On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-11-1362.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2009
Before Judges Rodríguez and Reisner.
Following a jury trial, defendant Louis Hodge was convicted of fourth degree hindering apprehension, N.J.S.A. 2C:29-3b(1). The judge imposed an eighteen-month term.*fn1 We affirm.
This is a summary of the trial proofs. At approximately 8:50 a.m. on July 14, 2006, Detective Lieutenant Danyal Bachok was conducting surveillance with the Passaic County Prosecutor's Office Narcotics Task Force from an unmarked vehicle parked about fifty to one hundred feet from the main entrance to the Alexander Hamilton Housing Projects in Paterson. He observed defendant drive up in a 2000 Kia Sportage and park diagonally opposite from the surveillance position. Defendant walked into the housing projects and engaged in a brief conversation near the entrance with another male. Defendant handed the other male money in exchange for an object and immediately put the object in his front pants pocket. Bachok could not discern, with the use of binoculars, the precise quantity of money or the nature of the object. He estimated that the entire conversation and exchange took approximately five seconds. Defendant promptly walked back to the Kia alone and drove off.
Bachok radioed a description of defendant, his vehicle, and its direction to nearby arrest teams. Moments later, Detective Dean Bradle, driving an unmarked vehicle with his partner, Patrol Sergeant Michael Kassai, spotted the Kia. They pulled up behind it and executed a stop. A second arrest team in another unmarked vehicle driven by Detective Sergeant George Rosario simultaneously activated their lights and sirens and pulled in front of the Kia.
Rosario's partner, Detective James Avigliano, jumped out of the second arrest car displaying his badge. Defendant hastily raised his right hand to his face as though he was putting something in his mouth. Believing that defendant was attempting to swallow narcotics, Avigliano ran to the Kia, opened the driver's side door, and put his hand on defendant's throat with the intent of inducing a gag reflex. Avigliano announced that he was a police officer, told defendant that he was under arrest, and instructed him to spit out whatever he had in his mouth. Defendant flailed his arms and tried to free himself from Avigliano. Kassai approached the Kia from behind and opened the front passenger door. The Kia began to roll forward for a few feet. Kassai managed to put the Kia in park. Defendant, while struggling with Avigliano, spit out what he had in his mouth. The spit struck Kassai in the face, left eye, nose, and mouth. Kassai immediately pulled back from the Kia to wipe the spit from his face with his shirt and hands. He testified that a hard, granular, off-white substance was in the saliva he wiped off. The substance was never field tested or submitted to a laboratory for analysis.
Defendant was quickly removed from the Kia, handcuffed, and placed on the sidewalk. A search of the interior of the Kia yielded a small zip lock plastic bag with its top roughly torn off, lying on the front passenger seat. A four-to-five-inch clear glass pipe was subsequently found in defendant's jeans.
Bradle drove Kassai to a nearby firehouse, while defendant was handcuffed and seated in the rear of the police vehicle. There, a medic flushed the residue from Kassai's face, but suggested going to a hospital to ensure that everything had been removed. On the way to St. Joseph's Hospital, defendant attempted to reassure Kassai by offering to give blood or be otherwise tested to confirm that he was not sick. A doctor examined Kassai and determined that the medic's cleaning was adequate and that no testing would be needed at that point. Neither the pipe nor the plastic bag was introduced at trial.
On appeal, defendant contends:
THE TRIAL COURT SHOULD HAVE SUPPRESSED THE EVIDENCE SEIZED IN THIS MATTER AND PRECLUDED ANY MENTION OF IT AT THE TRIAL (Partially Raised at Trial).
During trial, the judge denied defendant's motion to suppress evidence. We agree with the judge's analysis. With respect to the plastic bag, a warrantless search of a vehicle following a stop and arrest of its occupant can be justified pursuant to the automobile exception or search-incident-to-arrest exception to the normal requirement of a warrant based on probable cause. State v. Pena-Flores, 198 N.J. 6, 28-30 (2009). Under the automobile exception, the warrant requirement may be excused only "where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a ...