February 25, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAMIR WILSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-10-0708.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2010 -- Decided
Before Judges Rodriguez and Miniman.
Following the denial of defendant Damir Wilson's motion to suppress, he entered a plea of guilty to the disorderly persons offense of hindering prosecution. N.J.S.A. 2C:29-1. In exchange, the State agreed to dismiss the related charges of fourth-degree possession of marijuana with intent to distribute; third-degree possession of marijuana with intent to distribute while within a school zone; fourth-degree hindering; and the disorderly persons offense of possession of drug paraphernalia. The State also agreed to recommend a probationary sentence with 364 days in the county jail as a special condition. Judge Edward M. Coleman imposed a three-year probationary term with 364 days in the Somerset County jail and other conditions.
Defendant appeals pursuant to R. 3:5-7(d). He raises the following argument:
BECAUSE OF THE ABSENCE OF EXIGENT CIRCUMSTANCES, THE INITIAL WARRANTLESS SEARCH OF THE VEHICLE WAS UNLAWFUL AND THE ILLEGALITY TAINTED THE CONSENT SEARCH OF THE TRUNK. U.S. CONST. AMEND. IV; N.J. CONST. (1947) ART. I, PAR. 7.
Franklin Township Police Corporal Michael Price, Detective Ordel Taylor, and Detective Sergeant Darren Russo, the head of the Franklin Police Department's Crime Suppression Unit (CSU), testified at a hearing before Judge Coleman on the motion to suppress. Russo testified that he and detectives from the Somerset County Prosecutor's Office Narcotics Task Force and other CSU officers conducted a walk-through of Somerset Estates at 9:30 p.m. on Saturday, July 28, 2007. Somerset Estates consists of forty, two-story garden apartment buildings surrounding two large parking lots. According to Franklin Township police, narcotics transactions were common in these parking lots.
Russo saw a black Acura hatchback with both doors open parked very close to one of the apartment buildings. Ronnie Guerrero was talking on a cell phone while standing near the Acura's driver's side. Defendant sat in the front passenger seat. Guerrero walked to the passenger side, received a black bag from defendant and walked to the rear of the Acura. There, he put the bag into the Acura through the hatchback door. Because Guerrero was on his phone, Russo became concerned because he knew from experience that drug dealers will call their friends to assist in disrupting police activity.
Russo told Taylor and a detective to move towards the Acura. According to Taylor, he was only interested in the reason why defendant and Guerrero were there.
After the officers identified themselves, Taylor asked Guerrero if he lived at Somerset Estates. Still on his cell phone, Guerrero replied that he did not, but was there visiting a friend. Upon Taylor's request, Guerrero ended his phone call and produced a valid driver's license and registration. Taylor confirmed Guerrero's identity through a dispatcher.
Because Guerrero identified defendant as the friend he was there to visit, Taylor asked defendant whether he lived at Somerset Estates. Defendant gave short answers with "an attitude" and uncooperative tone. Defendant said that his name was "Troy," that he was twenty-five years old and that he lived in the complex. He also provided a birth date. Taylor radioed this information to a dispatcher to confirm. The dispatcher could not find anyone matching the details defendant provided. When confronted with this information, defendant explained that he had never applied for a driver's license and had no other form of identification.
Taylor asked defendant to step out of the Acura. Defendant complied, but as Taylor testified:
[Defendant] became a little more upset that I asked him to exit the car, so he began yelling, using profanities at me, and his tone of voice was completely -- - it was very loud.
Taylor explained why defendant's behavior concerned him:
Because I've had a lot of contacts with people in that complex. Once I explain, once I explain our purpose for being there, they understand, they might not agree but they understand, and in [defendant's] case he was just over the top, just for our contact, and I just felt that was a little unusual.
According to Taylor, this type of behavior "alarms the entire complex, and then we have people coming out from all different parts of the complex. And then it draws a big crowd, and it just gets completely out of control."
Leaning into the Acura, Taylor detected the strong and overwhelming odor of raw marijuana emanating from the interior. He also saw a baggie of suspected marijuana on the passenger side of the center console and a purple Dutch Master cigar holder, commonly used for making "blunts." Taylor retrieved these items and arrested defendant. Defendant became even more agitated and continued to be loud, obnoxious and profane.
