April 30, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER ROLLINS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-01-0123.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 2, 2008
Before Judges Lisa and Simonelli.
After his suppression motion was denied, defendant pled guilty to third-degree possession of a controlled dangerous substance (CDS) with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. Defendant was sentenced to a mandatory extended term, see N.J.S.A. 2C:43-6f, of eight years imprisonment with a four-year parole disqualifier. Defendant argues on appeal:
POINT I SINCE THERE WAS NO EXIGENCY ONCE DEFENDANT WAS HANDCUFFED AND NO EVIDENCE OF CONFEDERATES OR OTHERS ASSOCIATED WITH DRUG TRAFFICKING IN THE AREA, THE HEROIN SEIZED AS A RESULT OF THE WARRANTLESS ENTRY INTO DEFENDANT'S LOCKED VEHICLE SHOULD HAVE BEEN SUPPRESSED.
POINT II AT THE VERY LEAST, DEFENDANT SHOULD BE RE-SENTENCED PURSUANT TO STATE V. THOMAS, 188 N.J. 137 (2006) WITHOUT ANY AGGRAVATING FACTORS NOT FOUND BY A JURY OR, ALTERNATIVELY, WITH MINIMAL WEIGHT TO THE AGGRAVATING FACTORS GIVEN THE MINIMAL NATURE OF THE OFFENSE. (Not Raised Below).
We reject Point I and affirm defendant's conviction. However, sentence was imposed before our Supreme Court's decision in State v. Thomas, 188 N.J. 137 (2006), and, because the sentence imposed was higher than the statutory "presumptive" term within the extended range, a remand for resentencing is necessary. Id. at 154.
On Sunday morning, October 17, 2004, at about 10:00 a.m., Jersey City officers Ludwig and Trobridge, members of the narcotics unit, were on routine patrol in a neighborhood known for high drug activity. They were in plain clothes and in an unmarked vehicle. About two weeks earlier, Ludwig received information from a confidential informer that defendant was using a green Chrysler Concord automobile to store and deliver heroin in that neighborhood. Ludwig was a veteran officer, with many years of experience working in that neighborhood, and he knew defendant from prior contacts. According to Ludwig, defendant knew him as well. Upon receiving the information from the confidential informer, Ludwig did not immediately conduct any investigation of defendant, and on the morning of this incident, he and Trobridge were not looking for defendant. They merely drove into a high drug area for the purpose of detecting any drug activity they might encounter.
They observed defendant getting out of a parked green Chrysler Concord. He was alone. He began walking up the street. The officers drove past him, keeping an eye on him, and as far as they could tell, defendant did not notice them. The officers then drove around the block, losing sight of defendant for about thirty seconds, until they encountered him again. This time, defendant saw the officers and apparently recognized them as such.
From a distance of about ten feet, with an unobstructed view, Ludwig saw defendant reach into his jacket pocket and remove what Ludwig immediately recognized from his training and experience as a bundle*fn1 of heroin. Ludwig described the bundle as containing glassine bags, which are typically used for heroin packaging. Defendant held the bundle between his fingers and quickly placed it in his mouth. As he did so, defendant turned and began walking briskly away from the officers.
The officers got out of their car and quickly caught up with defendant. Each held him by one arm, and they directed him to spit out the object in his mouth. Defendant did so. The object contained eight glassine bags of heroin. Ludwig immediately placed defendant under arrest, handcuffed him, and advised him of his Miranda*fn2 rights. A search of defendant's person revealed $88 in currency. The officers then placed defendant in their unmarked car. They told him they had received information that he had been using the Chrysler Concord to store and deliver drugs in the neighborhood. Stating that he wanted to "keep it real," defendant volunteered that he had another bundle of heroin in the car, hidden under the armrest. Defendant said the officers could take the car keys from his pocket and retrieve the additional drugs.
The officers drove back to where the Chrysler was parked. It was locked. Using the keys obtained from defendant, Trobridge unlocked the car and removed a bundle containing ten glassine bags of heroin from under the armrest. The officers "secured"*fn3 the car at that location and drove defendant back to the station house. A group of individuals on the street observed this activity as well.
The entire episode from when the police first saw defendant getting out of his car until they drove away with defendant for the station house lasted only about five minutes. Other than Ludwig, Trobridge and a supervisor, no members of the narcotics unit were on duty that morning. The officers searched the vehicle because (1) they had ample probable cause to believe it contained additional CDS, based upon a combination of the tip from the confidential informer, defendant's possession on his person of CDS, which corroborated the tip, and defendant's volunteered statement that he indeed had additional CDS in the car, and (2) they deemed the circumstances exigent, fearing that the additional drugs or the entire car would be removed if they did not immediately seize the drugs. A number of individuals on the street in this high drug area witnessed the events, and, based on his experience, Ludwig had seen evidence disappear in like circumstances if not immediately recovered.
