STATE OF NEW JERSEY v. THOMAS WOODS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4189-06T54189-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS WOODS,

Defendant-Appellant.

_______________________________________

 

Argued March 4, 2008 - Decided

Before Judges Winkelstein and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-04-1227 and 06-04-1228.

Randy P. Davenport argued the cause for appellant (Law Office of Thomas R. Ashley, attorneys; Thomas R. Ashley, of counsel and on the brief).

Mary E. McAnally, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Ms. McAnally, on the brief).

PER CURIAM

Defendant Thomas Woods appeals from an order entered on October 12, 2006 by Judge Thomas R. Vena, which denied in part defendant's motion to suppress certain evidence obtained by the police in a search of his automobile. For the reasons that follow, we affirm.

I.

Defendant was charged under Essex County Indictment No. 06-04-1227 with third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count one); first-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5b(1) (count two); third-degree unlawful possession of weapon, N.J.S.A. 2C:39-5b (count three); and second-degree possession of a weapon while committing a drug offense, N.J.S.A. 2C:39-4.1 (count four). Defendant also was charged under Essex County Indictment No. 06-04-1228 with second-degree unlawful possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b (count one).

Defendant filed a motion to suppress evidence obtained by the police in a search of his vehicle, specifically cocaine found in the door handle of the arm rest on the driver's side of the car, cocaine found partially concealed under the driver's seat, cocaine found in the front pocket of defendant's jacket, and a weapon found under the front passenger seat. On October 5, 2006, Judge Vena conducted an evidentiary hearing on the motion. At the conclusion of the hearing, the judge placed his decision on the record. He granted defendant's motion to suppress the weapon but denied the motion to suppress the other evidence. The judge entered an order on October 12, 2006, memorializing his decision.

On December 4, 2006, defendant pled guilty to count two of Indictment No. 06-04-1227, which charged first-degree possession of a controlled dangerous substance with intent to distribute. Defendant reserved the right to appeal the partial denial of his motion to suppress. The State agreed that it would recommend the imposition of a sentence appropriate to a second-degree offense, specifically a six-year term of incarceration. The State also agreed to the dismissal of the remaining counts of Indictment No. 06-04-1227 and the single count of Indictment No. 06-04-1228. On March 19, 2007, the judge sentenced defendant pursuant to the plea agreement to a six-year term. The judge also imposed appropriate monetary assessments and penalties. This appeal followed.

II.

At the suppression hearing, the State presented testimony from Officer Richard Wiggins of the South Orange Police Department. Wiggins stated that on December 28, 2005, at around 9:46 p.m., he was alone on patrol in a marked police vehicle. Wiggins observed a gray Chevrolet Impala traveling the wrong way on a one-way street. Wiggins activated the overhead lights on his police vehicle and stopped the Impala. Defendant was driving the vehicle. He was the sole occupant of the car. Wiggins relayed the Impala's license plate number to police headquarters and approached the vehicle on the driver's side. Back-up assistance was dispatched to the scene.

Wiggins stated that the area was well-lit. He said that he observed defendant fastening his seat belt. Wiggins thought that defendant would say that he had been wearing the seat belt while he was driving the car. Wiggins said that he asked defendant for his credentials. Defendant removed his seat belt and obtained his credentials.

Wiggins testified that he observed defendant using his right foot to hide something beneath the driver's seat. Wiggins spoke to defendant. He said that he wanted to keep defendant busy until his back-up arrived. Defendant remained in the car. Wiggins asserted that defendant appeared "very nervous" and "agitated."

While Wiggins was speaking with defendant, an individual who was later identified as Glen Wilson came through a nearby alley and approached on the opposite side of the street. Wilson told Wiggins that defendant was there to help him with his disabled car. Wiggins ordered Wilson to go away. Wilson complied and went back through the alley. According to Wiggins, it appeared that defendant wanted him to quickly issue the summons so that he could leave. At that point, Officer Lavanda arrived on the scene as back-up. Wiggins then asked defendant to exit the car and step to the rear of the vehicle.

