November 14, 2008
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
HUSAMIDDI WILLIAMS A/K/A HUSAN WILLIAMS, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 work he had never heard of such a thing happening.
Gural also explained that the Highway Garage lot was "unsecured" in the sense that the six-foot chain link fence around the lot was in poor shape and most of the barbed wire on top of it was "broken." And he testified that there had been a few incidents of people breaking into cars at the lot. However, he admitted that there was at least one garage employee on site at all times. When asked by the court if he had "any concern about the security of that place," Gural responded "[p]ersonally, no, sir." Gural also admitted that while the car was at the Highway Garage lot, he and his partner were available to secure the vehicle. In response to the court's question: "Is there any reason why both of you couldn't stay with the car while a search warrant was obtained?" Gural responded: "No, sir."*fn2
On the basis of the record as we have described it, Judge Peim concluded that the police had probable cause to arrest defendant and had probable cause to search the car. However, based on State v. Cooke, 163 N.J. 657 (2000), and State v. Dunlap, 185 N.J. 543 (2006),*fn3 the judge concluded that "the State has not demonstrated exigent circumstances" so as to justify a warrantless search. After reviewing the Dunlap holding in detail, Judge Peim concluded:
As in the DUNLAP case the car in this case was not parked in an open area. It was not on a stop on a busy highway. It was not a stop . . . in a high crime neighborhood. The probable cause here did not come into being until the car was in a secured lot that was contracted for by the Elizabeth Police as a place where they could securely keep vehicles that they impounded.
In addition, there was always at least one employee of the garage on duty there. As in the DUNLAP case they said there was no evidence that the third persons had any knowledge of the defendant's destination. Here there is no knowledge whatsoever that any third-party, including the owner, knew where the car was or where it was being taken.
So similarly as in DUNLAP there's no basis from here to conclude that a third person might come and destroy or remove evidence in the car. The police in this case had the time to follow the car to the lot, to fill out their form, to do their external inspection of the car, and to call their supervisor.
They had the time to do everything that they needed to do administratively . . . including calling their sergeant for advice which is really similar to the notation of the Appellate Division in DUNLAP where they say, "Indeed it is not without significance that the investigators here had the time to call the prosecutor's office at about 10 a.m. and obtain verbal authorization for a consensual recording."
Very analogous to the situation here where they had the time to call their sergeant for advice. There is also no evidence here that it would have presented any problem for the police officers to stay with the car until their sergeant or someone else was able to obtain a warrant.
It would have been a very simple matter for a telephonic warrant to be obtained here. All that was necessary was a phone call to the emergent duty Judge setting forth the probably cause in this case which was very straightforward, very simple. The officers -- it was just -- sworn to statement of the officer's observations over the telephone.
So, I find as in DUNLAP that the State's argument that it would have been unduly burdensome and unreasonable to require the police to post a guard is not applicable here. I find that the police officer in fact testified that there was no reason why they couldn't stay there while a warrant was being obtained, stay there, I mean stay with the car.
And there was no evidence that there would have been any burden on the -- any other demands on the police force for them to do that. And, again, note the Supreme Court's statement in DUNLAP, "We underscore the availability of telephonic warrants."
This was once again not a roadside stop. It was a very controlled situation in a very controlled area. There was no evidence that police safety was at all at issue here.
For those reasons I find that the State has not met its burden of showing exigent circumstances and the defense's application to suppress the seizure of the weapon found in the car on the date in question is granted.
On this appeal, the State contends that the trial judge's "finding that the highway garage was secure and that cars within were not accessible to third parties is not supported by the record." The State also contends that exigent circumstances justified the warrantless search "under the automobile exception." We disagree.
It is fundamental that in reviewing Judge Peim's decision on the motion to suppress, we are bound by his factual findings so long as they are supported by sufficient credible evidence in the record. State v. Elders, 192 N.J. 224, 243-44 (2007); State v. Locurto, 157 N.J. 463, 474 (1999). Indeed, as the Court recently reminded in Elders, it is not our role to second-guess the motion judge:
An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction."
In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." [Elders, supra, 192 N.J. at 244 (citations omitted).]
The State's appellate contentions require little additional discussion in view of Judge Peim's thorough and cogent opinion. R. 2:11-3(e)(2). While the State would prefer that we accept the facts as it posits them, we find no basis to disturb Judge Peim's findings of fact. We acknowledge that Judge Peim found Gural to be a credible witness. However, our review of the record reveals that Gural was in a difficult position. He was clearly trying, consistent with his obligation to be truthful, to give evidence favorable to the State. However, in being completely truthful he was forced to admit facts that favored the defense. Viewing Gural's testimony in totality, there is more than ample support for Judge Peim's fact-based conclusion that there were no exigent circumstances.
As the State implicitly recognizes, a police officer's observation of contraband in "plain view" gives rise to probable cause, but plain view alone is "never enough" to justify a warrantless search. State v. Pineiro, 369 N.J. Super. 65, 73 (App. Div.), certif. denied, 181 N.J. 285 (2004)(quoting Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed. 2d 564 (1971)). The police may not enter a constitutionally protected space (in this case the interior of the Conn vehicle) without a warrant, unless the State can prove the existence of exigent circumstances or some other exception to the warrant requirement. Id. at 73-74. In this case, Judge Peim correctly concluded that the State did not prove exigent circumstances, because the car was in the impound lot and the police had the time and resources to stay with the car until a telephonic warrant was obtained.
Given the judge's factual findings, his legal conclusions are entirely consistent with the Court's decision in State v. Dunlap, supra. In Dunlap, the Court, quoting our unpublished opinion, approved our conclusion that exigent circumstances did not exist under the following facts as we described them:
There were at least ten officers present on the evening in question and even assuming that some were needed for other duties in connection with defendant's arrest and the on-going investigation, the State did not establish that an insufficient number would have been left to guard the car. To say that the late hour made access to a judge difficult or unpracticable, is to ignore the procedures in place for emergent duty judges in every vicinage and the existence, since 1984, of the telephonic warrant procedure.
R. 3:5-3(b). Indeed, it is not without significance that the investigators here had time to call the prosecutor's office at about 10:00 p.m. and obtain verbal authorization for the consensual recording of defendant's conversation with [another party]. [Dunlap, supra, 185 N.J. at 550.]
The Court emphasized the importance of telephonic warrants as the proper alternative to warrantless searches: "In reaching that conclusion we underscore the availability of the telephonic warrant and the option of vehicle impoundment as among the alternatives available to the ten police officers on the scene." Id. at 551.
As did Judge Peim, we conclude that Dunlap is entirely on point here, where Gural and his partner were available to wait with the car which was already parked in the impound lot. They had time to call dispatch. They had time to call their sergeant. They could also have called for a telephonic warrant. And, for that matter, they could have called the car's owner, explained that they had observed a gun in the car, and asked her permission to open the vehicle and remove the weapon.