February 16, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PETER A. BARR, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-11-1806.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2010
Before Judges Lisa and Baxter.
After his motion to suppress evidence seized in a warrantless search was denied, defendant pled guilty to third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(11), and third-degree unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5b. He was sentenced to concurrent terms of five years probation on each count. In accordance with the plea agreement, the remaining three counts of the indictment were dismissed. Defendant now appeals the denial of his suppression motion. He argues:
THE WARRANTLESS SEARCH OF BARR'S JEEP WAS NOT JUSTIFIED UNDER THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT.
A. The Stop Of Barr's Jeep, Which Was Directed By Federal Agents, Was Not Unexpected.
B. It Was Not Impracticable For The Officers To Get A Warrant When They Themselves Acknowledged That They "Should Stop Right Here And Get A Warrant," That There Was "No Rush," And That They Had "A Lot Of [Police] Cars Out [T]here."
We reject defendant's arguments and affirm.
On July 18, 2007, New Jersey State Trooper Thomas Kulpinsky began his shift at 6:00 p.m. He was assigned to patrol the New Jersey Turnpike. Immediately upon beginning his patrol, he heard a dispatch advising that federal Immigration and Customs agents had a visual on a vehicle traveling southbound on the Turnpike, approaching Kulpinsky's location. The driver of the vehicle was believed by the customs agents to be trafficking in narcotics. The dispatcher reported that the vehicle was driving at a high rate of speed and erratically. The customs agents requested that the State Police stop the vehicle.
Kulpinsky established a stationary position. About ten to fifteen minutes later, he saw the vehicle described in the dispatch. He pulled out and followed it. Driving directly behind it, he paced the vehicle at seventy-nine miles per hour. He said it had been going faster when he first observed it, but it slowed down to that speed by the time he was able to pace it. In addition to substantially exceeding the speed limit, Kulpinsky observed other motor vehicle violations, including following too closely, N.J.S.A. 39:4-89. Based upon these violations, Kulpinsky activated his overhead lights and effected a stop of the vehicle, which defendant was driving.
The customs agents who had been following defendant's car pulled over simultaneously, and other State Troopers who were aware of the circumstances based upon the dispatch had come to the area and immediately arrived at the site of the stop.
The location of the stop, verified by the videotape taken with the camera mounted in Kulpinsky's car, which was played at the suppression hearing and which we have viewed, was on the right shoulder of the highway. A guardrail was located two to three feet to the right of the vehicle. The lane of travel was two to three feet to the left of the vehicle. There were three lanes of travel in the southbound direction at this location. Traffic was very heavy. Vehicles passing by at a high rate of speed included many tractor trailers and box trucks, as well as buses and car carriers.
Three troopers, including Kulpinsky, approached the vehicle. Kulpinsky and another trooper went to the passenger side window, and the other trooper went to the driver's side area. The passenger side window was open. As Kulpinsky approached the vehicle, he immediately detected a strong odor of marijuana emanating from it. He leaned into the window and asked for driving credentials. He noted that defendant was nervous. His hands were on his lap. Within seconds, Kulpinsky observed a machete wedged between the center console and passenger seat. Kulpinsky's demeanor immediately changed, as corroborated on the videotape. He and the other troopers drew their weapons and Kulpinsky began shouting orders at defendant, instructing him to put his hands on the steering wheel, and ordering him out of the vehicle. Defendant exited the vehicle and was immediately placed under arrest for possession of an illegal weapon. He was handcuffed, advised of his Miranda*fn1 rights and placed in a police vehicle.
During the course of these fast-moving events, defendant volunteered to the police that he had a gun in the car. He may have also identified its location in the back pocket of one of the front seats.
At this point, there were six or seven State Troopers and federal customs agents on the scene. Several troopers engaged in a discussion as to how to proceed, considering whether they should search the car immediately or seek a search warrant. Primarily based upon the known presence of weapons in the vehicle, they opted to proceed without a warrant. They went into the vehicle and seized the machete and the gun, which they found to be loaded with ten hollow-point bullets. Based upon the strong odor of marijuana and the concern that additional weapons might be present, they continued the search.
