December 19, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HENRY LOTERO A/K/A ENRIQUE LOTERO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 10-05-0056 and 09-10-1188.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued September 5, 2012
Before Judges Alvarez, Nugent and Ostrer.
Following denial of his motion to suppress evidence seized from a warrantless search of an automobile, defendant Henry Lotero pleaded guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5. He also entered a plea to third-degree aggravated assault under a separate preceding indictment. Pursuant to the agreement, the court sentenced defendant to a term of five years, with a three-year period of parole ineligibility on the weapons offense, and a three-year concurrent term on the aggravated assault. Upon the State's motion, the court dismissed the remaining charges against defendant, including charges of possession of a weapon, and possession of a weapon for an unlawful purpose under the preceding indictment.
Defendant now appeals from the denial of his suppression motion, and challenges his sentence as excessive. We affirm.
The sole witness at the suppression hearing was Sergeant Anthony Damiano, a Passaic County Sheriff's Officer on loan to the New Jersey State Police Gang Unit. The record evidence reflects the following:
Sergeant Damiano and his partner, Officer Brian Whitesman, were conducting undercover surveillance from a stationary, unmarked Dodge Caravan in the area of 10th Avenue and 27th Street in Paterson on Friday, March 27, 2009. Two other surveillance units were in the area, one manned by Detective Mark Hanselman and Detective Sergeant Mike Clifford, and the other occupied by Officer Ty Coronado.
At about 3:50 p.m., Sergeant Damiano observed a blue Aztec, an SUV-type vehicle, travel fast up 11th Avenue, almost strike another vehicle, swerve around it, pass the Caravan, and speed down a hill toward a school at what the sergeant estimated to be sixty m.p.h. Sergeant Damiano alerted other surveillance units that he was going to follow the Aztec and try to conduct a motor vehicle stop. The sergeant's vehicle was equipped with a strobe, but no siren or emergency lights. The sergeant was in the driver's seat and Officer Whitesman was in the passenger seat.
The sergeant caught up to the Aztec traveling southbound on Route 20, while keeping other units advised of his location. He continued his pursuit as the Aztec entered Route 80 westbound. Sergeant Damiano could observe three, maybe four occupants.
The Hanselman-Clifford unit, a Nissan Altima, was the only one of the three police vehicles equipped with a siren and emergency lights, which were mounted behind the windshield, but not on the roof. It approached from behind. Meanwhile, Sergeant Damiano pulled to the left of the Aztec.
Once Detective Hanselman activated his lights and sirens, Sergeant Damiano was "right alongside" the Aztec, and "could see perfectly" that the occupants "all started panicking in the vehicle." "At one point, there was an object passed from the back seat to the front seat, and the . . . front seat passenger opened the glove box, places it, and closes the glove box." The sergeant said he was able to make these observations because the highway lanes were pretty narrow, he was right next to the Aztec, the Caravan was slightly higher than a regular car, and the Aztec's driver's windows were untinted, although the Caravan's windows were tinted. Sergeant Damiano believed the item placed in the glove box was a "possible weapon" and alerted the other officers.
Using his vehicle's loudspeaker, Detective Hanselman commanded the Aztec to pull over after its driver ignored the lights and sirens. The Aztec then came to a halt on a narrow shoulder just before an exit ramp. Sergeant Damiano pulled in front of the Aztec, his vehicle in a lane of traffic. Detective Hanselman's car was behind the Aztec, and Officer Coronado's Dodge Dakota truck was on the highway.
The officers approached the vehicle, none with a drawn weapon. Sergeant Damiano went to the driver's door. His partner stayed in front of the car. Hanselman went to the rear driver's side. Officers Clifford and Coronado went to the passenger side, Officer Coronado to the front and Officer Clifford to the rear. Officer Coronado ordered defendant, who was the front seat passenger, to exit. Sergeant Damiano ordered the driver to exit.
"Detective Coronado opened the glove box and said, gun, closed it." The driver and front passenger were secured; and the rear passengers were removed from the vehicle and secured too. Officer Coronado then removed the gun, a black Bryco .25 semi-automatic, and made it safe by removing the bullet in the chamber, and the loaded magazine. Once notified of the four arrests, Woodland Park police later sent two police cars to the scene.
Sergeant Damiano explained it would have been unsafe to delay the search of the glove compartment, to await a telephonic warrant, because the highway was busy as rush hour approached, the police vehicles were dangerously located, and they lacked overhead lights to warn oncoming motorists; "several" accidents almost occurred as cars skidded while others slowed to observe the scene. Sergeant Damiano stated his suspicions that a passenger placed a gun in the glove compartment were heightened by the passengers' frantic reaction to the police pursuit, and the driver's delay in coming to a stop. He stated the driver and three passengers were not placed under arrest until the gun was discovered.
