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State v. Pena-Flores

February 25, 2009

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JUAN PENA-FLORES, A/K/A JUAN C. PENAFLORES, A/K/A JUAN C. FLORES, A/K/A JUAN C. PENA AND FAUSTO PARADES, A/K/A FAUSTO PAREDES, DEFENDANTS-RESPONDENTS.
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
CHARLES FULLER, DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Appellate Division (State v Juan Pena-Flores). On certification to the Superior Court, Appellate Division (State v. Charles Fuller).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In these consolidated appeals, the Court considers the standards governing the automobile exception to the requirement that police officers must obtain a warrant before searching a motor vehicle, and the legal effect of warrants that are obtained through telephonic or electronic means.

In the first matter, State v. Pena-Flores, a vehicle driven by defendant Fausto Paredes was pulled over by police after it cut off traffic by abruptly moving to the right from its position in a left-turn-only lane at an intersection. After stopping the vehicle, the officer noticed a strong smell of raw marijuana. Paredes and his passenger, defendant Juan Pena-Flores, were asked to leave the vehicle and were patted down with the assistance of a second officer who responded to the scene. Neither Paredes nor Pena-Flores had contraband on his person. Unable to see into the vehicle because of its darkly tinted windows, one of the officers entered the passenger side of the vehicle and discovered two clear plastic bags of marijuana on the front passenger-side floor. After directing that Paredes and Pena-Flores be placed under arrest, the officer continued his search and found in the back seat a handgun in a child safety seat. Plastic bags containing marijuana also were found in various places in the vehicle.

After a grand jury indicted Paredes and Pena-Flores (hereinafter, Pena-Flores) on drug and weapons charges, the defense filed a motion to suppress the evidence. Before the trial court, one of the officers testified that the traffic stop occurred late at night in a heavily trafficked area, a limited number of officers were on duty, and it would have been unsafe to leave the car or to guard it while trying to obtain a search warrant. The trial court determined that the traffic stop was proper, the odor of raw marijuana established probable cause, and the pat-down search was lawful. The court denied the motion to suppress the two bags of marijuana discovered on the passenger-side floor. Finding that no exigent circumstances existed after that discovery to support a continued search, however, the trial court granted the motion to suppress in respect of the rest of the evidence. According to the court, the only options available to the officers were impounding the car and asking for a search warrant, or acquiring a telephonic warrant. After granting the State's motion for leave to appeal, the Appellate Division affirmed. The panel agreed that exigent circumstances did not exist to justify the search under the automobile exception. The panel explained that PenaFlores was in the custody of the other officer, no confederates were around, and the likelihood of loss of evidence was minimal. The Supreme Court granted the State's petition for certification. 191 N.J. 311 (2007).

In the second matter, State v. Fuller, an officer stopped a GMC Yukon because the driver was not wearing a seatbelt. The street was crowded by passers-by looking into the vehicle. The driver produced a Pennsylvania driver's license and a bill of sale. The photo on the license, which was issued to a Charles Bradley, did not resemble the driver and the license contained other abnormalities. After three additional troopers arrived, an officer radioed the driver's Social Security number and date of birth to the Sheriff's Department and learned that the name on the license, Charles Bradley, was an alias for Charles Fuller. He also learned that the bill of sale and the Pennsylvania license plate on the vehicle corresponded to a Ford Expedition, not the GMC Yukon that Fuller was driving. The officer arrested Fuller for displaying a false driver's license. Searching Fuller, the officer found two large bundles of money in one pocket of his pants, and a smaller bundle in another pocket. After Fuller was placed inside the police cruiser, a search of the Yukon revealed a loaded handgun wedged between the console and the driver's seat and two prescription drug bottles containing 106 Xanax pills in the console. The names of the prescription holders were scratched off the labels of the bottles. The officer found marijuana and a sword in other areas inside the Yukon.

A grand jury returned an indictment charging multiple drug and weapons violations. Fuller moved to suppress the evidence. The trial court denied the motion. The Appellate Division reversed, finding that the officer conducted an illegal search incident to arrest. The Supreme Court granted the State's petition for certification, 188 N.J. 348 (2006), and remanded to the Appellate Division to consider the facts under the automobile exception. The Appellate Division again found that the motion to suppress should have been granted. The Supreme Court granted the State's subsequent petition for certification. 192 N.J. 71 (2007).

