On appeal from the Superior Court New Jersey, Law Division, Union County, Indictment No. 06-07-00651.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2008
Before Judges Reisner and Alvarez.
By leave granted, the State appeals from an interlocutory order of the trial court dated January 22, 2008, granting a motion to suppress filed by defendant Husamiddi Williams. We affirm, substantially for the reasons stated by Judge Peim in his cogent oral opinion placed on the record on January 10, 2008.
The following facts are drawn from the hearing on the suppression motion. At about 3:00 a.m. on March 2, 2006, Officers Anthony Gural and Jose Martinez of the Elizabeth Police Department were in their police vehicle on routine patrol near a housing project called Mravlag Manor. As Gural was driving down Carteret Street, he spotted a vehicle backing rapidly down the street in the opposite direction from his police car. Gural attempted to stop the vehicle to find out "why the driver was driving so erratically." However, the driver, later identified as defendant, backed into a driveway and then drove off, precipitating a high-speed chase.
Eventually, Gural and Martinez located the vehicle haphazardly parked and "blocking a driveway" on Garden Street. Defendant was not in the car. Other officers apprehended defendant and escorted him back to the scene. At that point Gural "smelled a very strong odor of alcohol emanating from the defendant," who was arrested for eluding police and suspected DUI.
Looking in the car window at the scene, Gural ascertained that the ignition was intact, from which he inferred that the vehicle was not stolen. He called the dispatch unit (dispatch), for assistance in determining the identity of the registered owner. At Gural's request, dispatch also telephoned the owner, Belinda Conn, who advised that the car was not stolen and that her son was driving it. The State did not present testimony as to whether Conn was offered the opportunity to come pick up her vehicle in lieu of having it impounded. Nor did the State explain why, at a later point, the police did not telephone Conn to seek her permission to open the car.
Instead, the police contacted Highway Garage, the company with which the City of Elizabeth had contracted to tow cars and to secure them in an impound lot. While following the Highway Garage truck as it towed Conn's vehicle to the impound lot, Gural began filling out the "tow form." The form, which he testified he was required to complete for liability purposes, included a "general inventory" of an impounded car's condition and any valuable items that could be seen by looking in the car windows. According to Gural the police would never actually open an impounded vehicle to perform such a routine inventory unless "the owner's present and has the vehicle keys." Nor would the police routinely search inside compartments such as the glove box.
Once the Conn vehicle reached the impound lot and was parked in a "very well lit area" near the Highway Garage office, Gural completed his inventory by looking in the car windows. At this point, he spotted what he believed to be the handle of a handgun "partially exposed under the armrest between the driver and the passenger seat." Gural called his sergeant to report this finding. At the sergeant's direction, Gural directed the tow operator to open the vehicle with a "lock jock," and the officer then took the handgun out of the car. Gural did not search the rest of the vehicle. Instead, he completed the tow form,*fn1 and then had Highway Garage tow the car to police headquarters.
Once the car was at police headquarters, the police contacted the prosecutor's office, and they in turn obtained a search warrant. According to Gural, while he was completing his report on the incident, his partner and their sergeant contacted the assistant prosecutor to obtain the warrant. He testified that "the entire job was completed a little after 1 p.m.," which meant that Gural worked several hours overtime beyond his regular midnight shift. Gural did not testify that he or his partner were called upon to perform any other police work during that time frame.
In response to questions from the motion judge, Gural testified that they did not get a search warrant before securing the gun, because there were "not many [police] cars out on the road" and there was a concern that he might be needed to respond to an emergency elsewhere. Asked specifically about the number of police cars on duty on the night shift at the time, Gural responded that there had been "times" when there were only five vehicles on duty to cover the City, but he did not remember how many vehicles were available at the time of the incident.
He also contended that once he saw the gun he was concerned that it might accidentally discharge while the car was being towed to headquarters. However, he admitted that in his five years of police ...