STATE OF NEW JERSEY v. KASHIF BATTLE

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3828-07T43828-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KASHIF BATTLE,

Defendant-Appellant.

________________________________________________

 

Submitted April 22, 2009 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-11-1979.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Susan B. Gyss, Assistant Prosecutor, on the brief).

PER CURIAM

In this appeal, we consider and reject defendant's argument that, even though there was probable cause to search, evidence seized from an automobile should be suppressed because exigent circumstances were not presented.

Following the denial of his motion to suppress evidence, defendant pled guilty to third-degree possession of cocaine with the intent to distribute within a school zone, N.J.S.A. 2C:35-7. He was sentenced to an extended term sentence of seven years imprisonment with a forty-two-month period of parole ineligibility, and appealed, raising the following arguments for our consideration:

I. THE WARRANTLESS SEARCH WAS NOT JUSTIFI-ABLE AS A SEARCH INCIDENT TO ARREST OR UNDER THE AUTOMOBILE EXCEPTION, AND, THUS, THE FRUITS OF THAT UNCONSTITUTIONAL SEARCH SHOULD HAVE BEEN SUPPRESSED.

II. DEFENDANT'S EXTENDED TERM SENTENCE IS ILLEGAL BECAUSE THE DICTATES OF N.J.S.A. 2C:44-6[e] AND RULE 3:21-4[(e)] WERE NOT FOLLOWED. ADDITIONALLY, THE SENTENCING COURT ERRED IN IMPOSING AN EXTENDED TERM IN THE ABSENCE OF AN ADEQUATE EXPLANATION BY THE STATE FOR WHY IT WAS SEEKING IMPOSITION OF AN EXTENDED TERM (Not Raised Below).

A. Defendant's Extended Term Sentence Is Illegal.

B. The State Failed To Make A Record Of Why It Was Seeking Imposition Of An Extended Term In This Case.

We find insufficient merit in Point II and its subparts to warrant discussion in a written opinion. R. 2:11-3(e)(2). We reject Point I for the following reasons.

At the suppression hearing, the judge heard only the testimony of Officer Walter Chowanec; defendant did not testify, nor did he call any witnesses. The judge found credible Officer Chowanec's testimony, which revealed that, at approximately 9:15 p.m., on August 29, 2006, after being advised by another officer that a black male was selling drugs on Montgomery Avenue in Jersey City, Officer Chowanec and his partner proceeded to the area in an unmarked vehicle. From a short distance, Officer Chowanec observed a group of approximately twenty-five individuals, including one black male, the defendant, who retrieved a brown paper bag from a parked Chevrolet Lumina, removed a plastic bag from the brown paper bag, removed a small object from the plastic bag, and handed the item to a woman, Eva Coleman. Suspecting this was a drug transaction, Officer Chowanec and his partner approached the group to effectuate an arrest.

As the officers approached, someone in the crowd yelled "five-o," and Coleman threw an object into the crowd as defendant threw the brown paper bag onto the front seat of the Lumina and closed the vehicle's door. Both Coleman and defendant were arrested; Coleman admitted to the officers that the item she threw into the crowd was a vial of cocaine. A police unit was called to transport both defendant and Coleman to police headquarters.

Following defendant's arrest and removal from the scene, Officer Chowanec looked into the Lumina through the front windshield and observed on the front seat, in plain view, "CDS, car keys, money, and some hypodermic needles." Based on this information, the trial judge concluded that the State had demonstrated probable cause to search the Lumina.

It is well-established, however, that probable cause to search an automobile is not alone sufficient to permit a warrantless entry. State v. Cooke, 163 N.J. 657, 672 (2000). The State must also demonstrate that exigent circumstances exist for conducting the search without a warrant. As our Supreme Court recently held,

[I]n accordance with "our unwavering precedent," Cooke, supra, 163 N.J. at 670, the warrantless search of an automobile in New Jersey is permissible where (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. The notion of exigency encompasses far broader considerations than the mere mobility of the vehicle.

Exigency must be determined on a case-by-case basis. No one factor is dispositive; courts must consider the totality of the circumstances. How the facts of the case bear on the issues of officer safety and the preservation of evidence is the fundamental inquiry. There is no magic formula -- it is merely the compendium of facts that make it impracticable to secure a warrant. In each case it is the circumstances facing the officers that tell the tale.

