June 21, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAUL VARGAS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-09-2519.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2012
Before Judges A. A. Rodriguez and Ashrafi.
Following a guilty plea, defendant Raul Vargas appeals the denial of his motion to suppress two handguns seized without a warrant from a car. See R. 3:5-7(d). We affirm.
Defendant and three others were indicted on four second-degree charges: (count one) possession of a .357 Magnum Smith and Wesson revolver without a permit, N.J.S.A. 2C:39-5b; (count two) possession of the same handgun with a purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a; (count three) possession of a .9 millimeter [Taurus] handgun without a permit, N.J.S.A. 2C:39-5b; and (count four) possession of the same .9 millimeter handgun with a purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a. Defendant moved jointly with the co-defendants to suppress the handguns on the ground that the police had violated their constitutional rights by a warrantless search of the automobile they had occupied. The trial court held a suppression hearing at which Officer Luis Oliveira of the Newark Police Department and one of the co-defendants, Fabian Frater, were the only witnesses.
Officer Oliveira testified that he and his partner, Officer Richard Pisano, were on patrol in Newark on the night of July 15, 2009. They received a radio dispatch to be on the lookout for a burgundy Dodge Intrepid with four male occupants in the area of Jay Street and Sussex Avenue. According to the police department's "Event Chronology" that was admitted in evidence, the police dispatcher had received an anonymous tip from a female caller who reported that four men in the described car were seen changing from lighter T-shirts into dark clothing.
Immediately after receiving the dispatch, the two officers drove to the area of Jay Street and Sussex Avenue at about 11:40 p.m., and they saw a burgundy Dodge Intrepid parked there with four men inside.*fn1 They parked their police car next to the Intrepid and the officers approached the suspect vehicle on different sides. The officers ordered the occupants to show their hands by placing them up and in front; the men complied. Officer Oliveira testified that three of the men were wearing gloves, and he also observed that the three had stockings on top of their heads. Officer Pisano ordered defendant Vargas out of the car from the driver's seat. He questioned Vargas briefly and then placed him in the back seat of the patrol car.
From the passenger side of the car, Officer Oliveira used his flashlight to look into the interior, and he saw what appeared to be the handle of a gun on the back seat between the two occupants there. He gave a coded verbal signal to Officer Pisano that he had seen a weapon in the car, and he ordered one of the back seat occupants, Erasmo Jimenez, out of the car. Officer Pisano handcuffed Jimenez and placed him sitting at the curb. Officer Oliveira reached into the car and retrieved a .9 millimeter Taurus handgun from the back seat. As he did so, he felt that the back seat was loose. He lifted the right side of the rear seat and saw a second handgun, a .357 Magnum Smith and Wesson revolver, which he seized. Both guns were loaded.
Co-defendant Frater testified that he had accompanied defendant Vargas to give Jimenez a ride. Later, the fourth defendant joined them in the car. At that point, two police cars blocked their car, and four officers approached with weapons drawn. All four men were removed from the Dodge Intrepid, handcuffed, and placed seated at the curb. The police then conducted a lengthy search of the car, "tearing it apart," and also searching the trunk. Frater testified that he had no knowledge of a gun in the car and also that he and the others were not wearing gloves or stockings.
In her ruling, the trial judge indicated that she credited aspects of the testimony of both witnesses. Ultimately, she found that Officer Oliveira testified credibly that he observed the butt of a handgun on the back seat from outside the car.
The judge concluded that the observation of a gun in plain view provided probable cause under exigent circumstances for the police to conduct a warrantless search of the car for weapons. The judge denied defendants' motion to suppress the guns.
Subsequently, defendant Vargas entered into a plea agreement with the State and pleaded guilty to counts one and three of the indictment, the charges of unlawful possession of the two handguns without permits. He was sentenced in accordance with the plea agreement to concurrent terms of three years in prison with one year of parole ineligibility.
On appeal, defendant argues:
THE DENIAL OF THE MOTION TO SUPPRESS MUST BE REVERSED AS:
A. THE MOTION JUDGE MADE
INCORRECT FINDINGS AS TO CREDIBILITY, EVEN WHERE ONLY TWO WITNESSES TESTIFIED AT THE HEARING, AND THEY FLATLY CONTRADICTED EACH OTHER.
B. THE MOTION JUDGE FAILED TO
CORRECTLY APPLY THE STANDARDS SET FORTH IN THE NEW JERSEY SUPREME COURT'S DECISION IN STATE V. PENA-FLORES.
We reject these arguments and conclude that the trial court did not err in denying defendant's motion to suppress evidence.
The Fourth Amendment to the United States Constitution and article I, paragraph 7 of the New Jersey Constitution prohibit unreasonable searches and seizures. State v. Davis, 104 N.J. 490, 498 (1986). The State must prove that the police did not violate defendant's constitutional rights in conducting a search and seizing evidence without a warrant. State v. Maryland, 167 N.J. 471, 489 (2001).
