July 27, 2006
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARIO R. MUNGUIA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 00-10-0594.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2006
Remanded by Supreme Court February 26, 2007
Submitted October 1, 2007
Decided October 17, 2007
Before Judges Stern, Collester and C. L. Miniman.
The Supreme Court has remanded this matter to us following our affirmance of defendant's convictions for offenses including first-degree possession with intent to distribute cocaine. The Court directed us to reconsider our affirmance in light of State v. Eckel, 185 N.J. 523 (2006), and State v. Dunlap, 185 N.J. 543 (2006).
The case involved a planned undercover cocaine purchase arranged with Marcos Fontanez, an informant. Surveillance was established in a ShopRite parking lot. We described the facts as developed in the record at trial as follows:
After his meeting with Fontanez, Detective Walsh returned to the narcotics task force office to report to his supervisors, who authorized him to proceed with the operation that evening. However, due to the "risk" posed to the undercover officers by the possible handgun and the amount of drugs and money involved, they "decided not to do a drug purchase."
At approximately 6:00 p.m. that evening, undercover police cars containing six officers established surveillance in the ShopRite parking lot to await the blue van. At 6:45 p.m., Fontanez called defendant to determine when he would arrive. After this conversation, Fontanez informed the officers that "Mario was enroute to [the] location" and "that there was another person in the van . . . with Mario because he heard a voice in the background while they were on the phone."
At 7:00 p.m. Detective Francisco Roman informed Detective Walsh, by radio transmission, that a blue work van with "ladder racks" had arrived at the Plaza. A man matching the description of "Mario" exited the van and walked into the ShopRite. Detective Roman parked behind the van to block it in. Although it was after nightfall, the parking lot was "well-lit."
Several moments after defendant exited the van, the lights inside the van shut off. The van appeared too old to have courtesy lights, which reaffirmed the officers' suspicion that there was someone else with defendant. Detective Walsh and his partner, Investigator Price, approached and shined their flashlight inside the van to ascertain if anyone was inside. They "couldn't see anyone through there" but could not see all areas of the van.
Meanwhile, Sergeant Christopher Shea and Detective Lewis DeMeo of the Prosecutor's Office approached defendant as he exited the ShopRite. They verbally identified themselves as officers, and also wore "raid" jackets and badges around their necks. In this way, defendant had no time to draw a weapon in anticipation of the drug transaction. According to the officers, defendant assumed a "boxing stance" as though he were ready for a fight. Therefore, Detective DeMeo brought defendant to the ground and Sergeant Shea handcuffed him. Detective DeMeo patted defendant down and found a small bag of marijuana in his sock. He then placed defendant under arrest. Defendant told the officers that his name was "Luis Rivera." However, Sergeant Shea retrieved defendant's wallet from his pocket and found identification in the name of "Mario Munguia," as well as a driver's license in the name of "Luis Rivera."
Sergeant Shea took the van keys from defendant's pocket and gave them to Detective Walsh. Defendant was taken to the van. In the interim, Fontanez was driven by, and positively identified defendant as the target of the investigation.
Detective Walsh opened the front passenger door of the van and found that no one was inside. He immediately detected a "very acid, pungent odor" in the van, which he recognized from his experience to be indicative of large volumes of cocaine. Investigator Eric Goleskie came over to assist Detective Walsh and also detected the odor.
Investigator Goleskie searched the van. From underneath the dashboard on the passenger side, he pulled out a black plastic shopping bag containing six clear-plastic bags. The bags contained powdered cocaine. Investigator Goleskie then pulled out a nine millimeter handgun wrapped inside a T-shirt. The gun was loaded but had no bullets in its chamber. The serial number had been removed. A cellular phone was also recovered from the van.
In his supplementary brief defendant argues that "the warrantless search of defendant's vehicle which is unsupported by exigent circumstances and was not a search incident to arrest should result in suppression of the evidence seized here." Defendant asserts that these facts "are remarkably similar to the facts" in Dunlap because defendant was at least twenty yards from his vehicle and detained while the van was being searched. He also says that this case is controlled by Eckel because that defendant had been arrested and in custody so that it could not be a search incident to a lawful arrest under the state constitution.
We did not decide this case on the basis that "the search was justified as incident to a lawful arrest." We expressly stated that "we need not examine" the State's argument that the search could be upheld on that basis. Relying on State v. Cooke, 163 N.J. 657 (2000), we concluded that:
[I]n the present case, there were exigent circumstances due to "the inherent mobility of vehicles" and the possible destruction of evidence. Indeed, in ruling that exigent circumstances existed that made it impracticable to obtain a warrant, the judge noted that a second person may have been in the van, which was unforeseen until shortly before defendant arrived, and that the police had cause to believe that, in addition to the illegal narcotics, the van also contained a deadly weapon that could have been accessed by a second occupant of the vehicle. See, Cooke, supra, 163 N.J. at 671; State v. Wilson, 362 N.J. Super. 319, 331 (App. Div. 2003). We agree that there were both probable cause and exigent circumstances presented in this case, and the search of the van was lawful on that basis.
