On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-08-0706.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 7, 2010 - Decided
Before Judges Parrillo and Yannotti.
Following denial of his motions to suppress and to reopen the suppression hearing, defendant Dante Sanford pled guilty to fourth-degree impersonating a law enforcement officer, N.J.S.A. 2C:28-8b; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d; fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f; and second-degree possession of a handgun by a convicted person, N.J.S.A. 2C:39-7b. He was sentenced in accordance with the negotiated plea agreement to an aggregate term of six years with a five-year period of parole ineligibility. Defendant appeals from the denial of his suppression motions, and we affirm.
According to the State's proofs at the suppression hearing, around 2:00 a.m. on July 23, 2005, defendant was pulled over by a police officer on Route 206 in Montgomery Township because the license plate light to his vehicle, a Ford Crown Victoria, was out. As Sergeant James Gill approached, he noticed that defendant's vehicle was almost identical to an unmarked police vehicle, with tinted windows, a police interceptor emblem on the rear of the car, a red emergency lamp on the dashboard and, next to it, a blue placard that reflected "official business." Upon further observation, Gill saw on the rear seat of the vehicle a standard-issued reflective traffic vest with the word "POLICE" on it and a uniform shirt with a police patch on the shoulder.
Defendant was the lone occupant of the car, which was registered in his name. Suspecting that he might be dealing with a police officer, Gill inquired of defendant's employment. Evasive at first, defendant subsequently replied "Essex County Campus Police," but when asked for identification, he became nervous and eventually admitted he was not a police officer. Having determined to arrest defendant for impersonating a police officer, Gill, the sole officer on the scene, had defendant remain in the car and waited until back-up arrived. When Officer Larson responded, both officers approached defendant's vehicle and defendant was asked to exit the car. Gill then advised defendant he was under arrest and asked whether defendant had any weapons on him. Defendant replied no, but then reached toward his right front pants' pocket. Gill then ordered defendant to turn around and place his hands on top of his head. After handcuffing defendant, Gill put his hand into the pocket where defendant had reached and found five live rounds of .40 caliber hollow-point bullets. Defendant was then placed into Gill's police vehicle.
Because defendant was obviously impersonating a police officer and in possession of live rounds of ammunition, Gill strongly suspected a gun was inside defendant's car, possibly loaded. Concerned for the safety of anyone coming into contact with the vehicle, Gill immediately searched the passenger compartment and retrieved the police paraphernalia. Upon further inspection, Gill found a .40 caliber "Highpoint" firearm in a leather holster underneath the driver's seat. The handgun was loaded with eight rounds in the magazine and one in the chamber. Its serial number had been filed off and painted over. Gill also found several spent 9-milimeter shell casings in the center console.
Meanwhile, a private tow truck operator had been called to impound defendant's vehicle and tow it back to headquarters where it would be parked in an unsecured and unguarded rear lot. This was standard operating procedure (SOP) necessitated by the fact that the police department did not have its own towing or emergency services unit. Moreover, on the evening in question, only five police officers were on duty to patrol the township's thirty-two square miles, one of whom was "in-training" and "shadowed" by another officer. At the time of defendant's arrest, two other police officers were involved in another motor vehicle stop occurring at the southwest border of the township.
At the close of evidence, Judge Frank Gasiorowski denied defendant's motion to suppress, finding both probable cause and exigent circumstances, the latter based on the live ammunition on defendant's person, the likely presence of a gun inside his vehicle, the shortage of police officers on duty at the time, and the accessibility of the car to a private tow operator, who would then transport the vehicle to an unsecured lot accessible to anyone. Thereafter, defendant moved to reopen the suppression hearing in light of the Supreme Court's decisions in State v. Pena-Flores, 198 N.J. 6 (2009), and its companion case, State v. Fuller, 198 N.J. 6 (2009), as well as State v. Johnson, 193 N.J. 528 (2008). After hearing oral argument, Judge Paul Armstrong denied defendant's application, finding no reason to disturb the original decision.
On appeal, defendant does not contest his traffic stop, arrest or search of his person incident to that arrest. Nor does he challenge the finding of probable cause to believe that his vehicle contained evidence of a crime or a gun. Defendant argues, however, that the State failed to establish exigent circumstances that made it impracticable to obtain a telephonic warrant before searching the vehicle. We disagree.
In New Jersey, a warrantless search of an automobile 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." Pena-Flores, supra, 198 N.J. at 28 (citing State v. Cooke, 163 N.J. 657, 667-68 (2000)). Whether exigent circumstances exist must be determined on a "case-by-case basis." Ibid. (citing State v. Dunlap, 185 N.J. 543, 551 (2006)).
In determining whether an exigency existed, the court "must consider the totality of the circumstances." Ibid. (citing Cooke, supra, 163 N.J. at 675). The relevant considerations 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. [Id. at 29.]
There is "no magic formula" for determining whether exigent circumstances exist. Ibid. Rather, the facts must establish that it is impracticable to obtain a warrant. Ibid. (citing State v. Colvin, 123 N.J. 428, 434 (1991); Coolidge v. New Hampshire, 403 ...