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Thursday, July 05, 2012

STATE v. MARLON SIMON, a/k/a KEVIN ROBINSON,



STATE

v.

MARLON SIMON, a/k/a
KEVIN ROBINSON,

            Defendant-Appellant.

 NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

                                                                                    SUPERIOR COURT OF NEW JERSEY
                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-0599-08T2


______________________________
May 2, 2012
 
 

Submitted December 14, 2011 - Decided

Before Judges Cuff and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-04-00726.

Joseph E. Krakora, Public Defender, attorney for appellant (Raquel Y. Bristol, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).

PER CURIAM
            Following denial of his motion to suppress evidence, defendant pled guilty to count three of a six-count indictment: third degree possession of a controlled dangerous substance (CDS) within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7.  The judge imposed a six-year term of imprisonment subject to a three-year period of parole ineligibility.  The judge also imposed the appropriate fines, penalties and assessments.
            On appeal, defendant raises the following argument:
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO SUP[P]RESS EVIDENCE BECAUSE THE FACTS OF THIS CASE MEET NEITHER THE SEARCH INCIDENT TO ARREST NOR THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT.

We affirm in part and reverse in part.
            On January 8, 2006, around 9 p.m., Sergeant John Gillen, a twenty-eight year veteran of the Jersey City Police Department and a ten-year veteran of the Narcotics Squad, received a telephone call from a reliable informant.  Gillen learned that a delivery of cocaine in $10 vials would occur at a tavern on Lembeck Avenue.  According to the informant, an unidentified person at the tavern would place a telephone call and a black male, known as Marlon, would respond with the cocaine.  Marlon would be driving either a black Cadillac with tinted windows and "fancy wheels" or a beige four-door Buick Century.
            Based on this information, Gillen established surveillance with perimeter units at the tavern.  Officer Michael Burgess and Detectives Matos and Marrero were involved in the surveillance operation.  Two other officers, Goodman and Lugo, may also have been involved.  All were in plain clothes.  Gillen observed the front door of the tavern, which faced a corner illuminated by street lights, from a squad car parked fifty to one hundred feet from the front door.  
            At approximately 9:20 p.m., Gillen observed co-defendant Thomas Thompson open the front door of the tavern and stand on the front steps.  Thompson placed two or three telephone calls.  Approximately ten minutes later, Gillen observed a beige four-door Buick Century stop at the corner.  Thompson entered the front passenger seat of the car and the Buick pulled away from the corner.  Gillen notified the surveillance units of the arrival and departure of the beige Buick, and followed the Buick keeping approximately ten car lengths between the cars.  Burgess and Matos were in another vehicle near Romar Avenue; Marrero followed Gillen's vehicle.
            Gillen saw the Buick stop on Lembeck Avenue near Our Lady of Mercy School.  A white male entered the back passenger side seat of the Buick.  The car turned left on Pearsall Avenue, drove to mid-block and stopped.  Burgess observed the white male in the back passenger side seat leave the Buick and run into an alleyway.  Gillen made the same observation.
            Gillen directed the other vehicles to stop the Buick at the corner of Romar and Pearsall.  Matos and Marrero pulled in front of the Buick; Gillen pulled up behind the Buick.  As they did so, the officers exited their vehicles and announced they were police.  Gillen approached the passenger side of the Buick; Burgess approached the front passenger door; Matos approached the front of the Buick; and Marrero the driver's side door.  Observing movement inside the Buick, Burgess opened the front passenger door.  Using his flashlight, Burgess observed Thompson in the front seat clutching vials with green tops in his hand.  Burgess suspected the vials contained cocaine, informed the other officers Thompson was "positive," and arrested Thompson.  As he did so, Burgess advised him of his Miranda[1] rights, and recovered ten green-capped clear vials containing the suspected cocaine from Thompson.
            Marrero removed defendant from the driver's seat of the Buick and placed him against the back passenger door.  Gillen walked from the front of the Buick to the driver's side of the Buick, looked inside and then reached under the front seat. There, Gillen found a plastic bag containing four bundles of thirty-nine vials containing a white substance, which he suspected was cocaine.  The bundles were wrapped in elastic bands.  At that point, Gillen ordered Marrero to place defendant in handcuffs and advise him of his Miranda rights.  Gillen proceeded to search the rest of the car finding a brown paper bag containing a box with 1000 new vials and green caps on the back passenger seat.
            Gillen described the neighborhood as residential, "regular," with small businesses, delis, bars and houses.  He did not consider it a high-crime or drug-infested neighborhood.  At least four officers stopped and detained defendant and his passenger.  Two other officers might have been nearby.
