On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 08-04-0403.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 29, 2010
Before: Judges Cuff and Fasciale.
In this case involving a warrantless search of a car, defendant, Brian Wilk, appeals from a judgment of conviction after he pled guilty to third degree possession of a controlled dangerous substance (heroin), in violation of N.J.S.A. 2C:35- 10a(1).*fn1 The primary question is whether exigent circumstances existed making it impractical to obtain a warrant prior to searching defendant's car. We reverse.
On Friday, December 28, 2007, Officer Gregory Garcia stopped defendant's car around 12:15 p.m., because he suspected him of driving under the influence of either alcohol or drugs. Garcia observed that defendant obstructed traffic as he attempted to turn right out of a parking lot. Defendant pulled onto Main Street, immediately turned onto Orange Street, and Garcia followed him. Defendant then attempted to make a u-turn and his front right tire drove up onto a sidewalk nearly striking a fire hydrant.
Garcia stopped defendant's car in a business and residential neighborhood. There is no evidence that the location of the stop was a high crime area. Garcia suspected that he recognized defendant from previous drug-related arrests. As Garcia notified dispatch about the stop, he noticed defendant moved his hands near the center console of his car. As a result, Garcia requested a back-up unit.
Defendant exited his car and told Garcia that he intended to pick up his brother and go pay an outstanding summons. Garcia ordered defendant to remain at the rear of the car. Although defendant was nervous, would not make eye contact with Garcia, and had a "total lack of concentration," he cooperated. Garcia asked defendant for his identification and to empty his pockets. Defendant complied and produced an outstanding summons and a torn cigarette filter.
Garcia suspected that defendant had heroin in the car because he knew that heroin could be strained through a torn cigarette filter. Garcia asked if drugs were in the car, and as defendant looked through the rear window at the console in his car, he said "no." Garcia then asked dispatch to confirm whether there was an outstanding warrant.
Officer Katsigiannis arrived as back-up and Garcia briefed him. Katsigiannis searched the console and located three empty glassine bags and one bag with white powder in it. After the search, dispatch verified that an outstanding warrant existed. Garcia arrested defendant and transported him to headquarters. Before defendant was transported, a third officer arrived at the scene. Katsigiannis remained there to await a tow truck. The car had to be impounded because Garcia suspected defendant of driving under the influence.
On January 8, 2009, the motion judge denied defendant's motion to suppress, finding that the automobile exception to the warrant requirement applied because exigent circumstances existed. The judge stated that:
Our courts have held, both the U.S. Supreme Court and our New Jersey Supreme Court, that the automobile exception and the exigent nature of the movement of the automobile or the potential movement of the automobile alone create the exigency. The court cites State v. Cooke, 163 N.J. 657, . . . 671 (2000). Each case is to be determined on a case-by-case basis. State v. Dunlap, 185 N.J. 543,  549 [(2006)] which cited the Cooke case. [I]n Dunlap, the Appellate Division found that when you have a good number of officers at the scene it's difficult to make the argument that there was the exigency of the removal or destruction of evidence.
Here we have two officers at the scene. One of them is charged with removing Mr. Wilk from the scene, based upon his arrest. The other is charged with remaining on the scene to potentially do an inventory.
The Court finds, under these particular circumstances, and based upon the mobility of the vehicle itself, that there could well have been the potential for any ...