February 5, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHARD HERNANDEZ A/K/A RICHIE HERNANDEZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. 07-10-1599.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2009
Before Judges Carchman and Lihotz.
Defendant Richard Hernandez was charged by a Middlesex County grand jury under Indictment No. 07-10-1599 with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), count one; and second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2), count two.
Defendant moved to suppress certain drug evidence gathered during a warrantless search of an automobile in which he was traveling. The motion was denied following a hearing. Preserving the right to appeal the denial of his motion to suppress, R. 3:5-7(d), defendant entered a guilty plea to count two and the State agreed to dismiss count one. Accepting the plea, the court sentenced defendant to five years incarceration with an eighteen-month period of parole ineligibility, to run concurrent with that imposed on a separate Middlesex County Indictment pending at the time defendant committed the instant offense. Applicable fines and costs were also assessed.
On appeal, defendant presents a single issue for review, arguing:
THE EVIDENCE SEIZED FROM DEFENDANT'S VEHICLE SHOULD BE SUPPRESSED BECAUSE THE WARRANTLESS SEARCH OF THAT VEHICLE DID NOT MEET THE REQUIREMENTS OF THE "AUTOMOBILE EXCEPTION."
After review of the briefs submitted, and in light of the record and applicable law, we affirm the trial court's denial of defendant's motion to suppress.
These are the facts. On July 7, 2007, shortly before 2:00 a.m., State Trooper Michael Nelson and his partner, Trooper Pommrencke,*fn1 observed a 1994 Chevrolet Caprice with inoperable taillights enter northbound Route 440 from Route 514 in Edison. The vehicle was driven by Diana Crespo, defendant's girlfriend, with defendant as a passenger. The Troopers effectuated a traffic stop.
As the officers approached the passenger side of the vehicle, Trooper Nelson noticed defendant was "flailing his hands outside the . . . window" and kept "turn[ing] his back towards [them]." Shining their flashlights into the car, the Troopers asked Crespo to produce her license, registration and proof of insurance. Crespo did not have her license and stated the vehicle did not belong to her. Crespo asked defendant to open the glove compartment to look for the papers. In so doing, defendant "ripped the entire face off" of the compartment and was observed sweating profusely on what Trooper Nelson described as an otherwise "cool[,] breezy" night.
Defendant then began kicking the passenger-side floorboard with his left foot, causing the Troopers to shine their flashlights in that direction. Trooper Nelson observed a "white powdery substance in a clear plastic bag" on the floor and asked defendant to hand him the bag. Defendant complied. Based upon his training and experience, Trooper Nelson believed the bag contained cocaine. He ordered defendant to exit the vehicle and placed him under arrest.
Defendant was escorted to the front of the vehicle, handcuffed and searched. The police found three baggies of suspected cocaine wrapped in a "yellow sticky note" and an inhaler filled with "green brownish vegetation" on defendant's person. Defendant stated "he did not want anything to happen to his girlfriend," and admitted there were additional drugs in a "black nylon bag" located underneath the passenger seat of the car. Defendant was placed in the back of the police car and read his Miranda*fn2 rights.
Trooper Nelson returned to the Caprice and ordered Crespo to exit the car; she was arrested and then searched by Trooper Pommrencke, a female officer. This search yielded no contraband.
With Crespo secured against the front passenger side of the vehicle by Trooper Pommrencke, Trooper Nelson called his superior officer to inform him he was about to conduct a probable cause search of the car and to request back-up. Trooper Nelson then began to search the Caprice's interior for the black nylon bag, which he found. Approximately five to ten minutes later, four State Troopers and two Edison Township police officers arrived "as [Nelson] was conducting the search."
The bag contained a digital scale, packets of suspected cocaine, and a crack pipe. Testing revealed 37.48 grams of cocaine were removed from the Caprice.*fn3 Defendant was charged with the CDS offenses and issued a summons for failure to wear a seat belt. Crespo was given summonses for failure to exhibit a driver's license, N.J.S.A. 39:3-29, and failure to maintain tail lamps, N.J.S.A. 39:3-61, then released.