HELD: The Supreme Court affirms its longstanding precedent that permits an automobile search without a warrant only in cases in which the police have both probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement. Whether exigent circumstances exist is to be decided on a case-by-case basis with the focus on police safety and the preservation of evidence. The Court also determines that a warrant obtained by telephonic or electronic means is the equivalent of an in-person warrant and does not require proof of exigent circumstances.

1. The United States and New Jersey Constitutions guarantee the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches or seizures. Warrantless searches are presumptively unreasonable and are prohibited unless they fall within an exception to the warrant requirement. Those exceptions include, among others, plain view, consent, search incident to arrest, and the automobile exception. (P. 13).

2. Under the search incident to arrest exception, the legal seizure of the arrestee, based on probable cause to arrest, automatically justifies the warrantless search of his person and the area within his immediate grasp. The arrest must precede the search. The justification for the search is to preclude an arrestee from accessing a weapon or destroying evidence. Under the federal Constitution, even if an arrestee is removed and secured elsewhere, a search of the passenger area of his automobile incident to his arrest is permissible. However, this Court diverged from federal precedent in 2006 in State v Eckel, and declared that the search of the interior compartment of a vehicle incident to arrest is limited to the area from which an occupant may seize a weapon or destroy evidence. Therefore, a search cannot be sustained where the occupant has been arrested, removed and secured elsewhere. Here, Pena-Flores was not yet arrested and Fuller was already secured in the troop car when their automobile searches took place. Thus, search incident to arrest is not the proper analytical framework in these cases. (Pp. 14-15).

3. Under the automobile exception, even where a defendant is not under arrest or where an arrested defendant has been secured, there may be justification to search a vehicle. Under federal constitutional law, a warrantless search of a motor vehicle is permissible so long as the vehicle is readily mobile and there is probable cause to believe it contains evidence of criminality. The purposes of the exception are police safety and the preservation of evidence. The underlying rationales are the ready mobility of the vehicle, the inherent potential for loss of evidence before a warrant is obtained, and the decreased expectation of privacy in motor vehicles, which are subject to extensive government regulation. In effect, under the federal standard, exigency is automatic. In New Jersey, however, the warrantless search of an automobile is permissible where (1) the stop is unexpected, i.e., unforeseen and spontaneous; (2) the police have probable cause to believe that the vehicle contains evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant. Exigency must be determined on a case-by-case basis. How the facts of the case bear on the issues of officer safety and the preservation of evidence is the fundamental inquiry. No one factor is dispositive; courts must consider the totality of the circumstances. Legitimate considerations include, for example, the time of day, location of the stop, nature of the neighborhood, unfolding of the events establishing probable cause, ratio of officers to suspects, existence of confederates who know the car's location and could remove it or its contents, whether the arrest was observed by passers by who could tamper with the car or evidence, whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or evidence at risk. Exigent circumstances are present when officers do not have sufficient time to obtain any form of warrant. (Pp. 15-30).

4. The vehicle at issue in Pena-Flores was unexpectedly and legitimately stopped for a traffic violation. The officer was unable to look for weapons or contraband from outside because the vehicle's windows were darkly tinted. The smell of marijuana constituted probable cause that the vehicle contained contraband. The requirement of exigency was met because Pena-Flores was initially removed from the vehicle, but was not placed under arrest or secured inside a patrol car. There was no available backup and the ratio of officers to suspects was two-to-two. Because the standards governing the automobile exception were met, the Court reverses the judgment of the Appellate Division to the contrary. (Pp. 30-31).

5. Fuller was pulled over unexpectedly for a traffic violation. The conflicting identification and vehicle documentation that he produced entitled the officer, separate and apart from the automobile exception, to look into the areas in the vehicle that might be expected to contain ownership evidence. During that search of the center console, the officer found a loaded handgun and 106 Xanax pills. Those items were not subject to suppression. However, a further search was not warranted under the search-incident-to-arrest exception. Even though the items that had been uncovered during the search for credentials provided probable cause to believe additional contraband and weapons might be present, Fuller was arrested and secured in the police cruiser. Nor was a further search warranted by the automobile exception because there was no exigency. Fuller had been pulled over in broad daylight on a city street, he was arrested and secured in the cruiser, the record does not suggest he had cohorts who might have come on the scene, and the officer was assisted by one to three other troopers. The vehicle could have been impounded or one officer could have remained with it while a warrant was sought. There was no urgent, immediate need for the officers to conduct a full search of the automobile, therefore the evidence that was uncovered in areas of the vehicle in which credentials would not normally be kept was subject to suppression. (Pp. 31-34).

