STATE OF NEW JERSEY v. EDWARD LYNCH IV

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1339-08T41339-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD LYNCH IV,

Defendant-Appellant.

_________________________________

 

Argued November 16, 2009 - Decided

Before Judges Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 07-082.

Kenneth Psota argued the cause for appellant (Koulikourdis and Associates, attorneys; Mr. Psota, on the brief).

Julian L. Hill, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Edward Lynch IV, convicted of driving while intoxicated pursuant to N.J.S.A. 39:4-50, appeals from the denial of his motion to suppress. Defendant had sought to suppress from evidence an open alcoholic beverage container that the arresting police officer retrieved from the glove compartment of defendant's vehicle after defendant had been arrested for driving while intoxicated. We remand in order that findings may be made on whether exigent circumstances were present to justify the search.

On October 3, 2007, defendant was charged with driving while intoxicated, N.J.S.A. 39:4-50, having an open alcoholic beverage in a motor vehicle, N.J.S.A. 39:4-51b, and speeding, N.J.S.A. 39:4-98. Thereafter, a hearing was conducted on his motion to suppress the open alcoholic beverage container that had been seized from his vehicle.

The only witness who testified at the suppression hearing was New Jersey State Trooper Andrew Dudzic whom the municipal court judge found to be a credible witness. The Trooper testified that on the evening of October 3, 2007, he was on patrol on Route 80 in Denville with another trooper. The traffic was very light. A silver Honda traveled past them at a high rate of speed, and the troopers then pulled the vehicle over for speeding. While obtaining the license, registration, and proof of insurance from the driver, identified as defendant, the Trooper detected a strong odor of alcohol emanating from the vehicle and noticed that defendant's hand movements were slow. The Trooper then administered field sobriety tests, which defendant failed. Defendant was arrested for driving while intoxicated, handcuffed, and placed in the troopers' vehicle. After defendant was secured, the Trooper searched defendant's vehicle for evidence of open containers and found a half-empty bottle of vodka in the glove compartment.

The municipal court judge denied defendant's motion to suppress evidence of the half-empty vodka bottle, relying on the case of State v. Irelan, 375 N.J. Super. 100 (App. Div. 2005). Pursuant to a plea bargain, defendant then pled guilty to driving while intoxicated, and the other two charges were dismissed without prejudice. Defendant appealed the municipal court judge's decision on the motion to suppress. The Superior Court Law Division judge agreed with the municipal court judge on the motion to suppress, and this appeal followed.

We reject the State's argument that defendant's appeal is barred because he accepted the plea bargain. Before defendant's plea was taken on the record, defense counsel stated, without objection, that an appeal would be filed. As a result, defendant reserved the right to take an appeal and would be able to withdraw his plea if he prevails on appeal. See R. 3:9-3(f) (permitting conditional pleas whereby the defendant pleads guilty but reserves the right to appeal the ruling on a pretrial motion, and to withdraw the plea if he prevails on appeal).

We find no merit in the State's argument that this appeal is moot because the charge for having an open alcoholic beverage container was dismissed. While that charge was dismissed, defendant still stands convicted of the driving while intoxicated charge. The open vodka bottle was evidence supporting that charge, and hence the appeal is not moot.

We also reject the State's contention that the inevitable discovery doctrine to the exclusionary rule, set forth in State v. Sugar, 108 N.J. 151 (1987), applies. "The essential rationale of the inevitable discovery doctrine is that, even though evidence may have been obtained as a result of unlawful governmental activity, if the prosecution can show that 'the information ultimately or inevitably would have been discovered by lawful means . . . the deterrence rationale [of the exclusionary rule] has so little basis that the evidence should be received.'" State v. Finesmith, 406 N.J. Super. 510, 522 (App. Div. 2009) (quoting Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 2509, 81 L. Ed. 2d 377, 387-88 (1984)). For the inevitable discovery doctrine to apply, the State must prove by clear and convincing evidence the following three factors:

(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.

[Ibid. (quoting State v. Sugar, 100 N.J. 214, 238 (1985)).]

The State maintains that the open alcoholic container would have been discovered in an inventory of the vehicle after it was impounded, and hence it is admissible because it would have been discovered independently of any unlawful conduct by the State. Not only was this argument not raised below, but the State placed no evidence in the record to establish what its "normal and investigatory" procedures were and how they would have independently and inevitably led to the discovery of this evidence. Since the case is being remanded, the State may raise this issue before the trial court on remand.