Defendant pushed open the door on the driver's side of the car. Wiggins said that, as defendant leaned out, he observed a small bag with "a white powdery substance" that was "stashed in the handle" of the arm rest on the door. Wiggins said that he believed that the powdery substance was either cocaine or heroin. The substance was later determined to be cocaine.

Wiggins and Lavanda walked to the rear of defendant's vehicle, placed defendant under arrest, and handcuffed him behind his back. Wiggins patted defendant down and found two large bags of a substance in the front of defendant's jacket. Wiggins believed the bags contained either cocaine or heroin. The substance also was determined to be cocaine. Wiggins then informed defendant of his Miranda rights. Wiggins left defendant with Lavanda and returned to the car.

Wiggins said that he wanted to find out what defendant had been attempting to conceal under the driver's seat. Wiggins asserted that he "suspected that [defendant] was hiding a gun at this point." Wiggins noted that defendant had a large amount of drugs in his pocket and he had been acting nervously.

Wiggins looked into the vehicle. He said that he observed a plastic bag "like a shopping bag" underneath the seat on the driver's side. Wiggins stated that the bag was open and he observed another bag containing a powdery substance in the shopping bag. Wiggins pulled out the shopping bag and observed three or four bags of a powdery substance. He said that he also smelled "a strong chemical odor" in the car.

Wiggins removed the bags of suspected narcotics and asked Lavanda to find Wilson because Wiggins suspected that they "had broken up a drug deal." Lavanda departed. Another officer arrived on the scene, secured defendant, and transported him to police headquarters. Thereafter, the vehicle was searched and a Colt .45 handgun was found underneath the front passenger seat. The officers called a tow truck, secured the vehicle, and had the vehicle removed to police headquarters.

After counsel made their summations, Judge Vena placed his decision on the record. He found that Wiggins was "wholly and entirely credible." The judge stated that Wiggins had observed defendant operating his motor vehicle the wrong way on a one-way street and made "a justifiable traffic stop." Based on Wiggins's testimony, the statements in the police report, and the taped transmissions of Wiggins's communications with the dispatcher, the judge concluded that Wiggins had been reasonably concerned about his own and the safety of others in the community, and reasonably believed that there was a need to preserve evidence.

The judge additionally found that it was "wholly credible" that Wiggins observed defendant make gestures that indicated defendant was trying to push an item under the front driver's seat of the car. He found that it was "wholly credible" that Wilson had attempted to intervene in the matter and it was "totally credible" that defendant's actions and Wilson's "attempted intervention" justified Wiggins's order requiring defendant to exit the vehicle.

The judge further found that when defendant exited the vehicle, Wiggins observed what he believed to be a controlled dangerous substance in the door handle on the arm rest of the car. The judge stated that after defendant was arrested, it was "quite appropriate" for Wiggins to search defendant incident to the arrest "for [the officer's] safety and the safety of others as well as the preservation of evidence[.]"

The judge also noted that at the time, "defendant was immobilized." However, the judge found that the officer had probable cause to believe that the substance observed in the door handle of the car's arm rest was evidence of a crime. The judge concluded that it would be "unreasonable to expect police officers in the exercise of their duties to disregard the existence of what they believe reasonably to be contraband in their plain view at a highly charged arrest scene."

In addition, the judge concluded that Wiggins reasonably believed that there was contraband or a weapon under the front driver's seat. The judge stated that it "was more than appropriate and constitutional" for Wiggins to seize the plastic bag that he observed extending from beneath the seat. The judge found that

it was well within [Wiggins's] authority prior to awaiting inventory or a warrant to [ensure] . . . that the defendant was [not] secreting . . . something that could be of a danger to himself or the public or would otherwise result in a potential loss of evidence.

The judge therefore determined that the seizure of the shopping bag containing the contraband was constitutional.