            In support of his motion to suppress the evidence seized in the stop, defendant argued the police lacked probable cause or a reasonable articulable suspicion to stop the car.  Although the judge found Gillen and Burgess credible, he held the police lacked probable cause to stop the Buick.  The judge observed that "much of the information was essentially benign."  The judge did, however, hold that the police had a reasonable articulable suspicion to stop the car.  The judge also found the reasonable articulable suspicion to stop and the covert movements by the occupants observed once stopped justified opening the passenger door.  At that point, the judge found the controlled dangerous substance was in plain view in the passenger's hands, which in turn supported the removal of the co-defendant from the car and his arrest.
            Turning to defendant, the judge found that possession of the suspected cocaine by the co-defendant also made the arrest of defendant inevitable because "the police now had probable cause to believe that Thompson had just recently purchased those drugs from [defendant]."  The judge found that defendant was not handcuffed but "clearly under arrest" when Gillen placed his hand under the driver's seat looking for more drugs and a weapon.  The judge found that "at this point in time Sgt. Gillen certainly had probable cause to believe that that there were more drugs in the car."  The judge recognized, however, that probable cause did not justify a warrantless search of the car in the absence of exigent circumstances.
            The judge proceeded to find that there may have been as many as eight officers at the scene, defendant and Thompson "appeared to have been submissive at all times," the police were not outnumbered or shorthanded, and they were in a residential neighborhood.  The judge also noted the absence of any "testimony that third parties would have tried to move in on the stopped Buick and remove the drugs."  In sum, the judge found the State had not proven exigent circumstances to permit the warrantless search of the car.  The judge then proceeded to find that the warrantless search of the car was justified as a search incident to the arrest of the driver and passenger.  He cited the proximity of both men to the car and "[defendant] being manacled" as the two most important factors establishing that the warrantless search of the car was "truly incident to arrest."
            On appeal, defendant renews his arguments that the officers lacked probable cause to stop the Buick and, once stopped, the evidence did not support the automobile exception to the warrant requirement, and the warrantless search of the interior of the car exceeded the permissive scope of a search incident to arrest.  The State responds the motor vehicle stop was supported by a reasonable articulable suspicion of criminal activity.[2]  The State also contends the behavior of the occupants following the stop provided probable cause to arrest the occupants and justification to search them and the vehicle.  Finally, the State contends the search of the vehicle was lawful under the automobile exception to the warrant requirement.
            The findings of fact of the motion judge are entitled to great deference from this court, "'so long as those findings are supported by substantial credible evidence . . . .'"  State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)).  His findings of fact can only be overturned when the findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'"  Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).  Additionally, this court should defer to the credibility determinations of the trial court.  State v. Locurto, 157 N.J. 463, 474 (1999).  The judge's interpretation of the law, however, is not entitled to any special deference by this court.  State v. McKeon, 385 N.J. Super. 559, 567 (App. Div. 2006).
            Although the motion judge found Gillen and Burgess credible, he held that the facts related by them did not establish probable cause to stop the Buick.  We agree.  He also held that Gillen had an reasonable articulable suspicion to order Burgess and Matos to stop the car.  We agree.
"Consistent with the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, police officers must obtain a warrant from a neutral judicial officer before searching a person's property, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'"  State v. Deluca, 168 N.J. 626, 631 (2001) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)).  Exceptions to the warrant requirement include an investigatory stop, State v. Stovall, 170 N.J. 346, 356 (2002); a search incident to arrest, State v. Pierce, 136 N.J. 184, 208, 214-15 (1994); and an automobile search, State v. Pena-Flores, 198 N.J. 6, 28 (2009).  The burden is on the State to prove by a preponderance of the evidence the existence of an exception.  State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, ____ U.S. ___, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009).
