STATE
v.
MARLON SIMON, a/k/a
KEVIN ROBINSON,
Defendant-Appellant.
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
______________________________
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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.
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