVE BY CREDIBLE EVIDENCE THAT THE WARRANTLESS SEIZURE OF THE SMALL BAG OF MARIJUANA BY OFFICER SAUCEDO WAS LAWFUL.

Defendant argues there were no exigent circumstances to justify the search of the back seat and the area behind the back seat of the car. Defendant further contends the State failed to prove by credible evidence that Saucedo's warrantless seizure of the small bag of marijuana was lawful.

The State insists Saucedo properly seized the small bag of marijuana pursuant to the plain view exception to the warrant requirement. Moreover, the State argues the search of the rear of the car was proper under the automobile exception to the warrant requirement because there were exigent circumstances.

We hold that Saucedo properly seized the small bag of marijuana on the front seat. However, having arrested defendant, secured him in a police car, and called for a tow truck, the police were not confronted with exigent circumstances to justify the warrantless search of the back seat of the car.

The New Jersey Constitution provides the right "of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." N.J. Const. art. I ¶7. The test of reasonableness "is satisfied where the police obtain, upon a showing of probable cause, a search warrant from a neutral magistrate." State v. Bruzzese, 94 N.J. 210, 218 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).

There are a number of judicially recognized exceptions to the warrant requirement. Ibid. Nonetheless, a warrantless search "that does not fall within one of the enumerated exceptions is presumptively unconstitutional." Ibid. "[T]he proper standard for determining the constitutionality of a warrantless search-and-seizure is whether the police officer's conduct was objectively reasonable and in conformity with recognized exceptions to the warrant requirement." Id. at 239.

The automobile exception "permits warrantless searches of readily movable vehicles if law enforcement officers have probable cause to believe the vehicle contains evidence of a crime." State v. Cooke, 163 N.J. 657, 664 (2000). Exigent circumstances, in addition to probable cause, must exist to permit a warrantless search of an automobile. Id. at 661. "[T]he term 'exigent circumstances' is, by design, inexact. It is incapable of precise definition because, by its nature, the term takes on form and shape depending on the facts of any given case." Id. at 676.

This exception "does not stand or fall on the fact that a moving car was stopped and then searched." State v. Colvin, 123 N.J. 428, 433 (1991). However, the stop and search cannot be pre-planned. State v. Alston, 88 N.J. 211, 233-34 (1981). "Police safety and the preservation of evidence [are] the preeminent determinants of exigency." State v. Dunlap, 185 N.J. 543, 551 (2006). The existence of exigent circumstances does not "dissipate simply because the particular occupants of the vehicle may have been removed from the car, arrested, or otherwise restricted in their freedom of movement." Alston, supra, 88 N.J. at 234.

The plain view exception to the warrant requirement requires three things:

First, the police officer must be lawfully in the viewing area. Second, the officer has to discover the evidence "inadvertently," meaning that he did not know in advance where evidence was located nor intend beforehand to seize it. Third, it has to be "immediately apparent" to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.

[Bruzzese, supra, 94 N.J. at 236.]

Because a trial court's decision on a motion to suppress "represents that court's 'interpretation of the law and the legal consequences that flow from established facts,' its conclusion is 'not entitled to any special deference.'" State v. Hupka, 203 N.J. 222, 231 (2010) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, (1995)). We must, however, "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007).

Citing Dunlap, supra, defendant argues any exigent circumstances vanished once he was secured in the police car. The State contends there were exigent circumstances because it was a roadside stop at a bend in the road of a busy thoroughfare. Furthermore, obtaining a search warrant would have been impracticable under the circumstances because defendant was under arrest and had to be transported to headquarters for processing.

In Cooke, the police effected a warrantless search of a locked car parked in an area known for drug-trafficking. 163 N.J. at 662-63. In analyzing whether there were exigent circumstances present to justify the search, the Court stated:

[T]he potential for removal or destruction of evidence existed because [the informant], known to the police because of prior arrests, and at least two other persons observed by [an officer], knew that defendant had engaged in drug transactions. Specifically, [the informant] was present when defendant had been arrested or detained by the police. By fair inference, [the informant] thereby knew that the Escort might be unattended.

[Id. at 673.]

The Court found that the trial court mistakenly relied on the fact that the police possessed the set of keys to the car. "Simply because the police were in possession of one set of keys does not logically preclude the possibility that one or more third parties had another set of keys to gain access to the Escort." Ibid.

Moreover, the Court noted the events occurred rapidly. Ibid. Finally, the Court stated that the officer who had been conducting surveillance on the car "was alone and observing the vehicle from a concealed surveillance point . . . [and] could not leave his post and 'give up' his surveillance point to guard the car." Id. at 674. Thus, it was impracticable and unduly burdensome to require the police to post a guard and apply for a warrant. Ibid.

The Court also noted that no one factor, standing alone, would be sufficient for a finding of exigent circumstances, "[r]ather, it is the combination of factors in this case that justify the warrantless search." Id. at 675. However, the Court concluded that exigent circumstances "would not have existed in the present case if the officer had not observed or reasonably believed that third parties were capable of destroying or removing the evidence contained in the car." Id. at 676.