Thereafter, Guerrero consented to Russo's request to search the Acura. Taylor opened the Acura's rear door and removed the black bag from the rear storage area. The bag contained twenty-three baggies of marijuana identical to the one found inside the Acura.
Judge Coleman denied the motion to suppress concluding that the initial search of the interior of the Acura was justified by probable cause and exigent circumstances. The judge also found that the subsequent search was pursuant to Guerrero's valid consent.
We agree with the judge's analysis and conclusion. The initial contact was a permissible field inquiry. See State v. Nishina, 175 N.J. 502, 510 (2003). As the judge pointed out, "[j]ust as any other citizen can walk through the parking lot of a housing complex, the police are entitled to do that too, and they are entitled to walk up to people and speak to them."
The search of the inside of the Acura after defendant was asked to step out is also permissible. Pursuant to the automobile exception, police officers may search a motor vehicle without a warrant when 1) the stop of the vehicle is unforeseen;
2) there is probable cause to believe the vehicle contains contraband or other evidence of criminality; and 3) exigent circumstances exist which would make procuring a warrant impracticable. State v. Pena-Flores, 198 N.J. 6, 28 (2009). Here, defendant does not dispute that the stop was unforeseen and probable cause existed. Defendant argues that there were no exigent circumstances justifying Taylor's initial entry into the Acura. Not so.
Probable cause is "a well-grounded suspicion that a crime has been or is being committed." State v. Pineiro, 181 N.J. 13, 21 (2004) (quoting Nishina, supra, 175 N.J. at 515); see also Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 800, 157
L. Ed. 2d 769, 775 (2003). The smell of marijuana constitutes probable cause. Pena-Flores, supra, 198 N.J. at 30; see also State v. Birkenmeier, 185 N.J. 552, 563 (2006); State v. Vanderveer, 285 N.J. Super. 475, 478-79 (App. Div. 1995); State v. Judge, 275 N.J. Super. 194, 201-02 (App. Div. 1994).
Exigent circumstances "must be determined on a case-by-case basis." Pena-Flores, supra, 198 N.J. at 28. The motion judge must look at "all of the facts and circumstances surrounding the search" to determine whether "issues of officer safety and the preservation of evidence" render it impracticable for the police to procure a search warrant. Id. at 26, 29. There are several factors relevant to the exigency determination, including the inherent mobility of the vehicle and the diminished expectation of privacy in it. Id. at 26. The motion judge should also consider: 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.]
Here, Guerrero was on his cell phone during his interaction with Taylor. This concerned Sergeant Russo, presumably because Guerrero could have told someone via the cell phone that he, defendant or the contents of the black bag could be discovered by the police. Moreover, the encounter took place in a parking lot surrounded by people who were watching the events unfold while the two officers stood side-by-side with two suspects.
The search of the Acura after defendant was arrested is clearly permissible pursuant to Guerrero's consent. Defendant does not challenge the voluntariness of Guerrero's consent, but argues that the illegality of the first search vitiates the consent. A consent search is a well-established exception to the warrant requirement. State v. Domicz, 188 N.J. 285, 305 (2006); State v. Carty, 170 N.J. 632, 650, modified, 174 N.J. 351 (2002). When a person gives knowing, voluntary consent to search, the police do not violate the constitutional prohibition against warrantless searches and seizures. Carty, supra, 170 N.J. at 639; State v. Johnson, 68 N.J. 349, 353-54 (1975).
We reject defendant's argument that entry into the vehicle and the seizure of the marijuana violated State v. Dunlap, 185 N.J. 543, 548 (2006) and State v. Eckel, 185 N.J. 523, 540 (2006), because the defendant's arrest eliminated the exigent circumstances. In Dunlap and Eckel, the individuals were under arrest and secured in a police vehicle when the police searched the vehicle and seized the evidence. That is not the case here.
Defendant argues that the illegality of the first search vitiates the subsequent consent. Having already determined that the first search passes constitutional muster, we disagree.
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