September 28, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN L. STELLA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Warren County, Indictment No. 02-06-212.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Coburn and Chambers.
Defendant, John Stella, was convicted of possession of a controlled dangerous substance, namely oxycodone, in violation of N.J.S.A. 2C:35-10(a)(1), and resisting arrest, in violation of N.J.S.A. 2C:29-2(a). He seeks a reversal, maintaining that the trial judge should have suppressed evidence of the oxcycodone, because it was discovered in an illegal search of a vehicle. We affirm, finding that the search was in conformance with existing law.
On January 2, 2002, between 2 a.m. and 3 a.m., the police were called to property at 514 Guy Road in Lopatcong, New Jersey, responding to a call that an unwanted guest was at the residence. Officers Garcia and Sabo responded. When Officer Garcia arrived, he found two adults and a child inside a parked car and defendant outside of it. One of the adults was defendant's girlfriend, and the child was his son. After speaking to the homeowner's son inside the house, Officer Garcia approached the vehicle; everyone was outside the vehicle by that time. Officer Garcia testified that the investigation at the scene had led him to suspect that the three adults had in their possession coins taken from soda machines in the area. He shined his flashlight inside the vehicle and saw a large amount of coins on the rear floor of the vehicle.
Officer Sabo then learned from headquarters that there was an outstanding Pennsylvania warrant for defendant's arrest. When the officers attempted to place defendant under arrest, he grabbed his son and resisted the arrest, threatening to hold his son as hostage. After a physical struggle, the officers were able to pry the child from defendant, handcuff defendant and place him under arrest. Defendant was then searched incident to the arrest, and he was found to be in possession of a screwdriver, pocketknife and twenty-three one dollar bills. Officer Garcia then searched the vehicle and retrieved the bag of coins. As he did so, he observed, in the center console of the vehicle below the radio, four pills inside a plastic lining of the type used on the outside of cigarette cartons. Later, at the police station, defendant acknowledged that the pills were oxycodone, that he took the pills for his back even though he had no prescription for them, and that he had obtained them from his girlfriend's mother. When the coins were later counted, they were found to amount to $181.67.
Defendant was charged with third degree possession of a controlled dangerous substance, namely the oxycodone, contrary to N.J.S.A. 2C:35-10(a)(1) (count one), third degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a) (count two), and second degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) (count three). On December 6, 2002, a hearing was conducted on defendant's motion to suppress the oxycodone seized in the search of the vehicle and to suppress the statement he had given to the police. The motion was denied, and a bench trial was, thereafter, conducted on June 1, 2005, and June 6, 2005. Defendant was found guilty of possession of a controlled dangerous substance under count one; he was found not guilty of third degree resisting arrest under count two, but guilty of the lesser included disorderly persons offense of resisting arrest; and he was acquitted of the charge of endangering the welfare of a minor under count three. On August 5, 2005, defendant was sentenced to three years imprisonment for the controlled dangerous substance charge, and he was sentenced to time served, totaling 371 days, on the resisting arrest charge, to run concurrently; also, he was assessed the requisite fees and penalties.
In this appeal, defendant contends that the search of the vehicle was improper because (1) it occurred prior to his arrest and, thus, it did not qualify as a search incident to arrest under State v. Pierce, 136 N.J. 184, 198 (1994); (2) that because the amount of the coins was less than $200, theft of the coins did not constitute a crime under New Jersey statute, N.J.S.A. 2C:20-2(b)(3), and thus the police had no probable cause that a crime was committed; (3) that the judge improperly questioned the officer at the suppression hearing; and (4) the search was unrelated to the reason the arrest was made, namely, the Pennsylvania arrest warrant.
Both the United States Constitution and the New Jersey State Constitution protect people from unreasonable searches and seizures by the government. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Not all searches are unconstitutional, but only those that are found to be unreasonable. State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed. 2d 695 (1984). To pass constitutional muster, the search must have been objectively reasonable. Id. at 219. A warrantless search is presumptively invalid under both the State and Federal Constitutions. State v. Pineiro, 181 N.J. 13, 19 (2004). When a warrantless search has taken place, the burden is on the State to establish that the search fell within one of the recognized exceptions to the warrant requirement. Ibid.
