August 1, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEON PEMBERTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-01-0205.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 14, 2008
Before Judges Lintner and Sabatino.
Defendant, Deon Pemberton, appeals the Law Division's denial of his motion to suppress evidence that the police seized from his automobile following an investigative stop. After that motion was denied, defendant was convicted of a school-zone narcotics offense based upon the fruits of the search. We reverse and remand for any further appropriate proceedings.
Two witnesses testified at the suppression hearing: Lieutenant Thomas Kelly of the Essex County Prosecutor's Office, who stopped defendant's automobile and who conducted the ensuing search; and Lucius Bradley, who was a passenger in the vehicle. The following circumstances and facts emerged at the hearing.
On the morning of December 7, 2005, Lieutenant Kelly and Detective Burt Moita of the Essex County Narcotics Task Force were in an unmarked patrol car, conducting a narcotics surveillance in the vicinity of Standard Place and 20th Avenue in Irvington. The location was known to Lieutenant Kelly, a thirteen-year veteran of the Task Force, as a "high narcotics area."
At about 8:50 a.m., the two officers observed a red Chrysler Concord pull up at the intersection of 20th Avenue and 21st Street. An unidentified male then approached the Chrysler and the driver handed him what appeared to be a "little knot of currency." In exchange, the pedestrian handed the driver an object. As the police car approached the vehicle, the pedestrian waved at the Chrysler driver, apparently signaling him to leave the scene. The Chrysler then drove off into traffic.
Believing that they had just witnessed a hand-to-hand narcotics transaction, the officers pursued the Chrysler. The Chrysler made a u-turn, and quickly turned right onto 22nd Street. The Chrysler then went through a stop sign. Lieutenant Kelly, who was driving the police car, testified that he did not stop the Chrysler immediately because it had resumed normal operation and he wanted to "see if any other transactions were made." The Chrysler continued into East Orange, without making any other stops.
Approximately five or ten minutes later, Lieutenant Kelly activated his lights and siren, directing the Chrysler to stop. The Chrysler pulled over to the side of the street. It was occupied by defendant, who was in the driver's seat, and Bradley, who was in the front passenger seat. Lieutenant Kelly approached the driver's window and requested that defendant present his credentials. Defendant stated, in response, that his driver's license was suspended.
The lieutenant then asked defendant to step out of the Chrysler. Defendant complied. At the same time, Detective Moita asked Bradley to also get out of the car. He likewise complied. The officers then secured both men behind the Chrysler.
According to Lieutenant Kelly, at that point, defendant blurted out, "that stuff's mine, it's not my father's; he didn't know they [sic] were in the car."*fn1 Defendant was referring to a green drawstring bag that was situated on the console between the front seats of the Chrysler. Lieutenant Kelly testified that he had seen the bag from the outside of the car. The lieutenant stated that he had not paid "a lot of attention" to the bag initially, because he was "more worried about taking a guy out of a car [and] whether he's got a weapon." The lieutenant described the bag as having an open top, and that "[y]ou could see glass vials clearly inside of that bag."
Defendant's spontaneous utterance about the bag prompted Lieutenant Kelly to place him under arrest and read him Miranda*fn2 warnings. The lieutenant then asked defendant if there was anything else in the car that the police needed to know about. He allegedly replied, "you got it; there's nothing else, you go[t] it; you got what's there."
The lieutenant then asked defendant "if he minded if [the police] looked" inside the vehicle. Defendant allegedly said no. The Lieutenant then searched the trunk and interior of the car, but found nothing of interest other than the green bag. He seized the bag, which contained forty-three vials and $930 in currency. The vials were subsequently tested at a State Police laboratory, and were determined to contain, in total, about three grams of cocaine. With defendant's consent, Lieutenant Kelly thereafter conducted a search of his residence. That additional search turned up no evidence of any criminal activity.
Bradley, who was fifty-seven at the time of the hearing, testified that defendant had been driving him to the East Orange VA Hospital when the police pulled defendant's Chrysler over. Bradley specifically denied that the Chrysler had stopped at the curbside for anyone else prior to the police stop.
Bradley recounted that, after some initial discussion, the police asked him and defendant to get out of the car, and they complied. While Bradley and defendant were standing on the sidewalk, one of the two officers "reached in the car and came out with a bag." It appeared to Bradley that the bag*fn3 had been pulled out from between the seats. According to Bradley, the officer "pulled the bag out, put it on the roof of the car.
