On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-07-1579.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R. B. Coleman.
Following the denial of his motion to suppress evidence seized from his automobile, defendant Aaron Crooms agreed to enter a guilty plea to count two of Indictment No. 07-07-1579, second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(b)(2), and count one charging third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) was to be dismissed. On the date set for sentencing, defendant also entered a guilty plea to an unrelated accusation, charging resisting arrest by flight, a fourth-degree offense. In accordance with the plea agreement, defendant was sentenced to six years in prison with a three-year period of parole ineligibility on the indictment and to a concurrent term of eighteen months flat on the accusation.
In this appeal, defendant contends the warrantless search of the car at the scene was illegal as there were no exigent circumstances, and this was not a valid search incident to arrest. Because we agree that there was an insufficient showing of exigent circumstances to excuse law enforcement from seeking a search warrant, we reverse the order denying defendant's motion to suppress the evidence seized from the car.
On defendant's motion to suppress evidence, the trial court conducted a hearing in which two Freehold police officers testified. Patrolman Christopher Otlowski testified on behalf of the State and Patrolman Christopher Colaner was subpoenaed to testify on behalf of the defense. With minor variations, not material to our decision, the testimony of the two patrolmen was consistent. They were on duty in the early evening hours of February 2, 2007, in plain clothes, driving an unmarked car. They had been assigned to patrol for street crimes in an area of Freehold, known for drug transactions and other crimes. At about 10:30 p.m., they observed a blue Ford Taurus pull into a parking lot between a grocery store and liquor store, an area known for high crime. Patrolman Otlowski recognized defendant, whom he knew from prior cases, as the driver of the Ford Taurus and confirmed with police dispatch that defendant's driver's license was suspended. In addition, prior to the evening in question, the patrolmen had received general information from an anonymous informant and from a confidential informant described by Patrolman Colaner as "a proven reliable confidential informant" that defendant was residing in Asbury Park and coming to Freehold to sell drugs. The informants had not provided any date or time with reference to defendant's activities in Freehold, and the patrolmen testified they were not at their specific location that evening because of that information. Patrolman Colander characterized their observation of defendant at the time and place as "dumb luck."
The patrolmen parked the undercover vehicle approximately thirty-five to forty feet away from defendant's vehicle. Defendant's vehicle was parked behind a maroon Ford Taurus. From their location, Patrolmen Otlowski and Colaner observed defendant exit his vehicle, take two items from his trunk, a funnel and what appeared to be an oil bottle of some sort, then open his hood. Defendant seemed to engage himself under the hood until the patrolmen observed an individual, whom they knew to be Melvin Ivory, exit the grocery store and engage in a very brief conversation with defendant.
Ivory then unlocked the door to the maroon Taurus and walked back inside the grocery store. Shortly thereafter, defendant walked over to the maroon Taurus with his right fist "clenched." Although the patrolmen were unable to discern whether there was actually an object inside defendant's clenched fist, defendant opened the driver's side door of the Taurus and appeared to place something into the panel on the driver's side door. Both patrolmen admitted that they did not observe any direct exchange of any item between defendant and Ivory and did not see whether defendant actually placed anything in Ivory's car.
Defendant walked back to his car, closed the hood, and placed the funnel and oil container back into his trunk. He sat back in his car and picked up his cell phone. Based upon their observations, the patrolmen indicated defendant had been acting as if he were putting something in the car, but neither patrolman observed defendant actually pour the oil through the funnel. Patrolman Colaner conceded, however, that "anything [was] possible." Eventually, Ivory exited the store in the company of a female. Both he and the female were carrying bags of groceries. Without engaging in any further conversation with defendant, Ivory and his female companion drove away.
Based upon his training and experience, Patrolman Otlowski was "pretty
positive" the transaction the patrolmen witnessed was a CDS exchange.
They decided to approach defendant's vehicle, and they called for two
other units to try to locate and stop Ivory's vehicle.*fn1
In the meantime, Sergeant Michael Sweetman arrived as back
up. Defendant's car was approached with at least one weapon drawn by
the three officers, until defendant compliantly exited his vehicle at
the request of the officers. After he first denied speaking to Ivory,
defendant advised Patrolman Colaner that he had asked Ivory "for a
flashlight to assist him in changing or adding transmission fluid or
whatever he was supposedly doing under the hood of his car."
After defendant was out of the car, Patrolman Colaner asked him what he was doing and defendant indicated to him that he had nothing to hide and that the officers could go ahead and search the car and the trunk. Shortly thereafter, defendant changed his mind and indicated that they could not search the trunk. As a result, the officers terminated the search and called for a police canine to sniff the exterior of defendant's vehicle for narcotics. Patrolman Otlowski testified due to the time of night and lack of manpower on the weekend, the officers decided not to pursue a search warrant. Defendant's reaction to the call for the police canine was to state that "[he'll] just roll the dice."
During an exterior sniff, the dog reacted positively to the passenger side compartment of the vehicle but when that area was searched, nothing was found. The dog then signaled that contraband was in the hood of the car. The officers searched the hood and found a plastic bag containing four smaller sandwich bags of cocaine. Defendant was detained for approximately twenty-five to thirty minutes before the drugs were found. When the drugs were discovered, defendant was placed under arrest.
Finding that each of the patrolmen testified in a truthful manner, the trial court denied defendant's motion to suppress. In doing so the court, citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 911 (1968), found that there was "ample, reasonable, and articulable suspicion for the police officer to conduct an investigatory stop of the defendant based upon the totality of the circumstances they observed." Further, the court found that "calling for the canine sniff dog was reasonable police conduct[,]" and that twenty to twenty-five minutes detention was reasonable for an investigation with a narcotics sniff dog. The court noted that based ...