On March 20, 2008, the court conducted a hearing on defendant's suppression motion. Defendant did not challenge the evidential admission of the CDS he handed Trooper Nelson or the contraband seized during the search incident to arrest. However, he moved to suppress the CDS and contraband found in the black nylon bag, arguing the search of the interior compartment failed to comply with the requirements of the "automobile exception" for warrantless searches. Specifically, defendant urged, pursuant to the Supreme Court's recent holding in State v. Pena-Flores, 198 N.J. 6 (2009), the State failed to prove the existence of "exigent circumstances" necessitating an immediate search.
Judge Mulvihill determined probable cause to search the vehicle for "contraband or other evidence of a crime" existed as the result of Trooper Nelson's discovery of the cocaine in plain view and handed to him by defendant, as well as the CDS found after the search incident to arrest. The court made these additional findings in concluding the search was properly conducted pursuant to the automobile exception to the warrant requirement:
The taillights were out. It's a dangerous situation. You're on a heavily trafficked road, one of the most heavily traveled roads in the State of New Jersey. Narrow lanes, cars going back and forth, trucks, all sorts of stuff, two lanes, and he's off in a narrow place. You have two people. One guy is arrested after there is [sic] plain view drugs on the floor . . . . More probable cause to search the car [after] searching the defendant himself [as] [t]here were some drugs on him[.]
We have two troopers. We have a female who doesn't have her license [or] registration to the vehicle. They take her out and they put her in front of the vehicle . . . . She's there. You've only got the two troopers. They call for backup. [Backup is] supposed to come within five or ten minutes but they don't know exactly when they're coming and so I find that to be exigent circumstances.
Thus, the rapidly unfolding events, the inherent mobility of the vehicle and the volatility of the heavily trafficked roadway provided exigent circumstances permitting a warrantless search of the vehicle at the scene.
The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. Our State Constitution contains virtually identical language protecting people against government intrusion. N.J. Const. art. 1, ¶7. State v. Citarella, 154 N.J. 272, 278 (1998). In New Jersey, searches occurring without a warrant are "presumptively unreasonable" and "prohibited unless they fall within a recognized exception to the warrant requirement." Pena-Flores, supra, 198 N.J. at 18 (citing State v. Wilson, 178 N.J. 7, 12 (2003)). These recognized exceptions were first compiled in State v. Hill, 115 N.J. 169, 173-74 (1989) and include those for "plain view" sightings, "inventory searches," "searches incident to arrest," and certain searches of automobiles, at issue in this matter. Ibid.
Importantly, New Jersey's requirement for the valid, warrantless search of an automobile are stricter than those of its federal counterpart. Under federal law, such searches are permitted so long as the vehicle is readily mobile and there is probable cause to believe it contains evidence of criminality. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed. 2d 1031, 1036 (1996). In contrast, New Jersey courts require a showing that the stop of the vehicle was "unforeseen and spontaneous," and based on the unique facts of the case, there existed exigent circumstances beyond the inherent mobility of the vehicle. Pena-Flores, supra, 198 N.J. at 22 (citing State v. Alston, 88 N.J. 211, 216 (1981) and State v. Martin, 87 N.J. 561, 569-70 (1981)).
There is no "magic formula" when determining the existence of exigent circumstances, only the "compendium of facts that make it impracticable to secure a warrant." Pena-Flores, supra, 198 N.J. at 29. The determination must be made on a case-by-case basis. Id. at 28. Potentially relevant factors, all directed at officer safety and the preservation of evidence, id. at 29, include 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. [Ibid.]
This record clearly shows the unplanned or spontaneous nature of the stop. Trooper Nelson stopped the vehicle at 2 a.m. because its taillights were out. The videotape of the stop, played during the suppression hearing, revealed Nelson confirming this fact to his superior officer. Also, the circumstances surrounding the roadside stop heighten the concern for the officers' safety. State v. Dunlap, 185 N.J. 543, 551 (2006). The ratio of two suspects to two officers on a narrow shoulder of a highly traveled interstate presented the requisite degree of exigent circumstances supporting the vehicle's search. Even though back-up eventually arrived, there was no way of assuring assistance would be quickly on scene.
The totality of the events, implicating both the need to protect the safety of the police and preserve the evidence, support the motion judge's finding of probable cause to stop Crespo's car and exigent circumstances justifying Trooper Nelson's search of the automobile. We have no basis to disturb the denial of defendant's motion to suppress.