We find nothing in Eckel or Dunlap which questions Cooke or the longstanding exception to the warrant requirements relating to automobile searches. In fact, in Eckel the Court cites to Cooke as "declining to adopt [the] conclusion of [the] Supreme Court in Pennsylvania v. Lebron, 518 U.S. 938, 116 S.Ct. 2485, 135 L. Ed. 2d 1031 (1996), that dispensed with the need for exigent circumstances under [the] automobile exception," and noted that the "warrantless search of an automobile will violate our constitution unless it falls squarely within a known exception to the warrant requirement," stating that "[i]n this matter our concern is the search incident to arrest exception." Eckel, supra, at 538-39. According to Justice Long "[t]o us, a warrantless search of an automobile based not on probable cause but solely on the arrest of a person unable to endanger the police or destroy evidence cannot be justified under any exception to the warrant requirement . . . ." Id. at 540. What the Court did in Eckel is clear. It addressed the "search incident" exception only, and declared "[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." Id. at 541. Significantly, the Eckel Court remanded to us to consider other exceptions to the warrant requirement, including "the automobile exception," which had not been considered in light of "the State's refusal to address them" while pressing the "search incident" claim under Belton v. New York, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed. 2d 768 (1981), which the Supreme Court rejected. Id. at 542.
In Dunlap, the Court set out the Eckel holding, stating that the search incident exception "is circumscribed by the purposes for which it is limned: police safety and the avoidance of the destruction of evidence," 185 N.J. at 548, and held that "the search incident" exception did not apply because Dunlap "was removed [from the car] and secured" by the police, and had "no capacity to reach the interior of the vehicle." Id. at 548- 49. The Court then considered "the automobile exception" based on "probable cause and exigent circumstances, id. at 549, and affirmed our factual determination that there were no exigent circumstances, id. at 550-51, stating "[n]othing in this opinion should be viewed as a retrenchment from the well-established principles governing the automobile exception to the warrant requirement[,]" id. at 551 (citing Cooke, 163 N.J. at 670-71). The Court also emphasized the need to determine both probable cause and exigent circumstances "on a case-by-case basis." Ibid.
Here, defendant conceded probable cause by contending that an anticipatory warrant could have been obtained, but he challenged the finding of exigent circumstances. However, this case is unlike Dunlap in which the defendant was arrested after he was called to his girlfriend's home and started to enter the house after parking and leaving his car unattended. Id. at 545. Here, the State contends that there was a "dangerous exigency created by the unforeseen potential presence of someone inside the van with a handgun" who could have driven the car and evidence away. The motion judge so concluded. Following hearing the witnesses at the motion to suppress, the judge found:*fn1
In this case, the police had reason to believe the vehicle contained drugs and a handgun. And also, reasonable basis to believe there was the second person still afoot. The confidential informant confirmed in conversation that the Defendant would deliver the cocaine at about seven o'clock at Shop Rite. The informant advised the task officers that the Defendant would attempt to hide the drugs in the van. He alerted the police that he had personally seen the Defendant in possession of a handgun in the past and also thought, based on the phone call, the second phone call, that there was a second person in the van, at least at the time of the phone call.
The Defendant responded to the CI's phone call, arriving at approximately the time given. The information now was sufficient for probable cause to be established as to the Defendant. And as to the vehicle, the courts are convinced the exigent circumstances were sufficient to require an immediate search of the vehicle.
The degree of exigency is heightened when the police are involved in an ongoing investigation of events occurring close in time to the search, as indicated in Cook[e] at page 673.
The task force believed that another may be in the vehicle due to the information received. The belief was strengthened by the CI report hearing another person on the phone call, which I believe was approximately 6:45.
Also supported by the fact that the van lights were turned off after the Defendant had left the vehicle. And this was, did not appear to be the type of vehicle that would have courtesy lights.
Further, the CI alerted the officers that the Defendant was known to carry a gun. The time period between the establishment of the probable cause and the arrival of the Defendant was instantaneous. These were rapidly occurring events and, in this circumstance, the Police were dealing not only with illegal drugs, but a situation where a person was reported to be armed, which made the situation extremely dangerous. So dangerous that the police had to change their tactics in how to deal with this particular case, and change from a purchase to a delivery situation, so that the undercover officer would not be put at risk.
So I find that the evidence seized from the van would be admissible. That the officers took reasonable action under the circumstances of the case.
Based on the trial judge's fact-finding, we adhere to our original opinion.
The judgment of conviction is again affirmed.