STATE OF NEW JERSEY v. ANTHONY D. PETRUCCI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6228-04T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ANTHONY D. PETRUCCI,

Defendant-Respondent.

____________________________________

 

Argued May 22, 2006 - Decided June 13, 2006

Before Judges Fall and Newman.

On appeal from the Superior Court of New Jersey, Criminal Division, Burlington County, Indictment No. 2004-03-0320-I.

Steven A. Yomtov, Deputy Attorney General, argued the cause for appellant (Zulima V. Farber, Attorney General, attorney; Mr. Yomtov, of counsel and on the brief).

Mark W. Catanzaro argued the cause for respondent.

PER CURIAM

On leave granted, the State appeals from an order granting defendant Anthony D. Petrucci's (defendant) application to suppress methamphetamine, ammunition, and a handgun seized by the police from a vehicle defendant was driving on December 24, 2003, at approximately 2:04 a.m., in Florence Township. Defendant was charged in Burlington County Indictment Number 04-03-0320-I with second-degree unlawful possession of a handgun while in the course of committing or attempting to commit a narcotics offense, N.J.S.A. 2C:39-4.1a (count one); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count two); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d (count three); second-degree possession of methamphetamine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(9)(a) (count four); third-degree possession of methamphetamine, N.J.S.A. 2C:35-10a(1) (count five); and fourth-degree obstructing the administration of law, to suppress N.J.S.A. 2C:29-1a (count six). The granting of defendant's motion impacted counts one, two, four and five, but counts three and six were not impacted. Except to remand for further proceedings as to counts three and six, we affirm.

The testimony developed at the suppression hearing may be summarized as follows. Florence Township Police Officer Brian Boldizar testified that while on patrol along Route 130 he observed a white van traveling southbound at 63 miles per hour in a 50 mile-per-hour zone. Officer Boldizar saw the van take the off ramp onto Cedar Lane, make a left turn onto Cedar Lane, fail to signal a turn several times, make a left turn onto Route 130 northbound, and then make a right turn into the parking lot of a WaWa store. Based on the excessive speed and failure to signal, Officer Boldizar effected a stop of the vehicle in the WaWa parking lot.

The driver of the vehicle was identified as defendant, who was alone in the van. Upon request, defendant provided Officer Boldizar with a valid registration and insurance card, a Mercer County Identification Card, but he was unable to produce a driver's license. When asked, defendant stated he did not have a driver's license because he failed to obtain one upon his release from prison about two years earlier. Defendant explained he had been in prison based on a conviction of aggravated assault.

Patrolman Timothy Sadar arrived at the scene as the back-up officer, and moved to the passenger side of the vehicle. At some point during defendant's questioning, Officer Sadar directed the attention of Officer Boldizar to a sheathed knife that was located in plain view on the passenger seat. Upon instruction, defendant unlocked the passenger door, and Officer Sadar opened the door and secured the knife.

Having detected an odor of alcohol on defendant's breath, Officer Boldizar then ordered defendant to exit the vehicle for the purpose of performing sobriety tests, and defendant complied. Defendant successfully completed the field sobriety tests administered, and he was permitted to reenter his vehicle. Meanwhile, Officer Sadar ran checks to see whether defendant had a valid license and whether there were any outstanding warrants.

Officer Sadar discovered that defendant's license had been suspended and there were several outstanding municipal warrants for his arrest. Officer Boldizar again requested that defendant exit the vehicle and to leave the door unlocked; however, upon exiting the vehicle defendant locked the door despite the officer's admonition not to do so. According to Officer Boldizar, defendant said he had no right to go into the van. Defendant was patted down and a ring of keys was taken from him. Defendant was arrested on the warrants, was handcuffed behind his back, placed in the rear seat of the patrol vehicle, and issued motor vehicle summonses. None of the keys on the ring fitted the door lock to the van. Despite trying them, the police could not gain entry to the van. The police then did a more thorough search of defendant's person and found some keys and a live .9 millimeter round of ammunition in his front right pocket. Meanwhile, two other police officers arrived at the scene in separate vehicles, bringing the total to four police officers. There were some on-lookers in the parking lot who were told to stand back.

Officer Boldizar stated the discovery of the live round of ammunition led him to conclude that there was possibly a firearm inside the vehicle. At his direction, Officer Sadar used keys just obtained from defendant to open defendant's vehicle and conduct a search. The officers' search located a handgun under the driver's seat, and CDS material that was later analyzed as methamphetamine.

At that point, the officers contacted the prosecutor's office, and one of the assistant prosecutors advised them to obtain a search warrant for the rear compartment of the vehicle prior to proceeding. Leaving Officer Sadar behind to safeguard the vehicle, a search warrant application was made by Officer Boldizar for the rear cargo area of the van. In addition to describing the motor vehicle stop, the Officer described in detail the items seized from the driver compartment of the van. The vehicle was impounded for further investigation and a search warrant was subsequently obtained. Nothing was found in the rear cargo area of the van.

