March 1, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TRESHARD VANDUNK, A/K/A TRESHARD B. VANDUNK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-07-0639.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 26, 2011
Before Judges Cuff and Lihotz.
Following denial of defendant Treshard Vandunk's motion to suppress evidence, he entered a guilty plea to one count of second degree possession of a controlled dangerous substance (CDS) with intent to distribute within 500 feet of a public park, contrary to N.J.S.A. 2C:35-7.1. He was sentenced to six years concurrent to a violation of probation. The appropriate fees, penalties, assessments and driver's license suspension were also imposed. Defendant appeals from the denial of his motion to suppress. We affirm.
On April 25, 2008, Michael Caspersen was a Narcotics Division detective with the Plainfield Police Department. He had been a police officer for eleven years, employed nine years at the Plainfield Police Department, and a member of the Narcotics Division for seven years. He had participated in over 1200 narcotics-related investigations.
On that day, Caspersen received information from a confidential informant (CI) that defendant was involved in the distribution of CDS in Plainfield during the daytime. The CI provided defendant's name, described his car as a 1996 Buick with license plate number "WPW64J," and informed Caspersen that defendant would bring his car to 401 East 7th Street to conduct drug activity. The CI also told Caspersen that defendant stashed narcotics in the trunk of his vehicle or in a makeshift pocket near the zipper of his pants.
The CI had previously provided Caspersen with information which led to over seventy arrests. Caspersen characterized the CI's information as always being "[a] hundred percent corroborated," although it did not always lead to an arrest. Of the seventy or so arrests the CI's information had helped to achieve, many stemmed from drug charges.
Based on his prior experience as a narcotics officer, Caspersen was familiar with the area of the address and described it as a "heavy gang activity, heavy drug area, very high crime area." He also testified the area had "[n]umerous shootings on a regular basis . . . . A lot of weapons recovered there, . . . multiple people shot in that particular area."
During the evening of April 25 around 10 p.m., Caspersen drove to 401 East 7th Street to conduct surveillance. Wearing plain clothes without any police identifiers, he parked his unmarked vehicle on the west side of Franklin Place across from the driveway of the address.
After sitting in the car for "a little bit," Caspersen saw a car matching the CI's description of make, model, and license plate, pull into the driveway of 401 East 7th Street. Defendant exited the vehicle and Caspersen noticed co-defendant Brian Tinsley sitting in the passenger side of the car. Defendant went to the trunk of the car, retrieved something small, and returned to the driver's seat.
After a few minutes, Caspersen observed a black male walk onto the driveway to the driver's side of defendant's vehicle. Caspersen observed the man hand something small to defendant; defendant handed the man something through the open driver's side window. The man crossed the street and walked directly past the driver's side of Caspersen's car. As he passed, Caspersen noticed the man looking down into his left hand. Based upon his experience and training, Caspersen considered the man's actions consistent with typical actions during a drug transaction. Back-up units did not arrive at the scene soon enough to detain the man who purchased the suspected drugs.
About five or ten minutes later, Caspersen observed a white vehicle pull into the driveway next to defendant's vehicle. Defendant exited the driver's side of his vehicle, retrieved a small item out of the trunk, and approached the driver's side of the white vehicle. The driver in the white vehicle handed something to defendant, who gave something small to the driver. As the driver backed out of the driveway and drove away, defendant returned to his vehicle. Although Caspersen called back-up units to stop the white vehicle, it was not found.
As defendant walked to his vehicle, Caspersen observed him reaching toward the zipper of his pants. Soon after defendant returned to his vehicle, he and co-defendant Tinsley left the car and walked to the porch of the house a short distance away.
As defendant and co-defendant Tinsley approached the porch, Caspersen heard gunshots ring out from the south. From conversations on the police radio, Caspersen learned that a person located ten or eleven houses, or two blocks, west of his location reported a shooting.
Following the gunshots, Caspersen terminated the surveillance and asked back-up units to help stop defendant. Caspersen informed the back-up units of the information given by the CI, his observations, and his suspicion that two drug transactions had occurred. Caspersen did not recall if he provided physical descriptions of defendant and co-defendant Tinsley.
