STATE OF NEW JERSEY v. ELI VASQUEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0121-05T50121-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELI VASQUEZ,

Defendant-Appellant.

___________________________________

 

Submitted October 24, 2006 - Decided November 17, 2006

Before Judges Skillman and Lisa.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. 04-02-00106.

Robert J. De Groot, attorney for appellant.

Stuart Rabner, Attorney General, attorney for respondent (Joie Piderit, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

This is an appeal from the denial of a motion to suppress evidence obtained in searches of a car and an apartment. Following denial of this motion, defendant pled guilty to second degree possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and (b)(2), and possession of cocaine within 1,000 feet of a school with the intent to distribute, in violation of N.J.S.A. 2C:35-7. The trial court sentenced defendant to a nine-year term of imprisonment, with forty-eight months of parole ineligibility, for possession of cocaine with the intent to distribute, and a concurrent five-year term, with three years of parole ineligibility, for the school zone offense.

In June and July 2003, the Linden police received information from two confidential informants that defendant was using a red Jeep Cherokee, with a specifically identified license plate number, to sell drugs. Both informants had previously provided information to the police that had resulted in multiple arrests, and they were considered reliable. Before receiving this information from the confidential informants, the police were familiar with defendant from prior drug arrests.

On August 6, 2003, the Linden police observed the red Jeep parked outside a bar and decided to establish a surveillance. Shortly thereafter, defendant and codefendant Susana Soifer came out of the bar, got into the car and drove to an apartment complex in Perth Amboy, with the police following in unmarked cars and dressed in plain clothing. When they arrived at the apartment complex, Soifer got out of the car by herself, went inside the apartment complex for about five minutes, and then returned to the car.

Defendant began driving back towards Linden, with the police continuing their undercover surveillance. Defendant stopped the car at a corner in Rahway, an unidentified person stepped into the car for about two seconds, engaged in a quick hand-to-hand transaction with defendant, then got out of the car and walked into a nearby house. After this transaction, defendant made a U-turn and drove to a gasoline station, where another person walked up to the driver's side window of the car and engaged in a similar quick hand-to-hand transaction with defendant. Based on these observations and their experiences in drug investigations, the police concluded that defendant had made two sales of drugs.

Defendant next drove a short distance to a street in Linden, where the police observed another individual get into the car. At this point, Detective David Dehler and the other Linden police officers engaged in the surveillance positioned one of their cars in front of defendant's car and approached the driver's side with their flashlights pointing into the car. As the police officers approached, defendant reached towards the center console and Dehler then observed a plastic bag containing ziploc bags commonly used to package drugs in between the driver's seat and the console. The officers removed defendant, Soifer and the apparent prospective drug purchaser from the car, seized the plastic bag and arrested all three individuals. An analysis of the contents of the ziploc bags indicated that they contained cocaine.

Subsequent to the arrests, Detective Dehler asked Soifer who resided in the Perth Amboy apartment that the police had observed her enter earlier that day. In response:

She [Soifer] said that Eli [defendant] -- they kind of got the apartment in common. That they both stay there on occasion. She stays there. She stayed there, in between there and her house, her family's house.

In addition, a search of Soifer revealed a set of keys to the Perth Amboy apartment in her purse and passes to the apartment complex pool in both her name and defendant's name in her wallet. Dehler then asked Soifer whether she would consent to a search of the apartment. Soifer gave her consent, and a search of the apartment revealed additional cocaine.

At the hearing on the motion to suppress, Soifer's father testified for the defense that Soifer was living at his house in Edison on the evening of her arrest. However, he acknowledged that she sometimes stayed in other places. Neither defendant nor Soifer testified at the suppression hearing.

The trial court concluded in an oral opinion that the Linden police officers engaged in the surveillance had probable cause to believe that defendant and Soifer were engaged in the sale of drugs from the red Jeep. Therefore, the court upheld the stop and search of the car and the subsequent arrest of defendant and Soifer. The court also concluded that the police reasonably believed that Soifer had common authority with defendant over the apartment in Perth Amboy and therefore could give valid consent to a search of the apartment.

On appeal, defendant challenges the validity of the searches of both the red Jeep and the Perth Amboy apartment. We conclude that the search of the car was valid under the automobile exception to the warrant requirement and that the search of the apartment was valid because the police had a reasonable belief that Soifer had authority to consent to the search.

I

To justify a temporary stop of an automobile for investigative purposes, the police are only required to have reasonable and articulable suspicion that the occupants are engaged in criminal activity. State v. Birkenmeier, 185 N.J. 552, 561-62 (2006). When the Linden police officers used one of their unmarked cars to block the red Jeep and approached the Jeep pointing flashlights into the car, they clearly had at least such reasonable suspicion that the occupants were engaged in criminal activity based on the tips of two reliable confidential informants that defendant was using the Jeep to sell drugs and the police officers' observations of defendant engaging in two apparent drug transactions. Therefore, we are satisfied that the stop of the car was valid.

Before the police opened the car door, they observed defendant reach towards the area of the center console and then also observed a plastic bag containing ziploc bags commonly used to package drugs in between the driver's seat and the console. It was only after the police made these additional observations that they opened the car doors, removed defendant and Soifer and seized the plastic bags they had observed in the area of the console.

