STATE OF NEW JERSEY v. LAMBERT A-5323-09T4 May 5, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5323-09T4

STATE OF NEW JERSEY, Plaintiff-Appellant, v. ZAIRE E. LAMBERT, Defendant-Respondent.

Submitted January 25, 2011 - Decided May 5, 2011

Before Judges Wefing, Payne and Koblitz.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

Indictment No. 09-09-3055.

Warren W. Faulk, Camden County Prosecutor,

attorney for appellant (Rachael Minardi,

Assistant Prosecutor, of counsel and on

the brief).

Yvonne Smith Segars, Public Defender,

attorney for respondent (Diane Toscano,

Assistant Deputy Public Defender, of

counsel and on the brief).

PER CURIAM

Defendant was charged with one count of unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and one count of receiving stolen property, N.J.S.A. 2C:20-7. Defendant filed a motion to suppress the evidence seized during a search of a vehicle, and the trial court granted the motion. The State appeals, pursuant to leave granted, from the trial court's order granting that motion. After reviewing the record in light of the contentions advanced on appeal, we reverse.

One witness testified at the motion, Patrolman Al Higginbotham of the Clementon Police Department. Higginbotham was on routine patrol on the night of May 13, 2009, and shortly after 11:00 p.m. was patrolling the area around the Pine Valley Court Apartments, a multi-building complex; he was in a marked troop car, by himself. Higginbotham testified that the area was "a high crime area, [with] a lot of drugs, a lot of burglaries, had a couple of home invasions there, assaults." He himself had made a number of arrests in the area.

He noticed a car in the parking lot with its lights out in which several people were sitting. He decided to approach the car because of his knowledge of the area's reputation for narcotics trafficking. Before doing so, however, he radioed his intention to the department's central dispatch. Higginbotham stopped his patrol car behind the parked vehicle and perpendicular to it. He said he did not block the vehicle in when he parked his patrol car and that there was sufficient room for the vehicle to back up and leave if the driver had wanted to do so. While he did not formally request the assistance of back-up units, two other patrol cars, which had evidently been nearby, pulled into the lot as he was getting out of his patrol car and approaching the parked vehicle. He identified the other two officers as Patrolman Clark and Sergeant Laub. Higginbotham testified that it was a common procedure for central dispatch to notify other units in the area that an officer was going to investigate a suspicious vehicle. He said that when they arrived, they also got out of their vehicles and came toward the car. None of the three officers turned on the emergency lights in their patrol cars. He also said that while he did not remember how the two officers parked their patrol cars, he did not believe that they would have prevented the driver from moving his car from the scene if he had wanted to do so. The defense did not present any testimony that the patrol cars in any way hemmed in the other car.

Higginbotham testified that it was very dark in the parking lot and that it was not until he approached the car, that he could see that three individuals were in the car, the driver, the front-seat passenger, and the driver's-side, rear-seat passenger. The driver's-side window was partially rolled down, and as he approached the car, he could detect the odor of raw marijuana. The driver rolled down his window all the way, and the odor of marijuana became stronger. Higginbotham asked the driver why he was parked there, and the driver responded that he had been visiting his cousin and came outside to talk to his friends. Higginbotham asked the driver where was his cousin and the driver answered, "The F Building right there." He was pointing, however, to the "J" Building.

Higginbotham then asked for identification from all three men, and two were able to produce documentation; the third identified himself verbally. None of the three lived at the apartment complex. Higginbotham then called his dispatcher and asked that a warrant check be run; he learned that there was an outstanding warrant for the driver. He then asked the driver to step out of the car and spoke to him at the rear. He asked who owned the car, and the driver responded that it belonged to the front-seat passenger, defendant. Higginbotham again asked the driver where he was coming from, and this time he pointed toward the "F" Building and said he was coming from the "F" Building. When asked why, just a few minutes earlier, he had pointed to the "J" Building, he denied doing so.

Higginbotham placed the driver in one of the other patrol cars that had responded to the scene and then approached defendant, the front-seat passenger. He asked defendant if the car was his, and he responded that his mother leased it. Higginbotham again smelled the odor of raw marijuana and asked defendant and the individual in the back seat to both step out, and they did so. Higginbotham asked if he could search the car, and defendant agreed. Higginbotham gave him a form to execute, indicating his consent, and defendant signed it. Higginbotham testified that before defendant signed the form, he explained it to defendant, and explained that he did not have to agree to the search. He said that defendant's demeanor was cooperative throughout and that he signed the form willingly.

Although the consent form was admitted into evidence at the hearing, it has not been supplied to us in connection with the appeal. From testimony presented, however, the following additional facts were presented. The time noted for execution of the form was 10:30 p.m. Higginbotham testified that was clearly incorrect, that the time was 11:30 p.m. He also testified, however, that defendant inserted the time when he signed the form, not Higginbotham. In addition, execution of the form gave consent to search two vehicles, the one in which the three men had been sitting, and another, parked nearby. Higginbotham testified that defendant told him that he owned that vehicle, and thus Higginbotham included it on the form.

After obtaining defendant's consent, Higginbotham entered the car and uncovered what he termed a "chunk" of marijuana between the seat and the center console, which he estimated at less than fifty grams. With that discovery, Higginbotham called the dispatch office to see if there was a K-9 unit in the area. He learned that one was nearby and would respond to the scene. It arrived in approximately ten minutes. Higginbotham said he did not conduct any further search of the car in the interim but simply waited for the K-9 unit to arrive. Higginbotham testified that one of the reasons he waited was Sergeant Laub's uncertainty whether the executed consent form conferred permission to search the trunk. While they were waiting, Sergeant Laub contacted someone from the prosecutor's office, who advised him that it did.

When the dog did arrive, his handler first placed him in the car and then had him walk around the car. The handler told Higginbotham that the dog had reacted both to the car's console and the trunk. Higginbotham opened the console and found cash in the sum of $632, in denominations of twenty dollars and less. Higginbotham, together with Sergeant Laub, then turned to the trunk, opening it with the keys that had been in the ignition. They could see the remnants of marijuana on the driver's side panel. They looked further and came upon a loaded Taurus nine millimeter pistol in the wheel well area. They called in the weapon's serial number to dispatch and learned that it had been reported as stolen in Pennsauken. Defendant was placed under arrest. Based upon a supervisor's recommendation, Higginbotham did not search the vehicle that defendant had identified as belonging to him.

