July 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERIC GUTRIDGE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 24, 2008
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 entire police force on duty at the time to guard the whole town.
. . . The police also were concerned that there was a possibility that the defendant could have discarded the vehicle [sic] in the one and a half mile wooded area surrounding the local high school, so that a student could have found the gun before the morning. The defendant obviously didn't discard the gun, but that wasn't known at the time.
The police also testified they would have had to call in other members of the department to search the wooded area if they were unable to get a warrant or find the gun.
Under the New Jersey Constitution as interpreted by our Supreme Court in State v. Cooke, 163 N.J. 657, 671 (2000), the automobile exception to the warrant requirement applies only if there is (1) probable cause to believe that the vehicle contains contraband; and (2) exigent circumstances. Exigent circumstances arise out of the "unforeseeability and spontaneity" of the situation giving rise to probable cause and the inherent mobility of the vehicle. Id. at 672 (quoting State v. Alston, 88 N.J. 211, 233 (1981)).
Defendant does not dispute that the police had probable cause to believe that the gun he had brandished at Cook's house was in the truck toolbox. The only question is whether the State made the required showing of "exigent circumstances."
We agree with the trial court's conclusion that the police were confronted with exigent circumstances when they searched defendant's truck toolbox. As in Cooke, this search involved "unanticipated circumstances that [gave] rise to probable cause [which] occur[ed] swiftly[,]" and "the police [were] involved in an ongoing investigation of events occurring close in time to the search." 163 N.J. at 672-73. The police obtained information only minutes before their stop of defendant's truck and search of the toolbox that defendant had used a handgun to threaten his girlfriend and another man in her house. Therefore, even if the police had been virtually certain that the handgun defendant brandished was in the toolbox, as in Cooke, it would have been "impractical" for one of the police officers to have stood guard over defendant's truck while another officer sought a search warrant.
In any event, even though the police had probable cause to believe that defendant's handgun was in the truck toolbox, they also had a reasonable basis for concern that defendant could have discarded the gun somewhere along the 1.8 mile route from Cross's house to where Sergeant Fox and the other officers stopped his truck. Cross did not tell Patrolman Arrone that she had seen defendant put the gun in the toolbox. She only said that she had heard the "sound of [a] metal clanging door, which sounded like [defendant's] toolbox." Even if Cross correctly discerned that what she heard was defendant closing the toolbox, defendant could have had some reason for opening the toolbox other than finding a place to discard the handgun, such as a desire to retrieve the bottle of cognac that also was in the toolbox. Consequently, the police did not have a basis for complete certainty that defendant had locked the gun in the toolbox. Defendant also could have discarded the gun along the roadway as he fled from Cross's house, which would have created a safety hazard that would have required an immediate police response to locate the gun. As described by Sergeant Fox, if the police had not discovered the handgun in their search of the toolbox:
We would have had to try, the best that we could to secure that entire . . . 1.8 mile of highway that the defendant had traveled to attempt to locate the weapon.
On the midnight shift there was myself and six other officers I believe. One was going to be tied up at headquarters processing the defendant. The other was still taking, with one of our detectives, who was going to take statements. As it was, he was called in to assist us. There was an officer still at the scene checking the residence to see if the weapon had been just discarded locally instead of being placed in the vehicle, which, you know, we had finally located.
And I would have had to try and cordon off that area so that a search could begun, and I needed a lot more manpower for that than I had available at the time.
The need to call additional off-duty police officers to assist in conducting this extensive search in the event the handgun was not found in the toolbox presented exigent circumstances that justified conducting that search without first taking the time to obtain a warrant. See State v. Wilson, 362 N.J. Super. 319, 333-36 (App. Div.), certif. denied, 178 N.J. 250 (2003).
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