On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-02-0267.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2008
Before Judges Carchman and R. B. Coleman.
Defendant Steven Harris appeals from a judgment of conviction entered August 16, 2006, and an order denying his motion to suppress evidence entered June 2, 2006. We have considered defendant's arguments in light of the record and applicable law, and we affirm the orders from which the appeal is taken.
In the early hours of September 16, 2005, detectives from the Trenton Police Department, TAC Unit, were dispatched to a location in what is regarded as a high crime area. There, a group of men had gathered, one of whom was reported to be in possession of a rifle. Upon arriving at the scene, the detectives observed defendant holding a large rifle case. As the detectives approached, defendant placed the rifle case in the trunk of his parked vehicle. The detectives immediately detained defendant and his passenger, patted them both down and seized the gun case defendant had placed in the trunk. Both suspects were taken into custody.
In February 2006, the Mercer County Grand Jury returned Indictment Number 06-02-0267, charging defendant with the following crimes committed on September 16, 2005: count one, third degree unlawful possession of a rifle in violation of N.J.S.A. 2C:39-5c(1); count two, fourth degree possession of hollow-point bullets in violation of N.J.S.A. 2C:39-3f; and count three, second degree certain persons not to have a weapon in violation of N.J.S.A. 2C:39-7. Having moved unsuccessfully to suppress evidence, defendant pled guilty to count three, certain persons not to have a weapon, N.J.S.A. 2C:39-7. He was sentenced, in accordance with the plea agreement, to five years in prison to be served consecutively with any time imposed for defendant's violation of the terms of his Intensive Supervision Program (ISP).
Defendant now appeals his conviction and the order denying his motion to suppress evidence on federal and state constitutional grounds. Defendant argues that the warrantless search of the trunk of his vehicle was a violation, among other things, of his Fourth Amendment rights. He contends that the officer had no probable cause to search the trunk and that the resulting seizure of the rifle was not based on exigent circumstances.
The State contends the police reasonably believed that the gun case they observed defendant placing into the trunk contained either a rifle or a shotgun and that, given the accessibility of that weapon to defendant and to other potentially hostile observers in this high crime area, it was reasonable for the officers to secure the gun immediately in the interest of their own protection and the protection of others. The State also argues that the presence of a gun, initially reported in a broadcast alert from the dispatcher and corroborated by their visual observation of the gun case, justified immediate action to preserve a safe environment. The trial court accepted the position advocated by the State, as do we.
"Warrantless searches are presumptively unreasonable and thus are prohibited unless they fall within a recognized exception to the warrant requirement." State v. Pena-Flores, 198 N.J. 6, 18 (2009). "Under federal constitutional law, a warrantless search of a motor vehicle pursuant to the automobile exception [to the warrant requirement] is permissible so long as the vehicle is readily mobile and there is probable cause to believe it contains evidence of criminality." Id. at 20 (citing Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 137 L.Ed. 2d 1031, 1036 (1996). "[T]he Fourth Amendment of the United States Constitution has 'no separate exigency requirement.'" State v. Hammer, 346 N.J. Super. 359, 366 (App. Div. 2001) (quoting State v. Cooke, 163 N.J. 657, 671 (2000)).
However, the New Jersey State Constitution requires both probable cause and exigent circumstances to search an automobile without a warrant. Pena-Flores, supra, 198 N.J. at 11; N.J. Const. art. I, ¶ 7. The warrantless search of an automobile in New Jersey is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant. Id. at 28. Exigency must be determined on a case-by-case basis. Ibid. "Exigent circumstances are present when law officers do not have sufficient time to obtain any form of warrant." Id. at 6 (quoting State v. Johnson, 193 N.J. 528, 556, n. 7, (2008)). "No one factor is dispositive; courts must consider the totality of the circumstances." Ibid.
In Hammer, supra, we held that a trooper who searched a suspect's trunk, based on his personal observation of bullets in the defendant's possession, had probable cause to expand the scope of his search to the trunk of the vehicle. 346 N.J. Super. at 367-68. There, we found exigent circumstances existed to justify the search of the trunk because waiting for a warrant to issue would have posed a risk to the trooper's safety and a risk that the evidence would be moved. Ibid.
In the present case, denying defendant's motion to suppress, Judge Thomas P. Kelly gave considerable weight to the detectives' personal observation of defendant placing the rifle in the trunk of his car. The motion judge further articulated his reasons for finding probable cause for the officers to search the trunk:
I think they had an obligation as police officers to retrieve that weapon, and they did so, because they had probable cause to believe there was a weapon placed in there and there very well could have ...