May 19, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
YUSEF GETHERS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-03-0413.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 11, 2009
Before Judges Axelrad and Messano.
On March 24, 2005, a Union County grand jury returned Indictment No. 05-03-00411, charging defendant, Yusef Gethers, with second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1). On the same date, a Union County grand jury returned Indictment No. 05-03-00413, charging defendant with third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5(b) (count one), and fourth-degree possession of a prohibited device, hollow-point bullets, N.J.S.A. 2C:39-3(f). Following denial of his motion to suppress evidence and our denial of leave to appeal, defendant pled guilty to count one of Indictment No. 05-03-00413, third-degree unlawful possession of a weapon. Pursuant to a plea bargain reached with the State, defendant was sentenced to five years probation, conditioned upon 364 days of house arrest. The court dismissed the remaining charges under Indictment Nos. 05-03-00411 and 05-03-00413, as well as a municipal court warrant against defendant, and imposed appropriate fees and penalties. Defendant appealed the suppression ruling. We reverse and remand.
At the suppression hearing on October 7, 2005, Officer Edward Jackson of the Plainfield Police Department testified on behalf of the State. While on patrol at approximately 7:00 p.m. on October 9, 2004, the officer was directed by dispatch to go to 709 West Front Street in response to a call from a citizen informant who claimed a black male wearing a baseball cap pointed a gun at her and fled in a green Chrysler four-door Concord with license number RRY69C driven by a black female with ponytails. The transmission also contained information that the gun was placed in a backpack in the car. While in progress to that address, the officer received a second transmission from Sgt. Hafeken who was reporting to l037 West Fourth Street, the address to which the vehicle had been traced after a registration check was run, directing him to divert there as back-up. A total of three marked units with four uniformed and armed officers responded to the scene; Officer Lucky and his partner Officer Tyler responded to the scene first, followed by Officer Hafeken and Officer Jackson. Upon their arrival, the officers observed a green car with tinted windows pulling into the driveway of a residence. They exited their vehicles.
As the officers approached, a woman matching the dispatch description, later identified as co-defendant Quadriyyah Abdullah, exited the vehicle from the driver's side. The officers ordered her to put her hands on top of the car for her safety. Abdullah told the police she had let defendant out of the car before she pulled the car into the driveway because he was in a wheelchair. Officer Jackson observed defendant, a black male wearing a baseball cap, in a wheelchair about ten to fifteen feet further down the driveway.
Officer Jackson explained that he was standing near Officer Lucky, who was by the driver's side door, when the other officer searched the vehicle for weapons. Officer Lucky found a black backpack behind the driver's seat. Because the windows were tinted and the doors were closed, Officer Jackson admitted in cross-examination that he was not able to see the backpack in the car before the car was entered. The officers opened the backpack and discovered a loaded handgun. Both Abdullah and defendant were placed under arrest. Officer Jackson estimated that about fifteen minutes had passed between the time he was asked to respond to the scene and the time handcuffs were placed on Abdullah, and about three minutes from the time he visualized the gun to the time she was handcuffed.
In a written opinion, the court found the search of the vehicle was justified under the automobile exception to the warrant requirement, finding both probable cause and exigency, and denied defendant's motion to suppress. Probable cause was based on the report by the citizen informant, purporting to be the victim of a crime, of the armed man and description of the car and occupants, and information of a gun placed in a backpack in the car. The officers corroborated this information when they observed the car and the occupants. The court further stated, "Additionally, police on the scene spotted a black back pack in the rear of the vehicle, which is where [the victim] had told the police dispatcher the gun had been placed."
The court explained its rationale for finding exigent circumstances as follows:
Exigent circumstances are frequently found when guns are involved because of the potential threat to human life. Moreover, when the police are called upon to respond to a crime reported to be in progress, police judgments are accorded an extra degree of deference. Reardon v. Wroan, 811 F.2d 1025 (7th Cir. l987). The officers were involved in an ongoing investigation of events that occurred close in time. Despite the occupants exiting the car, the exigent circumstances remained because there was the potential that persons other than the occupants could access the car. The fact that the officers had a reasonable suspicion that there may have been a deadly weapon present in the car made it imperative that they secure the weapon for the public and their own safety. Thus, the search of the vehicle was valid pursuant to the automobile exception.