6. Recognizing that telephonic warrants have been inhibited through case law and the requirements of Court Rules, the Court declares that a warrant obtained by telephonic or electronic means is the equivalent of an in-person warrant and should be treated accordingly. The Court determines to amend the Court Rules to clarify the parity between the various methods for obtaining a warrant and to underscore that an officer may resort to electronic or telephonic means without the need to prove exigency. The Court determines also to establish a task force to assess the practical issues involved in obtaining telephonic and electronic warrants. The purpose is to give police access to an efficient and speedy electronic and telephonic warrant procedure that will be available to them on the scene; that will obviate the need for difficult exigency assessments; and that will guarantee citizens the protections that the warrant requirement affords-an evaluation of probable cause by a neutral judicial officer. Traditional exceptions to the warrant requirement will not be supplanted, however. The Court will continue to recognize the right of officers to search a motor vehicle without a warrant where probable cause and exigent circumstances coexist. (Pp. 34-40).

The judgment of the Appellate Division in Pena-Flores is REVERSED. The judgment of the Appellate Division in Fuller is AFFIRMED in part and REVERSED in part. The cases are REMANDED to the respective trial courts for proceedings consistent with this opinion.

JUSTICE ALBIN, DISSENTING, joined by CHIEF JUSTICE RABNER and JUSTICE RIVERA-SOTO, acknowledges that the majority's decision follows prior precedent, but he maintains that this decision will result in a greater deprivation of the liberty interests of citizens while impairing the immediate investigation of suspected crimes. Justice Albin would return to the standard for invoking the automobile exception that was formulated by the Court in State v. Alston, 88 N.J. 211 (1981) ("[E]xigent circumstances that justify the invocation of the automobile exception are the unforeseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile stopped on the highway."). Applying the Alston standard, Justice Albin would have found the vehicle searches in both Pena-Flores and Fuller constitutional because the unforeseeability and spontaneity of the circumstances gave rise to probable cause.

JUSTICES LaVECCHIA, WALLACE, and HOENS join in JUSTICE LONG's opinion. JUSTICE ALBIN filed a separate, dissenting opinion in which CHIEF JUSTICE RABNER and JUSTICE RIVERA-SOTO join.

The opinion of the court was delivered by: Justice Long

Argued March 11, 2008

Re-argued September 22, 2008

At issue in these appeals, which we have consolidated for the purpose of this opinion, is the automobile exception to the warrant requirement. Today, we reaffirm our longstanding precedent that permits an automobile search without a warrant only in cases in which the police have both probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement. The question of whether exigent circumstances exist is to be determined, as it has always been, on a case-by-case basis with the focus on police safety and preservation of evidence.

I.

A. Juan Pena-Flores and Fausto Paredes*fn1

On October 5, 2005, at approximately 11:00 p.m., Officer Donald Zsak saw a silver Ford Expedition in the left-turn-only lane at the intersection of Centennial Avenue and Raritan Road in Cranford. The driver abruptly moved to the right, cutting off traffic, and proceeded on Centennial Avenue. Zsak eventually stopped the Expedition on Stiles Street in Linden, near the intersection with Willick Road.

As Zsak approached the driver side of the Expedition, he noticed dark tint covering all the windows and a strong smell of "raw marijuana." Because of his role in nearly 150 investigations involving raw marijuana and his special training in the identification of marijuana by sight and smell, Zsak was confident that he had properly identified the odor. At that point, Zsak asked the driver, later identified as Fausto Paredes, to get out and move to the rear of the vehicle, where Zsak conducted a pat-down search.

As Zsak searched Paredes, Officer Ryan Greco arrived to provide assistance. Zsak passed Paredes over to Greco and moved to the passenger side of the Expedition, where he removed the passenger, Juan Pena-Flores, from the car. He conducted a pat-down search, and then turned Pena-Flores over to Greco. Neither Paredes nor Pena-Flores had contraband on his person.

At that point, unable to see into the vehicle because of the tinted windows, Zsak entered the passenger side and began his search. Moments later, he uncovered two clear plastic bags of marijuana on the front passenger-side floor. He then instructed Greco to place Paredes and Pena-Flores under arrest.

Zsak next searched the backseat and found a nine-millimeter handgun in the child safety seat. Thereafter, in various places in the car, he found a large clear plastic bag that contained twenty-two clear plastic bags of suspected marijuana; a large plastic bag that contained fifteen clear individual plastic bags of suspected marijuana; a large plastic bag containing one hundred and eleven clear plastic bags of suspected marijuana; eight clear plastic bags containing residue of a suspected controlled substance; and two boxes containing empty, small plastic bags.

