May 31, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER J. MAURO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 09-03-0266.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 6, 2011
Before Judges Cuff and Sapp-Peterson.
In this appeal we consider whether there was a basis upon which to conduct a Terry*fn1 frisk of defendant for weapons and whether the subsequent warrantless search of defendant's vehicle was justified on the basis of exigent circumstances. We conclude that none of the factors the Pena-Flores*fn2 Court articulated that justify the warrantless search of a vehicle were present here. We therefore reverse the denial of defendant's suppression motion insofar as the search of defendant's vehicle but affirm the Terry frisk and evidence seized as a result thereof.
Based upon information received from Dispatch that there was a suspicious vehicle on Tyler Road in Dennis Township, Trooper Christopher Neuman proceeded to the area. Dispatch described the vehicle as a white pickup truck with a mattress in the rear of the truck bed. The driver of the vehicle, later identified as defendant Christopher Mauro, was reportedly bobbing his head up and down. At 8:23 a.m., Trooper Neuman located the vehicle stopped for a light at the intersection of Tyler Road and State Highway 47 (Highway 47). When the light changed to green, the vehicle turned left onto Highway 47 and proceeded in a southerly direction. Trooper Neuman followed the vehicle. There were two or three vehicles between his vehicle and the pickup truck, but he was able to observe that the vehicle was traveling slower than other vehicles on the road, at one point crossing the fog line and, at another point, crossing the double yellow line as it negotiated a curve. After approximately one-quarter mile, Trooper Neuman activated his overhead lights, drove around the cars in front of him, and directed defendant to pull over. Mauro abruptly stopped the vehicle, nearly causing the trooper to strike its rear. Mauro pulled the vehicle over to the shoulder and stopped.
Trooper Neuman indicated that traffic on Highway 47 on that day was heavy because it was the morning rush hour. The specific area of the stop was around milepost 18.3 just north of the Dennisville Wawa. The shoulder of the roadway was about the width of one car and its length extended throughout most of Dennis Township. He testified that Highway 47 "has a smaller shoulder" and because he had investigated numerous fatal accidents along Highway 47, he therefore took "more caution in stopping vehicles out there and checking on motorists' aids."
As he approached the vehicle, he observed defendant's head leaning down near the center console. This conduct aroused his suspicion and he concluded that something was going on because "[i]t's not usual that somebody reaches down center and dips their head that far down even to get their license and registration." When he commenced speaking with Mauro, the first thing he noticed was that Mauro appeared nervous, his hands shook, he avoided eye contact, and his nose was red. Because the caller had described the driver as bobbing his head up and down and, due to how Mauro was addressing him, he suspected that Mauro was impaired. He also noticed that Mauro's pupils were constricted and that his face was pale. Mauro was unable to produce a driver's license but provided a driver's license number. At that point, Trooper Neuman decided to remove Mauro from the vehicle to conduct a further investigation and also to remove him from the area where he had earlier observed Mauro reaching. He intended to administer field sobriety tests.
Trooper Neuman escorted Mauro to the front of the vehicle. Mauro kept reaching towards his pockets and, as he did, the trooper noticed that there was a bulge protruding from Mauro's pocket. He asked Mauro what was in his pocket and Mauro told him that he had a penknife in his right front pocket. Trooper Neuman then conducted a protective frisk because he was the only trooper out there and also because he intended to conduct field sobriety tests. During the frisk, he recovered the penknife and, for further safety reasons, conducted a full frisk. He felt another hard object in Mauro's left front pocket.
Suspecting that the object could also be a weapon, he removed it and noticed that it was "like a pipe or a plastic tube, and stuck to the end of that plastic tube was a druggist fold consistent with the packaging of [a controlled dangerous substance], and there was also white powdery residue . . . within that object."
Trooper Neuman placed Mauro under arrest, handcuffed him, and conducted a search incident to arrest during which he discovered additional druggist folds in Mauro's wallet. He then escorted him to the troop vehicle and secured him in the rear of the vehicle from which defendant could not alight because of child safety locks on the doors.
Once defendant was secured in the troop car, Trooper Neuman returned to Mauro's vehicle and conducted a full search of its interior, uncovering suspected narcotics, paraphernalia and cash. When asked on direct why he searched the vehicle following the arrest, the trooper responded: "Well, he had just used drugs so I went in the vehicle to find out if there were anymore drugs and it's - the roadway there is -" Defense counsel interposed an objection, and once the court overruled the objection, he again attempted to respond to the question why he undertook the search of the vehicle:
Yes. There were multiple factors. It wasn't - the totality of the DWI arrest which I believed he consumed the narcotics.