Our analysis in this case begins with the officer shining the flashlight into the vehicle and observing the coins there. When an officer makes an observation without physically intruding into a constitutionally protected area, such as when he looks into a vehicle in a public space, no search is involved and no fourth amendment rights are implicated. State v. Pineiro, 369 N.J. Super. 65, 72-73 (App. Div.), certif. denied, 181 N.J. 285 (2004). Specifically, a police officer may shine a flashlight into the vehicle for the purpose of making observations, and still no search has been conducted. Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 1542, 75 L.Ed. 2d 502, 512 (1983) (shining a flashlight into a vehicle from a public vantage point did not constitute a search); State v. Moller, 196 N.J. Super. 511, 515 (App. Div. 1984) (shining a flashlight into a vehicle to observe drugs and drug paraphernalia did not constitute a search). However, once the officer observes contraband in such a circumstance, he does not have an automatic right to seize it. State v. Pineiro, supra, 369 N.J. Super. at 73-74. He can only intrude into the vehicle, a constitutionally protected space, if the intrusion conforms with constitutional law. Ibid. Thus, while the officer's observation of the coins by using a flashlight did not implicate any constitutional rights, in order for the officer to enter lawfully the vehicle and seize the coins or conduct a search of the vehicle, the circumstances must satisfy the constitutional requirements for a lawful warrantless search of a vehicle.
In his decision on the suppression motion, the trial judge found that the search of the vehicle fell within the exception allowing a search incident to a lawful arrest. In doing so, he relied on existing law at the time, namely New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed. 2d 768 (1981), and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed. 2d 685 (1969), which permitted such searches under federal constitutional law. He also relied on State v. Pierce, which interpreted the New Jersey State Constitution as prohibiting warrantless searches of motor vehicles where the occupant was arrested for a motor vehicle offense although recognizing that in the context of arrests for crimes, such searches were sustainable. State v. Pierce, supra, 136 N.J. at 205, 208, 213-14 (1984).
Since the time the trial judge rendered his decision, the law has evolved, and the New Jersey Constitution is now interpreted as prohibiting a warrantless search of a vehicle incident to an arrest where, as here, the defendant was in custody at a distance away from the vehicle and he was not in a position to threaten the safety of the arresting officers or to interfere with the preservation of evidence. State v. Eckel, 185 N.J. 523, 541 (2006). As a result, the search of the vehicle cannot be sustained on the basis set forth by the trial judge, as a search incident to defendant's arrest.
Although the search can no longer be upheld based on the rationale provided by the trial judge, due to a change in the law, a reversal is not mandated. This court only affirms or reverses orders or judgments, not the reasons given, and hence a search may be upheld for different reasons than those given by the trial judge. State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002). Here the State proffers a different rationale for upholding the search, namely, that the search of the vehicle falls within the exception to the warrant requirement that permits search of a vehicle.
Under current law, the police may search a motor vehicle provided two requirements are met, namely that (1) they have probable cause to believe that a crime has been committed, and (2) exigent circumstances are present. State v. Cooke, 163 N.J. 657, 671 (2000); State v. Dunlap, 185 N.J. 543, 551 (2006).
To satisfy the first requirement, the police must have probable cause to believe that a crime has taken place. Probable cause has been defined as "a well-grounded suspicion that a crime has been or is being committed." State v. Cooke, supra, 163 N.J. at 671. Defendant argues that the police had no evidence that a crime had been committed because the coins totaled only $181.67. A theft of that amount under the New Jersey criminal code constitutes only a disorderly person offense. N.J.S.A. 2C:20-2(b)(3). To constitute a crime, the amount involved in the theft must be at least $200. Ibid. As a result, the defense argues that probable cause that a crime was committed was not shown. This argument fails.
