April 27, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTONIO C. DESHAZO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-06-1541-D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2011
Before Judges Kestin and Newman.
Defendant Antonio C. DeShazo appeals from an order denying a motion to suppress a handgun uncovered in the automobile he was driving when stopped by the police in Egg Harbor Township.
On a separate indictment, No. 09-04-1050, defendant pled guilty to cocaine distribution and was sentenced to a term of seven years imprisonment. On Indictment No. 08-06-1541-D, involving the subject search and seizure, defendant pled guilty to unlawful possession of a handgun and was sentenced to a term of five years imprisonment with a three-year period of parole ineligibility to run concurrent to the seven-year sentence. Defendant does not appeal from the drug distribution conviction. We now reverse.
The relevant facts may be summarized as follows. Officer Michael Bordonaro of the Egg Harbor Township Police Department was monitoring traffic on May 24, 2008, at 4:23 p.m., when he saw a silver vehicle drive by bearing Virginia license plates, with the rear window broken out. The window was duct-taped and covered with plastic. Trying to determine if the car was reported stolen, Officer Bordonaro was advised by the dispatch unit that the National Crime Information Center (NCIC) computer index was not operating. Rather than waiting for NCIC to come back online, he made a motor vehicle stop of the car.
The vehicle stopped "abruptly" and pulled over when directed to do so. Officer Bordonaro saw two occupants in the car, a driver and front seat passenger. He testified at the suppression hearing that he observed the driver "reach down" toward the center console "in a frantic movement" and then turn his body, reaching "all the way into the back seat." Officer Bordonaro called for backup.
Officer Bordonaro testified that he asked the passenger to put his hands on his lap and requested the driver produce his license, registration, and insurance card. The driver "did not have his driver's license," but "identified himself as Anthony DeShazo." Officer Bordonaro recognized DeShazo's name as the victim of a shooting in Pleasantville two nights before when Officer Bordonaro, with his K-9 partner, went to Pleasantville to aid in an investigation. Officer Bordonaro testified that he was told by Officer Terri Tully that DeShazo was the victim of a shooting and kept "a weapon in the center console of [his] vehicle."
The passenger, who was later determined to be Tejohn Cooper, "moved his hands down to his sides." Officer Bordonaro directed him to place his hands on the dashboard. Before doing so, Cooper turned and looked at Officer Bordonaro's weapon and then complied with the officer's request.
Lieutenant Christopher Ruef and Officer Davenport arrived as backup. Defendant was then requested to exit the car so that he could be patted down. While defendant complied with the request, he started berating the officers and "accusing them of harassment," which led to defendant being placed in the back seat of Officer Davenport's patrol car. Defendant was not placed under arrest, but was in custody.
The officers also removed Cooper, who lacked any identification, from the car. He was patted down and told to sit on the curb near the rear of the stopped vehicle. With the scene under control, Officer Davenport searched the vehicle and found a velvet Crown Royal bag containing bullets on the back seat. Defendant was informed that they had found the bullets, but remarked that the officers had not located a gun. According to Officer Bordonaro's testimony, when "ask[ed] if there was a gun," defendant replied, "it's not here." The search of the vehicle's passenger compartment continued. Lt. "Ruef went into the back seat and pulled down a cord, which gave him access to the trunk" from the interior of the driving compartment. He found a loaded .9 mm handgun. As noted in defendant's brief, he also discovered "a ski mask, zip ties, and a [bandolera] for shotgun shells."
The officers then handcuffed Cooper and put him in the back seat of a later-arriving officer's patrol car. Officer Bordonaro testified he then "handcuffed [defendant] and advised him he was under arrest." Officer Bordonaro's drug-sniffing dog then was used to search the vehicle. The dog's reaction to the front passenger seat led to the discovery of a small bag of cocaine under the seat. A scale and a large knife were found under the rear passenger seat.
In denying the motion to suppress, the trial judge made the following pertinent findings of fact and conclusions of law:
Aside from the information from Tully, the officers had the following information that all goes to the totality of the circumstances in this case to establish a reasonable, articulable suspicion about a weapon. The driver, DeShazo[,] had been a victim of a shooting two days prior. The vehicle didn't belong to him. And it had some signs, indicating that it might be stolen. The Defendant was driving with a passenger. DeShazo made furtive movements when he was stopped, reached toward the center console and turned his upper body to reach into the back seat. It was then discovered that the back seat comes down, giving immediate access to the trunk.
An inference can be drawn that the Defendants in this case, based on all of these things was either looking maybe for somebody that was involved in the shooting two days prior or they were being sought by those people involved in the shooting two days prior and that there may be an ongoing issue of violence and weapons. The car in this case had the somewhat unique access to the trunk from the passenger area. The hatch was accessible from inside the car and the trunk was accessible from inside the car.
