March 31, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID CONNERS A/K/A DAVID CONNER A/K/A DAVID CONNORS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 04-12-2063.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 10, 2008
Before Judges Lintner and Graves.
Following the denial of his motion to suppress, defendant, David Connors, was tried by a jury. On March 2, 2006, the jury returned its verdict, finding defendant guilty of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count One); third- degree possession of cocaine with intent to distribute, N.J.S.A. 2c:35-5a(1) and 2C:35-5b(3) (Count Two); third-degree possession with intent to distribute cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); third-degree distribution of cocaine to Shavanda Pearson, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (Count Four); and third-degree distribute of cocaine to Shavanda Pearson within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Five).
On March 6, 2006, pursuant to a negotiated plea agreement, defendant pled guilty to an unrelated charge of third-degree possession of cocaine with intent to distribute within 1000 feet of school property. In exchange for defendant's plea, the State agreed to recommend a four-year term with two years of parole ineligibility, to run concurrent with the sentence to be imposed on defendant's March 2, 2006 convictions.
At sentencing, the judge granted the State's motion for a mandatory extended term, N.J.S.A. 2C:43-6f. Following appropriate mergers, the judge imposed concurrent ten-year terms with five years of parole ineligibility on the Count Three and Count Five convictions. A concurrent four-year term with a two-year parole disqualifier was imposed on defendant's guilty plea. Defendant appeals and we affirm.
On September 15, 2004, Jersey City police officer Anthony Goodman, while conducting surveillance, observed what he believed to be a hand-to-hand drug transaction between defendant and an unidentified male at the corner of Belmont and Monticello Avenues, an area known for drug trafficking. He saw defendant talk with the unidentified male, then walk around the corner, return five minutes later and exchange an object for money.
Continuing his surveillance, Goodman then saw a woman, later identified as Shavanda Pearson, approach defendant and participate in a brief conversation. Defendant then walked around the corner. Following in his unmarked vehicle, Goodman saw defendant approach a parked GEO Storm, unlock and open the driver's side door, reach under the seat, and retrieve an object. Defendant then returned to Pearson and handed her an object for money. Goodman observed Pearson put the object into her bra.
Goodman contacted other officers via radio and advised of his observations. Officer John Traynor stopped Pearson and advised her of the narcotics investigation. Pearson responded by voluntarily handing over two vials with silver tops that contained cocaine.
The officers then stopped and arrested defendant. A pat-down search revealed two vials with silver tops containing suspected cocaine, and car keys. After defendant was placed in custody, Traynor and Goodman went over to the GEO Storm, unlocked the door, and underneath the seat found a plastic bag containing eighteen similar vials that contained suspected cocaine. At trial, it was stipulated that the substance recovered from Pearson, defendant, and the GEO Storm tested positive for cocaine. Sergeant Wally Wolfe of the Jersey City Police Department qualified as an expert on distribution of drugs and testified that the location was known as a drug market and, in response to a hypothetical question, opined that the possession of eighteen vials in the car and the two vials found on defendant and Pearson were consistent with drug sales.
On appeal, defendant contends:
IT WAS ERROR NOT TO SUPPRESS THE EVIDENCE SEIZED FROM THE VEHICLE WITHOUT A WARRANT.
DEFENDANT'S SENTENCE WAS PREMISED ON AN ERROR IN THE COURT'S READING OF THE PRESENTENCE REPORT AND IN ANY EVENT IT WAS EXCESSIVE.
We first address defendant's contention that the judge erred in not suppressing evidence of the cocaine seized from the GEO Storm. Defendant concedes that the police had probable cause to believe that the GEO Storm was being used in furtherance of a drug transaction. He maintains, however, that exigent circumstances were not present to justify the warrantless search. He argues that once defendant was arrested the surveillance was over and the vehicle should have been watched while awaiting arrival of the tow truck, which ultimately towed the vehicle for the purpose of impounding it.
"A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); State v. Alston, 88 N.J. 211, 230 (1981). Moreover, the State has a heavy burden in seeking to validate a warrantless search by bringing it within one of those exceptions. Alston, supra, 88 N.J. at 230. One of those exceptions is the "automobile exception," which permits warrantless searches of readily movable vehicles if law enforcement officers have probable cause to believe the vehicle contains evidence of a crime. Cooke, supra, 163 N.J. at 664. "'The rationale for this exception is grounded in the exigent circumstances created by the inherent mobility of vehicles and the somewhat lessened expectation of privacy in one's vehicle.'" Id. at 667 (quoting State v. Patino, 83 N.J. 1, 9 (1980)). This "lessened expectation of privacy," when combined with the existence of probable cause and the overall exigency of the situation, may justify the warrantless search. Cooke, supra, 163 N.J. at 670; State v. Colvin, 123 N.J. 428, 429 (1991); Patino, supra, 83 N.J. at 9-10.
