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State v. Dunlap

January 10, 2006

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
JOHNEL D. DUNLAP, DEFENDANT-RESPONDENT AND CROSS-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

(NOTE: This is a companion case to State v. Eckel, also decided today.)

The issue before the Court is whether the evidence seized was properly admitted under the seach incident to lawful arrest and automobile exceptions to the warrant requirement.

On March 22, 2001, Linell Griffin, the mother of Tiaa Griffin, discovered a loaded nine-millimeter handgun and a large quantity of heroin and marijuana in Tiaa's bedroom in the family's Franklin Township home. Mrs. Griffin notified the police and gave them permission to search Tiaa's room. During the search, the police noticed a "jail picture" on Tiaa's wall. Mrs. Griffin identified the person in the picture as "Soup."

One of the officers contacted the New Brunswick Police Department and learned that "Soup" was defendant, Johnel D. Dunlap, who was on parole but was being actively investigated by the police on suspicion that he was dealing drugs again. The officers also were told that Dunlap carried a gun and transported narcotics, using at least thee different vehicles to make deliveries.

The police went to Tiaa's place of employment and arrested her for narcotics and weapons violations related to the loaded handgun and heroin found in her room. She informed the officers that the drugs and gun belonged to Dunlap and agreed to cooperate with police. On the ride home with two officers, Tiaa stated that if Dunlap came to her house, he probably would have heroin on him; that she had seen him with guns in the past; and that one of the vehicles driven by Dunlap, a green Hyundai, was owned by someone with a "Hispanic name."

After the police obtained telephonic authorization for a consensual telephone interception, Tiaa called Dunlap's cell phone and asked him to come over because her mother had found the gun and drugs in her bedroom. Dunlap told Tiaa to "get everything out" of the house and to put it in her car and that he would be there in about five minutes. Dunlap arrived at the Griffin home about fifteen to twenty minutes later in the green Hyundai. He parked in front of the house and as he exited the vehicle and began walking toward the door, Dunlap was tackled by two police officers. He was arrested and secured on the Griffin front lawn. At the time, there were about eight to ten officers at the scene. Using keys found on Dunlap, the officers unlocked and opened the driver's side door of the Hyundai. When they opened the car door, the officers recognized the smell of burnt marijuana. They proceeded to search the entire passenger compartment and the glove box and opened a bundle wrapped in magazine paper found in the air-conditioning vent near the steering wheel. The officer who saw the bundle later testified that in the city areas it is common for heroin to be packaged and wrapped in ripped magazine pages. Further, the package was similar to the one found in Tiaa's bedroom. Tiaa also told the officer guarding her that there was a "trap" inside the car to the left of the driver's seat. Seized from the trap were a loaded .357 caliber handgun with a defaced serial number and 873 individual packets of heroin packaged for sale.

The trial judge denied Dunlap's motion to suppress the heroin and handgun found in the car, holding that no warrant was required because the search was both incident to Dunlap's lawful arrest, and within the automobile exception to the warrant requirement. Dunlap was indicted for possession of the heroin and the .357 caliber handgun found in the car as well as for possession of the marijuana and the nine-millimeter handgun found in Tiaa's room.

Dunlap was tried before a jury on twelve counts and was convicted of all the crimes related to the items found in the car. He was acquitted of all crimes related to the items in Tiaa's room. On the basis of Dunlap's prior drug convictions, the State moved for mandatory extended-term sentencing, which the judge granted. Dunlap was sentenced to eighteen years with nine years of parole ineligibility on the two drug convictions, which were merged. The judge also imposed a ten-year consecutive term, with five years of parole ineligibility on the merged convictions related to the .357 caliber handgun.

On appeal, the Appellate Division reversed. In rejecting the U.S. Supreme Court opinion in New York v. Belton, the appellate panel concluded that the essential underpinnings of the search incident to arrest exception to the warrant requirement are necessarily absent in a case in which the defendant has been secured at a distance from his automobile. In addition, the panel determined that, although the police clearly had probable cause to search the car, exigent circumstances did not justify the warrantless intrusion, thus obviating resort to the automobile exception to the warrant requirement. Accordingly, the panel reversed the trial judge's denial of Dunlap's suppression motion.

The Supreme Court granted certification.

HELD: In light of State v. Eckel, also decided today, the search incident to arrest exception is inapplicable here because Dunlap had been secured at a distance from his vehicle and was not a threat to the officers' safety or to the preservation of the evidence. In addition, the Appellate Division properly held that, although the police clearly had probable cause to search Dunlap's car, exigent circumstances did not justify the warrantless intrusion, thus obviating resort to the automobile exception to the warrant requirement.

1. The Court fully explored the search incident to arrest exception to the warrant requirement in the companion case, State v. Eckel, also decided today. In Eckel, the Court declined to adopt the U.S. Supreme Court's interpretation of the Federal Constitution in Belton that effectively validated every vehicle search based on the arrest of the recent occupant. This Court held that our State Constitution prohibits the application of that exception to cases in which the occupant of the vehicle has been removed and secured elsewhere. Eckel is fully applicable to the facts of this case. Because Dunlap was removed and secured, the Appellate Division properly ruled that his vehicle could not be searched incident to his arrest. (Pp. 7-8)

2. The automobile exception to the warrant requirement depends on: 1) the existence of probable cause and exigent circumstances; and 2) that the determination in respect of those elements must be made on a case-by-case basis. The Appellate Division found that the Hyundai was parked in a residential area, not known for drug trafficking, and that there was no evidence that any third-persons had knowledge where the car was in order to come and destroy the evidence or remove the car. In addition, it would not have been unduly burdensome to require police to post a guard and go obtain a warrant, especially since there were about ten officers at the scene. The Court's careful review of the record finds the Appellate Division decision fully supported by the record. The Court underscores the availability of a telephonic warrant and the option of vehicle impound as alternatives available to the officers on the scene. (Pp. 8-11)

3. Nothing in this opinion should be viewed as a retrenchment from the well-established principles governing the automobile exception to the warrant requirement. In this case, the unique facts, particularly the presence of ten officers, fully ...


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