When evaluating whether or not the search by a government official was objectively reasonable, the court must look at the circumstances as they appeared to the officer at the time of the search, and not consider subsequently discovered information. State v. Santana, 215 N.J. Super. 63, 71 (App. Div. 1987).
The fact that the value of the coins came so close to $200 demonstrates that the pile of coins observed by the officer visually looked as if it could meet the $200 threshold. The information that the three individuals were stealing from vending machines in the area, coupled with the screwdriver in defendant's possession and the bag of coins in the vehicle was sufficient to establish probable cause that the crime of theft had been committed.
The second requirement is that the officers were confronted with exigent circumstances. "Exigent circumstances have been described as 'unforeseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile . . . .' Exigent circumstances may exist if the unanticipated circumstances that give rise to probable cause occur swiftly. In addition, exigent circumstances may arise where '[a]ny element of surprise had been lost; the vehicle contained the 'contraband' drugs; there were 'confederates waiting to move the evidence'; the police would need 'a special police detail to guard the immobilized automobile.'" State v. Cooke, supra, 163 N.J. at 672. (citations omitted).
When considering the exigent circumstances here, we must recognize that the two police officers were dealing with a complex situation. They were confronted with evidence that three individuals, including the defendant, were involved with vending machine thefts. Key evidence of the thefts, namely the coins, were in plain view in the vehicle, and were thus susceptible to further theft. Unless secured by the officers, given the fungible nature of coins and the ease in which they can be spent, the car could not be left unattended with the coins inside. Further, the defendant had just been arrested on a warrant arising from independent charges. Defendant had actively resisted arrest and had seized a child in an attempt to create a hostage situation. The officers were about to arrest the other two suspects. Unlike the situation in State v. Dunlap, supra, 185 N.J. at 550, where ten officers were present and the court found that the police could have posted a guard to the vehicle while obtaining a warrant, here only two officers were present. We find that these were exigent circumstances, justifying entering the car to secure the coins and search the vehicle.
Once Officer Garcia entered the car to take the coins, he saw the plastic package with the pills in plain view. Even though illegal drugs were not the purpose of his entry into the vehicle and his search, once he saw the drugs in plain view, he was entitled to seize them. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed. 2d 564, 582 (1971); State v. Pineiro, supra, 369 N.J. Super. 65, 71-72 (App. Div.), certif. denied, 181 N.J. 285 (2004).
In summary, since the officer had probable cause to believe that a theft had been committed, namely theft of the coins from vending machines, and exigent circumstances were present, the situation met the standard for a warrantless search of the car. Once that search was underway, the pills were found in plain view, and they, also, could be legally seized along with the coins. Accordingly, defendant's motion to suppress was correctly denied.
The defense also contends that the trial judge failed to perform his job impartially and threw his weight on the State's side of the case when he questioned one of the State's witnesses, thereby, allegedly violating the Code of Judicial Conduct. The basis for this assertion is a series of questions the judge asked Officer Garcia in order to clarify the sequence of events and to find out why the coins aroused the officer's suspicion. The defense complains that the answers to the questions helped the State sustain its burden of establishing probable cause.
The rules of evidence expressly authorize a judge to question a witness. N.J.R.E. 614. Indeed, the New Jersey Supreme Court has indicated that the "intervention of a trial judge in the questioning of a witness is both a power and a duty, and forms part of the judiciary's general obligation to ensure a fair trial 'conducted in [an] orderly and expeditious manner.'" State v. Medina, 349 N.J. Super. 108, 130-31 (App. Div.), certif. denied, 174 N.J. 193 (2002). A trial judge has the discretion to interrogate witnesses in order to elicit material facts. Id. at 131.
Here the judge's questions were legitimate inquiries to clear up questions he had on the order of events, to confirm his understanding of the testimony, and to develop a better appreciation of the significance of the coins to the officer. The fact that some of the answers were not helpful to the defense does not make the court's questioning improper. The questions did not display any lack of impartiality on the judge's part. Since this was a bench trial, any concern about the impact a judge's questions may have on a jury is not present here.
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