STATE OF NEW JERSEY v. JOSEPH FLAGG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4797-04T54797-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH FLAGG,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 6, 2006 - Decided April 28, 2006

Before Judges Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-06-0837.

Jack Venturi, attorneys for appellant (Jef Henninger, on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Joseph Flagg, appeals the Law Division's May 12, 2005 order denying his motion to suppress evidence. We reverse.

On June 19, 2003, the Middlesex County Grand Jury returned Indictment No. 03-06-0837 charging defendant with two counts of third-degree possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10a(1) (Counts One and Two); fourth-degree hindering apprehension or prosecution, contrary to N.J.S.A. 2C:29-3b(4) (Count Three); and third-degree possession of a controlled dangerous substance with the intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Four).

On January 31, 2005, defendant entered a conditional plea of guilty to Counts One and Two of the indictment. On April 25, 2005, defendant was sentenced to concurrent five year terms of probation. Mandatory penalties were also imposed. At sentencing the court granted the State's motion to dismiss Counts Three and Four of the indictment.

On December 17, 2004, the court conducted a plenary hearing on defendant's motion to suppress the cocaine and Oxycontin seized at the time of his arrest on April 15, 2003. The motion judge denied defendant's motion to suppress evidence in an oral opinion, which was memorialized by the May 12, 2005 order from which defendant appeals.

At the suppression hearing, the State produced only one witness, Patrolman Dennis McQuade (McQuade) of the South Amboy Police Department. McQuade testified that while on routine patrol on April 15, 2003, he saw defendant parked on Stevens Avenue, sitting in the driver's seat of a black Ford Escort. McQuade stated that he had been told on April 4, 2003 by South Amboy Patrolman Kudelka (Kudelka), based on information conveyed to him by a confidential informant, that defendant and another unidentified individual, who was the driver of a black Ford Escort, were moving narcotics. The reliability of Kudelka's informant was unknown to McQuade. The same information was also conveyed to McQuade by two Sayreville detectives, the source of their information also being unknown to McQuade.

McQuade set up surveillance of defendant about sixty yards from defendant's location and observed him for about fifteen to twenty minutes. During that time frame, he saw defendant exit the parked car, walk up to the residence at 217 South Stevens Avenue, come down from the residence with what appeared to be two "little kids bags" and place them in the car. McQuade then observed defendant spray paint a pair of boots on top of the car and then place them in the car. Defendant then observed defendant walk back up to the house, "grab[] one child" while defendant's "girlfriend grabbed the other child and they got into the car." McQuade radioed Kudelka to ride by the location in order to identify defendant to McQuade. After Kudelka rode by the parked vehicle, he called McQuade on his cell phone confirming defendant's identity and informed McQuade that defendant had a suspended driver's license and an outstanding warrant. As defendant drove off, McQuade immediately followed defendant and within 500 feet made a motor vehicle stop.

During McQuade's surveillance of defendant and prior to the motor vehicle stop, defendant did not participate in any activity that would appear to be a narcotics transaction or that would constitute criminal, suspicious or furtive behavior. Despite the information conveyed to McQuade eleven days earlier by Kudelka and the Sayreville detectives, McQuade took no steps to obtain a warrant to search the black Ford Escort. Prior to stopping defendant's vehicle, McQuade never verified the veracity of the information conveyed to him by Kudelka regarding defendant's suspended driver's license and that there was an outstanding fugitive warrant for defendant's arrest.

After defendant was stopped, he showed McQuade a vehicle registration and insurance card but said he did not have a license on him. He first identified himself as Russell Flagg but when Kudelka, who backed-up McQuade on the stop, told defendant to "stop lying," defendant apologized and told McQuade that his name was Joseph Flagg. It was, thereafter, that McQuade had the police dispatcher run a "NCIC" (National Crime Information Center) computer check on defendant's driver's license and for the existence of any outstanding arrest warrants.

The officers informed defendant that he had a suspended license and an outstanding warrant and asked defendant to step outside the car. While defendant was standing at the back of the car, they informed defendant's girlfriend, Josephine Kay (Kay) that they were going to arrest defendant. The officers told Kay that she and the children could walk the 500 feet back to their residence so that the children would not have to see their father being arrested.

After Kay left the area and about ten to fifteen minutes after defendant exited the vehicle, Kudelka conducted a
"courtesy search" of the vehicle. Kudelka told McQuade that he saw something that looked like rock cocaine on the "front seat area between the driver's seat and the passenger's seat." McQuade testified that Kudelka stated that he "believe[d] that there was a small piece of rock cocaine in between the seats on the top of two Q-tips" and that he was going to call the Sayreville police to bring a narcotics dog to the scene to help in the search of the vehicle. The alleged rock cocaine was not produced at the suppression hearing nor was there testimony that rock cocaine from the front seat was ever seized and chemically tested. Defendant was not charged with possession of rock cocaine seized from the front seat.

