On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-05-893.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 5, 2011 --
Before Judges Axelrad and Lisa.
By leave granted, the State appeals from an order suppressing evidence, namely drugs, that were seized from a parked motor vehicle. The State argues that the trial court erred in its application of the plain view doctrine. The State also argues that the trial court erred in rejecting the State's alternative justification for the seizure of the drugs, namely, that exigent circumstances obviated the need for a search warrant. We agree with the State's plain view argument and reverse. We accordingly find it unnecessary to address the exigent circumstances argument.
These are the pertinent facts developed at a suppression motion hearing that spanned several court sessions. The Jersey City Police received complaints from residents at the Marion Gardens Housing Complex that individuals were selling drugs during the morning hours, beginning at about 6:00 a.m. A surveillance was established on January 22, 2010, beginning at about 5:00 a.m., by Officers James Lisi and Paul Aloi, backed up by three perimeter units. At about 5:30 a.m., Lisi observed an individual, later identified as defendant, park a black Ford Explorer in a parking lot at the housing complex. Defendant walked into the complex courtyard and, after looking around, returned to the parking lot. Using a key he removed from his pocket, he unlocked a green Buick Century that was parked there and removed a clear bag containing multiple small objects. Based upon his training and experience, Lisi believed the objects consisted of drugs.
Defendant returned to the courtyard and began flagging down pedestrians as they walked by. Over the next several hours, the police observed what they believed to be several hand-to-hand drug sales by defendant to other individuals.
At about 11:20 a.m., defendant got into the black Ford Explorer and drove away from the housing complex. Members of one of the perimeter units stopped him at a nearby intersection, arrested him, and took him into custody. The officers parked the Ford Explorer in a legal parking place on the street.
It was then determined that defendant had on his person a key to a General Motors vehicle. The officers who had arrested defendant were directed to bring that key back to the Marion Gardens Housing Complex.
Before one of those officers arrived with the General Motors key, the officers who remained at the housing complex contended in their testimony that a hostile crowd was beginning to gather around them. The trial judge rejected that testimony as incredible, noting that the officers had not mentioned it in their police reports and did not express fear for their safety. Nevertheless, the officers at the housing complex approached the green Buick Century and, as they did so, one of them, Officer Michael Galvez, observed through the car window objects protruding from a plastic bag on the driver's side rear seat.
Based on his training and experience, Galvez immediately identified the items as illegal drugs. The car door was unlocked. Galvez opened the door and removed the drugs he had seen through the window. The items seized consisted of heroin, cocaine, and crack cocaine.
While being cross-examined at the suppression hearing, Galvez described his plain view observation, and was then asked what happened next. He said he informed Sergeant Michael Redmond, who was standing nearby. The following colloquy then occurred:
Q. What's the next thing that happens?
A. As he comes around the car and observes what I'm observing, I test the door and ...