STATE OF NEW JERSEY v. JUAN PENA-FLORES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5961-05T55961-05T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JUAN PENA-FLORES a/k/a JUAN C. PENAFLORES

a/k/a JUAN C. FLORES and

FAUSTO PARADES a/k/a FAUSTO PAREDES,

Defendants-Respondents.

________________________________________________________________

 

Argued February 7, 2007 - Decided February 28, 2007

Before Judges Wefing and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. 05-12-1387.

Sara B. Liebman, Assistant Prosecutor, argued the cause for appellant (Theodore J. Romankov, Union County Prosecutor, attorney; Ms. Liebman, on the brief).

Antonio R. Espinosa argued the cause for respondent Juan Pena-Flores (Andril & Espinosa, attorneys; Mr. Espinosa, on the brief).

Thomas J. Butler argued the cause for respondent Fausto Paredes (Butler Conti, attorneys; Mr. Butler, on the letter relying on the brief filed on behalf of respondent Juan Pena-Flores).

PER CURIAM

By leave granted, the State of New Jersey appeals from the motion judge's order suppressing evidence seized during the warrantless search of a vehicle occupied by defendants Juan Pena-Flores and Fausto Paredes. After careful consideration of the record and applicable legal standards, we affirm.

At the motion hearing, the State called Cranford Police Officer Donald Zsak as its only witness. He testified that on October 5, 2005, at about 10:58 p.m., he was on duty in his police car parked near the intersection of Raritan Road and Centennial Avenue in Cranford. He observed a Ford Expedition stopped at the intersection's traffic light in a left-turn only lane. As the traffic light changed, the Ford turned right, cutting off other traffic in that lane of travel and nearly causing a collision. Zsak stopped the Ford about one-half mile away on Stiles Street, near its intersection with Willick Avenue, in Linden.

The driver of the Ford, Paredes, rolled down the window and Zsak asked for his credentials. At the same time, Zsak smelled a strong odor of raw marijuana emanating from inside the vehicle. He ordered Paredes out of the Ford and conducted a pat-down frisk which revealed no weapons or contraband. By now, a second officer, Police Officer Ryan Grecko, arrived on the scene. Zsak turned custody of Paredes over to Grecko and proceeded to the passenger door of the Ford. He ordered the passenger, Pena-Flores, out of the car, conducted a pat-down frisk of him which also revealed no weapons or contraband. He turned custody of Pena-Flores over to Grecko.

Zsak returned to the Ford and "conducted a search of the motor vehicle." He started on the passenger's side and found two clear plastic bags of suspected marijuana on the floor. Although acknowledging defendants were not free to leave from the moment they were removed from the Ford, Zsak testified that upon finding these two bags of marijuana, he formally placed defendants under arrest.

He continued his search and found a nine millimeter handgun in a child safety seat in the back of the vehicle. In a "compartment" under the steering wheel, he found twenty-two bags of suspected marijuana. In a "pop-out compartment" near the front passenger door, Zsak found fifteen bags of suspected marijuana. And, in a backpack on the rear seat, he retrieved 112 bags of suspected marijuana along with numerous small clear plastic bags used to package the drug, and a bag with suspected cocaine residue.

Zsak described Stiles Street as a "heavily-traveled street." He also testified that at the time, there were five individual police officers in marked units in all of Cranford. He testified that departmental policy was to transport each arrestee in separate police vehicles. Zsak thought it was not "feasible" to leave an officer with the Ford while a search warrant was secured given "the time of night and the amount of people that were working in the Cranford Police Department." At the conclusion of Zsak's testimony, the parties stipulated that the Ford was ultimately towed from the scene at the behest of the Cranford Police.

In an oral opinion rendered at the completion of the testimony, the motion judge determined that "the crucial issue" in the case was whether Zsak could "keep going on" and search the car after finding the first two bags of marijuana on the passenger side floor. He concluded that "the landscape has changed pursuant to [State v.] Dunlap and [State v.] Eckel" and "further searching of the vehicle is now prohibited by those cases." Seeking clarification of the court's ruling, the Assistant Prosecutor queried, "Are you finding that there was not sufficient exigency[?]" The judge responded, "I don't think there's any exigency here at all . . . [T]he officer is on the road. There's a second car on the road. There are three other cars. . . . Exigency has not been proven to my satisfaction in this case." The judge suppressed all the evidence seized with the exception of the first two small bags of marijuana Zsak found on the floor of the passenger side of the vehicle.

The State argues the judge misapprehended the scope of the holdings in State v. Eckel, 185 N.J. 523 (2006) and State v. Dunlap, 185 N.J. 532 (2006). We agree that Eckel does not apply to the circumstances presented, but disagree with respect to Dunlap. Essentially, we concur with the motion judge that the State failed to demonstrate sufficient exigency to justify the warrantless search of defendants' vehicle.