Upon considering the testimony of Officers Boldizar and Sadar, Judge Almeida found that "Officer Boldizar had a reasonable and articulable suspicion that the motor vehicle offense had been committed and the stop was appropriate." The judge also concluded that "the knife was lawfully seized pursuant to the doctrine of plain view." Addressing the search of the vehicle, the judge stated, in pertinent part:

The search of the defendant's vehicle, however, was not lawful. And that evidence, the evidence that was seized, should be suppressed. A warrantless search is presumed invalid unless it falls under one of the recognized exceptions to the warrant requirement. Two exceptions to the necessity of a warrant are, number one, where the officers have probable cause and exigent circumstances exist. Otherwise typically traditionally known as the automobile exception.

Or, two, a search conducted incident to a lawful arrest. I'll also address the inevitable discovery doctrine.

The search incident to arrest exception to a warrantless search is not met here. The case that this court has relied upon is . . . State v. Eckel, 374 N.J. Super. 91 [App. Div. 2004), remanded, 185 N.J. 523 (2006)]. . . .

* * * *

Therefore, because this defendant was secured in law enforcement custody at the time the vehicle was out of his, quote "grabbable area[,]" . . . the subsequent search was unlawful and would have no legal justification.

* * * *

There is no evidence whatsoever in this case that this defendant possessed the weapon other than the single 9-millimeter round in his pocket.

Although that is suspect, the scant possibility of the presence of a handgun here does not rise to the level of exigency that would justify law enforcement intrusion into a full-scale, full-blown search of the vehicle. . . .

I do find insufficient grounds to establish that a lawful search was conducted pursuant to the automobile exception because of the lack of exigency and the lack of probable cause based on the existence of a single bullet.

I also considered State v. Todd, 355 N.J. Super. 132, 142 (App. Div. 2002), which discussed the inevitable discovery exception to the warrant requirement. . . .

* * * *

This doctrine in this case is not applicable because the last two [requisite] elements cannot be established. There was no testimony about standard investigatory steps and it does not appear to this court that the discovery of these items would have occurred wholly independent of the discovery [of] evidence by what I found to be unlawful means.

For that reason the items other than the knife should be suppressed. Counts three and six do survive . . . .

On appeal, the State presents the following arguments for our consideration:

POINT I

BASED ON THE TOTALITY OF THE CIRCUMSTANCES, THE POLICE CONDUCT IN THIS CASE WAS ENTIRELY REASONABLE, AND THE SEARCH OF THE VAN WAS LAWFUL UNDER VARIOUS EXCEPTIONS TO THE WARRANT REQUIREMENT.

A. The search of the vehicle was valid as a protective search of the passenger compartment for weapons, as a search incident to arrest of the passenger compartment, and under the automobile exception.

B. The rulings of the court below regarding the recovery of a single bullet is contrary to law, policy, and reason.

C. The exclusionary rule should not be applied to the facts and circumstances of this case.

We reject the State's contentions and affirm substantially for the reasons expressed by Judge Almeida in his oral decision of June 3, 2005. We add, however, the following comments.

Since Judge Almeida's decision, the Supreme Court decided State v. Eckel, 185 N.J. 523, 542 (2006) and held that the police may not conduct a warrantless search of an automobile incident to an arrest after the occupants have been removed from the vehicle and secured in police custody. At argument, the State conceded the applicability of State v. Eckel.

The court in State v. Cooke, 163 N.J. 657, 675-76 (2000), in addition to a finding of probable cause, required that exigent circumstances be present to invoke the automobile exception to the warrant requirement. Exigent circumstances must be analyzed on a case by case basis, with emphasis on the impracticability of obtaining a warrant when the police have probable cause to search a motor vehicle. Id. at 676.

The facts here bear a strong resemblance to State v. Dunlap, 185 N.J. 543, 550 (2006), where ten police officers were present and the vehicle could have been safeguarded while a warrant was sought or a telephonic warrant was secured. As the Court in Dunlap noted, the calculus could change where a roadside stop is effectuated by only one or two officers. Id. at 551. While there were less than ten officers present here, there was still one officer who was available to safeguard the vehicle while a search warrant was sought. Indeed, that is exactly what transpired when Officer Sadar remained with the vehicle. There was no reason why that same procedure could not have been followed here before the driver's compartment of the vehicle was entered without a warrant. The circumstances did not make it impracticable to obtain a warrant.

Furthermore, the police lacked sufficient probable cause to enter the van, which they decided to do before they found the .9 millimeter bullet the second time defendant was searched. Except for the sheathed knife that was in plain view, defendant was cited for motor vehicle violations and had passed a field sobriety test. The State asserts that other suspicious circumstances were present, such as defendant disobeying the officer by locking the van and the presence of a group of on lookers that may have included acquaintances of defendant. We do not view these circumstances in the aggregate to constitute sufficient probable cause to enter the van, even if exigent circumstances were present, which they were not. We note that the items seized from the driver's compartment provided the requisite probable cause to secure a search warrant for the rear cargo area of the van. Indeed, a search warrant may not have been sought for the van's driver's compartment because probable cause to conduct a search was lacking until the items were seized from the driver's compartment.

The order granting suppression is affirmed. The matter is remanded for further proceedings as to counts three and six of Burlington County Indictment No. 04-03-0320-I.

 

(continued)

(continued)

10

A-6228-04T2

June 13, 2006