A Union County Grand Jury returned an indictment charging Pena-Flores and Paredes with fourth-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(3); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11); third-degree possession of a controlled dangerous substance with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree unlawful possession of a firearm while possessing a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:39-4.1(a).

Defendants moved to suppress, and Officer Zsak, the only witness to testify, established the facts set forth above at an evidentiary hearing. Zsak further testified that it was Cranford Police Department policy to transport one defendant per police car back to police headquarters. In addition to Zsak and Greco, who were already on the scene, there were only three other officers with Cranford police cars available on patrol on October 5, 2005. Zsak explained that because the stop occurred late at night in a heavily trafficked area, and because there was a limited number of officers on duty, it would have been unsafe to leave the car or to guard it while trying to obtain a search warrant.

In his decision, the trial judge noted that Zsak stopped the vehicle lawfully after viewing a traffic violation and found that credible evidence demonstrated that Zsak smelled raw marijuana. Based on the odor emanating from the vehicle, the judge concluded that Zsak lawfully took defendants out of the car to conduct a pat-down search. As for the vehicle, the judge concluded that the search was lawful up to the point at which Zsak placed both defendants under arrest. However, he declared that the additional searches were not lawful and suppressed the evidence found after Zsak discovered the two bags of marijuana on the passenger-side floor.

The judge denied the motion to suppress regarding the two bags found on the passenger-side floor, but granted the motion in respect of the rest of the evidence, declaring that there was no exigency in the case. According to the judge, the only options available to the officers were impounding the car and seeking a search warrant, or acquiring a telephonic warrant.

The Appellate Division analyzed the facts against the search incident to arrest exception to the warrant requirement under State v. Eckel, 185 N.J. 523 (2006), and against the automobile exception under State v. Dunlap, 185 N.J. 543 (2006). The panel found that the search incident to arrest exception was inapplicable because neither Paredes nor Pena-Flores was under arrest at the time Zsak began the search of the vehicle. As for the automobile exception, the panel noted that Zsak had probable cause to believe the vehicle contained contraband based on the strong smell of marijuana coming from the car, but rejected the notion that exigency existed:

[E]xigency cannot be found based upon concern for the safety of the police officers involved, nor in the desire to preserve evidence that might be found in the vehicle. Both defendants, the sole occupants of the Ford, were in the custody of Officer [Greco]. Protective searches of their persons had not revealed any weapons or contraband. . . . No other confederates were around, nor was it likely that anyone knew of defendants' arrest. Thus, the probability of some third[]party [removing the car or evidence] was minimal at best.

As a result, the panel concluded that the search was unlawful under the automobile exception to the warrant requirement. The State filed a petition for certification, which we granted. 191 N.J. 311 (2007).

B. Charles Fuller

Observing defendant Charles Fuller driving a GMC Yukon without a seatbelt, New Jersey State Trooper Terrence Clemens stopped Fuller as he turned left onto Mt. Ephraim Avenue in Camden. The stop occurred at approximately 1:15 p.m. on a busy street in Camden in front of a liquor store. According to the videotape that was admitted into evidence, the street was crowded with passersby who were looking into the vehicle. Fuller initially denied that he was driving without his seatbelt, but subsequently admitted that he removed his seatbelt to pick up his cell phone from the car floor. Fuller gave Clemens a Pennsylvania driver's license issued to Charles Bradley and a bill of sale.

As Clemens examined the license, he noticed that the photograph did not resemble Fuller and that the license number was handwritten on the back. Because that number is normally typed, the handwriting struck Clemens as peculiar. Clemens questioned Fuller about the disparity between the license photograph and his appearance. Fuller stated that the summer season had darkened his skin tone. Clemens also asked Fuller if he had a New Jersey driver's license. The answer was "no"; Fuller said he was a resident of Philadelphia, where he spent almost all of his time.

During his conversation with Fuller, Clemens noticed several motor-vehicle summonses lying on the backseat of the car. Clemens asked to see the summonses, and Fuller gave him the two documents. Those summonses indicated that Charles Bradley had been cited for motor-vehicle infractions in Camden one day earlier: once for disorderly conduct and once for driving a car with fictitious tags. When asked about the disorderly conduct charge, Fuller responded by indicating that the summons was issued only because of the charging officer's poor attitude.

