May 19, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DONTE STRATTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-06-1088.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 30, 2009
Before Judges R. B. Coleman and Simonelli.
A grand jury indicted defendant Donte Stratton for third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count one); fourth-degree prohibited weapons and devices (dum-dum bullets), N.J.S.A. 2C:39-3f (count two); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count three). Bernard Smith was named a co-defendant in counts one and two.
Defendant filed a motion to suppress evidence found during a warrantless search of a vehicle in which he was a passenger and Smith was the driver. Following the denial of that motion, defendant entered a retraxit negotiated plea to count three. He also pled guilty under a separate indictment to simple assault, a disorderly persons offense. In exchange for defendant's plea, the State agreed to recommend a five-year term of imprisonment with a five-year period of parole ineligibility.
On April 8, 2005, defendant was sentenced in accordance with the plea agreement. The sentencing judge also imposed the appropriate assessment, penalty, and fee. Defendant was also sentenced to time served for the simple assault charge.
On appeal, defendant does not challenge the stop of the vehicle, and he presented no argument as to probable cause to search the Jeep. Rather, he challenges the applicability of the automobile exception to the warrantless search based upon a lack of exigent circumstances.
We summarize the facts from testimony presented at the suppression hearing. On April 15, 2004, at approximately 7:05 p.m., Detectives Richard Andrews, William Warner, and Ruzzo*fn1 of the Atlantic City Police Department Narcotics Unit were on patrol in an unmarked car in plainclothes in the area of Virginia Avenue, a known high-narcotic activity area. As they approached the intersection of Adriatic Avenue and Route 30, a one-lane road in each direction, they saw a black Jeep stopped in the lane with the passenger door "wide open." The traffic light controlling the intersection was green, causing other vehicles to go into oncoming traffic in order to get around the Jeep. The officers saw three men on the sidewalk next to the open passenger door. The driver, later identified as Smith, remained in the Jeep.
According to Andrews, as the officers approached the Jeep, he saw a hand-to-hand transaction between defendant and one of the men on the sidewalk. Upon seeing the officers approaching, the three men "split off" with two going towards Virginia Avenue and the third, later identified as defendant, returning to the Jeep and closing the door. The officers pulled behind the Jeep and exited their vehicle. Andrews approached the driver's side of the Jeep and called for back-up, Warner approached the passenger side, and Ruzzo went to investigate the other two men, who had walked north toward Virginia Avenue.
Andrews began speaking to Smith, who he described as being "very agitated, extremely nervous." The officer observed "[Smith's] heart pounding through his chest." Andrews also smelled burnt marijuana. Warner, who had been speaking to defendant through the half-open passenger window, advised Andrews that he saw marijuana in the Jeep. The officers then removed defendant and Smith from the Jeep, placed them into custody and brought them to rear of the vehicle, where two backup officers secured them. Andrews and Warner returned to the Jeep and searched it for contraband. Andrews found a loaded handgun in the pocket behind the driver's seat. At the time of the arrest, at least five officers were present at the scene.
According to Warner, upon approaching the Jeep, he saw the three men on the sidewalk engaged in what he believed was a drug transaction. While speaking to defendant through the passenger window, Warner smelled burnt marijuana and saw a "green bud of marijuana" in the interior of the Jeep. Upon searching the Jeep, he recovered two buds of unburned marijuana.
The motion judge found the officers' testimony credible and accepted their account of the incident. The judge also found that: (1) the officers were justified in approaching the Jeep because it was stopped at a green light impeding traffic and because the officers saw what they believed was a street transaction; (2) the officers had probable cause to remove defendant and Smith from the Jeep and to search it based on the odor of burnt marijuana and Warner's observation of the marijuana bud inside the Jeep; and (3) exigent circumstances existed. The judge concluded that the search was valid under the automobile exception and as a search incident to an arrest.
In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990). We "'should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We should not change the lower court's findings simply because we "might have reached a different conclusion were [we] the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side[.]" Johnson, supra, 42 N.J. at 162. Rather, we should only modify a trial court's findings if they are so clearly mistaken and "so plainly unwarranted that the interests of justice demand intervention and correction[.]" Ibid. In that instance, "[we] should appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Ibid. With these standards in mind, we continue our analysis.
The State concedes that the search incident to the arrest exception does not apply. Accordingly, we focus on the automobile exception, which requires a showing that the stop was unexpected, that the police had probable cause to believe that the Jeep contained contraband or evidence of a crime, and that exigent circumstances existed under which it was impracticable to obtain a warrant. State v. Pena-Flores, 198 N.J. 6, 28 (2009) (citing State v. Cooke 163 N.J. 657, 667-68 (2000) and State v. Alston, 88 N.J. 211, 230-34 (1981)). Because defendant does not dispute the spontaneity of the stop and presents no argument disputing the existence of probable cause,*fn2 we limit our focus to whether exigent circumstances existed to search the Jeep.
Defendant contends that no exigent circumstances existed because there was no danger to the evidence or to the police. We disagree.
Exigency must be determined on a case-by-case basis. No one factor is dispositive; courts must consider the totality of the circumstances. How the facts of the case bear on the issue of officer safety and the preservation of evidence is the fundamental inquiry. There is no magic formula---it is merely the compendium of facts that make it impracticable to secure a warrant. In each case it is the circumstances facing the officers that tell the tale. [Pena-Flores, supra, 198 N.J. at 28-29. (citations omitted).]
Under the totality of circumstances in this case, we are satisfied that exigency was established by the unanticipated unfolding of events establishing probable cause, including the officers' smell of burnt marijuana and Warner's observation of the bud of marijuana inside the Jeep. Birkenmeier, supra, 185 N.J. at 563. Further, the record suggests that the two men who had fled the scene might have returned and removed the Jeep or its contents, thus placing the evidence at risk.