As it turned out, the length of the search from that point on was protracted. It is unclear from Kulpinsky's testimony and the videotape at what point the marijuana was discovered. Based upon the time markings on the videotape, defendant was removed from the car at about 6:55 p.m. The search began at about 7:05 p.m. The video reveals that at about 7:10 p.m. a white plastic bag was removed from the vehicle by an officer who was leaning into the rear of the vehicle. This portion of the tape was played during Kulpinsky's direct examination. Kulpinsky testified that an officer was checking a bag which was retrieved from the rear area of the vehicle. Kulpinsky further stated that another bag of what he believed to be marijuana was also recovered from the rear area of the vehicle. Kulpinsky did not specify at what point this bag of alleged marijuana was recovered, although he did say that it was not contained in the white plastic bag.
At about 7:15 p.m., the video shows an officer appearing to place a bag inside a black duffel bag. As to this portion of the video, Kulpinsky testified as follows:
Q: What did you just do?
A: That was a plastic bag that I found underneath the rear seat cushion, and I secured that in the rear of my car.
Q: Was there anything in it?
A: Yes, there was a fairly large amount of a greenish vegetation which with my training and experience [I] thought was marijuana.
Q: At - at this point, have you seized everything that was seized from the defendant?
Q: The search continues?
[Prosecutor]: Your Honor, so Your Honor knows, this tape continues for a considerable period of time I would say.
And one would observe on it a continuation of the search to look for additional contraband. None is ever found.
On cross examination, defense counsel stated that by his viewing of the tape it seemed that the marijuana was not discovered until much later than Kulpinsky testified. The following exchange then took place:
Q: And still no marijuana were - was found? At that point, so far?
A: At the point that we got into the tape?
The police called for a canine unit at about 7:37 p.m. At the same time, two officers can be heard on the video discussing a further search of the vehicle for marijuana. One officer can be heard instructing the other to take his time searching while awaiting the canine. The canine arrived at about 8:07 p.m. Shortly thereafter an officer indicated that the canine "hit" on an area in the rear of the car. Tools were requested at about 8:11 p.m.
Between 8:11 p.m. and the time Kulpinsky left the scene in his troop car at 8:51, to transport defendant to the stationhouse, the search was continuing. Despite the ongoing search, at no time between 7:10 and 8:51 p.m. is there any video evidence that marijuana was found. However, rainfall was obstructing the windshield, and therefore the video images are unclear. Moreover, the audio is unclear due to the proximity of the passing highway traffic. As we will explain below, the fact that it is unclear at what point the marijuana was found is irrelevant to our decision in this case.
Kulpinsky was the only witness at the suppression hearing. As we stated, the videotape was also played. An audiotape was also played. Judge DeVesa found Kulpinsky's testimony credible. He found that Kulpinsky's stop of defendant was justified, based upon, in the first instance, information received from other law enforcement officials that defendant was operating the vehicle at a high rate of speed and erratically, but, more importantly, corroborated by Kulpinsky's own observations of the vehicle and his pacing of it, which confirmed for him that defendant was indeed substantially exceeding the speed limit. The judge discounted the effect of any mixed motive for making the stop, which may have included, in addition to motor vehicle violations, information that defendant was believed to be trafficking narcotics. The judge reasoned that whether or not Kulpinsky's primary reason for the stop was, as Kulpinsky testified, the motor vehicle violations was irrelevant, because he had an objectively reasonable basis for the stop based on the motor vehicle violations.
The judge also found that, based upon Kulpinsky's plain view observation of the machete, his plain smell observation of marijuana, and defendant's statement that a gun was in the car, the officers had probable cause to search the car. Defendant does not dispute that probable cause existed.
As the events unfolded, not only was a gun present but it was loaded with ten rounds of hollow-point bullets, which are illegal. Thus the danger resulting from this situation was escalating. Indeed, when Kulpinsky was asked on cross-examination whether, after removal of the two weapons, any emergency situation continued to exist that required a further search of the car, he answered affirmatively. When asked what it was, he said: "Additional weapons. Additional ammo, any --any other items that might be harmful."
Judge DeVesa was also satisfied that, under the totality of the circumstances, exigent circumstances existed justifying not only the initial seizure of the machete and search for the gun, but the continued search of the vehicle. He explained it this way:
At that point it's important to note that the Trooper had already smelled the odor of marijuana. He had already arrested the defendant. He had already now found a gun and hollow point bullets, and I believe that at that point to further the search and make a more thorough search was appropriate. I believe he had probable cause to believe that there was a controlled dangerous substance in the vehicle based upon his communications from the custom's agents and based upon his smell of marijuana.