Then he opened it and then he told the other officer to handcuff us."
Bradley acknowledged that defendant did state to the police that the bag was his, not Bradley's. However, Bradley contended that defendant made this remark only after he had been arrested and after the officer had reached his hand into the bag and pulled out some vials.
Bradley also acknowledged in his testimony that he had seen the bag on the console when he first got into the car, but did not think anything of it. He recalled that the bag was closed, not open. Bradley contended that the Chrysler had not violated any traffic laws and that he had no idea why the police had stopped them.
After considering these proofs, the motion judge issued a written decision denying defendant's motion to suppress the seized bag and its contents. The judge found that there was probable cause to stop defendant's car, and that there were exigent circumstances to justify searching it without a warrant. As an alternative ground of analysis, the judge also found that the vehicle had been lawfully searched incident to defendant's arrest. The judge rejected the State's separate contention that the bag was properly seized under the "plain view" exception, because the judge was "not able to find with certainty that the items contained in the bag were immediately apparent as contraband."
Following the adverse ruling on the suppression motion, defendant conditionally pled guilty to third-degree possession of cocaine with intent to distribute it within a school zone, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7. A judgment of conviction was accordingly entered, with defendant preserving his right to appeal the denial of the suppression motion. Pending that appeal, defendant was sentenced to a four-year prison term, with an eighteen-month period of parole ineligibility, plus applicable fees and penalties.
On appeal, defendant argues that the motion judge misapplied the exceptions to the warrant requirement for exigent circumstances attendant to a motor vehicle stop and for searches incident to an arrest. We now consider those arguments.
It is well established that under both the Fourth Amendment of the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution, "[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); see also State v. Alston, 88 N.J. 211, 230 (1981). Here, it is indisputable that Lieutenant Kelly did not have a search warrant authorizing him or Detective Moita to enter defendant's Chrysler at roadside and to inspect its interior compartment. Consequently, a recognized exception to the constitutional warrant requirement must apply in order for the fruits of that search to be admissible.
Preliminarily, we note that we have no difficulty in sustaining the motor vehicle stop itself, in light of the officers' observations in a high crime area of what appeared to be a hand-to-hand drug transaction through the driver's side window a few minutes earlier, and the Chrysler's rapid and evasive flight after the police approached, including its running of a stop sign. See Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed. 2d 660, 673 (1979) (recognizing the constitutional propriety of warrantless traffic stops if based upon articulable police suspicions of illegality); State v. Hickman, 335 N.J. Super. 623, 633-35 (App. Div. 2000) (same).
The facts support an articulable and reasonable belief that the car was being used for illegal narcotics trade. Indeed, the motion judge found that those facts rose beyond the level of reasonable suspicion to the higher standard of probable cause, and we concur. See, e.g., State v. Valentine, 269 N.J. Super. 508, 510-11 (App. Div. 1993) (probable cause may be established by an officer's observation of a hand-to-hand exchange in a high narcotics-trafficking area), rev'd on other grounds, 134 N.J. 536 (1994).
Once the Chrysler was stopped, the officers had the authority to request defendant, who was the driver, to present his credentials. See, e.g., State v. Campbell, 53 N.J. 230, 237 (1969). In response to that request, defendant admitted to the lieutenant that his driver's license was suspended. That admission, along with the facts we have already mentioned, supplied the officers with ample reason to order both defendant and his passenger, Bradley, out of the car. A policeman may order persons out of a vehicle if he can "point to specific and articulable facts that would warrant heightened caution to justify ordering the occupants to step out." State v. Smith, 134 N.J. 599, 618 (1994). Such grounds for heightened caution do not require a belief that the occupants are armed and dangerous. Ibid.
We also perceive no illegality in the officers arresting defendant once he got out of the car. We concur with the motion judge's finding that the police had probable cause to arrest him, either for admittedly violating the motor vehicle laws or for the observed apparent narcotics transaction. See State v. Moore, 181 N.J. 40, 45-46 (2004) (reiterating the established standard for probable cause as "a well-grounded suspicion that a crime has been or is being committed") (internal quotations omitted).
