August 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MATTHEW J. LESCOTA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-06-0484.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2008
Before Judges Lisa and Lihotz.
After his suppression motion was denied, defendant, Matthew J. Lescota, pled guilty to third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), and fourth-degree hindering apprehension, N.J.S.A. 2C:29-3b. He was sentenced to three years probation with certain conditions, along with imposition of appropriate mandatory monetary assessments. The sole issue raised on appeal is whether the suppression motion was properly denied. Defendant argues:
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED (Not Raised Below)
A. THE STATE FAILED TO PROVE THAT THE POLICE DETENTION OF THE DEFENDANT WAS LAWFUL.
1. THE COMMUNITY CARETAKING FUNCTION WAS INAPPLICABLE BECAUSE THE DEFENDANT DID NOT NEED POLICE ASSISTANCE.
2. THE STATE FAILED TO PROVE THAT THE POLICE HAD REASONABLE SUSPICION TO BELIEVE THAT THE DEFENDANT COMMITTED A CRIME OR A MOTOR VEHICLE INFRACTION PRIOR TO HIS DETENTION.
B. THE STATE FAILED TO PROVE THAT THE POLICE ACTED LAWFULLY IN SEARCHING THE CAR.
1. THE SEARCH OF THE VEHICLE CANNOT BE JUSTIFIED AS A SEARCH INCIDENT TO A LAWFUL ARREST.
2. THE POLICE LACKED PROBABLE CAUSE TO SEARCH THE CAR.
3. THE STATE FAILED TO OVERCOME THE PRESUMPTION OF ILLEGALITY BY PROVING THAT THE WARRANTLESS SEARCH OF THE MOTOR VEHICLE WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES.
We reject these arguments and affirm.
These are the relevant facts, which are derived from the hearing on the suppression motion. On the evening of April 18, 2005, defendant was driving a 1990 Oldsmobile in Green Brook. The car ran out of gas, and defendant pulled over to the side of the road, coming to a stop on Cramer Avenue at its intersection with Green Brook Road. The front of the car was right at the stop sign on Cramer Avenue, and perhaps protruding slightly into Green Brook Road, a major through-street. The car may have been obstructing the lane of travel on Cramer Avenue, but whether or not it was, it was improperly parked because it was within an intersection.*fn1 N.J.S.A. 39:4-138a. Defendant got out of the car and approached a man who was mowing his lawn to ask for gas. At that time, Green Brook police officer Shawn Snyder, while on routine patrol, saw the vehicle parked in that location and pulled over to ascertain the circumstances.
Snyder asked defendant who the car belonged to. Defendant replied it was his car and that he had just run out of gas.
Snyder asked defendant to return to his car so he could obtain further information. Defendant got back in his car. Snyder asked for driving credentials, and defendant produced a registration and insurance card, which he removed from the glove compartment. However, defendant said he did not have his driver's license with him.
In response to Snyder's inquiry, defendant said his name was Kenneth E. Daley, he was born on January 22, 1971, and he lived at a particular address in Middlesex. Snyder observed that defendant "was very nervous, but a lot of times I would ask him a question, he would repeat my question prior to answering it . . . . He wasn't making a lot of eye contact with me and kept looking down, just seemed very disheveled while I was speaking with him." Snyder observed that defendant's voice quivered, he appeared to have a dry mouth, and his hands were shaking slightly. The car had South Carolina license plates. Snyder's suspicions were aroused, and, based on his experience in dealing with individuals who give false identification information, Snyder was aware that sometimes when such individuals give a specific birth date and are then asked their age, they are unable to accurately respond. He therefore asked defendant his age, and defendant responded he was thirty-three years old. However, with the birth date given, he would have been thirty-four years old.
Defendant remained in his car while Snyder returned to his patrol car to check the information provided by defendant with dispatch. During this time, officers Lawrence Goldstein and William Coward arrived in separate patrol cars. Snyder had not requested backup, but routine protocol dictates that other patrolling officers in the area go to the location of a stop to see if assistance is needed. Another officer also came to the scene, but he immediately left because he was nearing the end of his shift.
While Snyder was obtaining information from dispatch, an individual drove up to the scene, parked his vehicle, and began walking toward the Oldsmobile carrying a gas can. It was later learned that defendant had called this individual, using his cell phone, when he ran out of gas. Goldstein asked the man his name and defendant's name. The man replied that he was Kenneth Daley and that defendant was Matthew Lescota. Goldstein directed the man to wait in his vehicle. Goldstein reported this information to Snyder.
During this time, Coward observed defendant "making furtive movements, moving forward, back, and he was stuffing something between the seats with his hand." He observed defendant sticking his right hand in the crack between the passenger and driver's side of the front bench seat. Defendant was looking in the rear and side view mirrors. Coward asked defendant what he was doing, and defendant replied he was just looking for documents to give to Snyder. Coward found this explanation incredible because defendant had already produced whatever documents he had. Coward reported to Snyder that defendant was moving around a lot, at which point Snyder glanced up and observed defendant leaning forward to his right.