Since Kudelka allegedly saw rock cocaine in plain view, the Sayreville police brought their narcotics dog to the scene. Because of the vehicle's location on the side of a heavily traveled county road, the officers decided not to search the car in that location and had the car towed to Al's Towing. There the narcotics dog led the officers to a purple bookbag in the back of the vehicle's hatch back where seven grams of cocaine and twelve Oxycontin were found.

On cross-examination, McQuade testified that he initiated the vehicle stop because Kudelka verified defendant was sitting in the vehicle and told him that defendant "was driving while suspended and had an outstanding warrant." McQuade did not know who the Ford Escort was registered to before stopping the vehicle. McQuade admitted that he did not independently corroborate Kudelka's information, any of the information from the informant, or the information that the Sayreville detectives had told him. Kudelka did not testify.

Defendant contends that the motor vehicle stop by McQuade was illegal and that the subsequent search of the vehicle was unconstitutional because the information possessed by McQuade was insufficient to constitute an articulable and reasonable suspicion for stopping the vehicle being driven by defendant. We agree.

In State v. Spencer, 221 N.J. Super. 265 (App. Div. 1987), we invalidated a factually similar motor vehicle stop. In Spencer, the defendant was driving a 1970 Chevrolet Nova after midnight when he was stopped by a police officer because of a report within the police department that the driver may have a suspended driver's license. Id. at 266-67. The officer "had been told the vehicle plate number, that the car was a brown or green Chevrolet Nova and that 'the operator may be Mr. Spencer.'" Id. at 267. "When stopped, [the] defendant was unable to produce the car registration, a driver's license or any other identification. In response to a radioed request for a license check, [the officer] was told that [the] defendant's license was suspended." Ibid. As a result of a pat down search, a hypodermic needle and syringe were found in the defendant's sock. Ibid. After the defendant was arrested, his car was impounded and a machine gun and clip were found during an inventory search. Ibid.

In Spencer, we cited Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), which "holds that stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment 'except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of the law . . . .'" Spencer, supra, 221 N.J. Super. at 267-68 (quoting Prouse, supra, 440 U.S. at 663, 99 S. Ct. at 1401, 59 L. Ed. 2d at 674). We pointed out that without such limitations, the police would have unrestrained discretion to stop any car on a "mere hunch or rumor[.]" Id. at 268.

We concluded that the record in Spencer "disclose[d] nothing about the source, nature, details or reliability of the information 'exchanged' within the . . . police department." Ibid. We determined that although the police need not "independently verify or trace to its original source the information upon which an automobile stop is premised[,] . . . the State must show an articulable and reasonable suspicion for an automobile stop[,]" which we determined was not demonstrated. Id. at 269.

We are convinced that, as in Spencer, McQuade provided no articulable reasonable suspicion to stop the vehicle being driven by defendant. The stop of defendant's vehicle was based only upon unverified, generalized information conveyed by two Sayreville police detectives and Kudelka's informant, whose reliability was unknown to McQuade. Defendant's driver's license and arrest warrant status were verified by McQuade only after McQuade completed the motor vehicle stop.

Had McQuade verified the existence of an active arrest warrant for defendant during the fifteen to twenty minute surveillance, defendant could have been arrested by McQuade when he exited his home and before even getting into the vehicle. We pointed out in Spencer that

[t]he mere fact that [the arresting officer] acted on a report circulated within his department does not mean that he had an articulable and reasonable suspicion. If the information in the hands of the police was mere hunch or rumor or was otherwise insufficient to support an articulable and reasonable suspicion, that information would not justify a stop even though [the officer] relied on it in good faith to stop the car. The reliability of the information is not enhanced simply because it is communicated through police channels.

[Id. at 268.]

We are convinced that McQuade lacked an articulable reasonable suspicion necessary to support the stop of defendant's vehicle. Therefore, the contraband seized as a result of the search that followed the stop should have been suppressed, because it constitutes "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963).

Although we are convinced that the trial court should have suppressed the evidence obtained based on the unconstitutional stop of defendant's vehicle, we are likewise convinced, based on our Supreme Court's recent decisions in State v. Eckel, 185 N.J. 523 (2006) and State v. Dunlap, 185 N.J. 543 (2006), that the search of the vehicle was unconstitutional under Article I, Paragraph 7 of the New Jersey Constitution. In Eckel, the Court departed from the United States Supreme Court's decision interpreting the Federal Constitution in New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), which permits the police to conduct a warrantless search of an automobile incident to an arrest even after the occupants have been removed from the vehicle and secured in police custody. Eckel, supra, 185 N.J. at 524. The Court held that "[b]ecause the search incident to arrest exception to the warrant requirement was limited for two specific purposes - the protection of the police and the preservation of evidence - and because neither purpose can be advanced by searching the vehicle of a person who effectively is incapacitated, we hold that such a search is incompatible with Article I, Paragraph 7 of the New Jersey Constitution." Ibid. The Court determined that "[o]nce the occupant of a vehicle has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception is inapplicable." Id. at 541.