The decision was memorialized in an order of November 4, 2005. This appeal ensued.
On appeal, defendant seeks reversal of the suppression ruling, arguing: (1) the backpack and gun found inside were the direct and unattenuated results of an unconstitutional arrest because the police lacked probable cause, and (2) the warrantless searches of both the vehicle and the backpack inside it were unconstitutional as they were not supported either by probable cause or exigent circumstances. As to the first argument, defendant asserts that the police, by virtue of the information given by the citizen informant, did not have the requisite probable cause to place Abdullah in custody and seize the weapon without inquiry, in essence, effectuating an immediate arrest of his co-defendant.*fn1 According to defendant, because all four uniformed and armed police officers converged on the car, and no one questioned either the driver or defendant, the primary suspect according to the emergency call, about purported criminal activity, the original seizure of co-defendant was a de facto unlawful arrest without probable cause, rather than a mere investigatory detention. See Terry v. Ohio, 392 U.S. l, 30-31, 88 S.Ct. 1868, 1884-85, 20 L.Ed. 2d 889, 911 (1968) (permitting an investigatory stop and limited protective search for weapons justified by some objective manifestation that the suspect was or is involved in some criminal activity, involving something less than the probable cause standard needed to support an arrest); State v. Dickey, 152 N.J. 468, 478-79 (1998) (discussing factors needed to transform an investigative stop into a de facto arrest). None of the officers asked anything of Abdullah or defendant before searching the car for the backpack. Nor did they pat down either of the suspects to establish the officers' safety. At most, the only interaction was demanding that the driver place her hands on top of the car and ascertaining from her that defendant, who was located down the driveway in a wheelchair, had been in the car. By Officer Jackson's admission, the officers converged on the car, searched it and the backpack, and found the gun. Moreover, although the driver was actually handcuffed after the gun was found, defendant submits it was obvious Abdullah was under arrest the moment she exited her car, before the officers searched it. Defendant asserts that none of the officers witnessed corroborating behavior to establish the fact of the alleged criminal activity and thus the dispatched information that defendant threatened the citizen informant with a gun, without more, was insufficient to give police probable cause for the arrest. See State v. Kurland, 130 N.J. Super. 110, 115 (App. Div. l974) (findings of probable cause based on a citizen's information, either for an arrest or a search, have always included support "by the subsequent police investigation"); State v. Lakomy, 126 N.J. Super. 430, 432-34 (App. Div. l974) (information by a citizen informant that he had seen a man carrying a gun warranted a "stop and frisk" or pat-down search of the man in order to complete the investigation of the complaint, as opposed to a formal arrest requiring probable cause). Accordingly, defendant contends the gun seized from the backpack must be excluded from evidence as the "fruit of the poisonous tree," Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed. 2d 441, 455 (1963), as tainted by the primary illegality of co-defendant's arrest without probable cause.