Dispatch had informed Snyder that a look up of Kenneth E. Daley revealed that he had a valid New Jersey driver's license. However, the physical descriptors on that license did not match defendant's appearance. Further, the registration defendant produced was expired and did not match the license plates on the car. After Snyder learned from Goldstein defendant's true identity, he checked with dispatch and learned that defendant's license had been suspended.
After confirming that defendant was in fact Matthew Lescota, Snyder placed him under arrest for providing false information. While defendant and the officers were standing by the Oldsmobile,*fn2 Snyder and Coward searched the front of the vehicle, in the area where defendant had been reaching. The officers discovered four small envelopes containing heroin in the area between the two front seats. Snyder then placed defendant in his patrol car and removed him from the scene. The other officers stayed behind to wait for a tow truck to remove the vehicle from the scene.
Judge Gasiorowski concluded that sufficient probable cause and exigent circumstances were established to support a valid warrantless search pursuant to the automobile exception. He therefore denied the suppression motion.
In the trial court, defendant did not contest the validity of his initial detention, and, accordingly, the trial judge made no findings in that regard. Defendant now raises the issue on appeal. Although we could deem the issue waived and decline to consider it, see Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973), we will nevertheless consider it on the merits, but under the plain error standard. See R. 2:10-2.
We have no hesitancy in concluding that Snyder acted appropriately in stopping when he saw an unoccupied, illegally parked car in a location that may well have been an obstruction to traffic. When Snyder arrived, defendant was walking away from the car, and Snyder acted appropriately in asking whether the car belong to him. Had Snyder not engaged in this process, he would have been derelict in his police duties.
We are satisfied that the encounter was justified as a field inquiry. See State v. Diloreto, 180 N.J. 264, 277-78 (2004). A field inquiry is a limited form of police investigation that may be conducted without grounds for suspicion. State v. Rodriguez, 172 N.J. 117, 126 (2002). This is the least intrusive type of police-citizen encounter, and occurs when an officer approaches an individual and asks if that person is willing to answer some questions. State v. Pineiro, 181 N.J. 13, 20 (2004). Such an inquiry is permissible so long as the officer asks questions in a conversational manner, does not demand or issue orders, and is not overbearing or harassing in nature. Rodriguez, supra, 172 N.J. at 126.
"An encounter escalates from a [field inquiry] to a[n] [investigative] detention 'when an objectively reasonable person feels that his or her right to move has been restricted.'" State v. Nishina, 175 N.J. 502, 510 (2003) (quoting Rodriguez, supra, 172 N.J. at 126). Because an investigative detention, otherwise known as an investigative stop or Terry*fn3 stop, is more intrusive than a field inquiry, a different analysis applies when evaluating that form of police conduct. Rodriguez, supra, 172 N.J. at 126. An investigative detention is constitutional "if it is based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." Id. at 126-127 (quoting Terry, supra, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed. 2d at 906). The suspicion need not rise to the level of probable cause necessary to justify an arrest. Pineiro, supra, 181 N.J. at 20.
Based upon the rapidly developing events that occurred immediately after the initial encounter, Snyder was justified in continuing his investigation at this higher level. Defendant could not produce a driver's license, yet, he recited from memory what he claimed was his driver's license number, which of itself was highly unusual and suspicious. Defendant produced no other personal identification. Dispatch reported that the registration was expired and did not match the license plates on the car, thus arousing suspicion as to the true ownership of the car. And, the physical descriptors matching the name and driver's license number furnished by defendant did not match defendant, thus casting further suspicion on defendant's true identity. These circumstances supported a reasonable and articulable suspicion of criminal activity, although not necessarily sufficient to justify an arrest.
Another permissible form of warrantless conduct is the community caretaker doctrine. Diloreto, supra, 180 N.J. at 275. This doctrine generally "applies to police conduct that is 'totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'" State v. Stott, 171 N.J. 343, 361 (2002) (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed. 2d 706, 715 (1973)). It is most often invoked in cases involving "a local official's duty to investigate accidents or disabled vehicles on public roadways." State v. Costa, 327 N.J. Super. 22, 28 (App. Div. 1999). Similar to a field inquiry, a community caretaking stop does not require "'that the police demonstrate probable cause or an articulable suspicion to believe that evidence of a crime will be found.'" Diloreto, supra, 180 N.J. at 276 (quoting Kevin G. Byrnes, New Jersey Arrest, Search and Seizure § 14:1-1 at 289 (2003)). Rather, the court employs a reasonableness standard when reviewing the lawfulness of a community caretaking stop. Ibid. A community caretaking stop may even exceed a field inquiry's level of intrusiveness, "provided that [the police] action is unconnected to a criminal investigation and objectively reasonable under the totality of the circumstances." Id. at 278.
Snyder's encounter with defendant was well justified under this doctrine. Indeed, defendant's vehicle was disabled and he was in need of assistance. Defendant argues that he was in the process of obtaining gas from the man mowing his lawn and told Snyder he did not need assistance. That circumstance is not dispositive. Again, it would not have been reasonable for Snyder to simply leave based upon that representation, with the vehicle parked where it was in a disabled condition. Under the totality of the circumstances, Snyder was justified in making further inquiries regarding the circumstances involved.