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. As we have previously noted, "[f]or purposes of a warrantless search, exigent circumstances are present when law enforcement officers do not have sufficient time to obtain any form of warrant." State v. Johnson, 193 N.J. 528, 556 n.7 (2008) (emphasis added).

[State v. Pena-Flores, 198 N.J. 6, 28-30 (2009) (some citations omitted).]

The Court declared in Pena-Flores that it had not established a new test for determining when exigent circumstances exist, but instead stated that its holding represents "nothing more than a reaffirmation of over three decades of jurisprudence." Id. at 29 n.5. The Court stated that its list of factors did not establish a new "multi-factor test," but merely constituted an iteration of all those factors previously found relevant in our case law. Ibid. Accordingly, even though the trial judge ruled prior to the Court's decision in Pena-Flores, he applied the same standard described by the Court in Pena-Flores.

In applying these principles, we start with acknowledging -- as defendant concedes -- that there was probable cause to search the vehicle. As a result, our focus turns toward the trial judge's finding of exigent circumstances. On that point, the judge rendered the following oral decision:

[T]he danger to the officers and the potential for loss or destruction of the contraband came, not from [defendant], but from the crowd that had gathered. The officers' fears, in that regard, were not simply speculative.

Prior to the search of the vehicle, Ms. Coleman admitted purchasing a [vial] of cocaine and throwing it into the crowd. Only seconds after she did so, the police searched the area and failed to find the object that was thrown that, she admitted, was cocaine. It was a reasonable assumption that persons in the crowd had removed the evidence and, therefore, that either a person or persons in the crowd were confederates of Ms. Coleman or [defendant] and prepared to immediately remove evidence from the scene.

Further, although there were additional officers called to the scene to transport the prisoners, the fact remains . . . the remaining officers were greatly outnumbered by a gathering crowd sympathetic to the defendant in a high-crime area on a summer night. Those facts, history teaches, are tinder awaiting only a small spark to ignite violence.

Common sense, the potential for the loss of evidence, the danger to the officers and to the members of the crowd and the public, in general, in the area mandated an immediate search and removal of the defendants and the drugs from the area.

Exigent circumstances clearly existed.

These findings were fully supported by the evidence. Officer Chowanec testified that when he and his partner first approached to make an arrest, twenty-five people were in the area. The arrest occurred near a housing complex consisting of approximately 500 to 600 apartment units, a densely populated area. Following the arrest, the crowd grew and "g[o]t closer" to Officer Chowanec and his partner. Although by the time the vehicle was opened with a slim jim, six police officers were present, they were still greatly outnumbered. In addition, Officer Chowanec testified that "expletives" were hurled in their direction, "suggest[ing]," the crowd's desire that the officers "depart the premises rapidly." This caused Officer Chowanec to reasonably conclude there was danger in remaining in that location.

In deferring to the trial judge's findings, State v. Locurto, 157 N.J. 463, 470-71 (1999), we are satisfied that the record supports the conclusion that exigent circumstances were presented by the danger posed to the officers and the potential loss of the evidence contained in the vehicle.

 
Affirmed.

The more recent decision of the Supreme Court of the United States in this arena is also of no concern. If anything, the Court's decision a few weeks ago in Arizona v. Gant, 556 U.S. __, __ S. Ct. __, __ L. Ed.2d __ (2009), represents a move toward the sounder search and seizure principles formulated by our Supreme Court's decisions in defining the reach of our state constitution, as well as the decisions of other state courts (slip opinion at 14 n.8). As noted in Pena-Flores, our state courts have never "subscribed fully" to the federal approach that essentially renders exigent circumstances "automatic." 198 N.J. at 20. In Gant, the Court disavowed the notion that the right to search a vehicle or any of its compartments, when incident to an arrest, is a "police entitlement," suggesting that federal search-and-seizure principles may be evolving toward the greater individual rights provided in this and other states (slip opinion at 9, 14). In any event, the recent Gant decision has no bearing on the issues presented in this appeal, which we decide by reliance upon state constitutional principles.

The first question usually considered in such matters relates to the reasons for the vehicle stop. However, this vehicle was never in motion, but instead was parked and used by defendant as a storage facility for the CDS he was selling, as was evident by the officers' observations of the drug transaction and the CDS that sat on the vehicle's front seat in plain view.

(continued)

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A-3828-07T4

May 7, 2009