However, the judge concluded that exigent circumstances no longer existed when one of the officers searched the area near the front passenger seat of the car. At that time, defendant was in custody and secured. The judge determined that although the vehicle remained on the street, the police were required to obtain a warrant before conducting a search of the area near the front passenger seat of the car.

For these reasons, the judge granted defendant's motion to suppress the weapon found beneath the front passenger seat of the car, and denied defendant's motion to suppress the other evidence. The judge entered an order dated October 12, 2006, which memorialized his rulings.

III.

Defendant raises several arguments under the following single point heading of his brief:

THIS COURT SHOULD REVERSE THAT PORTION OF THE TRIAL COURT'S ORDER DENYING THE MOTION TO SUPPRESS THE EVIDENCE SEIZED AFTER APPELLANT WAS SECURED OUTSIDE THE VEHICLE.

We have carefully reviewed the record in light of defendant's arguments and the applicable law, and we are convinced that Judge Vena correctly denied defendant's motion to suppress the drugs found in the car.

We note initially that Judge Vena's decision to deny defendant's motion to suppress the drugs was based on findings of fact drawn from Officer Wiggins's testimony. As we have pointed out, the judge found that the officer's testimony was "wholly and entirely credible." We must defer to the judge's findings of fact because they are "'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). Indeed, "[a]n appellate court 'should give deference to those findings of the trial judge which are substantially influenced by [the judge's] opportunity to hear and see the witness[] and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964).

We are convinced that, based on his factual findings, the judge correctly found that the plain view doctrine permitted the warrantless search of the door handle of defendant's vehicle and the seizure of the drugs found there. The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens from unreasonable searches and seizures. State v. Bruzzese, 94 N.J. 210, 216 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). A warrantless search is presumed to be invalid unless it comes within one of the recognized exceptions to the warrant requirement. Id. at 218. The "plain view" doctrine is one such exception. It applies if three conditions are satisfied. First, the officer "must be lawfully in the viewing area." Id. at 236 (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S. Ct. 2022, 2037-39, 29 L. Ed. 2d 564, 582-84 (1971)). Second, the officer must find the evidence "inadvertently," which means that the officer "did not know in advance where [the] evidence was located nor intend beforehand to seize it." Ibid. (citing Coolidge, supra, 403 U.S. at 470, 91 S. Ct. at 2040, 29 L. Ed. 2d at 585). Third, it must have been "immediately apparent" to the officer that the items found in plain view are evidence of a crime. Ibid. (citing Coolidge, supra, 403 U.S. at 466, 91 S. Ct. at 2038, 29 L. Ed. 2d at 583).

In this case, the evidence established that when Officer Wiggins observed the plastic bag on the door handle on the arm rest of defendant's car, he was lawfully in the viewing area. It is undisputed that the officer made a valid traffic stop of defendant's vehicle because he observed defendant driving the wrong way on a one-way street. Furthermore, Wiggins was justified in extending the traffic stop to broaden his inquiry because he had "a reasonable suspicion" that a crime had occurred or was occurring. State v. Rodriguez, 172 N.J. 117, 126-27 (2002) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)).

Wiggins's testimony further established that the contraband in the door handle of the arm rest of the car was in plain view. His testimony additionally showed that he did not know in advance that contraband would be found in the door handle. Moreover, Wiggins said that based on his training and experience, it was immediately apparent to him that the powdery substance that he observed in the arm rest was probably evidence of a crime.

Therefore, Wiggins's testimony established all of the requirements for application of the plain view exception to the warrant requirement. The fact that the officer did not seize the evidence until after defendant had been arrested is of no consequence. Clearly, Wiggins could have seized the suspected contraband in the arm rest of the car door when he first observed it. According to his testimony, he delayed in doing so in order to arrest, pat down, and secure defendant.