The real issue, I suppose, and the closest issue in this case is whether or not the seizure of the gun and the marijuana were done as a result of exigent circumstances or whether the troopers should have, now having prob -- now having placed the defendant in the rear of the car and not any longer being threatened by him or his access to any weapon or contraband, since there was nobody else in the vehicle, should they have gone for a search warrant or was there sufficient exigent circumstances to search the vehicle further at the roadside.
Now, one of the things that really is not mentioned by either counsel, but is clear from the tape, we're talking about a vehicle that is on a very narrow shoulder of the New Jersey Turnpike and the tape reflects very clearly that there are large trucks driving by at a high rate of speed while these troopers and these vehicles are on this very narrow shoulder.
I clearly am not in possession of any tape measure, but from looking at the videotape it would appear to the Court that these vehicles are driving by the vehicles on the shoulder with a separation of no more than two or three feet at best.
And, I think, one can take judicial notice, and I think counsel can take notice of the fact that there are frequently reported fatalities and injuries from vehicles being struck on the shoulder. And, I think, we have even had some troopers injured and killed from being struck on the shoulder of a -- of the Turnpike and the Parkway.
So, initially I am absolutely satisfied that at that point the troopers had probable cause to believe there was a gun in the vehicle, and they had tro -- probable cause to believe that there was mari -- well, some -- well, marijuana in the vehicle because of the odor of it, and there were exigent circumstances.
The police would have had to wait for some time for a tow truck to come. They would have had to maintain a guard or guards at the vehicle because of the suspected weapon in the vehicle. And then, ultimately, if a tow truck did come they would have had to accompany the vehicle to some remote location to make sure that the tow truck driver didn't take anything out of the vehicle.
And while, you know, it's -- it's nice to suggest what the police should have done, this is not a question of what the police should have done or what is preferable. This is a question of what they did do, and whether it was an unreasonable seizure under all the circumstances.
I am satisfied that there were exigent circumstances, and that having probable cause to believe that these items were in the vehicle they were not required to at any time go back and get a search warrant. I think that would have created a further delay in having the vehicle removed and searched, and that could have created additional danger to themselves and possibly even the defendant if he was going to stay at the scene with them.
Based upon those findings, the judge denied defendant's suppression motion.
Of course, any warrantless search is presumed invalid, and can be justified only if it fits within one of the recognized exceptions to the warrant requirement. In this case, the automobile exception is implicated. Under that exception, in accordance with "our unwavering precedent," 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. The notion of exigency encompasses far broader considerations than the mere mobility of the vehicle. [State v. Pena-Flores, 198 N.J. 6, 28 (2009) (citations omitted).]
As we have stated, defendant does not dispute the second requirement, the existence of probable cause. He disputes the first and third requirements.
As to the first, that the stop was unexpected, defendant argues that this was a "directed" stop and therefore does not qualify as an unexpected stop. We disagree. When Kulpinsky first heard the dispatch, the federal customs agents were already in the process of following defendant on New Jersey highways (first the Garden State Parkway and then the New Jersey Turnpike). Thus, the events were already in motion and rapidly developing. Unlike, for example, the situation in State v. Dunlap, 185 N.J. 543 (2006), this was not a situation in which the police preplanned and set up arrangements to cause the defendant to be at a certain location where they would be waiting to arrest him. Here, the events were fluid and of short duration, having already begun when the State Police became involved. The stop was based on observed motor vehicle violations. This stop was unexpected within the context of the automobile exception requirement.
We note in passing an inconsistency in defendant's argument on this point. He concedes that the seizure of the machete and gun were lawful. His appeal pertains only to the marijuana. However, if this were not a valid stop, even the seizure of the machete and gun would have been unlawful under the fruit of the poisonous tree doctrine. See Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 415-17, 9 L.Ed. 2d 441, 453-54.
