On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-06-1199.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Winkelstein.
Defendant was indicted for second-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39- 4a, and various other offenses. Defendant filed a motion to suppress the evidence against him, which the trial court denied. Defendant then entered into a plea bargain under which he agreed to plead guilty to the possession of a weapon for an unlawful purpose charge and the State agreed to dismiss the other charges and recommend a five-year sentence, with three years of parole ineligibility. The trial court accepted the plea agreement and sentenced defendant to a five-year term of imprisonment, subject to the three years of parole ineligibility mandated by the Graves Act. N.J.S.A. 2C:43-6c. Defendant appeals solely from the denial of his motion to suppress.
Shortly after 2 a.m. on November 10, 2005, Lucretia Cross telephoned the Marlboro Police Department and reported that defendant, who was her boyfriend, had come to her house in an intoxicated condition with a gun and had threatened her and another man she was with at the time. She also reported that defendant had left her house in a pick-up truck. The police officer who received the call dispatched one officer, Patrolman Arrone, to Cross's house and another officer, Sergeant Fox, to stop defendant's truck.
Fox, with the assistance of two other officers, stopped defendant's truck, ordered him to exit the vehicle, then handcuffed him and searched both his person and the interior of the truck for the gun. However, this search did not reveal the weapon.
Shortly after Sergeant Fox stopped defendant's pick-up truck, Patrolman Arrone arrived at Cross's house. In the course of Arrone's interview of Cross, she told him that when defendant left her house and returned to his truck, she had "heard the sound of [a] metal clanging door, which sounded like a toolbox that he has in his pickup truck." Arrone inferred from what Cross told him that it was likely defendant had put the gun in the truck toolbox, and he informed one of the officers involved in the stop of defendant's truck of this information. Fox then attempted to obtain defendant's consent to search the toolbox. However, defendant refused. One of the officers with Fox found the key to the toolbox on a key ring in defendant's possession and opened the toolbox, which revealed a loaded semiautomatic handgun and an open bottle of cognac.
In upholding the validity of the search of the truck toolbox and denying defendant's motion to suppress, the trial court stated:
As the defense is not contesting the existence of probable cause, the only real issue pertaining to the validity of the search is whether sufficient exigent circumstances, as that term is understood, were present to justify the search under the automobile exception. Nevertheless, there was probable cause to search the storage box.
The victim informed the police that the defendant had a handgun and that he had likely placed it in the storage box, based upon the clanging metal that she had heard. As noted above, these statements carry significant weight when determining probable cause. Accordingly, the police had a well-grounded suspicion that the vehicle contained the instrumentalities of criminal activity.
In this instance, the police did not create the physical context of the arrest and did not have time to anticipate the defendant's arrival. Rather, the defendant's arrest was spontaneous, as it came after his vehicle was spotted on the highway a short time after the victim's 911 call.
Additionally, the defendant was stopped on the side of an open highway where the vehicle and its contents were readily accessible to third parties who could have removed the vehicle or destroyed the evidence located inside. And with only three officers present at the scene, as opposed to the 10 in [State v. Dunlap, 185 N.J. 543 (2006)], it was impractical for the officers to stand guard while a warrant was obtained.
I'm going to note that the Manalapan municipal police department is a very small police department, and there's only six officers on duty at the time -- I should say Marlboro Police Department. And these three constituted half the ...