We conclude that the police entry into the Jeep and the seizure of the plastic bags subsequently found to contain cocaine was justified under the automobile exception to the warrant requirement. To uphold a search under this exception, the State must show probable cause and exigent circumstances. State v. Dunlap, 185 N.J. 543, 549 (2006); State v. Cooke, 163 N.J. 657, 671 (2000). Both of these requirements were satisfied in this case.

A finding of probable cause requires a determination that the totality of the circumstances demonstrate "a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Demeter, 124 N.J. 374, 380-81 (1991)(quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)). Probable cause must be predicated on more than "a mere hunch or bare suspicion", but does not require the same "legal evidence necessary to convict[.]" State v. Irelan, 375 N.J. Super. 100, 118 (App. Div. 2005). "It requires a well-grounded suspicion." Ibid.

Applying this test, the Court concluded in Cooke, supra, 163 N.J. at 662-63, 671, that information from a reliable confidential informant that the defendant was selling drugs from his car, which was corroborated by police observations of the defendant engaging in apparent drug transactions, provided the probable cause required to justify a search of the car.

The evidence that the police obtained before they opened the car door, seized the plastic bags in the area of the console, and arrested defendant and Soifer, was substantially the same as the evidence found to establish probable cause in Cooke. Although the information received from the confidential informants would not have established probable cause by itself, it was sufficiently corroborated, as in Cooke, by the police officers' observations of defendant's participation in two apparent drug transactions and of the plastic bags commonly used to package drugs in the console area of the car.

The police were also confronted with exigent circumstances that justified their entry into the car and their seizure of the plastic bags containing the drugs without a warrant. "Exigent circumstances may exist if the unanticipated circumstances that give rise to probable cause occur swiftly." Id. at 672. "[E]xigent 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." Ibid. (quoting State v. Alston, 88 N.J. 211, 234 (1981)). Where such exigent circumstances are presented, the police are not required to assign officers to guard the car while other officers seek a warrant if doing so would be "impractical" or "unduly burdensome." See id. at 674-75; see also Birkenmeier, supra, 185 N.J. at 562-63; compare Dunlap, supra, 185 N.J. at 549-51 with State v. Carroll, 386 N.J. Super. 143, 157-59 (App. Div. 2006).

Exigent circumstances were present in this case. The police did not have probable cause to believe there were drugs in the Red Jeep until the information they received from the confidential informants was corroborated by their observations of defendant engaging in a series of apparent drug sales from the car. Those observations justified the stop of the car, Birkenmeier, supra, 185 N.J. at 562, which revealed additional corroborative evidence in the form of Detective Dehler's observation of plastic bags commonly used to package drugs in the area of the car's center console. Thus, as in Birkenmeier, Cooke and Carroll, the police were confronted with an unanticipated and rapidly unfolding situation in which an undercover surveillance of a moving car provided evidence of a series of apparent drug transactions, following which the police stopped the car, made additional observations that provided further corroboration for their belief that the car contained drugs, and then arrested the car's occupants. Under these circumstances, the police were not required to obtain a warrant before seizing the plastic bags in plain view that they reasonably believed to contain drugs.

II

A warrantless search of property is permissible under the United States and New Jersey Constitutions when it is preceded by a valid consent to search. State v. Suazo, 133 N.J. 315, 319 (1993). Such consent may be obtained from a person "who possesses 'common authority over or other sufficient relationship' to the property sought to be inspected[.]" Id. at 320 (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 250 (1974)). Moreover, if a law-enforcement officer reasonably believes that a third party possesses common authority over the property at issue, a search executed pursuant to the third-party's consent is permissible even if the officer's belief is erroneous. Ibid. The reasonableness of the officer's belief is to be evaluated with reference to "the facts and circumstances known at the time of the search." Ibid.

We are satisfied that the evidence was sufficient to support the trial court's finding that the Linden police reasonably believed Soifer had common authority over the Linden apartment and therefore could consent to a search of the premises. Before the police arrested Soifer, they observed her enter the apartment complex by herself while defendant stayed in the car. Following Soifer's arrest, the police searched her and found a set of keys to the apartment in her purse and passes to the apartment complex pool in both her name and defendant's name in her wallet. Most significantly, when Detective Dehler asked Soifer who resided in the apartment, she told him that defendant and she "kind of got the apartment in common[,]" and that "they both stay there on occasion." Thus, although Soifer did not indicate the apartment was her regular residence, her response to Dehler's question suggested that it was not defendant's regular residence either and that they had a similar, joint interest in the apartment. Therefore, there was a reasonable basis for the police officers' belief that she had the required common authority with defendant to consent to a search.

Finally, we reject defendant's argument that the police lacked probable cause to arrest Soifer and consequently her later consent to search the apartment was the fruit of an unlawful arrest. Defendant's occupancy of the front passenger seat of the car next to the console area where packages apparently containing drugs were in plain view and her presence when defendant engaged in a series of apparent drug transactions established probable cause for the police to believe that she jointly possessed the drugs in the car and thus established the probable cause required to justify her arrest. See State v. Palacio, 111 N.J. 543, 549-54 (1988); State v. Zapata, 297 N.J. Super. 160, 177-78 (App. Div. 1997).

 
Affirmed.

 

(continued)

(continued)

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A-0121-05T5

November 17, 2006