Following this testimony, the trial court granted defendant's motion to suppress. In the court's oral opinion, it made no findings with respect to Higginbotham's credibility, i.e., whether it accepted his testimony as credible or did not. In that opinion, it rejected the State's characterization of Higginbotham's initial encounter with the three occupants of the car as a field inquiry. It stressed the presence of the three patrol cars on the scene and its view that as a consequence, the driver of the car in question would not have considered himself free to leave the scene. It concluded, rather, that it was an investigatory stop, and since Higginbotham did not have reasonable and articulable suspicion to support an investigatory stop, the subsequent search, although done with consent, was invalid. Thereafter, we granted the State's motion for leave to appeal.

On appeal, the State raises the following arguments for our consideration:

POINT I: THE TRIAL COURT ERRED IN FINDING THAT OFFICER HIGGINBOTHAM DID NOT POSSESS REASONABLE AND ARTICULABLE SUSPICION TO CONDUCT AN INVESTIGATIVE STOP OF DEFENDANT.

[Raised Below.]

POINT II: THE TRIAL COURT ERRED IN FINDING THAT OFFICER HIGGINBOTHAM'S INITIAL CONTACT WITH DEFENDANT CONSTITUTED AN INVESTIGATIVE DETENTION; RATHER, THE POLICE ENCOUNTER BEGAN AS A LAWFUL FIELD INQUIRY. [Raised Below.]

We note initially the standard governing our review of this matter. "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record . . . . [A] trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)). Our review of its legal conclusions, on the other hand, is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Our New Jersey Constitution provides similar protections. N.J. Const. art. I, ¶ 7. Not all encounters between a citizen and the police implicate the Fourth Amendment. For instance, police may approach a person in a public place and ask him if he is willing to answer some questions without any grounds for suspicion. State v. Rodriguez, 172 N.J. 117, 125-26 (2002). The individual has no obligation to answer and is free to move on. If, however, the individual's right to leave the scene is obstructed, even briefly, there has been a seizure of his person within the meaning of the Fourth Amendment. Id. at 126. The police "may stop for brief investigatory questioning if they have an articulable, reasonable basis for suspicion; and they may make an inquiry without any grounds or suspicion." State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div.), certif. denied, 172 N.J. 178 (2002). "Brief, non-intrusive encounters with individuals on the street or in parked cars implicate none of the privacy or security concerns engendered by discretionary police spot checks of moving vehicles." Ibid.

A field inquiry is "the least intrusive encounter" between a citizen and the police. State v. Pineiro, 181 N.J. 13, 20 (2004). It occurs when an officer approaches an individual and asks if he or she would be willing to answer some questions. "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (quoting State v. Nishina, 175 N.J. 502, 510 (2003)).

An investigatory stop, on the other hand, is more intrusive and

is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of the circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.

[State v. Davis, 104 N.J. 490, 504 (1986).]

"A key distinction between a field inquiry and an investigative stop is whether, considering the totality of the circumstances, a reasonable person would feel that the police had encroached on his or her freedom to leave." State v. Daniels, 393 N.J. Super. 476, 484 (App. Div. 2007).

The trial court here concluded that the presence of the three police vehicles at the scene transformed this encounter from a permissible field inquiry into an investigative detention. In our view, the trial court's analysis of this question was incomplete and did not recognize the testimony of Higginbotham that it was the practice of the department to notify nearby units that an officer was approaching a car to inquire further.

What the record does indicate is that Higginbotham was by himself, patrolling a high crime area at night. The scene was dark and not well-lit. He saw a vehicle parked, with several occupants, with the engine off and no lights. In light of his knowledge of the level of criminal activity in the area, which included drugs, burglaries and assaults, it was entirely reasonable for him to stop to talk to the occupants.

We should not view the events of that night in isolation. If Higginbotham was justified in approaching the car on a field inquiry, we are unable to conclude that constitutional principles required that he do so on his own, without the protection afforded to him by the presence of other officers. We cannot turn a blind eye to the inherent dangers officers face every day. Just as we have an obligation to ensure the rights of the citizens with whom the police come in contact, we have an equal obligation not to require that the police expose themselves to avoidable risks.

The trial court, moreover, in its oral opinion, completely disregarded Higginbotham's testimony that as he approached the car, he "immediately detected an odor of raw marijuana." That additional element provided ample support for all that followed.

The order granting defendant's motion to suppress is reversed, and the matter is remanded to the trial court for further proceedings.

STATE OF NEW JERSEY v. J.F.P A-4380-09T1 May 9, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4380-09T1

STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.F.P., Defendant-Appellant.

Argued March 15, 2011 – Decided May 9, 2011

Before Judges Wefing, Baxter and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-08-00551.

Barbara Schwartz argued the cause for appellant.

William A. Guhl, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Guhl, on the brief).

PER CURIAM

Defendant J.F.P. appeals his April 16, 2010 conviction of third-degree issuing a bad check, N.J.S.A. 2C:21-5, after pleading guilty to the only count of Somerset County Indictment No. 07-08-00551. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for reconsideration of defendant's termination from the Pre-trial Intervention (PTI) Program.

A Somerset County Grand Jury indicted defendant on August 8, 2007, alleging in one count that on November 8, 2005 and November 20, 2005, defendant issued two checks for $1435.50, knowing they would not be honored. The State informed us in its brief that on November 8, 2005, defendant issued a check to Bobcat of Central Jersey (Bobcat) to pay for equipment rentals. He wrote on the check, in the memo section, "November 1/2 Payment." The check was returned for insufficient funds on November 18, 2005. Another check submitted by defendant to Bobcat in the same amount on November 20, 2005, was not honored because it was drawn on a closed account. He wrote on that check "November 2nd 1/2 Payment."

Defendant was admitted into PTI on December 19, 2007. As special conditions of PTI, he was ordered to perform fifty hours of community service and to pay restitution to Bobcat in the amount of $2871, a $50 PTI enrollment fee pursuant toN.J.S.A. 2C:43-3.1(2)(d) and a $75 Safe Neighborhood Assessment pursuant to N.J.S.A. 2C:43-3.2a(2), totaling $2996 in payments.

