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State v. Ortiz

December 28, 2009


On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-02-0195.

Per curiam.


Argued October 27, 2009

Before Judges Carchman, Parrillo and Ashrafi.

We granted the State leave to appeal from the Law Division's order suppressing evidence of drugs against defendants Ricardo Manuel Ortiz and Arnaldo Ortiz. For the following reasons, we affirm.

According to the State's proofs, while on patrol in the area of Route 37 and Fischer Boulevard in Toms River at 4:55 p.m. on October 28, 2007, and while still light out, Officer Adam Koeppen observed a black Honda with obviously tinted front driver's and passenger side windows. Because, in his opinion, the tinting caused an unsafe distortion of visibility in violation of N.J.S.A. 39:3-74, Koeppen pulled the vehicle over onto Madison Avenue, a "not striped side road" lined with residences and a speed limit of twenty-five miles per hour. The residential street is just off Fischer Boulevard, a busy four-lane road with shops and businesses and a speed limit of forty miles per hour. Koeppen's police cruiser stopped directly behind the Honda, and both were stopped a few car lengths from the main road.

Approaching the vehicle, Koeppen identified himself, informed the two men inside of the reason for the stop, and requested identification and vehicle registration from the driver, Arnaldo. Immediately upon speaking with Arnaldo, Koeppen smelled raw, unburnt marijuana emanating from inside the vehicle. Koeppen also noticed that the vehicle, registered in New Jersey, had a New York State inspection sticker and consequently informed Arnaldo he was in violation of the State's inspection law.

Arnaldo was cooperative and provided Koeppen with his name and date of birth, but explained that he did not have his license on him. Koeppen then returned to his patrol car and requested dispatch run a check on Arnaldo as well as provide back-up for the traffic stop, in particular Officer Christopher McDowell, who was available and working in the vicinity. Before McDowell arrived, the dispatcher informed Koeppen that Arnaldo's driver's license was suspended, and there was a warrant out for his arrest.

Upon confirmation of the active warrant, Koeppen and McDowell, who by then had arrived on the scene, returned to the Honda, placed Arnaldo under arrest, and secured him in the back of Koeppen's patrol car. Arnaldo had left the car keys in the vehicle and when asked by Koeppen about disposition of the car, responded that he wished his brother Ricardo, the passenger, take the vehicle.

Koeppen then returned to the Honda to identify the passenger. Ricardo appeared nervous and trembling and once again Koeppen detected the odor of raw marijuana - confirmed by McDowell - only this time stronger. Ricardo identified himself to Koeppen as Manuel, using his middle name. Because the name did not match the one given earlier by Arnaldo in naming his brother, Koeppen grew even more suspicious. Consequently, Koeppen asked Ricardo to exit the vehicle, "go around to the back of the car and speak with Officer McDowell."

Meanwhile, Koeppen bent down beside the open car door and opened the glove compartment, where he found a black gallonsized plastic bag. Although it did not appear to contain a weapon and nothing on the exterior surface indicated it contained contraband, Koeppen opened the bag and found a black cloth bag containing twelve small glassine baggies with a white powder substance inside; a red cloth bag containing six small off-white rocklike powdery substances; and two heat-sealed plastic bags with green leafy substances. Subsequent laboratory testing determined that the two heat-sealed plastic bags contained twenty-six grams of marijuana; the six clear plastic bags in the red pouch contained one gram of cocaine; and the twelve glassine baggies in the black pouch contained 7.6 grams of cocaine.

While Koeppen was conducting the search, McDowell was attempting to verify the identity and licensure status of Ricardo based on the name he provided. Eventually, his identity was confirmed, but the dispatcher also informed McDowell that there was an outstanding warrant*fn1 for Ricardo. After being advised as well of Koeppen's discovery of the suspected controlled dangerous substances (CDS) found in the glove compartment, McDowell arrested Ricardo, patted him down, and placed him in the back seat of his patrol car, which was parked on the other side of Madison Avenue but closer to Fischer Boulevard.

Sometime during the traffic stop, another vehicle, a sports utility vehicle (SUV), pulled up to the scene. Although Koeppen could not pinpoint the exact moment, he said it was "quite a whiles" after McDowell's arrival and probably after Arnaldo was arrested, but before Ricardo's arrest. McDowell, on the other hand, recalled an SUV approaching them shortly after Ricardo was "secured." In any event, after the individuals inside identified themselves as family of the Ortiz brothers, McDowell instructed them to pull up some distance from the Honda "to separate themselves from [the] traffic stop" and to remain in their vehicle. At no time during the fifteen-minute traffic stop did either officer request further back-up, even though Koeppen was aware that back-up was available, if needed. Afterwards, when Koeppen completed his search and at defendants' request, the keys to the Honda were turned over to one of the SUV occupants, a relative of defendants.

Both defendants were then transported to police headquarters, where they were processed and booked on drug charges based on the suspected CDS found in the Honda's glove compartment. Additionally, Arnaldo was issued motor vehicle summonses for tinted windows, failure to inspect, and driving on a suspended license. Police also conducted a more thorough search of Ricardo, which uncovered over one-half ounce of cocaine in his shoe and sock.

Defendants were subsequently indicted for possession and possession with intent to distribute CDS. In their joint suppression motion which followed, defendants argued the police lacked both probable cause and exigency to justify the glove compartment search. Toward the end of the second and last day of the suppression hearing, November 19, 2008, the motion judge, sua sponte raised the issue of the impact on the subsequent jailhouse body search of Ricardo should the court find the glove compartment search was illegal. The State argued, at the time, that since Ricardo had a warrant out for his arrest, the "officers cannot overlook an arrest warrant, as we all know, they have to actually execute that warrant and he would have been placed under arrest and searched back at headquarters regardless." The court allowed both parties to make supplemental submissions addressing the issue.

On January 26, 2009, the court rendered its decision suppressing the drugs found in the glove compartment. Crediting the police officers' testimony, the motion judge found probable cause based on the "strong odor of raw unburnt marijuana emanating from the vehicle[,]" but no exigency. As to the latter, the judge relied on a number of considerations including the fact that defendants complied with the officers' requests and made no attempt to interfere with their duties; the vehicle was pulled over in a residential, rather than high crime area, and while still light out; the even ratio of officers to suspects; the failure to attempt to secure additional back-up; lack of any indication that back-up would have been unavailable; the timing of the arrival of the third-party vehicle; the lack of any concern over its occupants, as they "followed the officer's directions and [] parked their vehicle out of the location"; the absence of CDS in plain view inside the vehicle; and the lack of any indication that the third parties were aware that CDS was inside the car.

Following the suppression ruling, the court once again invited counsel to present supplemental evidence concerning Ricardo's jailhouse search. The judge emphasized that supplemental evidence was necessary to determine this issue since "the State did not have an officer present to testify at the hearing. And at this point, it would be, for me, conjecture. I would have to make several assumptions based on evidence not on the record as to what had transpired and how that was discovered." Despite the court's repeated invitation, the State offered no additional evidence as to what occurred immediately before, during, and after the search of Ricardo at the station house. Instead, the State submitted a three-page letter brief "regarding the legal issues and the basic facts" contained in the initial police report. The State relied on the doctrine of inevitable discovery as Ricardo's body search would have resulted, in any event, from a valid arrest warrant, as it "was routine procedure for the defendant to be searched at the Toms River jail ...

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