Under the New Jersey State Constitution, article I, paragraph 7, a warrantless search of an automobile requires both probable cause and exigent circumstances. Cooke, supra, 163 N.J. at 671. In contrast, the Fourth Amendment of the United States Constitution has "'no separate exigency requirement.'" Id. at 665 (quoting Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 2014, 144 L.Ed. 2d 442, 445 (1999)); see also Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, L.Ed. 2d 1031, 1036 (1996). Because the New Jersey Constitution affords greater rights to a criminal defendant than the federal constitution, we must analyze the search of the GEO Storm under the New Jersey Constitution, which requires a demonstration of both probable cause and exigent circumstances to justify the warrantless search. See Cooke, supra, 163 N.J. at 666.
Colvin involved a parked car. Through surveillance and an informant's tip provided after the defendant was arrested, the police discovered that defendant was selling drugs "stashed" in the vehicle. Colvin, supra, 123 N.J. at 430. In that circumstance, the Court recognized the potential for the destruction or loss of the evidence should a warrant be required before a search could be performed. Explaining that, even after the defendant was arrested for selling drugs from the vehicle, there still existed a strong probability that "confederates [would be] waiting to move the evidence," and unless "a special police detail" was summoned to guard against its loss or destruction while the police went to obtain a warrant to search the car, the evidence might not be there when they returned to search. Id. at 434-35. In such circumstances, the Court concluded it was impracticable to require a warrant before the police seized the vehicle and searched it. Ibid.; see also Cooke, supra, 163 N.J. at 674.
Similarly, in the present case, the police were involved in a rapidly developing criminal investigation involving "unforeseen and spontaneous" events in a high drug crime location which militated against delaying the search of the vehicle until a warrant could be obtained. The situation increased the potential accessibility of the car to third persons, thereby enhancing the potential for loss or destruction of the evidence. As Cooke recognizes, "until the vehicle is seized by the police and removed from the scene, 'it is potentially accessible to third persons who might move or damage it or remove or destroy evidence contained in it.'" Cooke, supra, 163 N.J. at 672 (quoting Alston, supra, 88 N.J. at 234).
In our view, New Jersey does not require police officers involved in a fluid, on-going criminal investigation in a high crime area to stop what they are doing and post a special detail to guard the vehicle until a warrant is obtained, where to do so could endanger their lives or the lives of others. See State v. Pante, 325 N.J. Super. 336, 352 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000); see also State v. Alvarez, 238 N.J. Super. 560, 570 (App. Div. 1990) (citing United States v. Hultgren, 713 F.2d, 79, 87 (5th Cir. 1983)). The fact that back-up assistance was present and the occupants secured does not mean that the exigency had dissipated. See Cooke, supra, 163 N.J. at 672 (quoting Alston, supra, 88 N.J. at 234) ("'[E]xigent circumstances do not dissipate simply because the particular occupants of the vehicle may have been removed from the car, arrested, or otherwise restricted in their freedom of movement.'").
In reaching his determination that exigent circumstances were present to justify the search, the judge aptly observed:
Since this defendant did not own the vehicle and had a key to it, it's logical and probable that there was at least one other set of keys and those being the owner's keys.
Even if there wasn't [another] key to the car, [there was] nothing which would limit someone in the area from breaking a window to gain access or prying a door open or jimmying the door open or picking a lock or any number of ways to enter a parked vehicle.
[Three-thirty], four o'clock in the afternoon, weekday, in a crowded area where narcotics transactions are routine, it's not unlikely, given the circumstances, even the first man that approached the Defendant very well could have still been in the area and been aware where the alleged stash was stored that he might go back and help himself. It is not also unlikely that the Defendant may have had confederates in the area and they could have removed the drugs in any number of different ways.
So the police are not required to post a guard and seek a warrant under those circumstances. This is in a populated city area, a high crime area, high narcotics area, any number of reasons why they could not wait, await the outcome of the preparation, approval and execution of paperwork necessary to secure it.
We are satisfied, based upon the circumstances confronting the police here, that the judge properly denied the motion to suppress.
At sentencing, the State misstated defendant's record, arguing that defendant had two prior 1000-feet violations, when his prior record indicated that he had only one.*fn1 Defendant asserts on appeal that the judge misread his prior criminal record to include more than one prior 1000-feet violation when he alluded to defendant being convicted of "three 1000 feet violations at this point." Defendant cites the judge's comments out of context. The judge correctly observed that the two present 1000 feet offenses, when combined with defendant's prior 1000 feet conviction, represented "three 1,000 [feet] violations at this point."
Defendant also asserts that the ten-year term with five years of parole ineligibility was excessive. Here, the sentencing court determined defendant's sentence within the extended-term range based on aggravating and mitigating factors found. State v. Thomas, 188 N.J. 137, 154 (2006); State v. Young, 379 N.J. Super. 498, 509-10 (App. Div. 2005). Beyond that, we are satisfied that the sentence imposed is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).