Defendant had already been arrested and secured by the time his vehicle was searched at Al's Towing, resulting in the seizure of the cocaine and Oxycontin. He had no ability to reach the interior of the car to destroy evidence or to endanger the police. Indeed, he was not present at Al's Towing when the exhaustive search of the vehicle and its contents was conducted. Thus, the search incident to arrest exception does not justify the search in this case.

Likewise, the automobile exception does not apply and the search cannot be sustained based on that exception. In Dunlap, the Court made clear "that the automobile exception depends on the satisfaction of two requirements: the existence of probable cause and exigent circumstances, and that the determination regarding those elements must be made on a case-by-case basis." Dunlap, supra, 185 N.J. at 549 (citing State v. Cooke, 163 N.J. 657, 671 (2000)). The Court, quoting from this court's unpublished opinion in Dunlap, stated that "[p]robable cause does not require certainty; it is sufficient if the police have a well-grounded suspicion that evidence of a crime will be found in the car." Id. at 549 (internal quotations omitted).

The Court, referring to the factual scenario in Cooke, indicated that for exigency to have existed in Cooke the officer would have to have "'observed or reasonably believed that third parties were capable of destroying or removing the evidence contained in the car.'" Id. at 550 (quoting Cooke supra, 163 N.J. at 676). Applying the Cooke standards of probable cause and exigency, the Court, in Dunlap, determined that the defendant, who had been tackled on the lawn of his girlfriend's house and secured, was in no position to call a third person to come and destroy or remove evidence of illegal drug activity secured in his car, which was parked in front of his girlfriend's residence. Id. at 550-51. The Court, again quoting from this court's unpublished opinion in Dunlap, concluded, "It must be emphasized that we do not bar the police from searching a vehicle where probable cause exists but there is no exigency; we only require that they obtain a warrant." Id. at 550 (internal quotation omitted). The Court further stated, "we underscore the availability of the telephonic warrant and the option of vehicle impoundment as among the alternatives available to the . . . officers on the scene." Id. at 551.

As McQuade knew virtually nothing about the informant or the source of the information from the two unnamed Sayreville detectives, there was an absence of probable cause to believe that drugs or evidence of any other crime would be found in defendant's vehicle at the time of the stop. Kudelka did not testify and McQuade testified that he never saw the suspected "rock cocaine" in plain view. Further, no "rock cocaine" was ever found or recovered from the vehicle. With the only witness to the alleged rock cocaine absent from the hearing, defendant was in no position to cross-examine the missing witness as to the allegation that there was rock cocaine in the car and that it was in plain view. It was the State's burden to show that the warrantless search was valid. However, the prosecutor provided no substantive evidence to support this allegation.

The automobile exception also fails because there were no exigent circumstances present. McQuade testified that an unidentified informant told Kudelka that defendant was using the black Ford Escort to transport and sell narcotics. The officers had two weeks to secure a search warrant for defendant's vehicle yet they failed to do so. There is no reason offered as to why a telephone request for a search warrant would not have been available at the time of defendant's arrest. Further, there was no evidence presented as to why it would be unduly burdensome and unreasonably restrictive to have an officer posted to guard the vehicle while a warrant was sought. There were several officers available to watch the car, including McQuade, Kudelka and officers from the Sayreville police force who brought the narcotics dog to the scene of the stop.

Additionally, there is no evidence that defendant or a third party could have destroyed evidence while a warrant was sought. The vehicle was towed to Al's Towing, an impound lot, while defendant was arrested and processed at police headquarters. The State argues that defendant's uncle, John Verchick, the owner of the car who testified at the suppression hearing that he came to the scene as a result of a telephone call from Kay, could have removed evidence from the vehicle. However, Verchick testified that he was not even permitted near the vehicle while it was being searched. Clearly, the impound lot was a safe place, where no one would be able to access the vehicle while a search warrant was being procured. We are convinced, therefore, that no exigent circumstances existed.

Because the vehicle was stopped without an articulable and reasonable suspicion to support the stop, and because the constitutional requirements necessary to justify a search incident to arrest or the automobile exception were lacking in this case, the court erred in denying defendant's motion to suppress the cocaine and Oxycontin. Accordingly, the May 12, 2005 order is reversed and the matter is remanded to the trial court to vacate defendant's conviction and sentence.

Reversed and remanded.

 

At the January 31, 2005, plea hearing defendant also entered a plea of guilty to an unrelated April 30, 2004 disorderly person's offense of simple assault for which he was also given a term of probation. That plea and sentence are not a subject of this appeal.

(continued)

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A-4797-04T5

April 28, 2006