July 6, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER LAMONT OUSLEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-05-1101.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 15, 2011
Before Judges Parrillo and Espinosa.
Defendant pled guilty to one count of possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(b)(3) pursuant to a plea agreement after his motion to suppress evidence was denied. His appeal is limited to a challenge to the denial of his motion. We affirm.
The testimony at the suppression hearing can be summarized as follows:
Officer Christopher Colaner, a Freehold Borough police officer assigned to the Monmouth County Prosecutor's Office Narcotics Strike Force, set up surveillance at the residence of Eugene Peace after receiving information of illicit drug sales there. On October 13, 2005, Colaner observed activity at the residence, including what he considered to be a hand-to-hand drug transaction involving one of the residents. On the evening of the following day, he observed a male, later identified as defendant, arrive at the residence in a dark Nissan Maxima that was registered to defendant. Defendant left his car, holding a dark colored shopping bag and walked to the apartment door, repeatedly looking back over his shoulder and around the area. Colaner was familiar with defendant from previous narcotics investigations and, not long before this observation, he had received information from a confidential informant, known to have been reliable in the past, that defendant was supplying marijuana to low-level drug dealers in Freehold. Defendant remained in the apartment for approximately ten to fifteen minutes. When he came out, defendant was carrying the dark colored shopping bag and, again, looking around over his shoulder and around the area as he walked to the car. When the car left the area, Colaner contacted a marked patrol unit, manned by Officers Schwardoffer and Ciampa, and asked them to stop defendant's vehicle.
Ciampa testified he saw an automobile matching the description given by Colaner within a few minutes. He conducted a motor vehicle stop and approached the car on the driver's side. Ciampa stated the stop occurred on Kozlowski Road, a heavily traveled road where cars "move about 50 miles an hour." He advised defendant that there was a light out in the rear of the vehicle. From his vantage point, he could observe a black plastic bag on the passenger seat that matched the description given by Colaner. Schwardoffer motioned to him and the two proceeded to the back of defendant's vehicle, where Schwardoffer told him he saw "a bud," which Ciampa described as a clump of suspected raw marijuana, on the front passenger seat. Ciampa then walked to the passenger side of the vehicle. He, too, saw the bud on the seat in front of the black bag. Ciampa also smelled raw marijuana through the open window.
Ciampa then asked defendant if he had smoked any marijuana that evening. When defendant admitted he had, Ciampa asked him if there was any other contraband in the car. Defendant looked at the bag and then looked straight ahead without responding. Ciampa asked what was in the bag. Defendant replied, "a lot." Ciampa asked him, "a lot of what?" Defendant answered, "weed." Ciampa then removed defendant from the car, handcuffed him, and placed him in the patrol car. Ciampa returned to defendant's car and opened the bag on the front seat to find a gallon size bag filled with marijuana. In the search that followed, he found a similar gallon size bag containing marijuana in the center console and a smaller clear bag with two items that appeared to be crack cocaine.
Because the judge found the officers testimony credible and defendant did not testify at the hearing, these facts are undisputed.
Warrantless searches are presumed to be unreasonable and are therefore prohibited unless a recognized exception to the warrant requirement applies. State v. Wilson, 178 N.J. 7, 12 (2003). It is the State's burden to "prove the exceptional nature of the circumstances that exempts it from the warrant requirement." State v. Ravotto, 169 N.J. 227, 236 (2001). The State argues that the search here was justified under the "automobile" exception to the warrant requirement or, alternatively, because the officer seized marijuana that was in plain view.
In State v. Pena-Flores, 198 N.J. 6 (2009), decided three years after the hearing in this case, the Supreme Court reaffirmed the "longstanding precedent that permits an automobile search without a warrant only in cases in which the police have both probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement." Id. at 11. The Court stated further, "the warrantless search of an automobile in New Jersey 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." Id. at 28.
In this appeal, defendant concedes the existence of probable cause for the motor vehicle stop. His principal challenge is to the finding that exigent circumstances existed for the warrantless search of his automobile. He also argues that the stop of his vehicle was not unexpected.
In Pena-Flores, the Court noted that the "question of whether exigent circumstances exist is to be determined, as it has always been, on a case-by-case basis with the focus on police safety and preservation of evidence." Id. at 11. The Court identified the following factors as relevant to adetermination of the "dispositive question", i.e., whether the circumstances make it impracticable to obtain a warrant, id. at 23, 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.]
The trial judge found that the motor vehicle stop occurred on a heavily trafficked road. The stop was at night, by only two officers in a single patrol car. The judge noted that it would have been "impracticable" for the police to leave their car on Kozlowski Road at that time of the evening to transport defendant's car to a safe location and "inappropriate for a relatively small community to have to post a guard there while the vehicle is transported into headquarters."
When we review a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Mosner, 407 N.J. Super. 40, 59 (App. Div. 2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)) (internal quotation marks omitted). A reviewing court generally defers to a trial court's findings, "which are substantially influenced by [its] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy . . . ." State v. Davila, 203 N.J. 97, 109-10 (2010).
The trial judge's findings of fact relevant to the exigent circumstances issue are supported by sufficient credible evidence and we are satisfied that it was indeed impracticable for the officers to obtain a warrant under the circumstances.
We also reject defendant's argument that the automobile exception is not available because the stop was not "unexpected." It is argued that the stop was actually "expected" because it was conducted pursuant to Officer Colaner's request. The term "unexpected" is not defined in Pena-Flores. However, we do not read that element to require the motor vehicle stop be free of any prior interest by the police. We conclude that a more reasonable reading is that the motor vehicle stop not be part of a planned effort to conduct a warrantless search. Notwithstanding Officer Colaner's request to stop the vehicle in the interest of securing additional evidence that might justify a search, there is no evidence that the officers engaged in any search of the vehicle until after the marijuana had been seen in plain view and smelled, and defendant admitted the bag beside him contained marijuana. Under the circumstances, we conclude that the "unexpected" prong of the Pena-Flores test is satisfied and that the automobile exception was properly applied.
The search and seizure here is also justified because the marijuana was in "plain view." The judge found the officers had a reasonable suspicion to conduct a motor vehicle stop because defendant violated a motor vehicle law by having no license plate light; his prior narcotics activity was known to the police; and he came from an apartment where suspected narcotics activity had occurred. His observed actions were consistent with the information received from a reliable informant that he was supplying marijuana to low-level drug dealers in Freehold. The judge therefore concluded the officers were justified in conducting an investigative stop. The judge stated explicitly that he believed the officer's testimony that he saw the marijuana bud in plain view and smelled the marijuana. The judge made specific findings that the officer was lawfully in the viewing area when the observation was made; that he did not know the location of the evidence in advance and that it was immediately apparent to the officer that the item in plain view was a controlled dangerous substance. Accordingly, the judge found the plain view exception to the warrant requirement was satisfied. These findings, too, were adequately supported by credible evidence.
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