August 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRANCE JOHNSON A/K/A TERRENCE JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0126.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 5, 2009
Before Judges Parker and LeWinn.
Defendant Terrance Johnson was indicted along with co- defendant Terry Washington for third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and second-degree possession of heroin with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35- 7.1 (count three). Defendant brought a pre-trial motion to suppress evidence of the heroin. Following a hearing, the trial judge denied this motion on June 20, 2006.
On September 18, 2006, defendant entered into a negotiated plea agreement whereby he pled guilty to count three of the indictment. On November 3, 2006, defendant was sentenced to a five-year term of imprisonment to run concurrently to a sentence he was then serving. Defendant now appeals from the denial of his motion to suppress. For the reasons that follow, we affirm.
The evidence presented at the suppression hearing may be summarized as follows. On December 3, 2005, three plainclothes officers from the Elizabeth Police Department were patrolling the area of Sixth and Fulton Streets in Elizabeth, known to be an area of "extremely high narcotics" activity. Officers David Conrad, Amilcar Colon and Athanasios Mikros observed two men, later identified as defendant and Washington, standing on a corner where they appeared to be "making eye contact with passing vehicles . . . ."
The officers parked their unmarked car approximately thirty yards from the corner and continued to watch the two men as an "older Hispanic male" approached Washington and handed him money. After a brief conversation with this individual, Washington signaled to defendant, who then walked to a Chevy Blazer parked nearby, retrieved a black plastic bag from inside the vehicle, "removed a small white item from" that bag and handed it to the Hispanic male.
The officers believed that a narcotics transaction had just occurred and, because they were unable to reach their backup unit, followed defendant and Washington as they walked away from the area. While Officer Conrad was standing next to the Chevy Blazer, he shone a flashlight into the car window and observed a plastic bag containing glassine envelopes. Conrad opened the car door and removed the items; the other officers thereupon arrested defendant and Washington.
In denying defendant's motion to suppress, the trial judge stated:
On the date December 3rd, '05, around 6:00 at night, Officer Conrad, a ten-year officer, was working a tour of duty with two other people, Colon and Mikros. They were in plain clothes, in an undercover car . . . . He has participated in numerous arrests regarding drugs before this. And I think he said over a thousand. The area in question is Sixth and Fulton, known to him to be a high-crime area. . . .
They are not there for a particular purpose. They are there for quality of life issues; if a person is drinking in public to stop them or drugs . . . . They are not there because a tip draws them to a particular person on that date and time. They are there and they see two people. They see these two people and identified both gentlemen in court today as the two people, they were nodding or making eye contact with cars.
Do they go there and rouse those guys right away? They do not. They watched from about 90 feet. Of course, they saw an event. An old Hispanic male wearing blue jeans and a black jacket walks up to the men, speaks to them. After speaking to the two men, Washington and [defendant], he gave money to . . . Washington who put [it in] his pocket and . . . Washington raised his hand toward [defendant] and [defendant] in response to that went to a green Chevy Blazer and opened the door, which was apparently unlocked, and looked into a plastic bag that was illuminated by overhead light. And the [o]fficer -- and I find him to be credible -- says he saw the man take from it a small object which he then took out of the car and closed the car, of course. He begins to look around, looking to see apparently if anybody is watching him. And when he is satisfied that he is safe, he goes across the street and he gives that to the Hispanic male.
Based upon, A, the area, B, the observation which the [o]fficer believes he has just seen a drug deal, so does he go there and put them against the wall? He does not. He asks for back-up to arrest or detain the Spanish man . . . to see if he, indeed, had drugs on him to verify the fact of distribution of drugs. Unfortunately for the [o]fficer no back-up is available to do that.
Ten minutes go by. The two men, Washington and [defendant], leave the area. The three officers get out of the car. The Officer in question, Conrad, goes up to the vehicle. Two other officers follow the two men.
He goes up to the car. Does he know for sure there's drugs in the area? No, he doesn't but he suspects it. I think he has a right to do that. I think smart police work demands that. He has a right, in my mind, to use a flashlight to shine into the car. And if, indeed, he sees contraband in the car, he has a right to seize it. I find, indeed, he did . . . see the contraband in the car, that the bag was sufficiently open to see folds of alleged heroin and the car in question is parked in an area with a high number of people walking back and forth, a high-drug area.
