On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 06-12-3896.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S. L. Reisner and Gilroy.
On leave granted, the State of New Jersey appeals from the June 28, 2007, order of the Law Division, which suppressed evidence seized following a warrantless search of an automobile. The evidence seized formed the basis of an Essex County Grand Jury indictment, charging defendant with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5a(1)(b)(3) (Count Two); and third-degree possession of intent to distribute cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7 (Count Three). We affirm.
The only witnesses who testified at the suppression hearing were: Newark Police Officer Jason West, on behalf of the State; and Theodore Gaines, on behalf of defendant. West testified as follows. On August 25, 2006, at approximately 2:10 p.m., West received an anonymous tip that an African-American male was selling narcotics from a parked Dodge Intrepid with New Jersey license plate number MDW-39L in the vicinity of 100 Ludlow Street, an area known to the police for past narcotics activities. The police decided to immediately investigate by setting up a surveillance of the Dodge Intrepid. West and his partner were in one motor vehicle, while four or five other officers were in other motor vehicles in the general area. West observed defendant exit the courtyard of 100 Ludlow Street in the company of a female. Defendant walked to the street, opened the passenger's door of the vehicle, and removed a black radio case from the vehicle. West observed defendant remove a clip,*fn1 of what West recognized as cocaine, from the case. The clip contained ten vials of cocaine with bright orange caps. After defendant removed the clip, he closed the case, placed it back on the seat in the vehicle, closed the vehicle's door, and handed the clip to the female in exchange for paper currency. Although West observed defendant remove the clip, containing ten vials of cocaine from the radio case, he did not observe whether the case contained any other vials of cocaine when defendant placed the radio case back on the seat in the vehicle.
Based on his observation, training, and experience, West believed that he had observed a "narcotics transaction" and contacted the other members of the surveillance team by radio to move in and detain defendant, as defendant was walking back toward the courtyard. After the surveillance team police officers confronted defendant in the courtyard, they walked him back toward the Dodge Intrepid. When they arrived at the vehicle, defendant stated that the car was not his. West approached the vehicle; opened its door; removed the radio case that was in plain view; opened it; and observed thirty bottles of cocaine with orange tops. After defendant informed West that the vehicle was owned by his girlfriend, the surveillance team police officers secured the vehicle and left it parked on the street rather than having it towed.
West testified that he did not obtain a search warrant before seizing the radio case because there were drug addicts in the area; the vehicle was unlocked; and anyone, including the owner of the vehicle, could have come and taken the cocaine or could have moved the vehicle. Moreover, West stated that "a warrant takes time, and we just didn't feel it was necessary to get a warrant."
Theodore Gaines testified that he had known defendant for approximately twenty years. Gaines stated that at the time of the incident he had just walked out of a store on Frelinghuysen Avenue, directly behind defendant, when he observed two motor vehicles approach. Gaines said several police officers walked up to defendant, who was accompanied by a female and another male, and frisked the three individuals. Gaines stated that the police removed defendant's wallet and car keys, and then attempted to locate defendant's motor vehicle by walking around the area pressing the car key's alarm device. After telling the two individuals with defendant to leave the area, the police put defendant in one of their vehicles and drove off in the direction of Ludlow Street.
On June 28, 2007, Judge Sivilli entered an order, supported by an oral opinion, granting defendant's motion to suppress evidence. The judge determined that the testimony of Police Officer West was credible, and the testimony of Gaines was not. Although the judge found, based on West's observations, that the State had probable cause not only to detain and arrest defendant, but also to search the vehicle, she concluded that the State failed to prove that the warrantless search fell within any of the exceptions to the warrant requirement. Particularly, the judge determined that the search incident to arrest exception was not applicable because defendant had been detained in the courtyard and then brought to the motor vehicle while in custody of the police. State v. Eckel, 185 N.J. 523, 540 (2006); State v. Dunlap, 185 N.J. 543, 548 (2006). The judge found that the automobile exception did not apply because, although the police had established probable cause, there was an absence of exigent circumstances justifying the warrantless search. Lastly, the judge determined that the "drugs were not in plain view and that [such] exception is not applicable."
On appeal the State argues that "the trial court erred in granting defendant's motion to suppress." The State contends that "the search and seizure was based on appropriate legal principles and was fully grounded in search and seizure law: probable cause, exigent circumstances, and plain view."
An appellate court's scope of review of a trial court's determination is limited. We are obligated to "review the record in the light of the contention, but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Factual findings of the trial judge are generally given deference, especially when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.; accord State v. Locurto, 157 N.J. 463, 470-71 (1999).
The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect individuals against unreasonable searches and seizures. State v. Johnson, 171 N.J. 192, 205 (2002). "[O]ur constitutional jurisprudence expresses a preference that [police officers] secure warrants issued by neutral and detached magistrates before executing a search . . . ." State v. Frankel, 179 N.J. 586, 597-98 (2004).
A warrantless search is presumed to be unlawful unless it falls within one of the recognized exceptions to the warrant requirement. State v. Diloreto, 180 N.J. 264, 275-77 (2004). "Those exceptions are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary." Frankel, supra, 179 N.J. at 598. The burden of proving by a preponderance of the evidence that the search and ...