Detectives Ronald Fusco and Troy Alston arrived on the scene and stopped defendant. Caspersen did not see Fusco and Alston arrest defendant because he left the immediate area. When he returned to the scene, Fusco told him he had located CDS on defendant's person. Caspersen believed, but was not sure, Fusco told him he had found the CDS near the zipper of defendant's pants. Fusco also told Caspersen he found cash on defendant's person.
Lieutenant Newman eventually arrived at the scene and informed Caspersen that he needed all of the other officers to join him on another assignment. Caspersen advised Newman he was able to handle the rest of the situation by himself. Specifically, he told Newman he could wait for the tow truck himself. Fusco and Alston handed Caspersen the CDS found on defendant, as well as the keys to defendant's car. Fusco and Alston then placed defendant and co-defendant Tinsley into the police car to drive them to headquarters.
As the two detectives were getting into the vehicle with defendant and co-defendant Tinsley, Caspersen opened the trunk of defendant's vehicle with the car keys. He found a bag filled with ten plastic knots of cocaine. Caspersen then waited for about twenty to thirty minutes until the tow truck arrived. During that entire time, Caspersen remained with defendant's vehicle.
Defendant testified at the suppression hearing. He confirmed that on April 25, 2008, he drove his 1997 Buick LeSabre to 401 East 7th Street in Plainfield. The license plate corroborates the one provided to Caspersen: "WPW64J." He testified, however, that he drove with co-defendant Tinsley to the site in order to visit a friend. Defendant went into the house where Ms. Helen and another elderly woman were living in order to allow co-defendant Tinsley to charge his cell phone. Another woman was at the home with Ms. Helen, but defendant did not know her name because no one introduced him to her.
Defendant testified he stayed at the house for fifteen or twenty minutes until he heard gunshots, when he went outside onto the porch. Several police cars drove down Franklin Street but one car went into reverse and pulled into the driveway. Two detectives, including Alston, whom defendant recognized as "Troy," got out of the car. Another police car, containing Detectives Black and Staten, backed up and pulled into the driveway. Staten asked defendant what he was doing; defendant responded he was visiting "Ms. Helen." The detective asked defendant who had fired the gunshots; defendant replied he did not know. Staten then asked defendant if he would come off the porch to see if he had any weapons; defendant consented, and was patted down.
The detective who patted defendant down found money inside his pocket. Defendant told the detective the money was from his job at Stop & Shop, and he guided the detective through his wallet to find his work ID and his license. The detective then inspected defendant's buttocks to see if he was hiding anything.
He also checked defendant's genitalia with a flashlight. At this time, the officer found drugs in defendant's pants. Defendant denied ever going to the trunk of his car during his visit to the house.
Judge Moynihan found the testimony of Caspersen credible. Citing defendant's three prior convictions and a motive to avoid an extended term sentence in this matter, the judge found defendant's testimony not credible. He also found defendant's story did not make sense. The motion judge did not believe "that two young men driving from a liquor store would stop in on a sexagenarian or septuagenarian at 10 p.m. on a Friday night to charge a Nextel and that the gracious lady didn't even introduce another guest who was in the same room for 10 to 20 minutes."
Judge Moynihan found the police had probable cause and exigent circumstances to justify the search of defendant's car. The judge stated:
When as here, the police have no advance knowledge of the events to unfold, no warrant is required to search the parked car if the police have probable cause to believe that the car contains criminal contraband and have articulable reasons to search the vehicle immediately to prevent the loss or destruction of the evidence.
Judge Moynihan also determined the State did not prove by a preponderance of the evidence that the warrantless search of defendant's person was justified by exigent circumstances. On the other hand, the judge held the search was justified as a search incident to a lawful arrest.
On appeal, defendant raises the following arguments:
THE COURT ERRED IN ITS FINDING OF EXIGENT CIRCUMSTANCES IN THE SEARCH OF THE VEHICLE. POINT II:
THE COURT ERRED IN JUSTIFYING THE SEARCH OF DEFENDANT AS INCIDENT TO HIS ARREST.