I don't know if I can answer it that way but I believe he consumed narcotics and that he was under the influence with the white powdery substance, the physical observations, and also the -Defense counsel interrupted with another objection, which the court once again overruled. Trooper Neuman then testified: "I searched the vehicle after Mr. Mauro was arrested. There were multiple factors why I did that. Number one - " For yet a third time, defense counsel objected to the answer, and the following exchange occurred:
THE COURT: So . . . the question initially was why did he search the vehicle, and in five different ways he's started that sentence and we'll try to get through to the answer. Now if he can answer the question why did he search the vehicle -
[ASSISTANT PROSECUTOR]: And I started out trying to do it that way but then the objection is it's too general. So then when I ask it very specifically to help it along, maybe take some concerns counsel has with the narrative, then the objection is it's too leading. It has to be one or the other. I'll just try it this way, Judge. I'm just going to ask it in the general form but the - BY [THE ASSISTANT PROSECUTOR]:
Q. Can you tell us what facts you considered in determining that you were going to search this motor vehicle on October 15th, 2008?
[DEFENSE COUNSEL]: I just would like to say for the record that is a great question.
THE COURT: Okay, then, [O]fficer, would you answer the question, please?
A. The facts of why I searched the vehicle[?]
Q. Yes, just the facts.
A. Okay. The facts were the use of narcotics, the DWI arrest, the CDS arrest, the fact that the vehicle was not his, and that it would have to be most likely it was going to - if it was going to be left on the roadway it would be a hazard so it had to be removed, and - Trooper Neuman was then asked whether the vehicle could have been left on the roadway. The trooper responded:
Based upon the traffic that morning and that roadway[,] with my training and experience, I do - he was being arrested so it was going to be a larger amount of time for processing, at least, so I would have towed that vehicle or he would have to have somebody come get it at that - it couldn't stay there.
It couldn't stay there. That was right near . . . the Wawa, cars coming in and out, tractor trailers, like just decide they're going to pull over and park on the shoulder[,] which they're not supposed to do[,] and it was also in front - I believe it was in front of a business.
The front of a business.
Under cross-examination, Trooper Neuman expressed the opinion that there was "higher crime" in that area of Dennisville than in "some of the other areas in the Woodbine [S]tation area[,]" but did not testify that the area was one of "high crime." He testified that at the time of the stop: (1) there was not a lot of foot traffic in the area; (2) it was daylight; (4) he had no visibility problems; (3) there was heavy vehicular traffic; (5) no one approached the scene after he stopped Mauro's vehicle; (6) there may have been people working in the area but he did not recall whether anyone was watching; (7) no one approached him to advise that he or she was a friend of defendant or to make inquiries about what was going on; (8) there did not appear to him to be any other vehicle following defendant's vehicle; (9) the Woodbine Station Barracks was less than six miles away; and (10) additional troopers arrived either before or during the search of defendant's vehicle, as well as after he completed the search.
The motion judge found that the Terry frisk was justified based upon defendant's demeanor while standing outside of the vehicle and his admission that the bulge protruding from his pocket was a penknife, and given the recovery of the penknife, a further frisk to ensure there were no other weapons on defendant was justified. Turning to the search of the vehicle, the motion judge found that it was justified under the automobile exception to the warrant requirement. She found that the stop had been unexpected and unplanned and that there was probable cause to believe that drugs were in the car based upon the seizure of the suspected narcotics from defendant's pocket and the officer's observation of redness under his nose as defendant exited the vehicle. Finally, the judge concluded that exigent circumstances existed:
In this instance the motor vehicle stop occurred on Route 47 in the morning. It was described as being an area that had at that time of day early, heavy traffic. It was also located, according to the officer's testimony, hear a Wawa store that had truck traffic entering and going about, but also in his description he would indicate that there was not a lot of foot traffic, there were some marshes. There were no other person exiting or approaching the vehicle near the side of the road, however, there was heavy traffic which caused the officer to be concerned for his safety and the safety of Mr. Mauro.