As to the second argument, defendant asserts the police did not have a right to search the car, when it was parked in the driveway of co-defendant's house, of which they were aware when they located it, without first securing a search warrant. He challenges the court's finding of the two predicates of the automobile exception to the warrant requirement - probable cause and exigent circumstances. See State v. Dunlap, 185 N.J. 543, 549-550 (2006); State v. Cooke, 163 N.J. 657, 661 (2000). As previously argued, the police had, at most, a reasonable suspicion, and not probable cause, to believe that a gun was in the vehicle. Furthermore, defendant urges the State has failed to meet its burden of exigency to justify the warrantless search of co-defendant's car. Dunlap, supra, 185 N.J. at 549-50; Cooke, supra, 163 N.J. at 675-76. Defendant emphasizes that the gun was seized upon a search immediately upon the driver's exiting the vehicle. At police direction, she had her hands on top of the car. Defendant was already outside the vehicle, ten to fifteen feet away, sitting in a wheelchair. Neither occupant made any furtive gestures either to conceal the vehicle's contents or in contravention of police safety. In fact, there was no indication the officers feared for their safety as they never searched either occupant for weapons. Moreover, when the police converged on the car, it was already parked in the driveway of the residence to which it was registered. When the officers searched it, the two occupants were no longer in it and neither had control over it. There was no assertion there were any other actors than the two noted in the original dispatch. Moreover, the trial court's finding there was the "potential for third party access" to the vehicle was mere speculation and not based on the record. Finally, defendant urges there was no impracticality to the officers' obtaining a search warrant for the vehicle; it was not located on a street or highway and there were four officers at the scene.
The State counters that the police were justified in conducting an investigatory stop and protective search of the car following the report of an aggravated assault involving a weapon and their corroborating observations of the suspect car and its occupants minutes later, matching the descriptions that had been provided by the victim. The State reasons the police had a reasonable and articulable suspicion to believe an individual in possession of a gun had been inside the green car to justify a Terry stop. See State v. Golotta, 178 N.J. 205, 209 (2003) (holding that information imparted by a 9-1-1 caller that the defendant was driving erratically on a public road provided a constitutional basis for the police to stop the vehicle, given the significant risk of death or serious injury to the public). It submits that such stop would have then given the police the automatic right to conduct a protective search of the automobile's interior passenger compartment for a weapon for the officers' safety. According to the State, this included a search of the black backpack, a container into which the victim reported that the gun had been placed.
In support of its position, the State cites State v. Pierce, 136 N.J. 184, 205 (1994) (warrantless vehicle searches are sustainable in connection with a search for weapons based on an objectionably reasonable belief that an occupant of the vehicle is dangerous and may gain access to weapons), State v. Valentine, 134 N.J. 536, 543 (1994) (reiterating the Terry rule that a frisk of a suspect incident to a lawful investigatory stop is permissible when a reasonably prudent person in the officer's circumstances would be warranted in the belief that his or her safety or that of others was in danger), and State v. Roach, 172 N.J. 19, 27 (2002) (same). The State asserts that there is nothing in the law with respect to protective searches that requires the police to ask investigatory questions of the suspects prior to conducting the protective search. It cites State v. Thomas, 110 N.J. 673, 680 (1988) for the proposition that courts regularly approve of "automatic" protective searches based solely on the suspicion that the suspect was involved in a violent crime and where there is a specific and objectively credible reason to believe the suspect is armed. Accordingly, the State argues all that was needed to justify the search of Abdullah's car on a protective basis was a reasonable belief the occupants were involved in a crime involving a weapon and were armed or posed a danger to officer safety, which factors it contends were present under the circumstances of this case.
The State also advances the alternative argument that there was probable cause for the police to arrest Abdullah and defendant for the aggravated assault when the officers initially stopped the vehicle based on the following: (1) the information provided by the radio dispatch of the report of the incident, car and its occupants; (2) the officers' observations, within minutes, of the green car pulling into the driveway of the address to which the suspect vehicle was registered; and (3) the female driver, who matched the description of the driver of the green Concord in which the gunman had been traveling, immediately exiting the vehicle. See State v. Goodwin, 173 N.J. 583, 600 (2002) (cumulative information received by arresting officer within half hour of shooting provided "ample cause" to stop the defendant's vehicle and arrest him). The State urges that even if probable cause to arrest was debatable, the officers' reasonable suspicion would have ripened into probable cause to arrest when Officer Lucky observed the black backpack behind the driver's seat in "plain view."