The ensuing police entry into the vehicle compartment is, however, problematic. By Lieutenant Kelly's own words, he and Detective Moita had "secured" both defendant and Bradley up against the back of the Chrysler. There was no specific indication that a gun or some other weapon was inside the car. There was no third person seen nearby who potentially could have opened the car door and removed any contraband while the two occupants were being held by the officers. There was no testimony that either of the two occupants was acting in a hostile or uncooperative manner. Nor does the suppression transcript reflect that the location of the roadside stop was particularly dangerous, or that the officers had to direct any traffic at the scene.
The motion judge nonetheless upheld the warrantless search of the car interior on two alternative theories. The first theory, a search incident to a lawful arrest, is eliminated by our Supreme Court's opinion in State v. Eckel, 185 N.J. 523 (2006), which was issued about six months after the search in this case occurred. In Eckel, the Court rejected prior case law and determined that, under Article I, paragraph 7 of the New Jersey Constitution, "[o]nce the occupant of a vehicle has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception is inapplicable." Id. at 541. Some other exception to the constitutional warrant requirement must apply to authorize the search of the car interior. Ibid. In Eckel, the two automobile occupants, defendant and his girlfriend, had both stepped out the car in compliance with police instructions. Id. at 525. Defendant had been placed under arrest, and the girlfriend was off to the side of the road, when the police illegally searched the car. Ibid.
The motion judge recognized that the facts in this case are "sufficiently similar" to Eckel to disallow the incident-to-arrest exception. Nevertheless, the judge declined to apply Eckel based upon this court's post-Eckel opinion in State v. Oyenusi, 387 N.J. Super. 146 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007). In Oyenusi, we upheld the warrantless search and seizure by the police of a bag that a co-defendant, who was walking out of a dwelling, had been holding at the time of his arrest. Id. at 157-59. Although the incident-to-arrest exception properly applied in Oyenusi, the circumstances in that case did not involve the search of a motor vehicle. The fact that the co-defendant in Oyenusi was holding a container is not pertinent here, since the plastic bag seized by the police was taken from the Chrysler, not from defendant's person. In sum, Oyenusi is not on point, and Eckel is instead applicable.
The second theory of justification invoked by the motion judge, one not argued by the State during the suppression hearing but now embraced by the State on appeal, is the so-called automobile exception. This exception, which was first recognized federally by the United States Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), allows police officers who have probable cause to believe that an automobile contains evidence of criminal activity to search that vehicle, in certain situations of exigent circumstances.
In State v. Cooke, 163 N.J. 657 (2000), our Supreme Court explained and applied the two elements of the automobile exception: (1) probable cause to believe that contraband will be found in the vehicle, and (2) exigent circumstances at the time the car is searched. Id. at 671-72. The Court found such exigency present in Cooke, where it was shown to be "impracticable" to post a police officer and guard the vehicle, where third parties were aware of the car's location and that it had been used by defendant to store drugs, and where other parties in the area, which was known for drug-trafficking, could have removed the car. Id. at 675. See also State v. Carroll, 386 N.J. Super. 143, 158 (App. Div. 2006) (finding exigent circumstances for an auto search present, where a defendant being chased by police had smashed his car into another vehicle in a parking lot, had frantically tried during the chase to discard a bag containing a potential weapon or drugs through the car window, and had physically resisted attempts to arrest him).
Even accepting the presence of probable cause here, the present case is nothing like either Cooke or Carroll on the automobile exception's second requirement of exigent circumstances. There was nothing exigent about this roadside stop, once both defendant and his passenger had been secured behind the Chrysler. The two men were not uncooperative or threatening. The police were not outnumbered, and there was no accident requiring the diversion of traffic.
As the Court repeated in a companion case to Eckel, State v. Dunlap, 185 N.J. 543 (2006), the State cannot fairly claim here that it would have been "unduly burdensome and unreasonably restrictive [in this situation] to require the police to post a guard and repair to the courthouse for a warrant." Id. at 550 (internal quotations omitted). Alternatively, the police could have attempted to obtain a telephonic search warrant from a judge on emergent duty, or impounded the Chrysler without first searching its interior. Instead, they unlawfully probed into the vehicle without any real emergency to justify it.
For these reasons, we hold that the warrantless search of the vehicle was unconstitutional,*fn4 and that the fruits of the search should have been suppressed. Consequently, defendant's conviction is reversed, and the matter is remanded to the Law Division for any appropriate further proceedings consistent with this opinion.
Reversed and remanded.