It would also appear that again, that at the time officer - Trooper Neuman was patrolling - conducting the motor vehicle stop alone, and while the defendant had -was secured at the time of the search of the vehicle, this was a company vehicle which again was - remained readily removable and accessible to third parties. Under the automobile exception, the warrantless search is justified because it embodies an assurance that evidence is not otherwise removed or destroyed. In addition, it would appear that the precedent would have established a principle that allows the police to conduct an immediate search at the scene if there's probable cause and to not be delayed by seizing and impounding the vehicle pending review of the probable cause. That's State v. Alston.
The judge also concluded the search of the duffle bag was permissible because defendant failed to produce any documents when Trooper Neuman first approached the vehicle and "[i]nasmuch as this was a company vehicle and the duffle bag appeared to be a personal item, it is not in this instance inconceivable that the defendant's motor vehicle items could have been located within the duffle bag."
On appeal defendant raises the following point for our consideration:
BECAUSE NEUMAN LACKED THE REQUISITE REASONABLE SUSPICION THAT MR. MAURO WAS ARMED AND DANGEROUS, THE PAT-DOWN WAS NOT JUSTIFIED UNDER TERRY v. OHIO. MOREOVER, THE WARRANTLESS SEARCH OF THE TRUCK WAS NOT JUSTIFIABLE UNDER THE AUTOMOBILE EXCEPTION. CONSEQUENTLY, THE FRUITS OF THE SEARCHES SHOULD HAVE BEEN SUPPRESSED.
A. THE PAT-DOWN EXCEEDED THE SCOPE OF THE REQUIREMENTS OF TERRY v. OHIO.
B. THE WARRANTLESS AUTOMOBILE SEARCH WAS NOT JUSTIFIABLE UNDER THE AUTOMOBILE EXCEPTION, AND, THUS, THE FRUITS OF THAT UNCONSTITUTIONAL SEARCH SHOULD HAVE BEEN SUPPRESSED.
At the outset, we quickly dispense with defendant's contention that there was no justification for the Terry frisk and the frisk exceeded its permissible scope. We conclude this claim is without sufficient merit to warrant discussion in a written opinion and affirm substantially for the reasons expressed by the motion judge in her oral opinion. R. 2:11-3(e)(2).
Turning to the search of the vehicle, warrantless searches are presumed invalid, and to overcome this presumption, the State bears the burden of establishing that the search was justified under one of the recognized exceptions to the warrant requirement. State v. Patino, 83 N.J. 1, 7 (1980). One such exception is the automobile exception. "Under federal constitutional law, a warrantless search of a motor vehicle pursuant to the automobile exception is permissible so long as the vehicle is readily mobile and there is probable cause to believe it contains evidence of criminality." Pena-Flores, supra, 198 N.J. at 20 (citing Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed. 2d 1031, 1036 (1996)). The rationale underlying this exception is twofold: "(1) the ready mobility of the vehicle and the inherent potential for loss or destruction of evidence before a warrant is obtained; and (2) the decreased expectation of privacy in motor vehicles, which are subject to extensive government regulation." Ibid.
The critical factor under federal jurisdiction is the mobility of the automobile. Our Supreme Court, however, has interpreted art. I, ¶ 7 of our State Constitution as affording greater protection against unreasonable searches and seizures than the federal Constitution affords. State v. Pierce, 136 N.J. 184, 208-09 (1994). Thus, in Pena-Flores, our Court reaffirmed its holding in State v. Cooke, 163 N.J. 657, 667-68 (2000), that the warrantless search of an automobile is "permissible 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." Pena-Flores, supra, 198 N.J. at 28.
Here, the first two requirements were satisfied. Although Trooper Neuman was dispatched to the area where the white pickup truck was reportedly observed under suspicious circumstances, there was no plan to necessarily stop the vehicle. However, upon Trooper Neuman's arrival in the area, the manner in which the vehicle was being operated, namely, crossing the fog line and the double yellow lines, and traveling slower than other vehicles on the road, justified the stop of the vehicle for further investigation. Defendant's actions during the stop, together with Trooper Neuman's observation of redness around his nose and constricted pupils, led the officer to believe that defendant had just used drugs. These facts established the requisite probable cause to believe that defendant's vehicle contained drugs. Thus, the critical inquiry here is whether exigent circumstances existed rendering it "impracticable to obtain a warrant." Pena-Flores, supra, 198 N.J. at 28.
