July 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HANEEF J. WOFFORD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-05-0412.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 20, 2012
Before Judges A. A. Rodriguez and Reisner.
Following the denial of defendant Haneef J. Wofford's motion to suppress evidence, he pled guilty to unlawful possession of a handgun, N.J.S.A. 2C:39-5b; criminal attempt, N.J.S.A. 2C:5-1; and obtaining a controlled dangerous substance (CDS) by fraud, N.J.S.A. 2C:35-13. He was sentenced on May 7, 2010 to an aggregate term of three years in prison, one year to be served without parole. He now appeals from the January 26, 2010 order denying his suppression motion, raising the following points for our consideration:
POINT I: THE WARRANTLESS SEARCH OF WOFFORD'S VEHICLE WAS NOT JUSTIFIED UNDER THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT.
A. Consideration of the "totality of the circumstances" surrounding the stop shows that there were no exigent circumstances that would have made it impracticable for the officers to obtain a search warrant of the vehicle.
B. Officer Trejo's testimony that "[w]e could have" obtained a vehicle search warrant and the officers' actions at the time of the stop, show that it was not impracticable for them to obtain a search warrant of Wofford's car.
Having reviewed the record, we find no merit in these contentions, and we affirm.
We begin by reviewing the record of the suppression motion. Defendant was arrested after the police stopped his car and arrested him on an outstanding warrant. They searched his person incident to the arrest and found CDS. They also searched the car and found a handgun. Defendant conceded that the police had lawful grounds to stop the car, to arrest him on the outstanding warrant, and to search his person incident to that arrest. He only sought to suppress evidence of the handgun.
The State presented testimony from Officer Fernando Trejo of the Union Police Department. On December 19, 2009 at about 10:15 p.m., he was patrolling Route 22 alone in his marked police vehicle. He noticed a Dodge Charger with a broken left tail light. He ran a "plate check" on the car and discovered that it had a "suspended registration." He activated his siren and attempted to pull the vehicle over. The driver exited Route 22 onto Sayre Road, which was an on-off ramp for the highway, and stopped. The officer recalled that it was snowing at the time and "had been snowing for most of the evening."
Officer Trejo approached the vehicle and observed a male driver and a female passenger. The driver provided his license but was unable to provide the registration or insurance card. Trejo returned to his vehicle and called for a warrant check which revealed that defendant had an outstanding criminal warrant. He requested a back-up unit, and two officers arrived promptly. Trejo then asked defendant and the passenger to exit their car, and he handcuffed and arrested defendant, searched him, and found drugs in his pocket. Officer Trejo put defendant in the rear seat of the back-up patrol car and called for a tow truck to remove defendant's car from the scene. He recalled that traffic was heavy at the time.
He told the female passenger that the vehicle would be towed and offered her a ride to the police station in his car. However, they needed to wait for the tow truck, which still had not arrived fifteen minutes after his call. While the woman was sitting in the rear of Trejo's police car, she knocked on the plastic divider between the back seat and front seat and stated "you should look in the passenger door, there's a gun in there." Feeling "shocked," Trejo alerted his fellow officers and they approached the car.
Trejo opened the passenger door and shone his flashlight into the car. He "noticed that the power window switch panel on the armrest was popped up." Looking inside it with his flashlight, Trejo "saw the handle of a handgun." He removed it from the door panel and "immediately made it safe." At that point, the tow truck still had not arrived, and Trejo called his supervisor to come to the scene, which was standard policy when the traffic police encountered "anything more than just . . . a routine incident." He confirmed that when he initially stopped the car, he did not anticipate anything more than a routine traffic stop and was not looking for a handgun.
On cross-examination, Trejo confirmed that he called the tow truck because the vehicle was going to be impounded for having a suspended registration. At that point, there were three officers on the scene and two suspects, who were locked inside separate patrol cars. However, he also confirmed that prior to his opening the car door, the tow operator had told him that there would be a delay in arriving. In answer to a question from the court, Officer Trejo indicated that in bad weather, the local tow trucks were usually "pretty busy." There was a lot of snow on the ground at the time, "a few inches at least." He testified that his was a "busy" shift, with a lot of traffic, and bad weather typically would cause a lot of accidents, which would require attention from the police and the tow trucks. He recalled that there were about ten officers "for the entire town" on road patrol at the time.
Defendant testified, describing the traffic stop and his arrest. According to defendant, the tow truck arrived about five or ten minutes after he and the female passenger were seated in the police cars. He testified that after he and the woman were seated in the police cars, Officer Trejo and several other officers searched his car. He insisted that the tow truck had arrived when the officers were conducting the search. He testified that as the car was being loaded onto the tow truck, the officers had another conversation with the woman and made another attempt to open the passenger door of his car. With the assistance of the tow truck driver, they finally got that door open and "retrieved the handgun."