I think it would be ridiculous to expect him to sit in that car for a[n] hour while he got a warrant. He sees contraband, he has a right to seize it. Exigent circumstances are clearly in this case, that the ground traffic . . . going back and forth in a high-crime area could cause those drugs to be lost. That is to say, taken by somebody else. He seized the drugs based upon what he [saw] before. [Defendant] and Washington could be held to be joint possessors of those drugs. Therefore, the police had a right to seize them and arrest them for possession with intent and/or possession of drugs.
On appeal, defendant presents the following arguments for our consideration:
THE TRIAL JUDGE ERRED IN DENYING JOHNSON'S MOTION TO SUPPRESS THE BLACK PASTIC BAG SEIZED FROM JOHNSON'S TRUCK WHERE THERE WAS NO JUSTIFICATION FOR OFFICER CONRAD'S WARRANTLESS ENTRY INTO THE TRUCK
A. The Warrantless Seizure Of The Bag Was Not Justified Under The Plain View Doctrine.
B. The Automobile Exception Did Not Justify Conrad's Warrantless Entry Into Johnson's Truck Where The State Cannot Claim That It Was Impracticable For An Officer To Guard The Truck While A Warrant Was Obtained When Conrad Guarded The Truck Until A Tow Truck Arrived.
Having reviewed these contentions in light of the record and the applicable principles of law, we conclude that they are without merit. We affirm substantially for the reasons stated by Judge John S. Triarsi in his decision rendered from the bench on June 20, 2006. We add only the following comments.
The "automobile exception" to the warrant requirement "depends on the satisfaction of two requirements: the existence of probable cause and exigent circumstances, and . . . the determination regarding those elements must be made on a case- by-case basis." State v. Dunlap, 185 N.J. 543, 549 (2006). The "preservation of evidence" is a "preeminent determinant of exigency." Id. at 551.
"[T]he degree of exigency is heightened when the police are involved in an ongoing investigation of events occurring close in time to the search." State v. Cooke, 163 N.J. 657, 673 (2000). Here, as in Cooke, "events occurred rapidly . . . ." Ibid. Officer Conrad "observed defendant's drug transaction and hiding place for the drugs; . . . and [t]he drugs were stored in a vehicle parked in . . . an area known for drug- trafficking." Id. at 673-74. In Cooke, the Supreme Court concluded: "Given those facts, we are satisfied that there was sufficient likelihood that evidence would be destroyed had the search of the vehicle not been conducted, contributing to the overall exigency of the situation." Id. at 674.
Given the facts here, which are similar to those in Cooke, we are likewise satisfied that exigent circumstances justified Conrad's warrantless search of the Chevy Blazer.
Finally, defendant argues that the Supreme Court's recent decision in State v. Pena-Flores, 198 N.J. 6 (2009), lends support to his argument that the warrantless search of the vehicle was not justified. In Pena-Flores, the Court held:
[I]n accordance with "our unwavering precedent," the warrantless search of an automobile in New Jersey is permissible where . . . the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and . . . exigent circumstances exist under which it is impracticable to obtain a warrant. The notion of exigency encompasses far broader considerations than the mere mobility of the vehicle.
Exigency must be determined on a case-by-case basis. No one factor is dispositive; courts must consider the totality of the circumstances. . . . 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.
Legitimate considerations are . . . varied . . . . They include, for example, the time of day; . . . the nature of the neighborhood; the unfolding of the events establishing probable cause; . . . the existence of confederates who know the location of the car and could remove it 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.
[Id. at 28-29 (citation omitted).]
We are satisfied that sufficient exigent circumstances existed here making it impracticable for the officers to obtain a search warrant. The observed events occurred in an area of high narcotics activity; there was heavy foot traffic in the area, as well. We concur with the trial judge's conclusion that, because the car was in an area "known to [Conrad] to be a high-crime area[,]" there existed the possibility "of confederates" who could retrieve the narcotics had Conrad not immediately seized them. As the trial judge noted, "it would be ridiculous to expect [Conrad] to sit in that car for a[n] hour while he got a warrant. He sees contraband, he has a right to seize it."
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