The determination of exigent circumstances is fact-sensitive and resolved on a case-by-case basis with consideration of the totality of the circumstances. Ibid. Central to the analysis is the officer's safety and the preservation of evidence. Id. at 29. The motion judge found that exigent circumstances existed based upon the fact that Trooper Neuman was conducting the motor vehicle stop alone and defendant's vehicle was a company car that "remained readily removable and accessible to third parries." The State also argued that the exigency was created by the location of the vehicle along the side of a busy two-lane highway.
These factors fall short of establishing the type of exigency that justified the warrantless search of defendant's vehicle. First, the stop occurred in broad daylight during morning rush hour, a time when courts are open for business.
Second, although Trooper Neuman was alone when the stop was initiated, the Woodbine Station was less than six miles away and backup was readily available. In response to the question whether backup arrived after defendant was arrested and secured in the back of the troop car but before he searched the truck, Trooper Neuman stated: "As much as I recall, yes, that's - it was right after, you know, it might have been either during the search that the other trooper came out there" and "I know that eventually two other troopers came but that was after he was -everything was already done." In total, in addition to Trooper Neuman, four other troopers arrived at the scene.
There were other factors that militated against a finding of exigency. Nothing in the record indicates that the traveled portion of the roadway was blocked because of events unfolding on the shoulder. Trooper Neuman acknowledged that defendant's vehicle could have been towed. Nor was the location of the stop in a high crime area. Trooper Neuman's description of the area as having "higher crime" than other locations in the Woodbine Station area is not the equivalent of describing the location as a "high crime" area. Further, there were no confederates who knew of the location of the vehicle and who were thus positioned to remove its contents before its removal. The fact that the vehicle was a company car did not make it more readily subject to removal by third persons. There was no indication that anyone from the company knew that the vehicle had been stopped at the time Trooper Neuman determined that he would search the vehicle. See, e.g., State v. Ireland, 375 N.J. Super. 100, 119 (App. Div. 2005) (noting that one of the exigent circumstances was the fact that the defendant's passenger, who was at liberty, was aware that the vehicle had been stopped and that the defendant had been arrested for driving while under the influence). Finally, defendant was handcuffed and secured in the troop vehicle, which was equipped with child safety locks. Consequently, defendant had no opportunity to gain access to any of the contents within the vehicle.
In short, the State failed to prove that Trooper Neuman did not have time to call for a warrant without compromising his safety and the preservation of evidence. He could have called for a warrant while awaiting the arrival of backup and defendant was locked in the back of his patrol car. Alternatively, he could have sought the warrant after the backup officers arrived. The Court, in Pena-Flores, addressed a similar situation in the companion appeal of the defendant Chares Fuller, who was pulled over for a traffic violation. The Court determined that the officer's search for evidence of the ownership of the vehicle extended into impermissible areas:
Here, Clemens pulled Fuller over for a traffic violation in broad daylight on a city street at 1:15 in the afternoon. Fuller was subsequently arrested and secured inside the cruiser, and thus had no opportunity to gain access to the vehicle or anything it contained. There is nothing in the record to suggest that Fuller had cohorts who might have come on the scene. Clemens was, at all times, assisted by one to three other troopers. The vehicle could have been impounded or one officer could have remained with it while a warrant was sought by telephone or in person. There was simply no urgent, immediate need for the officers to conduct a full search of the automobile. [Pena-Flores, supra, 198 N.J. at 32 (citing State v. Dunlap, 185 N.J. 543, 550 (2006)).]
We note that the record here discloses that defendant was unable to present a driver's license. Ordinarily, under such circumstances, a police officer may search the interior of a vehicle in those locations where evidence of vehicle ownership and driving credentials may be found. Id. at 31. However, there is nothing in the record to indicate that defendant was unable to present documents related to the vehicle. Ibid. Thus, the search of the interior, even if to confirm defendant's representation that he did not have a driver's license, should have been confined to areas where a driver's license would be likely located. Ibid. Such locations would not ordinarily include the cigarette box from which drug paraphernalia was seized, the pill container from which six packages of suspected heroin were seized, or the taped box containing the $23,000 in cash. We therefore conclude that the absence of exigent circumstances "vitiat[ed] invocation of the automobile exception." Id. at 32. Consequently, the drug paraphernalia, suspected heroin and cash seized from the vehicle should have been suppressed.
We reverse that part of the motion judge's decision denying defendant's motion to suppress the items seized from the vehicle but otherwise affirm the denial of the motion in all other respects.
Affirmed in part, reversed in part.