            A stop of a motor vehicle is lawful if based on a reasonable articulable suspicion that a criminal or quasi-criminal behavior has been or is being committed.  State v. Carty, 170 N.J. 632, 639-40, modified by 174 N.J. 351 (2002).  Reasonable suspicion of criminal or quasi-criminal behavior requires "'some minimal level of objective justification' for making the stop."  United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989) (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S. Ct. 1758, 1763, 80 L. Ed. 2d 247, 255 (1984)).  Any determination of the existence of reasonable suspicion to support a stop is highly fact-sensitive, State v. Nishina, 175 N.J. 502, 511 (2003), and must be more than an officer's suspicion or hunch, Sokolow, supra, 490 U.S. at 7, 109 S. Ct. at 1585, 104 L. Ed. 2d at 10.
            The court may consider an informant's tip in determining whether the officer had reasonable suspicion to stop the defendant.  Amelio, supra, 197 N.J. at 212.  Under the totality of circumstances test, the informant's veracity and the basis of his or her knowledge are the two most important factors in evaluating the information relayed to the police.  State v. Sullivan, 169 N.J. 204, 212 (2001); State v. Smith, 155 N.J. 83, 95, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998).  In addition, police must corroborate the received information.  Smith, supra, 155 N.J. at 95.
            Here, Gillen received information from an informant, who had proved reliable in the past, about the place at which a drug transaction would occur and some detail about how the transaction would be effected.  He also received specific information about the make and model of the motor vehicle that the distributor would likely utilize.  The informant also told Gillen that a person in the tavern would summon defendant by telephone.  Consistent with the information provided to Gillen, a person came outside the tavern, made a telephone call, and within ten minutes one of the cars described by the informant appeared on the scene.
            The motion judge found the actual events of the evening benign or nothing out of the ordinary.  But for the information relayed to Gillen, nothing that occurred that evening would provide anyone with a reasonable suspicion of criminal activity.  People go to bars and make telephone calls to other people for a ride home or someplace else.  The difference in this case is that the police had received information that a drug transaction would occur that evening at that tavern and the distributor of the drugs would be summoned to the scene by someone from the tavern.  In addition, the distributor would arrive in one of two described vehicles.  The police were able to corroborate the information provided to them by the informant.  Once the driver and the person, who had called the driver to the scene, picked up a third person, who quickly left the vehicle and fled down an alley, the police had a reasonable articulable suspicion authorizing them to effectuate a stop, even though it fell short of probable cause.
            The analysis does not cease with the stop.  The motion judge also found that the officers observed suspicious activity in the front seat after the stop.  We discern no basis to disturb this factual finding.  Based on their observations following the stop, Burgess also had a reasonable articulable suspicion to open the passenger door.  See State v. Mai, 202 N.J. 12, 23, 25 (2010) ("Plain logic demands that the principles that govern whether a passenger of a vehicle lawfully can be ordered out of the vehicle must apply with equal force to whether a police officer is entitled, as a corollary and reasonable safety measure, to open the door as part of issuing a proper order to exit."); State v. Matthews, 330 N.J. Super. 1, 6 (App. Div. 2000)("Since the officer was entitled to order [the] defendant out of the car, he was equally entitled to open the door to accomplish that object.").  Once he did so, he observed vials of suspected cocaine clutched in the passenger's hands.  Having seen suspected contraband in plain view, the police had probable cause to arrest not only the front seat passenger but also the driver.  See Mai, supra, 202 N.J. at 26 ("The plain view discovery of the firearm" located on the passenger floor "provided sufficient probable cause to arrest [the passenger], that is, that there was probable cause to believe that a crime had been committed and that [the passenger] had committed that crime.").
A search incident to arrest, however, does not authorize a limitless search of the surroundings.  An officer is permitted to conduct "a search of the arrestee's person and the area 'within his immediate control'" meaning "the area from within which he might gain possession of a weapon or destructible evidence."  Chimel v. Cal., 395 U.S. 752, 763, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969); State v. Henry, 133 N.J. 104, 118, cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993).
In New Jersey, "[o]nce the occupant of a vehicle has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception is inapplicable."  State v. Eckel, 185 N.J. 523, 541 (2006).  Therefore, Chimel only applies where the officer arrests the defendant, but has yet to remove and secure him.  Ibid.  In such a case, the reviewing court must "determine, on a case-by-case basis whether [the defendant] was in a position to compromise police safety or to carry out the destruction of evidence, thus justifying resort to the search incident to arrest exception."  Ibid.  Thus,
the arrestee's freedom of movement and the passage of time become the controlling factors. . . . 