On October 17, 2008, the Somerset County Probation Department recommended a second twelve-month postponement in a memorandum, which provides in its entirety:

On 12/19/07, the above named defendant was placed in the Pretrial Intervention Program for the charge(s) of Bad Checks over $200-Knowing. The defendant has reported as directed, completed his 50 hours of Community Service, and [is] working full time. The defendant tested negative for all random urine/oral swab specimen[s] while pending these charges. The defendant has a significant balance remaining of $1,175.00. Therefore, it is respectfully recommended that the defendant be granted a 2nd postponement of 12 months to allow him to pay his monies in full.

An order of postponement was signed by the court on October 27, 2008.

A notice of intent to terminate PTI was sent December 31, 2008, and on February 2, 2009, after a hearing, defendant was terminated from the program for failure to report, failure to follow through on substance abuse treatment and failure to make timely restitution payments. On April 9, 2009, defendant pled guilty to the one-count indictment.

Defendant then obtained new counsel who sought reconsideration of defendant's PTI termination by the judge who accepted defendant's guilty plea, not the judge who conducted the original termination hearing. This motion was denied. Defendant was sentenced on April 16, 2010, to two years of probation, seventy-five hours of community service and payment of the balance of the restitution owed to Bobcat, as well as the mandatory penalties including another $75 Safe Neighborhood Assessment. The court indicated it would "consider early termination from probation at/after 12 months provided fees and restitution [are] paid in full."

On appeal defendant raises the following issues,

POINT I

The State having waited so long to bring the indictment, without any explanation, violated Defendant's due process rights.

POINT II

The court failed to give proper weight through a full hearing as to Probation Supervisor and Officer Robert McGinley's memorandum to the court to reinstate the defendant to PTI after Probation mistakenly recommended termination.

POINT III

Defendant's attempts to make full restitution in this matter and PTI inability to accept payment should not now be used to disqualify him from PTI.

I

In Point I of his brief, defendant argues that the delay between his issuance of the checks in November 2005 and the indictment on August 8, 2007, as well as the delay between the indictment and plea, violated his Sixth Amendment due process rights, as well as the time frames and procedures set forth in Rule 3:9-1.

In State v. Townsend, 186 N.J. 473 (2006), our Supreme Court held that a defendant alleging a due process violation based on pre-indictment delay has the burden of showing that "(1) the State's delay in seeking an indictment was a deliberate attempt to gain advantage over [the defendant], and (2) the delay caused defendant actual prejudice in his ability to defend the charge." Id. at 489 (citing United States v. Gouveia, 467 U.S. 180, 192, 104 S. Ct. 2292, 2299, 81 L. Ed.2d 146, 157 (1984)). We previously recognized in State v. Aguirre, 287 N.J. Super. 128, 132-33 (App. Div.), certif. denied, 144 N.J. 585 (1996), that it is "perfectly legitimate" for the prosecution to delay an indictment "to gather additional evidence against an accused or to broaden the investigation," and that prosecutors "should not be discouraged from thoroughly investigating possible crimes, particularly those involving multiple participants or multiple transactions." See also United States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 2049-50, 52 L. Ed.2d 752, 759-61 (1977).

A defendant must show, "actual prejudice, not possible or presumed prejudice," to support a due process claim. State v. Alexander, 310 N.J. Super. 348, 355 (App. Div.) (quoting Aguirre, supra, 287 N.J. Super. at 133), certif. denied, 156 N.J. 408(1998). "'Vague assertions of lost witnesses, faded memories, or misplaced documents are insufficient to establish a due process violation from pre-indictment delay.'" Alexander, supra, 310 N.J. Super. at 355 (quoting United States v. Beszborn, 21 F.3d 62, 67 (5th Cir.), cert. denied, sub. nom. Westmoreland v. United States, 513 U.S. 934, 115 S. Ct. 330, 130 L. Ed.2d 288(1994)); see also State v. Rodriguez, 112 N.J. Super. 513, 516-17 (App. Div. 1970) (rejecting the defendant's contention that he was unduly prejudiced by his failure to remember his activities on the critical dates that he sold marijuana to an undercover agent), certif. denied, 61 N.J. 156 (1972).

Defendant notes in his certification in support of his motion to reconsider his termination of PTI, the "emotional strain . . . affecting his marriage, his ability to work and his ability to defend" caused by the delay. He points to no "actual prejudice."

The State maintains the following facts, based on documents attached to its brief. After unsuccessful attempts by Bobcat to collect, the matter was referred to the Green Brook Police Department on January 23, 2007. The police also made efforts to collect restitution from defendant, preferring to handle the matter informally. Although defendant gave the Green Brook police money orders totaling $1450, the police returned the money orders to defendant as being insufficient restitution. A criminal complaint was then signed on July 3, 2007, and defendant was indicted the following month. Thus, the pre-complaint delay was due to an attempt by the police to resolve the situation without criminal repercussions for defendant.

The post-indictment delay was attributable to defendant's admission to and subsequent termination from PTI. Defendant voluntarily entered into the PTI program, a program intended to benefit defendants by offering rehabilitation without a resulting criminal record. See Pressler & Verniero, Current N.J. Court Rules, Guideline 1 on R. 3:28 (2011). Asubstitution of defense counsel, as well as various defense motions including a motion for leave to appeal, further delayed the ultimate disposition. The statute of limitations for this third-degree crime is five years. N.J.S.A. 2C:1-6b(1). The criminal complaint was signed twenty months after the checks were negotiated, and defendant was indicted one month later. Defendant spent no time incarcerated during this process nor can he point to any difficulty in defending against the charge due to the delay. See State v. Long, 119 N.J. 439, 470-71 (1990) (finding no speedy trial violation because there was "no indication that the prosecution intentionally delayed the proceedings to gain an unfair, tactical advantage"), superseded by statute on other grounds, N.J.S.A. 2C:11-3i. Time elapsed here only as a result of efforts by the police, State and probation department to assist defendant to avoid a criminal record. We therefore reject the argument defendant advances in Point I.

II

In Point II of his brief, defendant argues that the court did not give sufficient weight to the Somerset County Probation Department memorandum to defense counsel of July 15, 2009, more than five months after defendant received a summary PTI termination hearing as required by statute. N.J.S.A. 2C:43-13e. This memorandum indicates that probation

would have no objection to reinstating [defendant's] PTI status provided your client pays off his restitution and fines forthwith in full through a money order. It should be noted that the 1st Asst. Prosecutor . . . is opposed and will object to reinstatement. In that the Prosecutor's Office is opposed to reinstatement the Probation Department will leave it to the discretion of the court.