In Dunlap, police arrested a woman for narcotics and weapons, but she told them that the drugs and gun belonged to the defendant, and agreed to help them. 185 N.J. at 545. She told the officers that "if [the] defendant came to her house, he probably was going to have heroin on him; that she had seen him with guns in the past; and that one of the vehicles driven by [the] defendant, a green Hyundai, was owned by someone with a 'Hispanic name.'" Ibid. The police urged her to call the defendant, and they "obtained telephonic authorization for a consensual telephone interception . . . ." Ibid.

When the defendant arrived at the woman's house, there were approximately eight to ten officers on the scene, two of whom tackled the defendant as he walked towards the door. Ibid. The officers took his keys, opened the door of the Hyundai, smelled burnt marijuana, and "proceeded to search the entire passenger compartment and the glove box and opened a bundle wrapped in magazine paper in the air conditioning vent near the steering wheel." Ibid. The woman told the police there was a "trap" to the left of the driver's seat, and although the police were unable to open it, the woman was able to open it, and they found a loaded gun and 873 packets of heroin. Id. at 546.

This court analyzed the facts of the case in accordance with Cooke, supra, and noted that the Hyundai was

not parked in an open area known for drug trafficking but was, rather, parked on the street in a residential neighborhood. Nor is there any evidence that third persons--including the car's registered owner--had any knowledge of defendant's destination or, more importantly, that he had been arrested. . . . In short, there was no basis here upon which to conclude that a third person might come and destroy or remove evidence in the car.

[Id. at 550.]

Moreover, this court found it relevant that there were approximately ten officers present, and thus, "the State did not establish that an insufficient number would have been left to guard the car." Ibid. Finally, this court noted: "[I]t is not without significance that the investigators here had time to call the prosecutor's office at about 10:00 pm and obtain verbal authorization for the consensual recording of [the] defendant's conversation with [the woman]." Ibid.

Thus, this court reversed the trial court's denial of the motion to suppress, id. at 547, and the Supreme Court "determined that the decision of the Appellate Division is fully supported in every respect by the record and is legally unexceptionable." Id. at 550-51. The Court added: "Here, the unique facts, particularly the presence of ten officers, fully justified the Appellate Division's conclusion that exigency was absent. Different facts, such as a roadside stop effectuated by only one or two officers, would likely have changed the calculus." Id. at 551.

Recently, the Supreme Court in State v. Pena-Flores, 198 N.J. 6, 28 (2009), reiterated the test for the automobile exception. The Court stated: "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." Ibid.

The Court also reiterated that exigency must be determined on a case-by-case basis. Ibid. The Court stated that there is no "magic formula" to determine when there are exigent circumstances. Id. at 29. Rather, "it is merely the compendium of facts that make it impracticable to secure a warrant." Ibid. To help in this determination, it set out, "by way of example but not limitation," id. at 29 n.6, a list of considerations including:

the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; 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.

[Id. at 29.]

In Pena-Flores, the Court considered the automobile exception in the context of two factual scenarios. In the first set of facts, the defendants had been removed from the car but had not been arrested. Id. at 30. Only two officers were on the scene. Ibid. The Court held exigent circumstances justified the warrantless search of the car. Id. at 31. In the second scenario, police stopped the car driven by the defendant on a city street in the early afternoon, arrested and secured him in the police car, and no one had ready access to the vehicle. Id. at 32. Under these circumstances, the Court found exigent circumstances did not exist. Ibid.

Here, the motor vehicle stop was unexpected. Castellano had probable cause to believe there was contraband in the car. See State v. Nishina, 175 N.J. 502, 515-16 (2003) (the smell of marijuana itself constitutes probable cause). On the other hand, the stop took place on a Sunday afternoon when the traffic was light. A line of cars never formed as the officers effectuated the stop, arrested defendant, and searched the car. Furthermore, the officers called for a tow truck to remove the car as soon as defendant was arrested. The record is also bereft of any evidence that third parties knew of or had the occasion to remove or destroy the drugs in the car.

This case is the factual scenario anticipated by Cooke, and is analogous to the second scenario in Pena-Flores. Pena-Flores, supra, 198 N.J. at 31-33. Indeed, the facts of Pena-Flores are substantially similar to this case, except here the officers had already initiated measures to impound the car. The record contains not even a suggestion that one of the officers could not have remained with the car as the other sought a warrant. Under the circumstances of this case, the warrantless search of the back seat and the area behind the back seat was not reasonable. We, therefore, reverse that portion of the order denying defendant's motion to suppress the marijuana seized behind the back seat.

On the other hand, the first small bag of marijuana was properly seized. Having observed defendant driving without a seatbelt, Officer Saucedo had probable cause to stop the vehicle. Once defendant lifted papers from the passenger seat, the small bag containing marijuana was readily observable to Saucedo. The motion judge properly found the small bag of marijuana on the front seat was in plain view. As such, he properly denied the motion to suppress as to this initially observed and seized bag.

Affirmed in part; reversed in part.

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[1] Indictment Nos. 03-05-0678 and 04-04-0466 appear on the Notice of Appeal. Because defendant has not briefed any issues as to these indictments, we deem them waived. W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 459 (App. Div. 2008).

[2] The October 19, 2007 Judgment of Conviction recommended that defendant be considered for the Intensive Supervision Program. According to the Department of Corrections inmate locater website, https://www6.state.nj.us/DOC_Inmate/inmatefinder?i=I (last visited Feb. 24, 2011), defendant was released from custody on April 22, 2008.