On cross-examination, defendant explained that when he stopped on Sayre Road, which was essentially an exit ramp from Route 22 to Vauxhall Road, he "stopped on the turn" and his car was "still on the road." Officer Trejo then pulled his patrol car off the roadway onto a grassy area to the right of defendant's car. Defendant admitted that his female companion, whom he called "Miss Dockery," knew there was a gun in the car. He admitted that besides Miss Dockery, a few other people knew where he was going that night and "[p]ossibly some other people may have known" that he had a gun in the car. When asked if anyone else had keys to his car, he testified that "[s]omeone has spares." He admitted it had been snowing heavily that night, but claimed that by the time his car was stopped, the roads were clear and plowed.
In an oral opinion placed on the record on January 26, 2010, Judge Stuart Peim credited Officer Trejo's testimony that when Trejo stopped defendant's car, it was snowing heavily and "the road conditions were dangerous." He also credited Trejo's testimony that when the female passenger told him to look in the passenger compartment of the car because there was a gun in there, the tow truck had not yet arrived and Trejo had been advised "that the tow truck would be delayed in getting to his location." He found that Trejo attributed the delay to the bad weather. He also considered "that it was very busy that night, in part because of the bad weather [,] and there were approximately ten officers usually on duty in the township."
Based on those facts, the judge considered whether, under State v. Pena-Flores, 198 N.J. 6 (2009), the automobile exception to the warrant requirement applied, and particularly whether there were exigent circumstances. He found that the stop was unexpected and "the police had probable cause to believe that a gun was in the car door . . . based on the female passenger's statement." Applying the totality of the circumstances test, the judge made these findings:
[T]he stop took place after 10:00 at night on a busy, commercial road. The stop and the sequence of events afterwards was fluid, fast-moving, and unexpected. The weather was very bad because of the snow and the roads were dangerous. There were approximately ten officers on duty on a very busy night. At the scene, for the most part, the ratio was three officers to two person[s] on the scene. There was a second set of keys to the car. The female passenger and others knew that there was a gun in the car. The officers didn't know when the tow truck would arrive, they were told that there would be delay in the tow truck's arriving. It would not be safe to leave the car unguarded. In making this notation, I would cite to the case of State v. Wilson, 362 N.J. Super. 319, 333 (App. Div. 2003), [certif. denied, 178 N.J. 250 (2003)] which states, "[Our] state law has long recognized a special significance of firearms and the threat they present to public safety. . . .
[A] deadly weapon poses a special threat to both the public and the police and its presence is a significant factor in evaluating whether there are exigent circumstances which justify a warrantless search."
Both the defendant and the female were aware where the car would be eventually towed. Under these circumstances, case law does not require the police to have to keep officers on the scene waiting for a search warrant. Under these circumstances I find that exigent circumstances exist and that the search comes within the automobile exception.
In reviewing Judge Peim's decision, we must defer to his factual findings so long as they are supported by sufficient credible evidence. State v. Minatee, ___ N.J. ___ (2012) (slip op. at 10-11); State v. Elders, 192 N.J. 224, 243 (2007). We owe particular deference to a trial judge's evaluation of witness credibility. State v. Locurto, 157 N.J. 463, 474 (1999).
On this record, we find no basis to disturb Judge Peim's findings that the traffic stop was unexpected; the police had probable cause to believe that there was a gun in the car; and there were exigent circumstances that made it impracticable for the officers on the scene to obtain a search warrant. Minatee, supra, slip op. at 15-16; Pena-Flores, supra, 198 N.J. at 28.
Judge Peim properly consider the factors set forth in PenaFlores:
They 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. [Id. at 29.]
Applying those factors to the facts as the judge found them, we find no error in his conclusion that the police faced exigent circumstances and the warrantless search for the gun was justified. Defendant's friends or associates knew he had a gun in his car and knew where he was headed. Three of this town's approximately ten available police officers were at the scene and one more was on the way. The tow truck was delayed. The officers could anticipate being called to attend to accidents on the snowy roads and other law enforcement duties that night. It would be unreasonable to expect more than one-third of this town's available police officers to remain waiting on the roadside for an extended period of time, in bad weather, late at night, guarding this car, which was parked on a busy on-ramp to Route 22. See State v. Cooke, 163 N.J. 657, 674 (2000); PenaFlores, supra, 198 N.J. at 47. We find no basis to disturb Judge Peim's well-reasoned decision to deny the suppression motion.
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