In this memorandum, the probation department clearly defers to the discretion of the court and acknowledges the disagreement of the prosecutor. In general, the prosecutor has a greater voice in PTI admissions than the program director or probation. State v. Burbano, 304 N.J. Super. 215, 221-22 (Law Div. 1996); see State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (prosecutor's decision not to consent to PTI is entitled to "enhanced deference"); see also State v. Nwobu, 139 N.J. 236, 246, 253 (1995); State v. Von Smith, 177 N.J. Super. 203, 208 (App. Div. 1980).

After defendant's termination from PTI in February 2009 and after he entered a guilty plea in April 2009, defendant sought to vacate the PTI termination and also sought other relief.¹ The court denied defendant's application because it lacked jurisdiction, reasoning that Rule 3:28 does not provide defendant with the right to appeal a PTI termination to the Law Division. See State v. Moraes-Pena, 386 N.J. Super. 569, 578 (App. Div.) (holding that after a guilty plea, an initial denial of PTI must be appealed to the Appellate Division because "[Rule 3:28] does not contemplate further proceedings at the trial level after a guilty plea is entered."), certif. denied, 188 N.J. 492 (2006). If defendant sought reconsideration of the termination decision, he should have brought that motion before the original judge prior to pleading guilty and within twenty days of termination from PTI. R. 1:7-4. We therefore reject defendant's argument that the court erred when it refused to vacate his PTI termination.

III

Defendant argues that he should not have been terminated from PTI because, among other reasons, the program director did not have the authority to require defendant to attend a drug evaluation and subsequent rehabilitation. The director clearly does have that authority. See Pressler & Verniero, Current N.J. Court Rules, Guideline 8 to R. 3:28 (2011). Defendant argues that he did not receive notice of reporting dates after he learned PTI would be extended. However, defendant did not respond to probation's attempts to contact him by phone to inform him.

Defendant argues also that his inability to make full restitution should not be used as a reason to terminate him, based on PTI Guideline 3(k), State in Interest of D.G.W., 70 N.J. 488 (1978) and State v. Harris, 70 N.J. 586 (1976). Defendant's failure to complete payment was the reason his PTI involvement was extended and was one of the three reasons listed on the notice of intent to terminate. The court that heard the termination hearing, however, did not base its decision to terminate on defendant's failure to make full restitution, finding to the contrary that defendant "was paying money but not showing up for review [or] supervision, and [was] not going to treatment."

Although not raised by defendant, we note a factual ambiguity in the record concerning the proper amount of defendant's restitution. At oral argument, the State represented that the second check written by defendant was issued to replace the first. The timing of the second check, two days after the return of the first check for insufficient funds, seems to support that interpretation. The indictment charged defendant in only one count for writing both checks. However, the notations on the two checks are ambiguous. The second check could be a proffer of payment of the second half of the amount due or an attempt to replace the first check which was not honored. Defense counsel, in her brief, indicates that Bobcat has a civil judgment against defendant of $15,000. Thus, defendant clearly owed Bobcat more than the sum of the two checks.

Restitution, whether through PTI or after sentencing, should encompass the harm done by the criminal behavior and not any additional debt owed by defendant. Only the amount defrauded by use of the two dishonored checks should be collected by the criminal justice system. Thus, if, as the State represented, defendant issued the second check to cover the first check, his restitution should have been set at $1435.50 rather than $2871. Had the lesser amount been set, defendant would have completed his payments and been discharged from PTI without the extension of PTI and prior to the notice of termination.

We thus remand for the court to reconsider defendant's termination from PTI. The court should determine, if it is disputed, whether or not the second check was written to replace the first. If it was, the court should then determine whether or not to dismiss the indictment, given defendant's full payment of restitution and performance of community service before the PTI termination process began.

Reversed and remanded.

1 Defendant's motion before the trial court was designated as follows:

1. Motion for Leave to Appeal Defendants Pretrial Intervention Termination R 3-28

2. Motion for Amendment R: 1:7-4 And/or Motion under R: 4:50-1

3. Motion for a Stay of Sentencing Hearing

4. Motion for Reconsideration of the Court's determination to terminate Defendant's Pretrial Intervention

GALEANO v. NEW JERSEY MOTOR VEHICLE COMMISSION A-0135-10T2 May 10, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0135-10T2

JORGE GALEANO, Appellant, v. NEW JERSEY MOTOR VEHICLE COMMISSION, Respondent.

Argued April 12, 2011 – Decided May 10, 2011

Before Judges Yannotti and Skillman.

On appeal from the New Jersey Motor Vehicle Commission.

Joshua Altman argued the cause for appellant (Benedict & Altman, attorneys; Mr. Altman, of counsel and on the brief).

Elaine C. Schwartz, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Schwartz, on the brief).

PER CURIAM

Jorge Galeano (Galeano) appeals from a final determination of the Chief Administrator of the New Jersey Motor Vehicle Commission (Commission), suspending his driving privileges for 210 days due to an alcohol-related offense committed in the State of Florida. We reverse.

The relevant facts are undisputed. On December 8, 2003, the County Court for Dade County, Florida, entered an order finding Galeano guilty of driving under the influence of alcohol or drugs (DUI), in violation of Fla. Stat. § 316.193, following the entry of a nolo contendere plea.

The court ordered the suspension of Galeano's driver's license for a period of six months. Galeano was also placed on probation for six months, and required that he attend a substance abuse program. The court imposed a fine in the amount of $1254.75, including court costs, monetary surcharges and community service fines.

Thereafter, Galeano successfully completed a program in DUI education, which addressed substance abuse and driving. The Florida court entered a supplemental order dated July 2, 2004, which stated that his probation had been successfully terminated.

The Commission issued a notice dated July 19, 2010, informing Galeano that his driver's license would be suspended for 210 days, beginning August 13, 2010, as a result of an alcohol-related violation that occurred in Florida on August 19, 2003. By letter dated August 3, 2010, Galeano requested a hearing to contest the proposed suspension. The Commission responded with a letter dated August 16, 2010, denying the request for a hearing and stating that the suspension would take effect on September 10, 2010.

