STATE OF NEW JERSEY v. CLARENCE OWENS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6293-06T46293-06T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

CLARENCE OWENS,

Defendant-Respondent.

_______________________________

 

Submitted March 10, 2008 - Decided

Before Judges S. L. Reisner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 06-12-3896.

Paula T. Dow, Essex County Prosecutor, attorney for appellant (Debra G. Simms, Assistant Prosecutor, on the brief).

Joseph D. Rotella, attorney for respondent.

PER CURIAM

On leave granted, the State of New Jersey appeals from the June 28, 2007, order of the Law Division, which suppressed evidence seized following a warrantless search of an automobile. The evidence seized formed the basis of an Essex County Grand Jury indictment, charging defendant with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5a(1)(b)(3) (Count Two); and third-degree possession of intent to distribute cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7 (Count Three). We affirm.

The only witnesses who testified at the suppression hearing were: Newark Police Officer Jason West, on behalf of the State; and Theodore Gaines, on behalf of defendant. West testified as follows. On August 25, 2006, at approximately 2:10 p.m., West received an anonymous tip that an African-American male was selling narcotics from a parked Dodge Intrepid with New Jersey license plate number MDW-39L in the vicinity of 100 Ludlow Street, an area known to the police for past narcotics activities. The police decided to immediately investigate by setting up a surveillance of the Dodge Intrepid. West and his partner were in one motor vehicle, while four or five other officers were in other motor vehicles in the general area. West observed defendant exit the courtyard of 100 Ludlow Street in the company of a female. Defendant walked to the street, opened the passenger's door of the vehicle, and removed a black radio case from the vehicle. West observed defendant remove a clip, of what West recognized as cocaine, from the case. The clip contained ten vials of cocaine with bright orange caps. After defendant removed the clip, he closed the case, placed it back on the seat in the vehicle, closed the vehicle's door, and handed the clip to the female in exchange for paper currency. Although West observed defendant remove the clip, containing ten vials of cocaine from the radio case, he did not observe whether the case contained any other vials of cocaine when defendant placed the radio case back on the seat in the vehicle.

Based on his observation, training, and experience, West believed that he had observed a "narcotics transaction" and contacted the other members of the surveillance team by radio to move in and detain defendant, as defendant was walking back toward the courtyard. After the surveillance team police officers confronted defendant in the courtyard, they walked him back toward the Dodge Intrepid. When they arrived at the vehicle, defendant stated that the car was not his. West approached the vehicle; opened its door; removed the radio case that was in plain view; opened it; and observed thirty bottles of cocaine with orange tops. After defendant informed West that the vehicle was owned by his girlfriend, the surveillance team police officers secured the vehicle and left it parked on the street rather than having it towed.

West testified that he did not obtain a search warrant before seizing the radio case because there were drug addicts in the area; the vehicle was unlocked; and anyone, including the owner of the vehicle, could have come and taken the cocaine or could have moved the vehicle. Moreover, West stated that "a warrant takes time, and we just didn't feel it was necessary to get a warrant."

Theodore Gaines testified that he had known defendant for approximately twenty years. Gaines stated that at the time of the incident he had just walked out of a store on Frelinghuysen Avenue, directly behind defendant, when he observed two motor vehicles approach. Gaines said several police officers walked up to defendant, who was accompanied by a female and another male, and frisked the three individuals. Gaines stated that the police removed defendant's wallet and car keys, and then attempted to locate defendant's motor vehicle by walking around the area pressing the car key's alarm device. After telling the two individuals with defendant to leave the area, the police put defendant in one of their vehicles and drove off in the direction of Ludlow Street.

On June 28, 2007, Judge Sivilli entered an order, supported by an oral opinion, granting defendant's motion to suppress evidence. The judge determined that the testimony of Police Officer West was credible, and the testimony of Gaines was not. Although the judge found, based on West's observations, that the State had probable cause not only to detain and arrest defendant, but also to search the vehicle, she concluded that the State failed to prove that the warrantless search fell within any of the exceptions to the warrant requirement. Particularly, the judge determined that the search incident to arrest exception was not applicable because defendant had been detained in the courtyard and then brought to the motor vehicle while in custody of the police. State v. Eckel, 185 N.J. 523, 540 (2006); State v. Dunlap, 185 N.J. 543, 548 (2006). The judge found that the automobile exception did not apply because, although the police had established probable cause, there was an absence of exigent circumstances justifying the warrantless search. Lastly, the judge determined that the "drugs were not in plain view and that [such] exception is not applicable."

On appeal the State argues that "the trial court erred in granting defendant's motion to suppress." The State contends that "the search and seizure was based on appropriate legal principles and was fully grounded in search and seizure law: probable cause, exigent circumstances, and plain view."

An appellate court's scope of review of a trial court's determination is limited. We are obligated to "review the record in the light of the contention, but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Factual findings of the trial judge are generally given deference, especially when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.; accord State v. Locurto, 157 N.J. 463, 470-71 (1999).

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect individuals against unreasonable searches and seizures. State v. Johnson, 171 N.J. 192, 205 (2002). "[O]ur constitutional jurisprudence expresses a preference that [police officers] secure warrants issued by neutral and detached magistrates before executing a search . . . ." State v. Frankel, 179 N.J. 586, 597-98 (2004).

A warrantless search is presumed to be unlawful unless it falls within one of the recognized exceptions to the warrant requirement. State v. Diloreto, 180 N.J. 264, 275-77 (2004). "Those exceptions are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary." Frankel, supra, 179 N.J. at 598. The burden of proving by a preponderance of the evidence that the search and seizure of the evidence falls within a qualified exception rests on the State. State v. Pineiro, 181 N.J. 13, 19 (2004).