            The relevant facts, then, appear to be those which disclose what places the person under arrest presently could reach at the time the arrest is undertaken and how likely it is that he would attempt resistance or escape or destruction of evidence. Important considerations are whether the arrestee has been placed under some form of restraint, the positions of defendant and the arresting officer in relation to the vehicle,   the difficulties to be encountered in gaining access to the vehicle or to the particular area therein searched, and the number of officers present as compared with the number of persons arrested or bystanders in the immediate vicinity.

[State v. Welsh, 84 N.J. 346, 355 (1980).]

Here, Marrero detained defendant by placing him against the rear driver's side door.  Although defendant was not handcuffed, he was under arrest.  Within minutes, and with defendant still located at the rear driver's side door, Gillen looked inside the driver's compartment and reached under the driver's seat to search for weapons or drugs.  Under the seat, Gillen found a plastic bag containing thirty-nine vials of a white substance, which he suspected was cocaine.  Gillen then directed Marrero to place defendant in handcuffs and advise him of his Miranda rights.  Thereafter, Gillen searched the rest of the Buick and found a brown paper bag on the back passenger seat containing a box that held 1000 new green caps and 1000 new vials. 
            Here, Gillen's initial search of the driver's seat and the area under the driver's seat was permissible as a search incident to arrest.  Although defendant had been detained, he had not been handcuffed and had not been removed from the scene.  In fact, he remained in close proximity to the Buick.  Under these circumstances, concerns for police safety had not been completely assuaged and justified a limited search of the area around the driver's seat.  
            These concerns did not justify a broader search incident to defendant's arrest.  The broader search of the back seat of the automobile that yielded the bag containing 1000 unused vials and green tops was not justified by the automobile exception.  The motion judge held that exigent circumstances did not exist to support the broader search of the automobile.  We agree.
            Exigent circumstances must exist before the automobile exception to the warrant requirement is justified.  State v. Birkenmeier, 185 N.J. 552, 562-63 (2006) (citing State v. Dunlap, 185 N.J. 543, 549 (2006)).   This rule was re-affirmed in the automobile exception test articulated by the Court in Pena-Flores, supra, 198 N.J. at 28.  The Court held that a warrantless search pursuant to the automobile exception is appropriate so long as "(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. (citations omitted). 
            Whether exigent circumstances exist to permit a warrantless search in the face of probable cause depends upon the facts of the individual case.  Ibid.  In fact, in Pena-Flores, the Court examined two cases and reached a different result in each case.  Juan Pena-Flores and co-defendant Fausto Parades were stopped for a motor vehicle violation late at night in a heavily traveled area.  Id. at 12-13.  A limited number of officers were on duty at that time.  Id. at 13. The arresting officer testified he considered the circumstances unsafe to either leave the vehicle unguarded or to await issuance of a search warrant.  Ibid. 
            Charles Fuller, the defendant in the companion case, was stopped for a motor vehicle violation on a busy street in Camden in the early afternoon.  Id. at 14.  The area was crowded with passersby.  Id. at 15.  Fuller was ordered out of the car when the trooper learned that the bill of sale produced by Fuller and the Pennsylvania license plates on the car were associated with another vehicle.  Id. at 16.  The trooper arrested Fuller for displaying a false driver's license and hindering his apprehension.  Ibid.  A search of Fuller produced two large bundles of money.  Ibid.  After Fuller was placed in the police cruiser, the arresting trooper and another trooper, who had responded to the scene, searched the interior of Fuller's car.  Ibid.  They found a loaded handgun wedged between the console and driver's seat and money and prescription drugs in the console, marijuana in a dashboard compartment, and a sword in the backseat.  Ibid.