Galeano's counsel wrote another letter to the Commission dated August 31, 2010, in which he reiterated Galeano's request for an evidentiary hearing. Counsel stated that a license suspension relating back to a 2003 DUI offense in Florida would create an undue hardship because it would affect Galeano's ability to work and support his family. Counsel also stated that the length of time that had passed since the DUI conviction "create[d] a Due Process violation."

By letter dated September 1, 2010, the Commission advised counsel that Galeano was not entitled to an evidentiary hearing, and the order of suspension previously issued was the agency's final decision in the matter. This appeal followed. We granted Galeano's motion for a stay of the suspension pending disposition of the appeal.

On appeal, Galeano contends that the Commission erred by suspending his New Jersey driving privileges based on a 2003 out-of-state DUI conviction. Galeano asserts that suspension of his license under these circumstances violates his right to fundamental fairness and due process.

Here, the Commission suspended Galeano's license pursuant to the Interstate Driver License Compact, N.J.S.A. 39:5D-1 to -14 (Compact), to which New Jersey and Florida are parties. The Compact provides, among other things, that "[t]he licensing authority of a party State shall report each conviction of a person from another party State occurring within its jurisdiction to the licensing authority of the home State of the licensee." N.J.S.A. 39:5D-3.

The Compact further provides that, for purposes of imposing a suspension, revocation or limitation of the license to operate a motor vehicle, the licensing authority of the home State "shall give the same effect to the conduct reported" as the authority "would if such conduct had occurred in the home State[.]" N.J.S.A. 39:5D-4(a). The Compact states that the agency "shall apply" the home State's penalties for certain convictions, including convictions for DUI. N.J.S.A. 39:5D-4(a)(2).

We note that the record before us does not clearly establish the date upon which the Commission received notice of Galeano's Florida conviction. According to the Commission, the original notice was date-stamped, and the date on the original notice is "partially illegible." The Commission maintains that it received the notice of the Florida DUI conviction in July 2010, although the copy of the notice in the Commission's appendix does not have a readable date stamp. Moreover, the Commission never moved before us to supplement the record with a certification of an individual with personal knowledge attesting to the date upon which it received the notice.

In any event, we will assume for purposes of our decision that the Division did, in fact, receive the notice at some point in July 2010, and issued a notice to Galeano that it intended to suspend his license within several days of that date. We conclude that Galeano's New Jersey license may not be suspended after such a lengthy delay.

The Compact does not specify the time in which a party State must report a conviction to the home State of a licensed driver. However, when a contract does not specify the time in which action must be taken, "the law infers that the contract will be performed within a reasonable time." In re Estate of Yates, 368 N.J. Super. 226, 236 (App. Div. 2004). "What constitutes a 'reasonable time' is usually an implication of fact, and not of law, derivable from the language used by the parties considered in the context of the subject matter and the attendant circumstances, in aid of the apparent intention." Ibid. (quoting Borough of West Caldwell v. Borough of Caldwell, 26 N.J. 9, 28 (1958)).

Reporting of a conviction of the motor vehicle laws to a licensee's home state within a reasonable time is necessary in order to achieve the purposes set out in the Compact, one of which is to "[p]romote compliance" with laws governing the operation of motor vehicles. N.J.S.A. 39:5D-1(b)(1). A driver's conviction of a motor vehicle offense indicates that the driver may pose some danger to other drivers or the public generally. N.J.S.A. 39:5D-1(a)(2). Therefore, the Compact envisions that such a conviction would be reported to the driver's home State within a reasonable time so that the home State may impose its penalties as a result of that conviction within a reasonable time thereafter.

We are convinced that the Compact does not authorize New Jersey to suspend Galeano's license based on his 2003 Florida DUI conviction because Florida did not report the conviction within a reasonable time. We recognize that the delay here is not attributable to the Commission. Nevertheless, the Commission suspended Galeano's license pursuant to the Compact, and its authority to do so is dependent upon Florida's reporting of the out-of-state conviction within a reasonable time, which did not occur here.

Moreover, the suspension of Galeano's license under these circumstances violates his right to fundamental fairness and due process. License suspension proceedings "affect drivers in a serious way" because they "often threaten[]" a driver's ability "to earn a livelihood[.]" In re Arndt, 67 N.J. 432, 436 (1975). Consequently, such proceedings "must meet those incidents of fairness" that underlie the constitutional right to due process. Ibid.

In Arndt, a driver refused to take a breath chemical test after he had been arrested on suspicion of driving under the influence of intoxicating liquor. Id. at 434. On September 2, 1971, the arresting officer notified the Director of the Division of Motor Vehicles (Director) that the driver had refused to take the breath test. Ibid. Acting pursuant to N.J.S.A. 39:3-50.4, the Director issued a notice of proposed suspension on April 27, 1973, almost twenty months after the arrest. Ibid. Following a hearing in the matter, the Director issued a final order of suspension on April 18, 1974. Ibid.

In Arndt, the Court noted that N.J.S.A. 39:4-50.4 requires the Director to suspend a license within ten days after receiving notice from the arresting officer of a driver's refusal to take the breath test. Id. at 435. The Court observed that the statute indicated that the Director must act "within a reasonable time" after receiving notice of a refusal. Id. at 436. The Court held that, because the Director failed to institute suspension proceedings within a reasonable time, the suspension could not stand. Id. at 437.

Although this case involves a suspension imposed pursuant to the Compact rather than N.J.S.A. 39:4-50.4, the principles set forth in Arndt apply. In Arndt, the statute upon which the Director acted required that the license suspension proceedings be commenced within a reasonable time after the report of an arrest. The Compact requires a member State to report convictions in a reasonable time, and contemplates that the home State will act within a reasonable time thereafter. Arndt involved a twenty-month delay; this case involves a delay of almost seven years. If the driver's right to due process and fundamental fairness was violated by the delay in Arndt, surely that also is the case here.

Our decision in Boyd v. Division of Motor Vehicles, 307 N.J. Super. 356 (App. Div.), certif. denied, 154 N.J. 608 (1998), does not compel a different result. There, the Division of Motor Vehicles (Division) suspended a driver's New Jersey license for six months pursuant to the Compact because he had been convicted in New York on December 8, 1993, of driving while intoxicated in that state. Id. at 357-58. The driver's New York driving privileges were revoked for a year. Id. at 358. On March 28, 1996, the Division notified the driver that his New Jersey license would be suspended. Ibid. After conducting a conference in the matter, the Division issued a final order of suspension on July 8, 1996. Id. at 359.