Judge Joseph A. Portelli denied defendant's motion to suppress. He credited Sergeant's Damiano's version of the events, in particular, his observation that the passengers in the Aztec reacted frantically to the police pursuit, and a rear passenger passed an object to a front seat passenger who concealed it in the dashboard area or glove compartment. Judge Portelli found that after the stop was performed, the officers approached the vehicle; ordered the front occupants to exit; and searched the glove box or dashboard area "for safety purposes." The judge held:
[T]he weapon was recovered from the defendant's vehicle from a valid Terry [v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)] search in order to assure the safety of the officers involved in a motor vehicle stop.
An officer can conduct this type of search for weapons where he has reason to believe that he might be dealing with an armed and dangerous individual regardless of whether he has probable cause to arrest the individual for a crime. See Terry at 392 U.S. Page 27.
The Terry [p]rinciples have been expanded to justify searches of other compartments in a vehicle where the police may believe that a weapon may be found. I'm going to note here that the officers - the officer confined his search to the dashboard area. He did not go into a center console, he did not look under the seats, he did not go into the trunk, he did not pull off door panels.
The court found that the driver's failure to stop immediately supported the police's reasonable belief there was a gun.
Defendant presents the following points for our consideration:
THE POLICE DID NOT HAVE REASON TO BELIEVE THAT THEY WERE DEALING WITH AN ARMED AND DANGEROUS INDIVIDUAL JUSTIFYING THE WARRANTLESS SEARCH IN THIS MATTER.
POINT II THE TRIAL JUDGE NEVER MADE ANY FINDING THAT PROBABLE CAUSE EXIST[ED] ALLOWING THE WARRANTLESS SEARCH[.]
POINT III THE WARRANTLESS SEARCH WAS NOT PURSUANT TO A LAWFUL ARREST[.]
POINT IV DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE[.]
We defer to the trial court's factual findings on a motion to suppress, unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention. State v. Elders, 192 N.J. 224, 245 (2007). However, we exercise plenary review of a trial court's application of the law to the facts on a motion to suppress. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).
Applying that standard of review, we affirm Judge Joseph Portelli's denial of the motion to suppress based substantially on the reasons stated in his oral opinion.
As an exception to the warrant requirement, both the United States Supreme Court and our Supreme Court have recognized that police may conduct a limited protective search of a lawfully stopped motor vehicle, in response to a reasonable belief, based on specific and articulable facts, that the suspects were dangerous and might gain immediate control of weapons. Michigan
v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d 1201, 1220 (1983); State v. Lund, 119 N.J. 35, 48 (1990) (adopting Long as "sound and compelling precedent").
The need for a protective search is not obviated by the removal of a driver or passenger from the vehicle if the police lack grounds to arrest and the driver or passenger may return to the vehicle.
Just as a Terry suspect on the street may, despite being under the brief control of a police officer, reach into his clothing and retrieve a weapon, so might a Terry suspect in Long's position break away from police control and retrieve a weapon from his automobile. In addition, if the suspect is not placed under arrest, he will be permitted to re-enter his automobile, and he will then have access to any weapons inside. . . . In any event, we stress that a Terry investigation, such as the one that occurred here, involves a police investigation "at close range," when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a "quick decision as to how to protect himself and others from possible danger. . . ." In such circumstances, we have not required that officers adopt alternative means to ensure their safety in order to avoid the intrusion involved in a Terry encounter. [Long, supra, 463 U.S. at 1051-52, 103 S. Ct. at 3482, 77 L. Ed. 2d at 1221-22 (citations omitted).]
See also State v. Esteves, 93 N.J. 498, 506-07 (1983) (concluding that officer who has reasonable suspicion that defendants are armed and dangerous, without probable cause to arrest, may conduct limited search of vehicle where defendants would have returned to their vehicle, within reach of suspected weapons, after pat-down produced negative results).
Applying Long requires a fact-sensitive analysis. Lund, supra, 119 N.J. at 43. The Court recognized that Lund presented a close case that ultimately did not satisfy the prerequisites for a warrantless search. In that case, a police officer conducted a stop for motor vehicle violations, including failing to keep right. Once stopped, defendant turned around and then reached behind the seat. When the officer approached the vehicle, he saw a windbreaker stuffed to the side of the rear seat, an open travel bag on the rear seat, with a paper bag on top. When asked for his credentials, defendant appeared nervous and looked slightly toward the back seat. The officer concluded the driver was exceptionally nervous for someone stopped for a motor vehicle offense. He asked the driver to exit the vehicle, and he patted him down, revealing no weapons or contraband. While another officer watched the driver, the first officer searched the rear seat and discovered cocaine in an envelope stuffed in a rear seat crevice. The Court held that defendant's furtive movements, nervousness, and reaching back did not create a reasonable belief of a threat to the officer's safety. Id. at 41-42, 47-48.