The gun was found directly behind the back seat where it would have fallen if it had been placed on the part of the hatch that came down flat on the seat and then when put up, the gun would fall straight down in the very back part of the trunk, which would lead to that conclusion as well.
There was also the threatening way in which Cooper looked at Bordonaro's gun before putting his hands on the dashboard, which further heighten[ed] the suspicion of the officer.
And finally, when asked to exit the vehicle, DeShazo became argumentative and combative towards Officer Bordonaro and even though the Defendants were outside the car and an argument can be made that they were secured when the search was conducted, at that time the only thing they could have been charged with [was] motor vehicle offenses, which would have forced the police to let them go and put them back into a car that there was a reasonable, articulable suspicion may have contained a weapon. If they were allowed back into the car, with the police right still in that area, the safety of the police officers or others in the area could easily have been accomplished [sic].
When the search was conducted, any argument that there [were] numerous officers compared to defendants also does not hold the day since there were three officers present and two Defendants. That's only a plus one. So there's not so many officers to dispel any theory of threat to police officers['] safety.
I should note also in MICHIGAN VERSUS LONG, [463 U.S. 1032, 1048 n.13, 103 S. Ct. 3469, 3480 n.13, 77 L. Ed. 2d 1201, 1219 n.13 (1983)], that there is a footnote that indicates that according to a study, and this was back when LONG was decided in the '80s, 30 percent of police shootings occur when a police officer approaches a suspect seated in an automobile. I would not - I'm not a betting man, but if I was a betting man, I would take a lot of money that the statistic on that is now much higher than 30 percent in the last 25 years. Every other day you pick up the newspaper, based on a motor vehicle stop, there's an officer getting hurt or shot. It's because these kids run around, as I have said many, many times before with this wild west mentality, where they all carry guns and they all carry knives and people get hurt.
Based on the totality of all of the evidence in this case, I'm satisfied that there was more than a reasonable, articulable suspicion that the vehicle may have contained a weapon and that the actions of the police, based on what they knew, what was made known to them, what they observed and the attitudes and the demeanor and the conduct of the Defendants was more than adequate and reasonable to establish the reasonable, articulable suspicion under LONG and TERRY and, therefore, the Motion to Suppress the weapon is, in fact, denied.
On appeal, defendant raises the following point for our consideration:
THE SEARCH OF THE CAR WAS UNCONSTITUTIONAL BECAUSE NEITHER DESHAZO NOR HIS COMPANION HAD ACCESS TO THE CAR AT THE TIME OF THE SEARCH; THEREFORE, THERE WAS NO EXIGENT CIRCUMSTANCE TO JUSTIFY EITHER A TERRY
SEARCH OR A SEARCH INCIDENT TO ARREST.
Defendant contends that the trial court erred in its ruling because "the police officers could not have allowed either [defendant] or Cooper to drive the car away" because they were "admittedly driving someone else's car" and had neither "a driver's license, registration[,] or insurance." Defendant further maintains that there were no exigent circumstances that required an immediate search of the vehicle. Defendant points out that "[t]here were at least three officers present, an[d] only two suspects" on a stop that took place during daytime hours. Defendant asserts that the police should have obtained a search warrant, which they failed to do. We agree and reverse.
There is no question that the stop of the vehicle defendant was driving was unexpected. However, defendant contests the finding of probable cause and the need to conduct an immediate search of the vehicle by reason of exigent circumstances.
Our Supreme Court in State v. Lund, 119 N.J. 35, 48 (1990), adopted the position of the Supreme Court of the United States in Michigan v. Long, supra, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201. Lund noted that, under Long, police officers are expected to "possess objective cause before intruding into constitutionally-protected areas." Lund, supra, 119 N.J. at 43 (citing Long, supra, 463 U.S. 1032, S. Ct. 3469, 77 L. Ed. 2d 1201). Our Court in Lund recognized that there are instances "in which 'furtive' movements or gestures by a motorist, accompanied by other circumstances, will ripen into a reasonable suspicion that the person may be armed and dangerous or probable cause to believe that the person possesses criminal contraband." Id. at 48.
Here, the furtive movements by defendant after the vehicle was stopped, in conjunction with his identity and the recent information received from Officer Tully about defendant carrying a firearm in the console of his vehicle, figured prominently in building up to having probable cause to search. The situation first observed by Officer Bordonaro had escalated from a suspicion of a stolen vehicle to a clear reasonable belief based on specific and articulable facts that defendant may be armed. The rational inferences to be drawn warranted the officers to reasonably believe that defendant was dangerous and that the vehicle might contain a weapon that could be accessed by defendant and/or his passenger upon returning to the vehicle. Police safety and that of the public were paramount.
