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NOT FOR PUBLICATION WITHOUT THE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.
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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.