The State also alternatively argues the police properly discovered the handgun under the automobile exception to the warrant requirement. The State reiterates the facts found by the trial court to constitute probable cause - the purported victim's detailed report of the armed man fleeing in the identified car, registered to Abdullah at the address where the police saw her and defendant exiting the car within minutes of the dispatch call; the officers' observations corroborating the descriptions provided by the informant to the dispatcher; and Officer Lucky's observation of the black backpack inside the car, which was where the victim reported her assailant had placed the gun.
The State emphasizes that "exigent 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." Cooke, supra, 163 N.J. at 672 (quoting State v. Alston, 88 N.J. 211, 234 (1981)). The State focuses on the fact that the degree of exigency was heightened because the police were involved in an investigation of an aggravated assault involving a handgun that occurred minutes before the search and the gun was reportedly still inside the vehicle. See Cooke, supra, 163 N.J. at 672; Alston, supra, 88 N.J. at 234. It contends there was an urgent need to locate the gun to eliminate the potential for deadly harm. See State v. Wilson, 362 N.J. Super. 319, 335 (App. Div.), certif. denied, 178 N.J. 250 (2003). The State speculates, as did the trial judge, that third parties could have accessed the unsecured vehicle and removed the weapon. According to the State, under the totality of the circumstances it would have been impractical and unduly burdensome to post a guard and obtain a warrant once they had probable cause to search Abdullah's automobile. See Cooke, supra, l63 N.J. at 674.
We are not satisfied the purported victim's complaint and the officers' limited observation of the described car and occupants were sufficient factors to constitute probable cause to arrest Abdullah immediately after she pulled into her driveway and exited the car. Thus, even assuming the car was accessible to her, the search of Abdullah's vehicle would not have been justified under the search-incident-to-arrest exception to the warrant requirement. See Chimel v. California, 395 U.S. 752, 763-64, 89 S.Ct. 2034, 2040, 23 L.Ed. 2d 685, 694 (1969) (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); Dunlap, supra, 185 N.J. at 548-49 (holding that the search of the defendant's vehicle was not justified where he was restrained outside the car and unable to gain access). Moreover, the record belies the State's assertion that this was a plain view search, as the backpack could not be seen until the car door was opened.
Even if we accept the State's position that the officers had a reasonable suspicion permitting a Terry investigatory stop of Abdullah and defendant in her driveway, we are not convinced the circumstances justified an "automatic" intrusion into the car itself under the guise of a protective search. In Thomas the Court found the officer was justified in making an investigatory stop of a man in a bar pursuant to an anonymous informant's tip regarding illegal drugs, but he did not have a specific and particularized basis for an objectively reasonable suspicion that the defendant was armed and dangerous so as to justify a pat-down search. Thomas, supra, 110 N.J. at 673. The case does not have the broad holding suggested by the State. Rather, in the context of discussing the right to frisk following an investigatory stop, the Court stated that "courts are more likely to approve of 'automatic' protective searches when officers, before they even approach the suspect, have a specific and objectively credible reason to believe the suspect is armed." Id. at 680.
Here, the police presented no objective factors to justify an immediate protective search of the passenger compartment of Abdullah's automobile that was parked in the driveway of her residence. The driver and passenger, the only two people reported as involved in the incident, were already out of the car and were secured; at police direction, Abdullah had her hands placed on top of the car and defendant was in a wheelchair ten to fifteen feet down the driveway. The police asked the suspects no questions, and apparently had no belief either was armed as they made no attempt to pat them down for weapons. Thus, the measures taken by the police in immediately searching the car and taking the backpack from behind the driver's seat do not appear to have been done to allow the officers to safely pursue their investigation without fear of violence but, rather, to discover evidence of a crime. See State v. Arthur, 149 N.J. 1, 14 (1997).