            As to Pena-Flores, the Court held that the officer confronted exigent circumstances to justify the search of the vehicle occupied by him and his passenger.  Id. at 30-31.  The Court noted that the stop was unexpected, the officer had no reason to believe he would encounter criminal behavior, and stopped the car late at night for a motor vehicle violation.  Id. at 30.  The Court also emphasized that Pena-Flores and Parades were not under arrest, the windows of the car were heavily tinted preventing observation of the interior of the car through the windows, and only one other officer was at the scene.  Ibid. 
            By contrast, the Court held that the search of the dashboard compartment and backseat of Fuller's vehicle was not justified, and the products of the search beyond the front seat and console were subject to suppression.  Id. at 31-32.  The Court emphasized that Fuller had been arrested and secured in the backseat of the police cruiser.  Id. at 32.  The record was devoid of any evidence of nearby cohorts who could have gained access to the vehicle.  Ibid.  Moreover, the arrival of three troopers on the scene following the initial stop demonstrated that there were ample resources to secure the car while a search warrant could be obtained.  Ibid. 
            What circumstances constitute exigent circumstances to justify a warrantless search of the vehicle has been the subject of much discussion.  In fact, the Court recently heard oral argument in five cases involving the application of the Pena-Flores rule:  State v. Shannon, 419 N.J. Super. 235 (App. Div. 2011), appeal dismissed, ___ N.J. ___ (2012); State v. Shannon, No. A-5821-08 (App. Div. Apr. 27, 2011), appeal dismissed, ___ N.J. ___ (2012); State v. DeShazo, No. A-2856-09 (App. Div. April 27, 2011), appeal dismissed, ___ N.J. ___ (2012); State v. Crooms, No. A-4118-09 (App. Div. May 11, 2011), appeal dismissed, ___ N.J. ___ (2012); and State v. Minitee, 415 N.J. Super. 475 (App. Div. 2010), appeal dismissed ___ N.J. ___   (2012).  In Shannon, we held that exigent circumstances did not exist to justify a warrantless search of a vehicle when four of the five squad cars in the community responded to a call for assistance in a residential area in the early evening.  419 N.J. Super. at 243.  In addition, there was no suggestion that an officer could not have sought a telephonic search warrant or that the vehicle or its contents were in danger.  Ibid.  Similarly, in Minitee, we held that no exigency existed to conduct a warrantless search of the vehicle at the police station.  415 N.J. Super. at 488.  Citing the need for a fully developed record concerning the issue presented by Pena-Flores, including application for a search warrant by telephone from the field, the Court vacated certification in each case following oral argument to permit development of a full record to consider the application of Pena-Flores, thereby highlighting the fact sensitive nature of the exception.
            Here, we conclude that the totality of the circumstances place this case significantly closer to the facts accompanying the arrest of Fuller, Shannon and Minitee than to Juan Pena-Flores.  Defendant and his co-defendant had been arrested and handcuffed.  There were at least four officers on the scene and perhaps more.  There is no testimony that there was a shortage of manpower or that other police business required their attention.  In addition, the stop occurred in a residential neighborhood not a crime-riddled, drug-infested neighborhood.  Furthermore, there was no suggestion that third parties might arrive to take the car or remove its contents.  Under these circumstances, we hold that there was no justification to support the search of the motor vehicle beyond the immediate area of the driver's seat and certainly not the backseat of the Buick.
            This disposition may not effect the plea entered by defendant.  He remains free to file a motion to withdraw his guilty plea.  We express no opinion on the merits of such a motion.
            Affirmed in part; reversed in part.
 
             


[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[2] The State does not argue in this appeal that it adduced sufficient evidence to establish probable cause to stop the vehicle.