In Boyd, the driver argued that, because of the "inordinate delay" between the beginning of the New York suspension and his receipt of notice of the proposed New Jersey suspension, he lost the opportunity to consent to the New Jersey suspension and have both suspensions run concurrently. Id. at 359. We stated that the suspension could not be set aside because the Division acted promptly when it received notice of the New York suspension and the Division "cannot control the actions of, or delays by, its New York counterparts." Ibid. We noted that the Compact did not establish time limits for the taking of "reciprocal act[s] of suspension[.]" Ibid.

We observed that "it would certainly be desirable [for the Division] to take whatever action can be taken to minimize such delays in the future[.]" Ibid. We added, however, that we did not think "it is reasonable, or even permissible, for us to visit the sins of another state (if there were sins) on the New Jersey Division of Motor Vehicles and thus frustrate the legislative policy embodied in the Interstate Compact." Ibid.

In our view, this case is substantially different from Boyd. The delay in Boyd was about two years and three months. Id. at 347-59. The delay in this case is substantially longer. Furthermore, we do not believe that reversal of the Commission's decision to impose a license suspension in this case after such a lengthy delay would frustrate the legislative policies embodied in the Compact. As we have explained, the Compact anticipates that party States will report convictions within a reasonable time and home States will take appropriate action within a reasonable time thereafter. That did not occur here. Moreover, the lengthy delay between the Florida conviction and the commencement of license suspension proceedings in this State here violates Galeano's right to fundamental fairness and due process, regardless of whether Florida or New Jersey caused the delay.

Reversed.

STATE V. MAURO A-2085-09T3 May 31, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2085-09T3

STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHRISTOPHER J. MAURO, Defendant-Appellant.

Submitted April 6, 2011 - Decided May 31, 2011

Before Judges Cuff and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 09-03-0266.

Yvonne Smith Segars, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel; Ms. Blair and Emily Anderson, Special Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

In this appeal we consider whether there was a basis upon which to conduct a Terry¹ frisk of defendant for weapons and whether the subsequent warrantless search of defendant's vehicle was justified on the basis of exigent circumstances. We conclude that none of the factors the Pena-Flores² Court articulated that justify the warrantless search of a vehicle were present here. We therefore reverse the denial of defendant's suppression motion insofar as the search of defendant's vehicle but affirm the Terry frisk and evidence seized as a result thereof.

Based upon information received from Dispatch that there was a suspicious vehicle on Tyler Road in Dennis Township, Trooper Christopher Neuman proceeded to the area. Dispatch described the vehicle as a white pickup truck with a mattress in the rear of the truck bed. The driver of the vehicle, later identified as defendant Christopher Mauro, was reportedly bobbing his head up and down. At 8:23 a.m., Trooper Neuman located the vehicle stopped for a light at the intersection of Tyler Road and State Highway 47 (Highway 47). When the light changed to green, the vehicle turned left onto Highway 47 and proceeded in a southerly direction. Trooper Neuman followed the vehicle. There were two or three vehicles between his vehicle and the pickup truck, but he was able to observe that the vehicle was traveling slower than other vehicles on the road, at one point crossing the fog line and, at another point, crossing the double yellow line as it negotiated a curve. After approximately one-quarter mile, Trooper Neuman activated his overhead lights, drove around the cars in front of him, and directed defendant to pull over. Mauro abruptly stopped the vehicle, nearly causing the trooper to strike its rear. Mauro pulled the vehicle over to the shoulder and stopped.

Trooper Neuman indicated that traffic on Highway 47 on that day was heavy because it was the morning rush hour. The specific area of the stop was around milepost 18.3 just north of the Dennisville Wawa. The shoulder of the roadway was about the width of one car and its length extended throughout most of Dennis Township. He testified that Highway 47 "has a smaller shoulder" and because he had investigated numerous fatal accidents along Highway 47, he therefore took "more caution in stopping vehicles out there and checking on motorists' aids."

As he approached the vehicle, he observed defendant's head leaning down near the center console. This conduct aroused his suspicion and he concluded that something was going on because "[i]t's not usual that somebody reaches down center and dips their head that far down even to get their license and registration." When he commenced speaking with Mauro, the first thing he noticed was that Mauro appeared nervous, his hands shook, he avoided eye contact, and his nose was red. Because the caller had described the driver as bobbing his head up and down and, due to how Mauro was addressing him, he suspected that Mauro was impaired. He also noticed that Mauro's pupils were constricted and that his face was pale. Mauro was unable to produce a driver's license but provided a driver's license number. At that point, Trooper Neuman decided to remove Mauro from the vehicle to conduct a further investigation and also to remove him from the area where he had earlier observed Mauro reaching. He intended to administer field sobriety tests.

Trooper Neuman escorted Mauro to the front of the vehicle. Mauro kept reaching towards his pockets and, as he did, the trooper noticed that there was a bulge protruding from Mauro's pocket. He asked Mauro what was in his pocket and Mauro told him that he had a penknife in his right front pocket. Trooper Neuman then conducted a protective frisk because he was the only trooper out there and also because he intended to conduct field sobriety tests. During the frisk, he recovered the penknife and, for further safety reasons, conducted a full frisk. He felt another hard object in Mauro's left front pocket. Suspecting that the object could also be a weapon, he removed it and noticed that it was "like a pipe or a plastic tube, and stuck to the end of that plastic tube was a druggist fold consistent with the packaging of [a controlled dangerous substance], and there was also white powdery residue . . . within that object."

Trooper Neuman placed Mauro under arrest, handcuffed him, and conducted a search incident to arrest during which he discovered additional druggist folds in Mauro's wallet. He then escorted him to the troop vehicle and secured him in the rear of the vehicle from which defendant could not alight because of child safety locks on the doors.