Because the Camden County Sheriff's Department is capable of identifying an individual on the basis of a tattoo, Clemens asked Fuller if he had any tattoos. Fuller noted that he had a tattoo of a heart on his right arm while pointing to his left arm. When Clemens corrected him, Fuller acknowledged that the tattoo was on his left arm. At that point, three additional troopers arrived at the scene.

Clemens returned to his cruiser and radioed Fuller's Social Security number and date of birth to the Camden County Sheriff's Department. The dispatcher responded that the identity information matched Charles Fuller's Social Security number and birth date and that Charles Bradley was an alias for Charles Fuller.*fn2 Clemens also learned that the bill of sale and the Pennsylvania license plate on Fuller's vehicle corresponded to a Ford Expedition, not the GMC Yukon that Fuller was driving.

Clemens directed Fuller to get out of the vehicle and move to the rear. Upon further questioning, Fuller explained that his real name was Charles Bradley but on previous occasions, including an arrest, he had used the name Charles Fuller. Clemens then arrested Fuller for displaying a false driver's license and for hindering his own apprehension. Clemens searched Fuller, finding two large bundles of money in the left side pocket of his cargo pants, and one smaller bundle of money in the left front pocket. After the search, Clemens placed Fuller inside the cruiser.

Along with another trooper, Clemens proceeded to search the interior of the car beginning with the driver-side compartment. Clemens found a loaded handgun inside a plastic bag wedged between the console and the driver's seat, and in the console he found money and two prescription bottles. The names of the prescription holder were scratched off the labels on the bottles, which contained a total of 106 alprazolam (Xanax) pills. Clemens also found a light blue plastic bag containing marijuana in a dashboard compartment above the radio and additional bags of marijuana underneath the backseat. Finally, Clemens found a twenty-eight-inch sword behind the backseat.

A Camden County Grand Jury returned an indictment charging Fuller with fourth-degree possession of a controlled dangerous substance, marijuana, N.J.S.A. 2C:35-10(a)(3); third-degree possession of a controlled dangerous substance, alprazolam, N.J.S.A. 2C:35-10(a)(1); third-degree possession of a controlled dangerous substance, alprazolam, with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(13); third-degree possession of a controlled dangerous substance, marijuana, with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11); third-degree possession of a controlled dangerous substance, marijuana and/or alprazolam, with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4; fourth-degree unlawful possession of a weapon, a sword, N.J.S.A. 2C:39-5(d); second-degree possession of a weapon, a firearm, while in the course of possessing with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:39-4.1(a); second-degree possession of a weapon, a sword, while in the course of possessing with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:39-4.1(c); third-degree displaying a false motor vehicle driver's license, which could be used as means of verifying identity, N.J.S.A. 2C:21-2.1(c); and second-degree possession of a firearm as a convicted felon, N.J.S.A. 2C:39-7.

Fuller moved to suppress the items found in the Yukon, and an evidentiary hearing took place at which the previous facts were established. Before a decision, Fuller entered a plea of guilty to possession of a controlled dangerous substance, marijuana or alprazolam, with intent to distribute within 1,000 feet of school property, and waived his right to appeal pursuant to an agreement with the State. Fuller was sentenced in accordance with the plea agreement to a custodial term of five years with a two-year period of parole ineligibility. The trial judge stayed the sentence for forty-five days to allow Fuller to decide whether to appeal because the judge believed that the Appellate Division's decision in State v. Eckel, 374 N.J. Super. 91 (App. Div. 2004), aff'd, 185 N.J. 523 (2006), could have significant bearing on the case. The State accepted the judge's decision and agreed not to set aside the plea even if Fuller appealed.

Ultimately, the judge supplemented the record, denying the motion to suppress. On appeal, the Appellate Division reversed, declaring that Clemens conducted an illegal search incident to arrest under Eckel, supra, 185 N.J. at 524.

The State filed a petition for certification, which we granted. 188 N.J. 348 (2006). We remanded the case to the Appellate Division for consideration under the automobile exception. The Appellate Division reiterated its position that Fuller's motion to suppress should have been granted. We granted the State's subsequent petition for certification. 192 N.J. 71 (2007).

II.

The State asks us to jettison our decision in State v. Cooke, 163 N.J. 657, 661 (2000), and return to the standard established in State v. Alston, 88 N.J. 211, 234-35 (1981), which, it argues, recognizes an unforeseen stop, probable cause, and the inherent mobility ...


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