THE SENTENCE WAS EXCESSIVE. (NOT RAISED BELOW).
Judge Moynihan's factual findings are entitled to great deference from this court, "'so long as those findings are supported by sufficient credible evidence . . . .'" State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). His findings of fact can only be overturned when the findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Additionally, this court should defer to the credibility determinations of the trial court. State v. Locurto, 157 N.J. 463, 474 (1999). The judge's interpretation of law, however, is not entitled to any special deference by the appellate court. State v. McKeon, 385 N.J. Super. 559, 567 (App. Div. 2006).
Following his arrest, Fusco searched defendant, including a zippered pocket in his pants. The search yielded car keys and $147. Defendant contends that Fusco had been ordered simply to stop defendant, not to arrest him, and suggests that the arresting detective lacked a factual basis to arrest defendant and conduct a search of defendant. We disagree.
A lawful arrest authorizes police to conduct a search "'with or without a warrant . . . of [the arrested] person or of the things within his immediate possession or control . . . .'" State v. Henry, 133 N.J. 104, 118 (1993) (quoting State v. Doyle, 42 N.J. 334, 344 (1964)). Here, having accepted Caspersen's testimony as credible, probable cause existed to arrest defendant. Judge Moynihan found that defendant met two individuals and engaged in conduct that had all the hallmarks of illicit CDS transactions. In short, Caspersen had probable cause to arrest defendant and probable cause did not dissipate when he instructed another detective to arrest defendant. Having lawfully arrested defendant, a search of defendant immediately following his arrest is also lawful.
Defendant also argues that exigent circumstances did not exist to justify the search of the trunk of his car. We disagree.
Exigent circumstances must exist before the automobile exception to the warrant requirement is justified. State v. Birkenmeier, 185 N.J. 552, 562 (2006) (citing State v. Dunlap, 185 N.J. 543, 549 (2006)). This rule was re-affirmed in the automobile exception test articulated by the Court in State v. Pena-Flores, 198 N.J. 6, 28 (2009). The Court held that a warrantless search pursuant to the automobile exception is appropriate so long as "(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." Ibid.
Here, the arrest of defendant was unexpected. Caspersen testified, and the motion judge found, that he had no intention to arrest defendant when he went to the address given by the CI. At the time, he was simply conducting a surveillance to corroborate the information given to him by the CI. During the surveillance, Caspersen observed two encounters between defendant and third-parties that appeared to him to be CDS transactions. The sound of gunshots in the neighborhood convinced the detective to cease the surveillance and initiate an arrest. Caspersen also had probable cause to believe that the trunk of the car contained contraband. He had seen defendant take something from the trunk before the first transaction and watched him repeat this action before the second transaction.
Finally, there is sufficient evidence in this record to support the finding that exigent circumstances justified an immediate search of the trunk rather than await procurement of a search warrant. To be sure, defendant had been arrested and removed from the scene. There is no evidence that anyone had another set of keys to the car, and the two older women, who occupied the house where the car was parked, did not appear to be a threat to remove the contents of the trunk.
On the other hand, the car was parked in a high crime area. The other police units who responded to Caspersen's call for assistance, left the scene to respond to a nearby shooting. Caspersen was left to guard the car. Although he was able to await the arrival of the tow truck, he could have been called from the scene to respond to the nearby shooting or another incident on a moment's notice.
Whether exigent circumstances exist to permit a warrantless search in the face of probable cause depends upon the facts of the individual case. Pena-Flores, supra, 198 N.J. at 28. In fact, in Pena-Flores, the Court examined two cases and reached a different result in each case. Juan Pena-Flores and co- defendant Fausto Parades were stopped for a motor vehicle violation late at night in a heavily traveled area. Id. at 12. A limited number of officers were on duty at that time. Id. at 13. The arresting officer testified he considered the circumstances unsafe to either leave the vehicle unguarded or to await issuance of a search warrant. Ibid.