Defendant raises the following issue on appeal:

POINT I

THE JUDGMENT OF THE SUPERIOR COURT OF MORRIS COUNTY IN AFFIRMING THE DECISION OF THE MUNICIPAL COURT MUST BE OVERTURNED SINCE THE WARRANTLESS SEARCH OF THE DEFENDANT'S MOTOR VEHICLE IS NOT VALID UNDER ANY OF THE EXCEPTIONS TO THE WARRANT REQUIREMENT AND IS NOT SUPPORTED BY ANY EVIDENCE ON THE RECORD.

We must uphold the trial court's factual findings on a motion to suppress, provided they are "supported by sufficient credible evidence." State v. Elders, 192 N.J. 224, 243 (2007) (citation omitted). However, "[w]hether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). In this case while the facts are not in dispute, we must determine whether the applicable legal standards were followed.

Under both the United States and New Jersey Constitutions, a warrant generally must be issued before the police may search and seize evidence. U.S. Const. amend. IV; N.J. Const. art. I, 7; State v. Pineiro, 181 N.J. 13, 19 (2004). A warrantless search is presumptively invalid unless it "'falls within one of the few well-delineated exceptions to the warrant requirement.'" Ibid. (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). The State has the burden of showing that the search falls within one of the recognized exceptions to the warrant requirement. Ibid. If a warrantless search does not fall within a recognized exception, the evidence seized must be suppressed. See State v. Lee, 190 N.J. 270, 277-78 (2007) (stating that "[p]ursuant to the exclusionary rule, the State may not introduce evidence obtained from an unlawful search or seizure by the police"); Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1090 (1961) (applying the exclusionary rule to the states through the Due Process Clause of the Fourteenth Amendment).

One recognized exception to the warrant requirement is a search incident to arrest. State v. Dangerfield, 171 N.J. 446, 455-56, 461 (2002). However, the facts in this case do not meet this exception because the search took place after defendant was arrested and secured in the police vehicle. See State v. Pena-Flores, 198 N.J. 6, 19 (2009) (stating that a search incident to arrest "cannot be sustained where the occupant has been 'arrested, removed[,] and secured elsewhere,' because the potential for obtaining a weapon or destroying contraband is by then eliminated" (quoting State v. Eckel, 185 N.J. 523, 541 (2006))).

The facts in this case must thus be analyzed under the automobile exception to the warrant requirement. Under New Jersey constitutional law, a warrantless search of a vehicle is permitted provided the following three requirements are met: "(1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." Id. at 28.

In this case, the first two requirements are readily met; the stop was unexpected, and the troopers had probable cause to believe that the vehicle contained contraband due to defendant's intoxicated condition. The critical question then is whether exigent circumstances were present.

Our case law makes clear that mere mobility of a vehicle alone is not sufficient to create exigent circumstances. Ibid. Rather the court must look at the "totality of the circumstances" and make a determination on the question of exigency on a "case-by-case basis," taking into account issues bearing on officer safety and preservation of evidence. Id. at 28-29. As the Court explained:

Legitimate considerations are as varied as the possible scenarios surrounding an automobile stop. They include, for example, the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.

[Id. at 29.]

Neither the municipal court judge nor the Superior Court Law Division judge addressed the issue of exigency. The municipal court judge did rely on State v. Irelan, supra, 375 N.J. Super. at 100, which involved the warrantless search of a vehicle after the driver was stopped for driving while intoxicated. There we upheld the search, noting a number of factors requiring immediate action that made it impracticable for the police to obtain a search warrant, including the fact that defendant needed to be transported promptly to the station for a breathalyzer test, that there was a pressing need to render assistance to an accident on the expressway, that defendant's passenger was fully aware of the situation and was at liberty, that defendant and his passenger had cell phones and could have advised others of the situation, and finally that the situation was apparent to any motorist who had driven by during the stop. Id. at 119-20.

The record before us does not explain the exigent factors faced by the troopers, other than the fact that defendant needed to be transported to the station for the breathalyzer test before too much time passed or the test would be ineffective. We note that at oral argument the attorney for the State stated his understanding that a trooper did have to remain with the vehicle until a tow truck arrived, suggesting that the vehicle did not have to be immediately searched in order to preserve the evidence from interference by third parties. We remand in order to enable the municipal court judge to consider whether exigent circumstances were present here to justify the warrantless search.

On remand the municipal court judge has the discretion to reopen the record to take further testimony.

Remanded.

 

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A-1339-08T4

December 16, 2009