Once defendant was secured in the troop car, Trooper Neuman returned to Mauro's vehicle and conducted a full search of its interior, uncovering suspected narcotics, paraphernalia and cash. When asked on direct why he searched the vehicle following the arrest, the trooper responded: "Well, he had just used drugs so I went in the vehicle to find out if there were anymore drugs and it's - the roadway there is -" Defense counsel interposed an objection, and once the court overruled the objection, he again attempted to respond to the question why he undertook the search of the vehicle:

Yes. There were multiple factors. It wasn't - the totality of the DWI arrest which I believed he consumed the narcotics. I don't know if I can answer it that way but I believe he consumed narcotics and that he was under the influence with the white powdery substance, the physical observations, and also the -

Defense counsel interrupted with another objection, which the court once again overruled. Trooper Neuman then testified: "I searched the vehicle after Mr. Mauro was arrested. There were multiple factors why I did that. Number one - " For yet a third time, defense counsel objected to the answer, and the following exchange occurred:

THE COURT: So . . . the question initially was why did he search the vehicle, and in five different ways he's started that sentence and we'll try to get through to the answer. Now if he can answer the question why did he search the vehicle -

[ASSISTANT PROSECUTOR]: And I started out trying to do it that way but then the objection is it's too general. So then when I ask it very specifically to help it along, maybe take some concerns counsel has with the narrative, then the objection is it's too leading. It has to be one or the other. I'll just try it this way, Judge. I'm just going to ask it in the general form but the -

BY [THE ASSISTANT PROSECUTOR]:

Q. Can you tell us what facts you considered in determining that you were going to search this motor vehicle on October 15th, 2008?

[DEFENSE COUNSEL]: I just would like to say for the record that is a great question.

THE COURT: Okay, then, [O]fficer, would you answer the question, please?

A. The facts of why I searched the vehicle[?]

Q. Yes, just the facts.

A. Okay. The facts were the use of narcotics, the DWI arrest, the CDS arrest, the fact that the vehicle was not his, and that it would have to be most likely it was going to - if it was going to be left on the roadway it would be a hazard so it had to be removed, and -

Trooper Neuman was then asked whether the vehicle could have been left on the roadway. The trooper responded:

Based upon the traffic that morning and that roadway[,] with my training and experience, I do - he was being arrested so it was going to be a larger amount of time for processing, at least, so I would have towed that vehicle or he would have to have somebody come get it at that - it couldn't stay there.

. . . .

It couldn't stay there. That was right near . . . the Wawa, cars coming in and out, tractor trailers, like just decide they're going to pull over and park on the shoulder[,] which they're not supposed to do[,] and it was also in front - I believe it was in front of a business.

. . . .

The front of a business.

Under cross-examination, Trooper Neuman expressed the opinion that there was "higher crime" in that area of Dennisville than in "some of the other areas in the Woodbine [S]tation area[,]" but did not testify that the area was one of "high crime." He testified that at the time of the stop: (1) there was not a lot of foot traffic in the area; (2) it was daylight; (4) he had no visibility problems; (3) there was heavy vehicular traffic; (5) no one approached the scene after he stopped Mauro's vehicle; (6) there may have been people working in the area but he did not recall whether anyone was watching; (7) no one approached him to advise that he or she was a friend of defendant or to make inquiries about what was going on; (8) there did not appear to him to be any other vehicle following defendant's vehicle; (9) the Woodbine Station Barracks was less than six miles away; and (10) additional troopers arrived either before or during the search of defendant's vehicle, as well as after he completed the search.

The motion judge found that the Terry frisk was justified based upon defendant's demeanor while standing outside of the vehicle and his admission that the bulge protruding from his pocket was a penknife, and given the recovery of the penknife, a further frisk to ensure there were no other weapons on defendant was justified. Turning to the search of the vehicle, the motion judge found that it was justified under the automobile exception to the warrant requirement. She found that the stop had been unexpected and unplanned and that there was probable cause to believe that drugs were in the car based upon the seizure of the suspected narcotics from defendant's pocket and the officer's observation of redness under his nose as defendant exited the vehicle. Finally, the judge concluded that exigent circumstances existed:

In this instance the motor vehicle stop occurred on Route 47 in the morning. It was described as being an area that had at that time of day early, heavy traffic. It was also located, according to the officer's testimony, hear a Wawa store that had truck traffic entering and going about, but also in his description he would indicate that there was not a lot of foot traffic, there were some marshes. There were no other person exiting or approaching the vehicle near the side of the road, however, there was heavy traffic which caused the officer to be concerned for his safety and the safety of Mr. Mauro.

It would also appear that again, that at the time officer - Trooper Neuman was patrolling - conducting the motor vehicle stop alone, and while the defendant had - was secured at the time of the search of the vehicle, this was a company vehicle which again was - remained readily removable and accessible to third parties. Under the automobile exception, the warrantless search is justified because it embodies an assurance that evidence is not otherwise removed or destroyed. In addition, it would appear that the precedent would have established a principle that allows the police to conduct an immediate search at the scene if there's probable cause and to not be delayed by seizing and impounding the vehicle pending review of the probable cause. That's State v. Alston.

The judge also concluded the search of the duffle bag was permissible because defendant failed to produce any documents when Trooper Neuman first approached the vehicle and "[i]nasmuch as this was a company vehicle and the duffle bag appeared to be a personal item, it is not in this instance inconceivable that the defendant's motor vehicle items could have been located within the duffle bag."

On appeal defendant raises the following point for our consideration:

POINT I

BECAUSE NEUMAN LACKED THE REQUISITE REASONABLE SUSPICION THAT MR. MAURO WAS ARMED AND DANGEROUS, THE PAT-DOWN WAS NOT JUSTIFIED UNDER TERRY v. OHIO. MOREOVER, THE WARRANTLESS SEARCH OF THE TRUCK WAS NOT JUSTIFIABLE UNDER THE AUTOMOBILE EXCEPTION. CONSEQUENTLY, THE FRUITS OF THE SEARCHES SHOULD HAVE BEEN SUPPRESSED.

A. THE PAT-DOWN EXCEEDED THE SCOPE OF THE REQUIREMENTS OF TERRY v. OHIO.

B. THE WARRANTLESS AUTOMOBILE SEARCH WAS NOT JUSTIFIABLE UNDER THE AUTOMOBILE EXCEPTION, AND, THUS, THE FRUITS OF THAT UNCONSTITUTIONAL SEARCH SHOULD HAVE BEEN SUPPRESSED.

At the outset, we quickly dispense with defendant's contention that there was no justification for the Terry frisk and the frisk exceeded its permissible scope. We conclude this claim is without sufficient merit to warrant discussion in a written opinion and affirm substantially for the reasons expressed by the motion judge in her oral opinion. R. 2:11-3(e)(2).