Charles Fuller, the defendant in the companion case, was stopped for a motor vehicle violation on a busy street in Camden in the early afternoon. Id. at 14. The area was crowded with passersby. Id. at 15. Fuller was ordered out of the car when the trooper learned that the bill of sale produced by Fuller and the Pennsylvania license plates on the car were associated with another vehicle. Id. at 16. The trooper arrested Fuller for displaying a false driver's license and hindering his apprehension. Ibid. A search of Fuller produced two large bundles of money. Ibid. After Fuller was placed in the police cruiser, the arresting trooper and another trooper, who had responded to the scene, searched the interior of Fuller's car. They found a loaded handgun wedged between the console and driver's seat and money and prescription drugs in the console, marijuana in a dashboard compartment, and a sword in the backseat. Id. at 16.
As to Pena-Flores, the Court held that the officer confronted exigent circumstances to justify the search of the vehicle occupied by him and his passenger. Id. at 30. The Court noted that the stop was unexpected, the officer had no reason to believe he would encounter criminal behavior, and stopped the car late at night for a motor vehicle violation. Ibid. The Court also emphasized that Pena-Flores and Parades were not under arrest, the windows of the care were heavily tinted preventing observation of the interior of the car through the windows, and only one other officer was at the scene. Ibid.
By contrast, the Court held that the search of the dashboard compartment and backseat of Fuller's vehicle was not justified and the products of the search beyond the front seat and console were subject to suppression. Id. at 31-32. The Court emphasized that Fuller had been arrested and secured in the backseat of the police cruiser. Id. at 32. The record was devoid of any evidence of nearby cohorts who could have gained access to the vehicle. Ibid. Moreover, the arrival of three troopers on the scene following the initial stop demonstrated that there were ample resources to secure the car while a search warrant could be obtained. Ibid.
What circumstances constitute exigent circumstances to justify a warrantless search of the vehicle has been the subject of much discussion. In fact, the Court recently heard oral argument in five cases involving the application of the PenaFlores rule: State v. Shannon, 419 N.J. Super. 235 (App. Div. 2011), appeal dismissed, ___ N.J. ___ (2012); State v. Shannon, No. A-5821-08 (App. Div. Apr. 27, 2011), appeal dismissed, ___ N.J. ___ (2012); State v. DeShazo, No. A-2856-09 (App. Div. Apr. 27, 2010), appeal dismissed, ___ N.J. ___ (2012); A-21-10; State v. Crooms, No. A-4118-09 (App. Div. May 11, 2011), appeal dismissed, ___ N.J. ___ (2012); and State v. Minitee, 415 N.J. Super. 475 (App. Div. 2010), appeal dismissed ___ N.J. ___ (2012). In Shannon, we held that exigent circumstances did not exist to justify a warrantless search of a vehicle when four of the five squad cars in the community responded to a call for assistance in a residential area in the early evening. 419 N.J. Super. at 243. In addition, there was no suggestion that an officer could not have sought a telephonic search warrant or that the vehicle or its contents was in danger. Ibid. Similarly, in Minitee, we held that no exigency existed to conduct a warrantless search of the vehicle at the police station. 415 N.J. Super. at 488. Citing the need for a fully developed record concerning the issue presented by Pena-Flores, including application for a search warrant by telephone from the field, the Court vacated certification in each case following oral argument to permit development of a full record to consider the application of Pena-Flores, thereby highlighting the fact sensitive nature of the exception.
Here, we conclude that the totality of the circumstances place this case significantly closer to the circumstances accompanying the arrest of Juan Pena-Flores than to Shannon or Minitee. Although defendant and the other occupant of the vehicle had been arrested and removed from the scene, Caspersen remained alone at the scene in a high crime area at 10 p.m. after all other police officers at the scene left to respond to a shooting about twelve houses away from the driveway where defendant's car was parked. Under these circumstances, we hold that exigent circumstances existed to support the warrantless search of the trunk of defendant's car.
Finally, the argument that the six-year term of imprisonment is manifestly excessive is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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