Wiggins's testimony additionally supports the judge's determination that the automobile exception to the warrant requirement justified the officer's warrantless search of the area near and beneath the driver's seat of the car. The automobile exception permits a police officer to conduct a warrantless search of a motor vehicle if the officer has probable cause to believe that the vehicle contains criminally-related objects and there are exigent circumstances that make it impractical for the officer to obtain a search warrant. State v. Cooke, 163 N.J. 657, 667 (2000).

Here, the evidence established that Wiggins had probable cause to believe that defendant's vehicle contained illegal narcotics. Probable cause is a "well-grounded suspicion that a crime has been or is being committed." Id. at 671 (citing State v. Alston, 88 N.J. 211, 231 (1981)). As stated previously, Wiggins observed the powdery substance in the door handle of the car's arm rest and he believed that it was cocaine or heroin. In the search incident to defendant's arrest, Wiggins and Lavanda found two bags of substances that were also believed to be illegal drugs. In light of these facts, Wiggins undoubtedly had a "well-grounded suspicion" that defendant's vehicle contained additional drugs or a weapon.

Moreover, exigent circumstances existed that made it impractical for Wiggins to obtain a search warrant. Exigent circumstances exist when "unanticipated circumstances that give rise to probable cause occur swiftly." Id. at 672 (citing Alston, supra, 88 N.J. at 234). Furthermore, those "'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.'" Ibid. (quoting Alston, supra, 88 N.J. at 234). This is so because, unless the vehicle is impounded and removed from the scene, "'it is potentially accessible to third persons who might move or damage [the vehicle] or remove or destroy evidence contained in it.'" Ibid. (quoting Alston, supra, 88 N.J. at 234).

Wiggins's testimony makes clear that the circumstances that gave rise to probable cause arose swiftly. Moreover, as we have pointed out, during the traffic stop, Wiggins observed defendant's attempt to conceal an item under the driver's seat of the car. Based on his training and experience as a police officer, Wiggins reasonably believed that defendant may have been attempting to hide additional narcotics or a weapon under his seat.

In addition, defendant's vehicle was on a public street and it was "potentially accessible" to third persons. Indeed, Wilson told Wiggins that defendant was there to meet him. Wiggins said that he believed that he and Lavanda had interrupted an illegal sale of narcotics. These exigent circumstances justified the seizure of the contraband found near and under the driver's seat of defendant's car.

Defendant argues, however, that under State v. Eckel, 185 N.J. 523 (2006), and State v. Dunlap, 185 N.J. 543 (2006), the police are not permitted to conduct a warrantless search of an automobile incident to an arrest after its occupants have been removed and placed in police custody. Defendant contends that once he was removed from the vehicle, there was no justification whatsoever for any search of his vehicle.

We are convinced that defendant's reliance upon Eckel and Dunlap is misplaced. In Eckel, the Court held that Article I, paragraph 7 of the New Jersey Constitution bars a warrantless search of a motor vehicle as incident to an arrest after the occupants of the vehicle have been removed and placed in police custody. Eckel, supra, 185 N.J. at 524. The Court applied that principle in Dunlap, which was decided the same day. Dunlap, supra, 185 N.J. at 548-49.

However, in Eckel, the Court made clear that, although the warrantless search at issue in that case was not justified by the exception for a search incident to an arrest, the search might be valid under other exceptions to the warrant requirement, specifically the "consent, plain view, and the automobile exception[s]." Eckel, 185 N.J. at 542. In Dunlap, although it held that the warrantless search of the vehicle at issue there was not justified as a search incident to an arrest or by the automobile exception to the warrant requirements, the Court nevertheless reaffirmed the principles governing the automobile exception. Dunlap, 185 N.J. at 549-50.

In this case, Judge Vena did not apply the search incident to arrest exception. Rather, as we have explained, the judge correctly found that the warrantless seizure of the drugs was permitted under the plain view and automobile exceptions to the warrant requirement. Contrary to defendant's arguments, Eckel and Dunlap do not require the suppression of the drugs found in his vehicle.

Affirmed.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-4189-06T4

April 17, 2008