Having determined there was no unlawful seizure of defendant's person, we now analyze whether the warrantless search was valid under the automobile exception. Contrary to the broader federal jurisprudence, New Jersey law requires, in addition to probable cause, a finding of exigent circumstances to sustain a warrantless search of a vehicle. State v. Cooke, 163 N.J. 657, 661 (2000). Determinations of both prongs must be made on a case-by-case basis. Id. at 671.
Probable cause has been defined as "a well-grounded suspicion that a crime has been or is being committed." Ibid. In other words, probable cause exists where the facts and circumstances within the officers' knowledge are based on reasonably trustworthy information and are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed. State v. Harris, 384 N.J. Super. 29, 47 (App. Div.), certif. denied, 188 N.J. 357 (2006).
We agree with the trial judge's conclusion that the totality of the circumstances here supported a finding of probable cause. Defendant provided false information regarding his identification. The person matching the identifiers (name, date of birth, address, and driver's license number) unexpectedly arrived at the scene and had apparently been called by defendant. Ownership of the disabled vehicle was undetermined, and documentation produced by defendant was invalid and did not match the license plates. Defendant's demeanor was nervous and evasive and he was making furtive movements, reaching into a concealed area of the passenger compartment of the vehicle. Taken together, these circumstances objectively supported a belief that evidence of a crime would be found in the vehicle, particularly the area into which defendant reached.
We also agree with Judge Gasiorowski that exigent circumstances were demonstrated. "Exigent circumstances have been described as 'unforeseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile . . . .'" Cooke, supra, 163 N.J. at 672 (citing State v. Alston, 88 N.J. 211, 233 (1981)). "[E]xigent circumstances may arise where '[a]ny element of surprise had been lost; the vehicle contained the contraband drugs; there were confederates waiting to move the evidence; the police would need a special police detail to guard the immobilized vehicle.'" Ibid. (citing State v. Colvin, 123 N.J. 428, 434-35 (1991)). "'[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.'" Ibid. (citing Alston, supra, 88 N.J. at 234). The touchstone of the inquiry focuses on whether "'it may be impracticable' to require police officers, while awaiting a warrant, to guard vehicles stopped on an open highway or parked on a public street." Id. at 674 (quoting Colvin, supra, 123 N.J. at 435).
Contrary to defendant's argument, the State is not required to demonstrate impossibility or an extreme emergency. Instead, the totality of the circumstances must be evaluated to determine whether, recognizing the inherent mobility of motor vehicles, it would be impracticable for the police to obtain a search warrant before searching the vehicle.
In Cooke, supra, 163 N.J. at 675, the Court found exigent circumstances where (1) it would have been impracticable for the arresting officer to leave his surveillance post to stand guard over the car, (2) the element of surprise was lost when the defendant was arrested in the presence of a friend, (3) third parties had knowledge of the location of the car and were aware that the defendant stored drugs in the car, and (4) the car was located in a high drug-trafficking area. In reaching its decision, the Court noted, "exigency would not have existed in the present case if the officer had not observed or reasonably believed that third parties were capable of destroying or removing the evidence contained in the car." Id. at 676.
In a subsequent case, State v. Dunlap, 185 N.J. 543, 550 (2006), the Court found that no exigent circumstances existed to justify a warrantless vehicle search where (1) defendant was in custody, (2) the vehicle was not parked in a high drug-trafficking area, (3) there were no third persons to destroy or remove evidence, (4) at least ten officers were on the scene, and (5) there was nothing preventing them from obtaining a telephonic warrant. The Court emphasized its continued adhere to the principles previously espoused in Cooke:
One final note. Nothing in this opinion should be viewed as a retrenchment from the well-established principles governing the automobile exception to the warrant requirement. State v. Cooke, supra, 163 N.J. at 670-71, 751 A.2d 92. The standards remain the same: probable cause and exigent circumstances, each of which to be determined on a case-by-case basis.
Here, the unique facts, particularly the presence of ten officers, fully justified the Appellate Division's conclusion that exigency was absent. Different facts, such as a roadside stop effectuated by only one or two officers, would likely have changed the calculus. Police safety and the preservation of evidence remain the preeminent determinants of exigency. [Id. at 551.]
Applying these principles, exigent circumstances were established here. Only three officers were at the scene. A third party, Kenneth E. Daley, was aware of the location of the disabled Oldsmobile. Indeed, defendant told police the Oldsmobile was owned by Daley's recently deceased grandmother. Thus, there was a ready connection between defendant and Daley, and it was likely that Daley would have an interest in and access to the Oldsmobile. Daley observed defendant's arrest and saw him removed from the scene. Only two officers remained. It was approximately 7:00 p.m. Leaving the vehicle unattended before searching it would not have been reasonable, because the probable contraband may well have disappeared. With only two officers present, who were on patrol duty and had other responsibilities, remaining with the vehicle while a warrant was sought would not have been practicable. We are mindful of the availability of telephonic warrants, but there is no requirement that one be sought as a prerequisite to a warrantless vehicle search under the automobile exception.