Defendant moved to suppress all of the physical evidence, including that recovered from his person and the car, as well as his statements to the police. On appeal, defendant confines his argument to denial of the suppression motion with respect to the drugs seized from the car only. There is no dispute that the officers had more than ample probable cause to believe that the car contained contraband. Defendant argues, however, that exigent circumstances did not exist, as a result of which there was no basis for a warrantless search.
Ludwig was the only witness at the suppression hearing. Judge Schultz found his testimony credible. The judge concluded that the warrantless search of the car could not be sanctioned as a consent search because no evidence was presented to establish that defendant knew he had the right to refuse to consent. See State v. Johnson, 68 N.J. 349, 354 (1975). The judge therefore considered whether the search was justified under the automobile exception to the warrant requirement, which requires proof by the State of exigent circumstances in addition to probable cause. State v. Dunlap, 185 N.J. 543, 549 (2006). With respect to the exigent circumstances, the judge found:
This court finds that the State has met its burden in showing that exigent circumstances warranted the seizing of the heroin from the car without the need to apply for and obtain a search warrant. Detective Ludwig credibly testified that onlookers saw the arrest of the defendant (and thus saw that the arrest was made by plain clothes officers in an unmarked vehicle), and that he was therefore concerned that the car or the suspected drugs in it would be at risk of being stolen. Under the circumstances this was not an unfounded fear on the part of the detective. This situation is very much akin to that in State v. Colvin, 123 N.J. 428, 437 (1991). The police here had no advanced knowledge of the events to unfold, had more than sufficient probable cause to believe that the car contained heroin and had articulable reasons to search the vehicle immediately to prevent the loss or destruction of the evidence.
Under the totality of the circumstances the police conduct was objectively reasonable. The motion to suppress is denied.
The judge's factual findings are well supported by the motion record, and we defer to them. State v. Johnson, 42 N.J. 146, 162 (1964). And, we agree with the judge's legal conclusion flowing from the facts he found.
The events observed by Ludwig and Trobridge occurred unexpectedly and unfolded quickly. They did not know they would encounter defendant or the green Chrysler Concord that Ludwig learned of from a confidential informer two weeks earlier. Although the car was parked legally, defendant was just getting out of it when the police first saw him, thus indicating that he had recently driven to that spot or had gone to the car to retrieve the drugs found on his person. This was a high drug area. The confidential informer had reported to the police that defendant was using this particular car in this specific location to store and deliver drugs. A number of onlookers saw the arrest and saw defendant driven away from the location by the two officers. If the car would have been left unattended, there was a reasonable and articulable basis to support the officers' belief that the drugs (or the entire car) might be removed before they could obtain a warrant and return to conduct a search. This was a Sunday morning, and no other narcotics unit officers were on duty (except a supervisor). Finding an assistant prosecutor to assist in preparing a search warrant affidavit and finding a judge to consider a search warrant application would have been extremely difficult and burdensome. Likewise, it would have been unduly burdensome and impractical to expect the police under these circumstances to have posted a guard with the car while efforts were made to obtain a search warrant. Defendant had to be transported to headquarters and processed, and the contraband had to be logged into evidence.
The exigency determination is highly fact-sensitive, and must be made on a case-by-case basis. Dunlap, supra, 185 N.J. at 549. Automobiles are inherently mobile, and the fact that the operator of the automobile is arrested does not necessarily dissipate the exigency inherent in the ability to remove an automobile from its location. State v. Alston, 88 N.J. 211, 232-34 (1981). Among the factors to be considered in evaluating the exigency are "the unforeseeability and spontaneity of the circumstances giving rise to probable cause." Id. at 233. The Chrysler was accessible to others. The confidential informer knew it was being used to store and transport drugs for delivery in the neighborhood. It is reasonable to infer that other people in this high drug neighborhood knew it as well. And, of course, a number of onlookers saw defendant arrested and driven away from the scene by the police.
We reject defendant's reliance on Dunlap, in which the Court declined to find a sufficient exigency. The facts in Dunlap were materially distinguishable from those here. In Dunlap, the car was not parked in a high drug area, the police had advance knowledge of the events they anticipated, and ten officers were present. Supra, 185 N.J. at 550-51. Under the totality of the circumstances in the case before us, we are satisfied that a sufficient exigency existed to justify the warrantless search under the automobile exception.
The judgment of conviction is affirmed. The matter is remanded for resentencing in accordance with State v. Thomas, supra, 188 N.J. at 154.