In Eckel, the Court considered "whether the police may conduct a warrantless search of an automobile as incident to an arrest after the occupants have been removed from the vehicle and are secured in police custody." Eckel, supra, 185 N.J. at 524. The facts surrounding the defendant's arrest in Eckel, however, demonstrate why its holding is inapposite to the issues presented in this appeal.

There, the police received a report from the owners of a car that their daughter, Dana, had taken the vehicle without their permission, and that Eckel, the subject of an outstanding arrest warrant, might also be in the car. Ibid. The police spotted the car being driven by Dana with Eckel in the front passenger seat; they stopped it, ordered Eckel out of the vehicle, and placed him under arrest on the outstanding warrant. Id. at 525. The police also ordered Dana out of the vehicle and to the side of the road; she requested the opportunity to retrieve some clothes Eckel had left in the car and to give them to him. Ibid. The police refused and, instead, entered the passenger compartment of the vehicle themselves to gather the clothing. When they did, they saw green vegetation suspected to be marijuana, as well as suspected cocaine and drug paraphernalia in denim shorts behind the passenger's seat. Id. at 525-26. They seized the items.

The Court noted that the search incident to arrest exception to the warrant requirement was rooted in two specific rationales -- protection of the police, and preservation of evidence. Id. at 524. However, the Court concluded neither rationale existed under the facts presented and held

[A] warrantless search of an automobile based not on probable cause but solely on the arrest of a person unable to endanger the police or destroy evidence cannot be justified under any exception to the warrant requirement and is unreasonable.

[Id. at 540 (emphasis added).]

Notwithstanding this conclusion, however, the Court remanded the matter to the Appellate Division to consider whether the warrantless search was justified under other theories including, "consent, plain view, and the automobile exception to the warrant requirement." Id. at 542.

We conclude, therefore, that Eckel's holding is strictly limited to circumstances in which the justification for the warrantless search of the vehicle is based not upon probable cause, but solely upon the arrest of one of its occupants. That was not the proffered justification for the search in this case. Rather, the State argued the search of defendants' vehicle was valid under another recognized exception to the warrant requirement, the so-called automobile exception, which Eckel simply did not address.

In Dunlap, decided the same day as Eckel, the Court considered whether the warrantless search of the defendant's vehicle was justified under the automobile exception. Dunlap,

supra, 185 N.J. at 549. The police had secured the cooperation of the defendant's girlfriend who made a phone call to him and arranged for his presence at her house. Id. at 545. When he arrived, the eight to ten officers present at the scene immediately placed him in custody, took the keys to his vehicle, and searched the car. Ibid. They ultimately found a handgun and significant amounts of heroin secreted in a hidden "trap" in the car. Id. at 545-46.

Citing Eckel, the Court concluded the search of the car could not be justified as one incident to the defendant's arrest. Id. at 548. Turning to consideration of the State's alternative justification, the Court noted the automobile exception "depends on the satisfaction of two requirements: the existence of probable cause and exigent circumstances, and [] the determination regarding those elements must be made on a case-by-case basis." Id. at 549. It noted, "[p]olice safety and the preservation of evidence remain the preeminent determinants of exigency." Id. at 551. The Court concluded that under the "unique facts" of the case, "particularly the presence of ten officers" at the scene, the State failed to demonstrate exigent circumstances. Ibid. "Different facts, such as a roadside stop effectuated by only one or two officers, would likely have changed the calculus." Ibid.

In the case at hand, Zsak had probable cause to believe the Ford contained contraband based upon the strong smell of raw marijuana emanating from the vehicle. See State v. Nishina, 175 N.J. 502, 515-16 (2003) (strong smell of marijuana itself constitutes probable cause). Thus, the State satisfied the first prong of the automobile exception requirement. And, while we may disagree with the motion judge's characterization of Dunlop as having changed the landscape of the automobile exception, see Dunlap, supra, 185 N.J. at 551 (the opinion is not a "retrenchment from the well-established principles governing the automobile exception to the warrant requirement"), he quite correctly focused on the critical issue at hand -- was the warrantless search of defendants' vehicle necessary because of the exigencies of the situation?

In State v. Cooke, 163 N.J. 657, 672 (2000), the Court considered what comprises exigent circumstances and noted,

Exigent circumstances have been described as "unforeseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile. . . ." Exigent circumstances may exist if the unanticipated circumstances that give rise to probable cause occur swiftly. In addition, exigent circumstances may arise where "[a]ny element of surprise had been lost; the vehicle contained the 'contraband' drugs; there were 'confederates waiting to move the evidence'; the police would need 'a special police detail to guard the immobilized automobile.'"