Turning to the automobile exception, even assuming arguendo the police had probable cause to believe the vehicle contained evidence of a crime, we are not convinced the record supports the trial court's finding of exigent circumstances. "'The requirement that a search warrant be obtained before evidence may be seized is not lightly to be dispensed with, and the burden is on the State . . . to bring it within one of those recognized exceptions.'" State v. Pena-Flores, 198 N.J. 6, 25 (2009) (citations omitted). "Exigency must be determined on a case-by-case basis." Id. at 28 (citations omitted). In reviewing a suppression motion, courts must consider the "totality of the circumstances[,]" focusing on "[h]ow the facts of the case bear on the issues of officer safety and the preservation of evidence . . . ." Id. at 28-29 (citations omitted). The Court recently recounted examples of "various factors that . . . prior cases have recognized as relevant to an exigency analysis[,]" id. at 29 n. 5, as follows:
Legitimate considerations are as varied as the possible scenarios surrounding an automobile stop. They include, for example, the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; 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 the evidence at risk. As we have previously noted, "[f]or purposes of a warrantless search, exigent circumstances are present when law enforcement officers do not have sufficient time to obtain any form of warrant." [Id. at 29-30 (internal citations omitted).]
In the Pena-Flores matter, the Court found exigent circumstances justifying the warrantless search under the automobile exception, noting the police had no prior information of criminality and stopped the vehicle solely in response to an aggressive traffic maneuver around 11 p.m. on the side of a highly traveled road; the officer was unable to look for weapons or contraband from outside the car because the windows were heavily tinted in violation of N.J.S.A. 39:3-74; the driver and passenger were removed from the car, but were not placed under arrest or secured in the patrol car; the ratio of police officers to suspects was two-to-two; and there was no available backup. Id. at 30-31. Moreover, the officer who testified expressly stated it was Cranford Police Department policy to transport one defendant per police car back to headquarters and there were only three other officers with Cranford police cars available on patrol that evening. Id. at l3. The officer 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." Ibid.
The Court reached a different conclusion as to the companion case involving Charles Fuller, finding no exigency. Id. at 32. Fuller was pulled over for a traffic violation on a busy street in Camden in the early afternoon. Id. at 14, 32. He was subsequently arrested for displaying a false driver's license and for hindering his own apprehension and secured inside the cruiser, and thus had no opportunity to gain access to the vehicle or anything in it. Id. at l6, 32. The record contained no evidence he had cohorts who might have come on the scene. Id. at 32. Furthermore, the officer who stopped Fuller was assisted by several other troopers at all times. Ibid. Accordingly, the Court concluded "[t]here was simply no urgent, immediate need for the officers to conduct a full search of the automobile" as it could have been impounded or one of the officers could have remained with it while a warrant was sought by telephone or in person. Ibid.
We turn now to the facts of our case. We are cognizant of two very important factors supporting the State's claim of exigency: (1) Abdullah's vehicle was "stopped" in response to specific information of criminality and in response to a description of the vehicle and occupants by a citizen informant shortly after the alleged incident and near where it had occurred, and (2) the transmission contained information that the gun involved in the assault had been placed in a backpack in the car. On the other hand, there was no possibility the suspects would leave the area, destroy or dispose of the evidence, or move the car or its contents; nor did the officers' conduct indicate a belief the suspects were armed and dangerous. Cf. State v. Martin, 87 N.J. 56l, 569-70 (1981). Moreover, both occupants were outside the car and did not have access to the backpack, the ratio of officers to suspects was four-to-two, defendant was in a wheelchair, the car was parked in a residential driveway so there was no issue of traffic obstruction, and there was absolutely no evidence of accomplices who might have come onto the scene or other persons who had access to the car. The fact the stop occurred around 7:00 p.m. in and of itself has no meaning absent some testimony that there were a limited number of officers on duty at the time, which the record did not contain. Nor did the State present an opinion by the testifying officer that it would have been unsafe, an undue burden, or impracticable to impound the vehicle or for one of the four officers at the scene to have remained with the car while a warrant was sought. As we are not satisfied the State carried its burden of demonstrating a recognized exception to the warrant requirement, defendant's motion to suppress the evidence obtained in the search of Abdullah's vehicle should have been granted.
Reversed and remanded.