We are satisfied that the officers had probable cause to search the vehicle.
State v. Pena-Flores, 198 N.J. 6, 28 (2009) made it clear that a "warrantless search of an automobile" is permitted "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."
In connection with the exigent circumstances, the trial court, citing State v. Cooke, 163 N.J. 657, 667-68 (2000), predicated its decision on the fact that there were only three officers present to two defendants and there was a threat to police safety or the public were defendants to return to the vehicle because they were not at that juncture under arrest.
The fact that an automobile has mobility does not satisfy exigent circumstances because the considerations are broader. Pena-Flores, supra, 198 N.J. at 28. See also State v. Dunlap, 185 N.J. 543, 551 (2006) (per curiam). While exigency is "determined on a case-by-case basis," Dunlap, supra, 185 N.J. at 551, the totality of the circumstances must be assessed, PenaFlores, supra, 198 N.J. at 28 (citing Cooke, supra, 163 N.J. at 675). An officer's safety and the preservation of evidence are "preeminent determinants of exigency" in addressing the automobile exception. Dunlap, supra, 185 N.J. at 551. As the court observed in Pena-Flores, supra, 198 N.J. at 29, "There is no magic formula-it is merely the compendium of facts that make it impracticable to secure a warrant."
The considerations that may accompany an automobile stop vary with the many scenarios that are presented. Ibid. PenaFlores enumerated some of those considerations as follows: 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 (footnote omitted).]
In this daytime search where defendant was in the backseat of Officer Davenport's car and the passenger was seated on the curb near the rear of the vehicle, the situation was under police control. There was no showing that a telephonic warrant could not have been expeditiously obtained. In the recent opinion of State v. Shannon, ___ N.J. Super. ___, ___ (App. Div. 2011) (slip op. at 4-5), defendant's vehicle was stopped for motor vehicle infractions. There were four officers at the scene, one of whom "approached the driver's side of the Jeep," and "smelled the odor of raw marijuana emanating from the car." Id. at 5. Another officer "went to the side of the Jeep and also detected the odor." Ibid. Defendant was observed to be "sweating, talking fast and appeared nervous." Ibid. Defendant was told to exit the Jeep, patted down, and bills worth almost $4,000 were found in defendant's pocket. Ibid. Before anyone entered the Jeep, the K-9 dog "signaled the presence of narcotics." Ibid. The officer then searched inside the Jeep, finding "two bags containing cocaine and crack cocaine, one sandwich bag containing marijuana, drug paraphernalia, including a scale, measuring cup and spoon, and a machete in a sheath." Ibid. At that point, defendant was placed under arrest. Ibid.
In reversing the denial of the suppression motion, this court noted in Shannon that "there was no indication that the Asbury Park police officers did not have sufficient time to obtain a telephonic warrant pursuant to Rule 3:5-3(b)." Id. at 9. The court went on to observe It was not late at night, the stop was in a residential area, and four police officers were initially present at the scene with defendant, who was alone. Raisin indicated that no one had approached the vehicle during the stop. Furthermore, there was no testimony elicited at the suppression hearing that suggested that the police officers or potential evidence in the car were in danger. [Id. at 9-10.]
Here, this was a daylight search; the three officers outnumbered defendant and his passenger. The claim that defendant could return to the car and then have access to any potential weapon was belied by the fact that defendant did not have his driver's license, and the passenger had no identification at all. The officers could just as easily have had the car towed to a secure location and escorted defendant and the passenger to the police station until a driver with a license could come to the station to operate the vehicle for defendant. Once the vehicle was at the station, the officers could have secured a search warrant. Moreover, there was no explanation why a telephonic warrant could not have been pursued, either at the station or at the roadside. See State v. Minitee, 415 N.J. Super. 475, 486, 488 (2010), certif. granted, 205 N.J. 81 (2011). The search here served the officer's convenience, but did not support an exigency to justify a warrantless search.
The Supreme Court found as to one of the appeals consolidated in Pena-Flores that because the stop was conducted in "broad daylight," the defendant had no access to the vehicle, which could have been impounded or watched while a warrant was sought, there was no indication of "cohorts," and a sufficient number of police officers were involved, "[T]here was simply no urgent, immediate need for the officers to conduct a full search of the automobile." Pena-Flores, supra, 198 N.J. at 11, 32.
Here, the search undertaken was extensive, including accessing the trunk from the passenger's compartment by pulling the cord hanging down from the backseat, which brought the rear seat flat to the seated portion of the vehicle. We are persuaded that exigent circumstances did not exist to allow a warrantless search of the automobile driven by defendant.
Reversed and remanded for further proceedings as warranted.
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