On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 03-03-0159, 03-03-0160, 03-06-0834, 03-06-1241, and 03-07-2440.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Fuentes, Gilroy and Simonelli.
In these back-to-back appeals, defendants Alnesha Minitee and Darnell Bland challenge the warrantless search of a motor vehicle that served as the alleged getaway car in a series of armed robberies of massage parlors. Defendants, Almustafa Baldwin and Liakesha Jones*fn1 were charged with committing these robberies during a one-month crime spree that stretched across four counties. Bland pled guilty and makes no other challenges to his conviction. Minitee was tried before a jury and convicted of five counts of first degree armed robbery in Middlesex County. N.J.S.A. 2C:15-1. In addition to the warrantless search of the car, Minitee also raises other grounds for reversing her conviction and sentence.
Because the warrantless search of the motor vehicle was constitutionally impermissible, we now consolidate these appeals and reverse both defendants' convictions. As a threshold issue, we hold that under N.J. Const. Art. I, ¶ 7, Bland has standing to challenge the propriety of the search because he had a "participatory interest" in the vehicle where the items seized by police were found. In so doing, we find State v. Bruns, 172 N.J. 40 (2002), distinguishable from the facts presented in this case. Applying the principles articulated by the Court in State v. Pena-Flores, 198 N.J. 6 (2009), we reverse the trial court's order upholding the propriety of the warrantless search of the motor vehicle, vacate defendants' convictions, and remand.
The following facts will inform our discussion of these legal issues.
Defendants both moved to suppress evidence seized by the police during a warrantless search of the red SUV they had allegedly used to perpetrate the robberies. We thus derive our factual recitation from the evidence presented at the suppression hearing. During that hearing, the State called three witnesses, all of whom were employed by the Fort Lee Police Department.
On January 24, 2003, at about 10:30 p.m., Police Officer Alejandro Lorenzo was on his meal break at Baggio's Restaurant when a call came over the police radio that an armed robbery was in progress at the KOA Spa, an establishment located around the corner from Baggio's. When Lorenzo arrived, he was the first officer on the scene.
Lorenzo saw a crowd of people outside. As he stepped out of his car, bouncers from the adjacent Tribeca night club pointed to an SUV that was stopped at a traffic light and screamed that the occupants of the SUV had guns and had "just robbed the place." As Lorenzo turned around to face the traffic signal, he "saw a red SUV stopped at the light trying to squeeze by some other cars." He ran towards the SUV, "took cover behind the building, removed [his] service weapon, took aim, and ordered the occupants out of the vehicle" using what he characterized as "strong words."
He repeated these verbal commands approximately five times over a thirty-second period before a man, subsequently identified as Bland, emerged from the rear, passenger-side door of the SUV, with a purse and a handgun in his hand. Lorenzo ordered Bland to drop the gun; he complied. Lorenzo instructed Bland to step onto the sidewalk and kneel down; Bland took one step towards the sidewalk, then ran eastbound on Main Street.
Turning his attention to the vehicle, Lorenzo noticed that the SUV was still moving or "jerk[ing] as if was still in gear." The SUV remained in place, however, because the traffic light was still red. Lorenzo ordered the remaining occupants, two of whom he could see, to step out of the SUV. At this point, the traffic light turned green causing the cars in front of the SUV to move; this permitted the SUV to drive "partially onto the sidewalk and continue[ ] west on Main Street." Lorenzo chased the vehicle on foot until he saw it turn left onto Gerome Avenue. He then radioed this information to the other police units.
Officer Michael Gerardo first saw the red SUV on Gerome Avenue; he then followed it to the dead end of Beverly Hills Road. When he came upon the vehicle, Minitee and Jones were standing by the driver's side of the car. They claimed that they were the victims of a carjacking. The two then followed Gerardo's instructions to lay down on the ground. Backup officers arrived a short time later. No weapons were found on the women. Jones was arrested at the scene based on an unrelated outstanding warrant. Minitee was subsequently arrested at the police station during questioning.
A police search of Motor Vehicle Commission records determined that Minitee was the registered owner of the red SUV. The vehicle was taken into custody by the Fort Lee Police Department and towed to its headquarters that same night, January 24, 2003.
The police conducted a warrantless search of the SUV and recovered the following items, which were admitted into evidence during Minitee's trial: (1) classified-section pages of different editions of the Newark Star-Ledger newspaper listing area massage parlors, with certain establishments bearing an asterisk mark next to them and others marked with a "no"; (2) several rolls of duct tape; (3) a videotape depicting the robbery at an East Brunswick massage parlor that had taken place just a week earlier; (4) a piece of paper with handwritten directions on it; (5) a newspaper dated January 8, 2003, with certain highlighted entries in the classified section, including Ace Full Body Massage Parlor; and (6) an ad page from the Star-Ledger with an asterisk mark next to KOA Spa's ad.
Baldwin was arrested on foot by Port Authority Police in Englewood Cliffs approximately forty minutes after the initial police radio broadcast about the armed robbery. Bland, who had been the first to exit the SUV, was arrested months later after one of the victims of the robbery identified him from a police photograph array.
After hearing the arguments of counsel, the trial court denied defendants' motions to suppress this evidence. The motion judge gave the following explanation in support of his ruling:
I'm satisfied that the testimony demonstrates that the State has met its burden of proof by a preponderance of the evidence; that no Fourth Amendment violation has taken place by reason of the warrantless search of the red SUV on that date as well as the search [that] I find to have been incident to probable cause to arrest both females who were the occupants of the vehicle. The proofs presented establish that the Fort Lee police believing that an armed robbery had just taken place at the KOA Spa and that the individuals involved in it were fleeing from the scene in an SUV and that evidence of the crime could reasonably be expected to be found in that vehicle and while in pursuit of the vehicle an armed individual exits the vehicle . . . with a weapon and discards it. Against this backdrop of events, the police were justified [in] searching the vehicle and its occupants.
The risks to public safety require and the need to locate the potentially armed and potentially dangerous suspects provided the exigency [for] the ...