On the other hand, the Court recognized that furtive gestures and nervousness, when coupled with other facts, may suffice. Id. at 48. The Court cited with approval other cases where the circumstances, viewed in their totality, did justify a protective search of a vehicle. Id. at 50 (citing, among other cases, State v. Carter, 235 N.J. Super. 232 (App. Div. 1989)). In Carter, an officer performed a motor vehicle stop after observing a vehicle tail-gate another. As he approached the driver, he observed the front seat passenger appear to reach under the front seat, his shoulders dipping down. The officer feared for his safety, suspecting the passenger may have concealed a weapon. Assisted by a second officer, the first officer conducted pat-downs of each occupant, but discovered nothing of note. But suspicions were further aroused by the occupants' inconsistent stories, and the driver's inability to produce a vehicle registration. The officer was concerned the four could overpower the two officers. Id. at 234-35. He was also "concerned that if he issued a summons for the traffic violation and let the men leave, they would have access to whatever was under the seat." Id. at 235. Consequently, the officer searched under the seat, and discovered cocaine. Ibid. Applying Long, supra, we found the officer reasonably believed his safety was at risk, justifying the limited search of the area under the seat. Id. at 240.
We reach the same result here. Based on the totality of circumstances, Sergeant Damiano had a reasonable and articulable suspicion that the rear passenger had passed a weapon to defendant, for concealment in the glove compartment or front dash area. The sergeant did not need to definitively identify the object to reasonably suspect it was a gun. He observed the occupants react frantically when they became aware of the police presence. The driver delayed stopping, heightening suspicion the occupants were using the extra time to conceal a weapon. The nature of the motor vehicle violations that justified the stop - dangerous speeding through a residential area - also aroused suspicion. The officers held only a slight numerical advantage over the vehicles' occupants. Moreover, the removal of defendant and the driver did not remove the threat to the officers' safety. The rear seat passengers remained in the vehicle. Absent a protective search, both the driver and defendant were likely to be permitted to return to their vehicle where they would again be placed within reach of the suspected weapon.
We also reject defendant's argument that the search should be suppressed because Officer Coronado, who performed the search of the glove compartment, did not testify regarding the basis for his actions. Sergeant Damiano testified that he alerted the other surveillance officers that he saw an object placed in the glove compartment. Sergeant Damiano believed it might be a weapon. An arresting officer who has gathered no evidence and made no observations himself upon which to ground a reasonable and articulable suspicion, may rely upon evidence gathered or observations made by other officers. State v. Crawley, 187 N.J. 440, 457 ("[I]f the dispatcher . . . had been provided adequate facts from a reliable informant to establish a reasonable suspicion that defendant was armed, common sense tells us that the dispatcher had the power to delegate the actual stop to officers in the field."), cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006). An officer conducting a search need not be apprised of the detailed basis of another officer's evidence or observations. "[O]fficers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information." Ibid. (quotation and citation omitted).
Defendant's remaining arguments in support of his challenge to the suppression denial lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We also reject defendant's argument that his sentence was excessive. Consistent with his plea agreement, the State dismissed various other charges against defendant, and dismissed the charges against the other occupants of the vehicle. Also, in conformity with the plea agreement, the court imposed the mandatory minimum sentence of five years for defendant's second-degree possession of a firearm. N.J.S.A. 2C:39-5; N.J.S.A. 2C:43(a)(2). Pursuant to the Graves Act, the court imposed a three-year period of parole ineligibility. N.J.S.A. 2C:43-6(c).
We discern no basis to conclude the prosecutor was arbitrary, capricious or unduly discriminatory in not seeking a waiver under N.J.S.A. 2C:43-6.2. See State v. Mastapeter, 290 N.J. Super. 56, 64-65 (App. Div.), certif. denied, 146 N.J. 569 (1996). Nor did the court abuse its discretion by not suggesting a waiver.
The court found that aggravating factor nine, the need to deter, N.J.S.A. 2C:44-1(a)(9), outweighed the absence of mitigating factors. Defense counsel asked the court to impose sentence consistent with the plea agreement. We are satisfied the judge's findings regarding aggravating and mitigating factors were based upon competent and credible evidence in the record. Defendant had a prior adjudication of delinquency of what would constitute robbery if committed by an adult. In February 2009, he was charged with committing aggravated assault. He ultimately entered a plea to third-degree aggravated assault with a deadly weapon. On the same day he was sentenced for the handgun possession offense, he was sentenced to a concurrent three-year term on the aggravated assault.
The court thus correctly applied the sentencing guidelines set forth in the Code of Criminal Justice, and imposed a sentence that was not "so clearly wide of the mark as to shock the court's conscience." State v. Ghertler, 114 N.J. 383, 393 (1989); see also State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 364-66 (1984).
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