July 2, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ROBERT WALKER, JR., a/k/a JAMES WALKER, ROBERT JAMES WALKER, ROBERT JAMES WALKER, JR., Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-03-0434.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fisher and St. John.
Following denial of defendant Robert Walker's motion to suppress evidence, he entered a guilty plea to second-degree eluding, N.J.S.A. 2C:29-2(b), and third-degree witness tampering, N.J.S.A. 2C:28-5(a)(1). He was sentenced to an eight-year term subject to four-years parole ineligibility on the eluding conviction, and a five-year term subject to two-years parole ineligibility on the witness tampering conviction, to run concurrently. Defendant appeals from the denial of his motion to suppress and the sentence imposed by the November 7, 2011 judgment of conviction. We affirm.
We briefly summarize the relevant procedural history and the facts based on the record before us. Evidentiary hearings were held on May 18, 2010 and July 15, 2010. Officers Monaghan, Epstein, Ward, and Livingston testified at the hearings.
On July 12, 2009, Officers Monaghan and Epstein of the New Brunswick Police Department were on patrol in a marked car at approximately 11:30 p.m., when they observed a speeding green Ford Expedition run over the sidewalk and enter a parking lot. The officers followed the car into the parking lot, activating their lights and siren in an attempt to stop the car. The car did not come to a stop, instead it circled the parking lot three times. The officers ran the license plate and determined that it belonged to Route One Auto Rental in North Brunswick. The officers could not tell from this inquiry who the lessee or renter was. Using a spotlight, the officers were able to see that the driver of the car was a black male with dreadlocks. The car then sped away towards Franklin Township and after engaging in a high-speed chase, the officers lost sight of it and terminated their pursuit. Additional police units responded to the search for the car.
Officer Livingston of the Franklin Police Department located the car unoccupied and parked along the curb in Franklin Township. He opened the passenger side door just to check the interior of the vehicle to see if it was occupied. Officer Ward of the New Brunswick Police Department arrived shortly thereafter and testified that "the door was open unlocked and ajar. And the hood was actually still warm because I remember checking the hood." Approximately three to five minutes after losing sight of the car, Officers Monaghan and Epstein arrived at the location of the parked car.
Officer Monaghan testified that when he approached the vehicle, "[t]he driver's side door was open. We went to see who the vehicle was registered to. Try to find out information from the glove box, — console to see if there was a registration card, see who the vehicle belonged to." Officer Monaghan found a court notice on the passenger's seat belonging to Naticka Brown. In a cup holder in the center console, Officer Epstein found a wallet containing a New Jersey identification card belonging to defendant. The search of the car was limited to the center console, the glove box, the cup holder area, and the visors.
Defendant filed a motion to suppress evidence on March 23, 2010. Judge Stolte denied defendant's motion to suppress in an oral decision on August 26, 2010. On November 8, 2010, defendant filed a motion for reconsideration which was denied by Judge Ferencz.
On appeal, defendant raises the following issues for our consideration:
THE WARRANTLESS SEARCH OF THE SUV ALLEGEDLY DRIVEN BY DEFENDANT, CULMINATING IN THE SEARCH OF A CLOSED WALLET, WAS UNJUSTIFIED, AND THE MOTION COURT ERRED IN DENYING SUPPRESSION OF THE IDENTIFICATION CARD FOUND IN IT. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. 1, PAR. 7.
A. The Warrantless Search of the SUV Is Not Justified By the "Automobile Exception."
B. The Search Far Exceeded the Scope of a Valid Search for Credentials.
THE SENTENCE IMPOSED WAS EXCESSIVE, BECAUSE THE MAXIMUM PAROLE DISQUALIFIER IMPOSED IS INCOMPATIBLE WITH THE ESSENTIALLY MID-RANGE BASE TERM.
The standard of review for a motion to suppress is whether the court's findings are "supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007). Deference is given to credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (citing State v. Johnson, 42 N.J. 146, 162 (1964)).
"A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000). The warrant requirement "is not lightly to be dispensed with, and the burden is on the State, as the party seeking to validate a warrantless search, to bring it within one of those recognized exceptions." State v. Alston, 88 N.J. 211, 230 (1981).
One of the well-established exceptions to the warrant requirement is the automobile exception. That exception "is grounded in the exigent circumstances created by the inherent mobility of vehicles and the somewhat lessened expectation of privacy in one's vehicle." State v. Patino, 83 N.J. 1, 9 (1980). "[T]he warrantless search of an automobile in New Jersey is permissible where (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." State v. Pena-Flores, 198 N.J. 6, 28 (2009).
