January 29, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROYAL R. HAYES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 01-04-0737, 01-09-1804 and 06-10-2221.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2010
Before Judges Axelrad and Fisher.
In this appeal, we consider, among other things, whether the trial judge erred in denying defendant's motion to suppress evidence obtained as the result of a warrantless search of defendant's motor vehicle. The record demonstrates there was:
(a) sufficient cause to stop defendant's vehicle; (b) consent to the officer's entry into the vehicle to retrieve defendant's credentials; (c) contraband in the officer's plain view as he retrieved the credentials; and (d) an exigency sufficient to permit a further warrantless search of the vehicle. As a result, we conclude the search was lawful and affirm.
Defendant was charged in Indictment No. 06-10-2221 with: third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); first-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2); second-degree possession of CDS with the intent to distribute within 500 feet of a public housing facility, a public park or a public building, N.J.S.A. 2C:35-7.1; and third-degree possession of CDS with the intent to distribute within a school zone, N.J.S.A. 2C:35-7. Following an unsuccessful motion to suppress evidence, defendant pled guilty to second-degree possession of CDS with the intent to distribute and was sentenced to a prison term of eight-and-one-half years with a four-year-and-three-month period of parole ineligibility; the other counts in that indictment were dismissed. This conviction generated violations of probationary terms previously imposed in Indictment Nos. 01-09-1804 and 01-04-0737, resulting in the trial court's imposition of three-year prison terms in those matters to run concurrently with the prison term imposed in Indictment No. 06-10-2221.
Defendant appealed, raising the following arguments for our consideration:
I. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE WARRANTLESS SEARCH OF THE DEFENDANT'S VEHICLE WHICH LED TO THE SEIZURE OF CONTRABAND WHICH FORMED THE BASIS FOR THE CHARGES CONTAINED IN THE INDICTMENT.
A. FACTUAL INTRODUCTION.
B. SINCE THE POLICE WERE AWARE THE DEFENDANT HAD OBTAINED A DRIVER'S LICENSE UNDER AN ALIAS WHICH WAS SUSPENDED, NO JUSTIFICATION EXISTED FOR THE POLICE TO REQUEST THE DEFENDANT'S DRIVING CREDENTIALS, WHICH LED TO THEIR ENTRY INTO THE DEFENDANT'S VEHICLE TO OBTAIN HIS LICENSE.
C. ASSUMING THE POLICE COULD PROPERLY HAVE REQUESTED THE DEFENDANT'S DRIVING CREDENTIALS, THE DEFENDANT DID NOT PROVIDE VALID CONSENT TO THE POLICE TO ENTER HIS VEHICLE TO OBTAIN SUCH DOCUMENTS FROM HIS WALLET.
D. ASSUMING THE POLICE PROPERLY ENTERED THE DEFENDANT'S VEHICLE TO OBTAIN HIS DRIVING CREDENTIALS FROM HIS WALLET, OBSERVING A BRICK OF HEROIN IN PLAIN VIEW IN THE PROCESS NEXT TO THE WALLET, EXIGENT CIRCUMSTANCES DID NOT EXIST TO JUSTIFY THE ENSUING SEARCH OF THE VEHICLE WHICH RESULTED IN THE SEIZURE OF 21 ADDITIONAL BRICKS OF HEROIN.
II. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments regarding Point I and its subparts.
Defendant moved for the suppression of evidence seized from his vehicle following a police stop. The trial judge conducted an evidentiary hearing during which the State called two witnesses, namely, the two officers involved in the vehicle stop and seizure of evidence. Defendant did not testify and called no witnesses.
The trial judge found from the State's undisputed evidence that, on August 31, 2006, the officers were conducting surveillance in what was described as the Drexel Avenue Court area of Atlantic City because of shootings in that area. Defendant had a substantial arrest record*fn1 and was recognized as he exited an apartment by one of the officers. The officers were also aware that defendant utilized an alias and was issued a driver's license under that alias; that driver's license had been suspended.
The officers observed defendant enter a motor vehicle. As defendant started the engine, the officers initiated a stop of the vehicle on the reasonable suspicion that defendant was about to operate a motor vehicle with a suspended license. We agree with the trial judge's finding that the officers possessed a reasonable and articulable suspicion, which justified the motor vehicle stop. See Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed. 2d 660, 673 (1979); State v. Carty, 170 N.J. 632, 639-40 (2002).
According to police testimony, defendant appeared nervous; the judge found that defendant was "rocking back and forth in his seat," and began to argue when a request was made for his license. One officer directed defendant to shut off the vehicle's engine and exit the vehicle. This, too, was a reasonable and justifiable request since police officers have a right to remove a driver from a lawfully stopped vehicle for safety reasons. State v. Pena-Flores, 198 N.J. 6, 31 n.7 (2009); State v. Smith, 134 N.J. 599, 611 (1994).
Defendant complied with the request that he exit the vehicle and a Terry*fn2 patdown was conducted. No weapons or contraband were found on defendant's person, but a further request was made for defendant's driving credentials. Defendant responded that his license was in his wallet, which was on the center console in the vehicle. When one of the officers asked if he could retrieve the wallet from the vehicle, defendant agreed. The request to enter the vehicle for defendant's driving credentials was appropriate in light of the officers' reasonable suspicion that defendant was unlawfully operating the vehicle. See State v. Boykins, 50 N.J. 73, 77 (1967).
The officer opened the vehicle's door and reached into the vehicle to retrieve the wallet, which was in fact on top of the center console. The trial judge then found that right next to the wallet was a package wrapped in newspaper and was open on one end and the officer testified he could see the open end, that it was white wax fold with a rubber band around it[, which] in his experience . . . was consistent with packaging of heroin and what is known as a brick of heroin.
The judge concluded that this brick of heroin was within the officer's plain view and lawfully seized. That conclusion was well-grounded in law. State v. Johnson, 171 N.J. 192, 206-08 (2002). As a result, defendant and his female passenger were taken into custody.
The record also revealed the propriety of the subsequent warrantless search of the vehicle. In Pena-Flores, the Court recognized that a warrantless search of a vehicle is permissible when "(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." 198 N.J. at 28. The first two factors, for reasons we have already mentioned, were met here. The judge found from evidence adduced at the hearing that the third factor -- exigency -- was also satisfied. We agree.
It is not the fact that motor vehicles are mobile that alone gives rise to the exigency required. Ibid. Instead, the fundamental inquiry focuses on "officer safety and the preservation of evidence." Id. at 29. Courts must consider the totality of the circumstances:
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." State v. Johnson, 193 N.J. 528, 556 n.7 (2008) (emphasis added).
[Pena-Flores, supra, 198 N.J. at 29-30 (some citations omitted).]
In this case, the trial judge relied on the officers' testimony in determining that the stop occurred in a high-crime area known for drug trafficking and violent crimes. They were, in fact, conducting surveillance because shots had recently been fired in the area. As the stop occurred, a crowd had formed, giving rise to potential harm to the officers and loss of evidence contained in the vehicle. In deferring to the judge's findings on this point, we have no cause to second-guess the determination that exigent circumstances permitted the warrantless search of the vehicle during which additional CDS was found.
For these reasons, we conclude that the trial judge correctly denied defendant's motion to suppress the evidence obtained from his vehicle.