The police may stop a motor vehicle without violating the federal and State constitutions if they have an "articulable and reasonable suspicion" of violation of law by the driver or a passenger. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); State v. Locurto, 157 N.J. 463, 470 (1999). The police may also temporarily detain and question an occupant of a vehicle without a warrant if they have a "reasonable and articulable suspicion" that the person is engaged in unlawful activity. State v. Elders, 192 N.J. 224, 247 (2007).
The State is not required to prove an actual violation of law to justify a motor vehicle stop. It is sufficient to prove reasonable suspicion that a violation has occurred. State v. Williamson, 138 N.J. 302, 304 (1994). Reasonable suspicion has been described as "'a particularized and objective basis for suspecting the person stopped of criminal activity.'" State v. Stovall, 170 N.J. 346, 356 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996)).
Here, the police had reasonable suspicion of unlawful activity based on the anonymous tip and their observations of unusual clothing, in particular, gloves and stockings, worn by four men in a car late at night. They could detain and question the men without a warrant.
Furthermore, Officer Oliveira did not violate defendant's constitutional rights when he looked into the car, using his flashlight to illuminate the passenger compartment. Texas v. Brown, 460 U.S. 730, 739-40, 103 S. Ct. 1535, 1542, 75 L. Ed. 2d 502, 512 (1983); State v. Johnson, 171 N.J. 192, 210 (2002); State v. Johnson, 274 N.J. Super. 137, 153-54 (App. Div.), certif. denied, 138 N.J. 265 (1994). Upon seeing what appeared to be part of a handgun, the officer could reach into the car and seize it without a warrant. The plain view doctrine permits the police to seize evidence without a warrant where the officer is "lawfully . . . in the viewing area," the evidence is discovered "inadvertently," and it is "'immediately apparent' to the officer that items in plain view [are] evidence of a crime, contraband, or otherwise subject to seizure." Johnson, supra, 171 N.J. at 206-07 (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 470, 91 S. Ct. 2022, 2037-40, 29 L. Ed. 2d 564, 582-85 (1971); and quoting State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).
Defendant argues that the trial court erred in making credibility determinations in favor of the officer's testimony because co-defendant Frater's testimony directly contradicted the officer and had "the ring of truth." We defer to the findings of fact and credibility determinations of the trial court on a suppression motion. State v. Robinson, 200 N.J. 1, 15 (2009); Elders, supra, 192 N.J. at 243-44; State v. Johnson, 42 N.J. 146, 161 (1964). "'[A]n appellate court reviewing a motion to suppress 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.' . . . '[A] trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction.'" Robinson, supra, 200 N.J. at 15 (quoting Elders, supra, 192 N.J. at 243-44). We find no clear mistake in the trial court's factual findings. In particular, there is no basis on this record for us to reject the trial court's credibility determination with respect to the officer's observation of a gun in the car while he was still standing outside.
Defendant argues next that no exigency was demonstrated justifying the warrantless search of the car. The automobile exception under New Jersey law differs from the federal automobile exception to the warrant requirement in that "(1) . . . the stop had to be unforeseen and spontaneous and (2) . . . exigency must be assessed based on the particular facts and circumstances of the case, and does not automatically flow from the mobility of the vehicle." State v. Pena-Flores, 198 N.J. 6, 22 (2008); accord State v. Cooke, 163 N.J. 657, 666-71 (2000); State v. Colvin, 123 N.J. 428, 429-30, 434-35, 437 (1991); State v. Alston, 88 N.J. 211, 233-34 (1981). As stated by the Supreme Court:
Legitimate considerations . . . include, for example, 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. [Pena-Flores, supra, 198 N.J. Id. at 29 (footnote omitted).]
These considerations, however, are not to be applied rigidly to dissimilar facts. State v. Minitee, ___ N.J. ___, ___ (2012) (slip op. at 16-17). Whether or not an exigency exists for a warrantless search of an automobile is determined by an objective reasonableness standard "in the totality of the circumstances." Id. at ____ (slip op. at 20).
In this case, we find no error in the trial court's conclusion that exigent circumstances existed for the warrantless search of the Dodge Intrepid. The incident occurred late at night in an area of Newark that, while residential in itself, was in proximity to high-crime locations. The police had received an anonymous tip describing the car and implying that the men may have been preparing for criminal activity. The officer's observations corroborated the tip.
Most important, the officers were outnumbered and were conducting a risky investigation. Two police officers were investigating four men occupying a car, and they saw a gun on the back seat of the car. Officer Oliveira was justified in reaching into the car for his own protection to determine if a real handgun was on the back seat. See Johnson, supra, 274 N.J. Super. at 154. Under the circumstances, there was no error in the judge's finding that the police acted reasonably in searching the interior of the vehicle and seizing the two handguns they found there.