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 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).