"Probable cause is the minimal requirement for a reasonable search permitted by the constitution." State v. Waltz, 61 N.J. 83, 87 (1972). "[P]robable cause is more than bare suspicion but less than legal evidence necessary to convict." Patino, supra, 83 N.J. at 10. It is a "well-grounded suspicion that a crime has been or is being committed." Cooke, supra, 163 N.J. at 671.
"[T]he exigent circumstances that justify the invocation of the automobile exception are the unforeseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile stopped on the highway." Alston, supra, 88 N.J. at 233 (citation omitted). Exigent circumstances do not "dissipate simply because the particular occupants of the vehicle may have been removed from the car, arrested, or otherwise restricted in their freedom of movement." Id . at 234. Until the vehicle is removed from the scene, "it is potentially accessible to third persons who might move or damage it or remove or destroy evidence contained in it." Ibid. The courts evaluate exigency on a case-by-case basis by considering the totality of the circumstances and how the facts bear on the issues of officer safety and evidence preservation. Pena-Flores, supra, 198 N.J. at 28-29. Considerations relating to exigent circumstances include:
[T]he 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.]
Another accepted warrantless search exception is a credential search. The proper scope of a police search for automobile credentials after a traffic stop is found in State v. Jones, 195 N.J.Super. 119, 122-23 (App. Div. 1984):
[W]here there has been a traffic violation and the operator of the motor vehicle is unable to produce proof of registration, a police officer may search the car for evidence of ownership. However, . . . a search for evidence of ownership must be "confined to the glove compartment or other area where a registration might normally be kept in a vehicle. . . ."
[quoting State v. Patino, 83 N.J. 1, 12 (1980) (quoting State v. Barrett, 170 N.J.Super. 211, 215 (Law. Div. 1979)).]
Governed by this standard, we are satisfied that the facts as found by the motion judge are well supported in the record and these facts establish both probable cause and exigency to justify the search of defendant's vehicle under the automobile exception to the warrant requirement.
The motion judge determined that after the car began to elude apprehension and officers engaged in a high-speed chase, the officers had probable cause that the vehicle contained or was itself evidence of a crime. Furthermore, the motion judge concluded that there were sufficient exigent circumstances to make getting a warrant impractical under the circumstances. She found: it was 11:39 p.m. and dark; that while there were clearly a number of officers at the scene, there was a real danger because the officers did not know where the individual or individuals were, and they could have been very close by and come back at any time; the officers did not know whether passersby would tamper with the car or whether it was safe to leave the car unguarded; the officers were at the car within three to five minutes of first losing sight of it, and the hood was still hot; the car eluded officers resulting in a high-speed chase, which could have prompted the officers to believe the car was stolen or contained contraband; and the delay in obtaining a warrant could have placed the officers or the evidence at risk.
Additionally, the officers were entitled, separate and apart from the automobile exception, to look into the areas in the vehicle in which evidence of ownership might be expected to be found. Pena-Flores, supra, 198 N.J. at 31. The officers in this case limited the scope of their search to the areas where information regarding the driver of the car might normally be, thus the warrantless search was also proper as an automobile credential search.
We turn to defendant's contention that the sentence imposed was excessive because his parole disqualifier is incompatible with a mid-range base term. Defendant essentially asserts that because his eight-year term of imprisonment is one year greater than the former presumptive second-degree term, the four-year parole disqualifier representing the maximum period of ineligibility is excessive. We note that our sentencing procedures no longer contain presumptive terms. State v. Natale, 184 N.J. 458, 484 (2005).
Moreover, N.J.S.A. 2C:4 3-6(b) provides:
As part of a sentence for any crime, where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors, . . . the court may fix a minimum term not to exceed one-half of the term set [by N.J.S.A. 2C:43-6(a)(2)], or one-half of the term set pursuant to a maximum period of incarceration for a crime set forth in any statute other than this code, during which the defendant shall not be eligible for parole.
Sentencing guidelines for a second-degree crime in New Jersey are between five and ten years imprisonment, N.J.S.A. 2C:4 3-6(a)(2). The sentencing judge found aggravating factors N.J.S.A. 2C:44-1(a)(3), (6), and (9), no mitigating factors, N.J.S.A. 2C:44-l(b), and sentenced defendant on his second-degree eluding conviction to eight years imprisonment. Defendant's four year parole disqualifier is not excessive based on the aggravating factors and his base term. Additionally, we "ordinarily defer to the presumed reasonableness of a bargained sentence, " including parole ineligibility, and should "not hold it to be excessive except in compelling circumstances." State V. Spinks, 66 N.J. 568, 573 (1975).
Accordingly, we find no basis to disturb the sentence imposed or the motion court's denial of defendant's motion to suppress.