(citations omitted.)

The State argues exigency existed here because the stop of defendants' vehicle occurred spontaneously after Zsak observed a traffic violation and an ongoing investigation on a well-trafficked public street resulted thereafter. It further argues it was impractical, given the number of police available, to secure the car or impound the vehicle until a search warrant was obtained. Besides Cooke, the State relies upon two other cases, State v. Berkenmeier, 185 N.J. 552 (2006) and State v. Carroll, 386 N.J. Super. 143 (App. Div. 2006), both decided since Dunlap.

In Berkenmeier, the Court upheld the warrantless search of the defendant's vehicle under the automobile exception. Berkenmeier, supra, 185 N.J. at 562. However, it expressly noted that the defendant did not "challenge[] whether exigent circumstances existed." Id. at 563 n.2. Therefore, the State's reliance on the case is misplaced.

In, Carroll, we upheld a limited warrantless search of defendant's car and a plastic bag found on its front seat under the automobile exception. Carroll, supra, 386 N.J. Super. at 156. The following recitation of the facts that supported a finding of exigency amply distinguishes the case from Dunlap and the case at hand:

[T]he police pursuit of defendant . . . was spontaneous. The location of defendant's arrest was completely unplanned. Defendant drove [his vehicle] to an unanticipated location, which turned out to be an open parking area used by casino patrons. Defendant had caused a motor vehicle accident by smashing a parked car, presumably causing property damage to both vehicles that the police would need to inspect and address.

Defendant's behavior in avoiding and resisting his arrest also heightened the exigency. He ran from the car, leaving the car door open. He physically resisted [the police] when he was caught, managing to pull the officer back into [his vehicle] before he was finally handcuffed. His volatile conduct increased the police's need to secure him and the location promptly.

Defendant's frantic effort to discard the plastic bag during the police pursuit . . . also enhanced the emergent character of the situation. [The police] had ample reason to suspect that the bag contained drugs, a weapon, or both. Its contents, if they fell into the hands of another, reasonably could have posed a danger to casino patrons or others passing through the open public space in the parking lot. Considering all of these factors, the motion judge had a more than sufficient basis to regard these circumstances as exigent.

[Id. at 158.]

We find little in Carroll's facts that merit the application of its holding to this case.

On the facts presented here, exigency cannot be found based upon concern for the safety of the police officers involved, nor in the desire to preserve evidence that might be found in the vehicle. Both defendants, the sole occupants of the Ford, were in the custody of Officer Grecko. Protective searches of their persons had not revealed any weapons or contraband. Compare State v. Hammer, 346 N.J. Super. 359, 364 (App. Div. 2001) (presence of hollow point bullets that fell from defendant's coat as well as three occupants of the vehicle and only one officer with two sets of handcuffs demonstrated exigent circumstances). No other confederates were around, nor was it likely that anyone knew of defendants' arrest. Thus, the probability of some third-party accessing the vehicle while a warrant was obtained was minimal at best. Compare Cooke, supra,

163 N.J. at 657 (defendant had engaged in drug sales with unapprehended third parties who saw defendant retrieve drugs from the vehicle).

The State contends that forcing the officers to obtain a search warrant before searching the Ford was unduly burdensome given the small number of Cranford police officers on duty. We reject this contention for several reasons. First, the vehicle was actually stopped in Linden, the neighboring town. The record is devoid of any attempt by the police officers to enlist the cooperation of their fellow officers in Linden to assist in transporting the prisoners or safeguarding the Ford while a warrant was obtained. Second, while we can appreciate the desire to effectuate the formal arrest procedures required as to the two defendants, once they were in custody in the back of two police vehicles we fail to see why a search warrant could not have been telephonically secured immediately from the scene. Third, the Ford could have been impounded and the search warrant obtained thereafter; in fact, the vehicle was ultimately towed from the scene after it was searched. See Dunlap, supra, 185 N.J. at 551 (the "telephonic warrant and the option of vehicle impoundment [are] among the [available] alternatives" to a warrantless search).

In sum, we conclude that the requisite exigent circumstances necessary to support the automobile exception to the general warrant requirement did not exist in this case. "To permit these circumstances to constitute exigent circumstances would . . . allow the exception . . . to swallow up the rule, which requires a search warrant." Id. at 550.

Affirmed.

 

Defendants have not cross-appealed from this portion of the trial judge's order. We therefore do not consider the issue.

At this point, the Supreme Court was quoting from the Appellate Division panel's unpublished opinion.

(continued)

(continued)

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A-5961-05T5

 

February 28, 2007