We have considered the State's contentions in light of the record and applicable law. We are not persuaded by any of them, and affirm substantially for the reasons expressed by Judge Sivilli in her thoughtful, oral opinion of June 28, 2007. Nevertheless, we add the following comments.

The State argues that the automobile exception to the warrant requirement justified the warrantless search and seizure. The State contends "that exigent circumstances . . . existed for the search of the case" because the incident occurred in a high narcotics area and the evidence contained in the motor vehicle could "have been removed or destroyed, or the vehicle itself could have been moved if the officers had not acted immediately."

To justify the search under the automobile exception, the State must prove: 1) "the existence of probable cause"; and 2) "exigent circumstances." Dunlap, supra, 185 N.J. at 549. "Without a requirement of exigent circumstances, virtually every search of an automobile would be valid provided the police had probable cause to act." State v. Cooke, 163 N.J. 657, 667 (2000). The determination of whether the exception applies is made on a case-by-case basis. Ibid; Dunlap, supra, 185 N.J. at 549. "Exigent circumstances may exist if the unanticipated circumstances that give rise to probable cause occur swiftly." Cooke, supra, 163 N.J. at 672. They may also exist when the element of surprise has been lost, a vehicle contains contraband, a confederate is waiting to move the evidence, or where the police would otherwise have needed a special detail to guard the immobilized vehicle. State v. Colvin, 123 N.J. 428, 434-35 (1991). Simply stated, the justification to conduct a warrantless automobile search "turns on the circumstances that make it impractical to obtain a warrant when the police have probable cause to search the car." Id. at 537. However, once exigent circumstances are found to exist, they "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." State v. Alston, 88 N.J. 211, 234 (1981).

The lynchpin of any analysis of a warrantless motor vehicle search based on probable cause rests on exigent circumstances. Byrnes, N.J. Arrest Search & Seizure, 17:2-1c(1) (2006-07). For examples of exigent circumstances, justifying a warrantless search: see Cooke, supra, 163 N.J. at 673-75 (finding exigent circumstances where a realistic possibility existed that defendant's friend may have removed evidence from defendant's automobile because the friend knew that drugs were stored in the vehicle and that defendant had been arrested; and it would have been impractical for the only police officer present to leave his surveillance post to stand guard over the motor vehicle); Alston, supra, 88 N.J. at 216-17 (finding exigent circumstances where events were spontaneous and unforeseeable, posing a potential threat to the police officers' safety when the police observed passengers making furtive movements in the car, shotgun shells and a bag, which appeared to contain a shotgun, protruding out from underneath a seat); State v. Hammer, 346 N.J. Super. 359, 369-70 (App. Div. 2001) (finding exigent circumstances to search for weapons where on a motor vehicle stop the police officer observed hollow-point bullets fall from the driver's coat as he exited the motor vehicle, and drugs were found within the vehicle).

For an example to the contrary, see Dunlap, supra, 185 N.J. at 549-51 (finding exigent circumstances did not exist where the motor vehicle was parked on a street in a residential neighborhood not known for drug trafficking; there was an absence of evidence that any third person had knowledge of defendant's arrest; and it was not unduly burdensome for the police to post a guard and return to the courthouse to obtain a search warrant because ten police officers were present).

Here, the incident leading to the search of the automobile occurred in the early afternoon on Friday, March 26, 2006, when the police observed defendant conducting a drug transaction, after which defendant placed the black radio case back into the automobile parked lawfully on a public street. The police never observed the vehicle in motion. The trial judge found that, although there was probable cause, exigent circumstances did not exist because the vehicle was lawfully parked on a street in a residential area; there was no evidence that the owner of the motor vehicle or any of defendant's friends were aware that defendant had been arrested; and there were sufficient police officers present to guard the vehicle while a search warrant was obtained. As noted by the Court in Dunlap, supra, 185 N.J. at 551:

The unique fact, particularly the presence of ten officers, fully justified the Appellate Division's conclusion that exigency was absent. Different facts, such as a roadside stop effectuated by only one or two officers, would likely have changed the calculus. Police safety and the preservation of evidence remain a preeminent determinant of exigency.

The same could be said here. If the hour clock is ticking because of the lateness of the day, and the police do not believe there is sufficient time to obtain a written search warrant, there are procedures in place for the police to obtain a telephonic search warrant. Id. at 550-01; State v. Johnson, ____ N.J. ____, _____ (2008) (slip op. at 35).

In the alternative, the State argues that the search and seizure was justified under the plain view exception to the warrant requirement. The trial judge rejected this argument, and so do we.

For the plain view exception to apply, the police officer must: 1) be found to have been lawfully in the viewing area; 2) discover the evidence inadvertently, that is, the officer did not know in advance where the evidence was located, nor did he or she intend beforehand to seize it; and 3) have probable cause to believe that the evidence was associated with criminal activity, contraband, or otherwise subject to seizure. Johnson, supra, 171 N.J. at 206-07. The term "view" is defined as "free from obstructions; open; clear [in a plain view]." Webster's New World College Dictionary 1032 (3rd ed. 1996). (alteration in original). The term "view" is defined as "seeing or looking as in inspection or examination; site or vision." Id. at 1488.

Here, West candidly testified that he did not know whether the radio case contained additional vials of cocaine when defendant placed the case back into the automobile after concluding his drug transaction. West conceded that he only viewed the case, leading to its seizure and the discovery of the additional vials of cocaine therein, after he commenced the search of the automobile by opening its door. The seizure does not fall within the plain view exception.

Affirmed.

West testified that a "clip" is a street term identifying ten vials of cocaine bound by a gum band or rubber band.

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A-6293-06T4

March 28, 2008