Turning to the search of the vehicle, warrantless searches are presumed invalid, and to overcome this presumption, the State bears the burden of establishing that the search was justified under one of the recognized exceptions to the warrant requirement. State v. Patino, 83 N.J. 1, 7 (1980). One such exception is the automobile exception. "Under federal constitutional law, a warrantless search of a motor vehicle pursuant to the automobile exception is permissible so long as the vehicle is readily mobile and there is probable cause to believe it contains evidence of criminality." Pena-Flores, supra, 198 N.J. at 20 (citing Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed.2d 1031, 1036 (1996)). The rationale underlying this exception is twofold: "(1) the ready mobility of the vehicle and the inherent potential for loss or destruction of evidence before a warrant is obtained; and (2) the decreased expectation of privacy in motor vehicles, which are subject to extensive government regulation." Ibid.

The critical factor under federal jurisdiction is the mobility of the automobile. Our Supreme Court, however, has interpreted art. I, ¶ 7 of our State Constitution as affording greater protection against unreasonable searches and seizures than the federal Constitution affords. State v. Pierce, 136 N.J. 184, 208-09 (1994). Thus, in Pena-Flores, our Court reaffirmed its holding in State v. Cooke, 163 N.J. 657, 667-68 (2000), that the warrantless search of an automobile 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.” Pena-Flores, supra, 198 N.J. at 28.

Here, the first two requirements were satisfied. Although Trooper Neuman was dispatched to the area where the white pickup truck was reportedly observed under suspicious circumstances, there was no plan to necessarily stop the vehicle. However, upon Trooper Neuman's arrival in the area, the manner in which the vehicle was being operated, namely, crossing the fog line and the double yellow lines, and traveling slower than other vehicles on the road, justified the stop of the vehicle for further investigation. Defendant's actions during the stop, together with Trooper Neuman's observation of redness around his nose and constricted pupils, led the officer to believe that defendant had just used drugs. These facts established the requisite probable cause to believe that defendant's vehicle contained drugs. Thus, the critical inquiry here is whether exigent circumstances existed rendering it "impracticable to obtain a warrant." Pena-Flores, supra, 198 N.J. at 28.

The determination of exigent circumstances is fact- sensitive and resolved on a case-by-case basis with consideration of the totality of the circumstances. Ibid. Central to the analysis is the officer's safety and the preservation of evidence. Id. at 29. The motion judge found that exigent circumstances existed based upon the fact that Trooper Neuman was conducting the motor vehicle stop alone and defendant's vehicle was a company car that "remained readily removable and accessible to third parries." The State also argued that the exigency was created by the location of the vehicle along the side of a busy two-lane highway.

These factors fall short of establishing the type of exigency that justified the warrantless search of defendant's vehicle. First, the stop occurred in broad daylight during morning rush hour, a time when courts are open for business. Second, although Trooper Neuman was alone when the stop was initiated, the Woodbine Station was less than six miles away and backup was readily available. In response to the question whether backup arrived after defendant was arrested and secured in the back of the troop car but before he searched the truck, Trooper Neuman stated: "As much as I recall, yes, that's - it was right after, you know, it might have been either during the search that the other trooper came out there" and "I know that eventually two other troopers came but that was after he was - everything was already done." In total, in addition to Trooper Neuman, four other troopers arrived at the scene.

There were other factors that militated against a finding of exigency. Nothing in the record indicates that the traveled portion of the roadway was blocked because of events unfolding on the shoulder. Trooper Neuman acknowledged that defendant's vehicle could have been towed. Nor was the location of the stop in a high crime area. Trooper Neuman's description of the area as having "higher crime" than other locations in the Woodbine Station area is not the equivalent of describing the location as a "high crime" area. Further, there were no confederates who knew of the location of the vehicle and who were thus positioned to remove its contents before its removal. The fact that the vehicle was a company car did not make it more readily subject to removal by third persons. There was no indication that anyone from the company knew that the vehicle had been stopped at the time Trooper Neuman determined that he would search the vehicle. See, e.g., State v. Ireland, 375 N.J. Super. 100, 119 (App. Div. 2005) (noting that one of the exigent circumstances was the fact that the defendant's passenger, who was at liberty, was aware that the vehicle had been stopped and that the defendant had been arrested for driving while under the influence). Finally, defendant was handcuffed and secured in the troop vehicle, which was equipped with child safety locks. Consequently, defendant had no opportunity to gain access to any of the contents within the vehicle.

In short, the State failed to prove that Trooper Neuman did not have time to call for a warrant without compromising his safety and the preservation of evidence. He could have called for a warrant while awaiting the arrival of backup and defendant was locked in the back of his patrol car. Alternatively, he could have sought the warrant after the backup officers arrived. The Court, in Pena-Flores, addressed a similar situation in the companion appeal of the defendant Chares Fuller, who was pulled over for a traffic violation. The Court determined that the officer's search for evidence of the ownership of the vehicle extended into impermissible areas:

Here, 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.

[Pena-Flores, supra, 198 N.J. at 32 (citing State v. Dunlap, 185 N.J. 543, 550 (2006)).]

We note that the record here discloses that defendant was unable to present a driver's license. Ordinarily, under such circumstances, a police officer may search the interior of a vehicle in those locations where evidence of vehicle ownership and driving credentials may be found. Id. at 31. However, there is nothing in the record to indicate that defendant was unable to present documents related to the vehicle. Ibid. Thus, the search of the interior, even if to confirm defendant's representation that he did not have a driver's license, should have been confined to areas where a driver's license would be likely located. Ibid.Such locations would not ordinarily include the cigarette box from which drug paraphernalia was seized, the pill container from which six packages of suspected heroin were seized, or the taped box containing the $23,000 in cash. We therefore conclude that the absence of exigent circumstances "vitiat[ed] invocation of the automobile exception." Id. at 32. Consequently, the drug paraphernalia, suspected heroin and cash seized from the vehicle should have been suppressed.

We reverse that part of the motion judge's decision denying defendant's motion to suppress the items seized from the vehicle but otherwise affirm the denial of the motion in all other respects.

Affirmed in part, reversed in part.

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

2 State v. Pena-Flores, 198 N.J. 6 (2009).