The real issue here is whether there was a sufficient exigency. The crux of defendant's argument is that there was not a sufficient exigency to make a "full search" of the vehicle after the machete and gun were removed. Defendant points to the discussion among the troopers as to the advisability of seeking a search warrant or whether they should search the vehicle without one. And, defendant points to the extended length of the search, arguing that if they were able to stay on the scene for as long as they did, there was no hurry, and they could have used that time to seek a warrant. Finally, defendant observes that there were six or seven law enforcement officers (including State Troopers and customs agents) on the scene, and defendant was alone.
To justify a warrantless search in these circumstances, the State must establish that, under the totality of the circumstances, there was sufficient exigency rendering it impracticable to obtain a warrant. Pena-Flores, supra, 198 N.J. at 28. The determination must be made on a case-by-case basis; no single factor is dispositive, but the totality of the circumstances must be evaluated. Id. at 28-29. In Pena-Flores, the court set forth a non-exclusive list of "[l]egitimate considerations":
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." [Id. at 29-30 (footnote and citations omitted).]
In this case, some of these considerations weigh against the existence of exigent circumstances. For example, there was a high ratio of officers to suspects, and there were no known confederates involved. Other circumstances, however, support the existence of exigent circumstances. The events unfolded rapidly. "Exigent circumstances may exist if the unanticipated circumstances that give rise to probable cause occur swiftly." State v. Cooke, 163 N.J. 657, 672 (2000). The vehicle could not be left safely unattended in its location on a busy highway. Thousands of passing motorists saw the police activity, including defendant's arrest, and thousands more would pass by the location before a warrant could possibly be obtained. The police knew for sure that the car contained a machete, and, based upon what defendant told them, it also contained a gun. Further, based upon Kulpinsky's undisputed and credible testimony that he detected a very strong odor of marijuana, it probably contained that illegal substance. The presence of weapons implicates enhanced safety concerns. See State v. Diloreto, 180 N.J. 264, 273-74 (2004) (upholding immediate warrantless search of vehicle after pat down of defendant revealed a loaded ammunition clip); State v. Alston, 88 N.J. 211, 232-34 (1981) (upholding vehicle search after police observed ammunition in glove compartment opened by an occupant); State v. Hammer, 346 N.J. Super. 359, 364, 370 (App. Div. 2001) (upholding warrantless vehicle search after officer saw bullets fall from driver's coat as he exited the vehicle).
We find unpersuasive defendant's argument that the circumstances to be considered for the exigency determination should be divided between the time before and after removal of the machete and gun. As Kulpinsky testified, the presence of those two weapons in the vehicle gave rise to the further concern that additional weapons might be present. This was a reasonable concern, and further demonstrates the rapidly unfolding and developing course of events that were "unforeseen and spontaneous." Pena-Flores, supra, 198 N.J. at 21.
Officer safety was also a substantial consideration. As graphically depicted on the videotape, the officers were required to be in very close proximity to a heavy volume of fast moving traffic. The decision to act quickly and not wait for a warrant was reasonable under the circumstances.
Defendant argues that if the police had one to two hours available to them to remain on the scene conducting this search, they could have used that time to obtain a warrant. This misses the point. The critical timeframe is when the search began, not how long it took. Judge DeVesa recognized this in colloquy during the suppression hearing. He said: "Whether the marijuana was found 5 minutes later, 10 minutes later, 20 minutes later, I must tell you, I don't see that as a significant disputed fact. It may be a disputed fact, but I don't -- I don't think it changes your argument or the State's argument very much." We agree. In evaluating the validity of a search, the critical determination is whether sufficient exigent circumstances existed at its commencement. Typically, automobile searches do not take hours. Indeed, the machete and gun were removed very quickly, and, as we explained, the marijuana may have also been found and seized rather quickly. Even if it was not, the officers had no reason to believe that the search would involve a request for a canine and tools.
A reviewing court is required to grant substantial deference to the trial judge who heard a suppression motion, deferring to that judge's factual findings if supported by the record, and also recognizing that judge's feel of the case. State v. Elders, 192 N.J. 224, 243-44 (2007). This deferential standard extends to the trial court's determination as to the existence of exigent circumstances. State v. Stott, 171 N.J. 343, 359-60 (2002).
Applying this standard, we have no occasion to interfere with Judge DeVesa's factual findings and his conclusion that sufficient exigent circumstances were present to justify the warrantless search.