STATE OF NEW JERSEY v. RICARDO MANUEL ORTIZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4026-08T44026-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

RICARDO MANUEL ORTIZ and

ARNALDO A. ORTIZ,

Defendants-Respondents.

_________________________________

 

Argued October 27, 2009 - Decided

Before Judges Carchman, Parrillo and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-02-0195.

Samuel J. Marzarella, Assistant Prosecutor, argued

the cause for appellant (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Mr. Marzarella, of counsel; Mr. Marzarella and William Kyle Meighan, Assistant Prosecutor, on the brief).

Marc E. Leibman argued the cause for respondent Arnaldo Ortiz (Kaufman, Bern, Deutsch & Leibman, attorneys; Mr. Leibman, of counsel and on the brief).

Glenn A. Garber argued the cause for respondent Ricardo Manuel Ortiz.

PER CURIAM

We granted the State leave to appeal from the Law Division's order suppressing evidence of drugs against defendants Ricardo Manuel Ortiz and Arnaldo Ortiz. For the following reasons, we affirm.

According to the State's proofs, while on patrol in the area of Route 37 and Fischer Boulevard in Toms River at 4:55 p.m. on October 28, 2007, and while still light out, Officer Adam Koeppen observed a black Honda with obviously tinted front driver's and passenger side windows. Because, in his opinion, the tinting caused an unsafe distortion of visibility in violation of N.J.S.A. 39:3-74, Koeppen pulled the vehicle over onto Madison Avenue, a "not striped side road" lined with residences and a speed limit of twenty-five miles per hour. The residential street is just off Fischer Boulevard, a busy four-lane road with shops and businesses and a speed limit of forty miles per hour. Koeppen's police cruiser stopped directly behind the Honda, and both were stopped a few car lengths from the main road.

Approaching the vehicle, Koeppen identified himself, informed the two men inside of the reason for the stop, and requested identification and vehicle registration from the driver, Arnaldo. Immediately upon speaking with Arnaldo, Koeppen smelled raw, unburnt marijuana emanating from inside the vehicle. Koeppen also noticed that the vehicle, registered in New Jersey, had a New York State inspection sticker and consequently informed Arnaldo he was in violation of the State's inspection law.

Arnaldo was cooperative and provided Koeppen with his name and date of birth, but explained that he did not have his license on him. Koeppen then returned to his patrol car and requested dispatch run a check on Arnaldo as well as provide back-up for the traffic stop, in particular Officer Christopher McDowell, who was available and working in the vicinity. Before McDowell arrived, the dispatcher informed Koeppen that Arnaldo's driver's license was suspended, and there was a warrant out for his arrest.

Upon confirmation of the active warrant, Koeppen and McDowell, who by then had arrived on the scene, returned to the Honda, placed Arnaldo under arrest, and secured him in the back of Koeppen's patrol car. Arnaldo had left the car keys in the vehicle and when asked by Koeppen about disposition of the car, responded that he wished his brother Ricardo, the passenger, take the vehicle.

Koeppen then returned to the Honda to identify the passenger. Ricardo appeared nervous and trembling and once again Koeppen detected the odor of raw marijuana confirmed by McDowell only this time stronger. Ricardo identified himself to Koeppen as Manuel, using his middle name. Because the name did not match the one given earlier by Arnaldo in naming his brother, Koeppen grew even more suspicious. Consequently, Koeppen asked Ricardo to exit the vehicle, "go around to the back of the car and speak with Officer McDowell."

Meanwhile, Koeppen bent down beside the open car door and opened the glove compartment, where he found a black gallon-sized plastic bag. Although it did not appear to contain a weapon and nothing on the exterior surface indicated it contained contraband, Koeppen opened the bag and found a black cloth bag containing twelve small glassine baggies with a white powder substance inside; a red cloth bag containing six small off-white rocklike powdery substances; and two heat-sealed plastic bags with green leafy substances. Subsequent laboratory testing determined that the two heat-sealed plastic bags contained twenty-six grams of marijuana; the six clear plastic bags in the red pouch contained one gram of cocaine; and the twelve glassine baggies in the black pouch contained 7.6 grams of cocaine.

While Koeppen was conducting the search, McDowell was attempting to verify the identity and licensure status of Ricardo based on the name he provided. Eventually, his identity was confirmed, but the dispatcher also informed McDowell that there was an outstanding warrant for Ricardo. After being advised as well of Koeppen's discovery of the suspected controlled dangerous substances (CDS) found in the glove compartment, McDowell arrested Ricardo, patted him down, and placed him in the back seat of his patrol car, which was parked on the other side of Madison Avenue but closer to Fischer Boulevard.

Sometime during the traffic stop, another vehicle, a sports utility vehicle (SUV), pulled up to the scene. Although Koeppen could not pinpoint the exact moment, he said it was "quite a whiles" after McDowell's arrival and probably after Arnaldo was arrested, but before Ricardo's arrest. McDowell, on the other hand, recalled an SUV approaching them shortly after Ricardo was "secured." In any event, after the individuals inside identified themselves as family of the Ortiz brothers, McDowell instructed them to pull up some distance from the Honda "to separate themselves from [the] traffic stop" and to remain in their vehicle. At no time during the fifteen-minute traffic stop did either officer request further back-up, even though Koeppen was aware that back-up was available, if needed. Afterwards, when Koeppen completed his search and at defendants' request, the keys to the Honda were turned over to one of the SUV occupants, a relative of defendants.

Both defendants were then transported to police headquarters, where they were processed and booked on drug charges based on the suspected CDS found in the Honda's glove compartment. Additionally, Arnaldo was issued motor vehicle summonses for tinted windows, failure to inspect, and driving on a suspended license. Police also conducted a more thorough search of Ricardo, which uncovered over one-half ounce of cocaine in his shoe and sock.

Defendants were subsequently indicted for possession and possession with intent to distribute CDS. In their joint suppression motion which followed, defendants argued the police lacked both probable cause and exigency to justify the glove compartment search. Toward the end of the second and last day of the suppression hearing, November 19, 2008, the motion judge, sua sponte raised the issue of the impact on the subsequent jailhouse body search of Ricardo should the court find the glove compartment search was illegal. The State argued, at the time, that since Ricardo had a warrant out for his arrest, the "officers cannot overlook an arrest warrant, as we all know, they have to actually execute that warrant and he would have been placed under arrest and searched back at headquarters regardless." The court allowed both parties to make supplemental submissions addressing the issue.

On January 26, 2009, the court rendered its decision suppressing the drugs found in the glove compartment. Crediting the police officers' testimony, the motion judge found probable cause based on the "strong odor of raw unburnt marijuana emanating from the vehicle[,]" but no exigency. As to the latter, the judge relied on a number of considerations including the fact that defendants complied with the officers' requests and made no attempt to interfere with their duties; the vehicle was pulled over in a residential, rather than high crime area, and while still light out; the even ratio of officers to suspects; the failure to attempt to secure additional back-up; lack of any indication that back-up would have been unavailable; the timing of the arrival of the third-party vehicle; the lack of any concern over its occupants, as they "followed the officer's directions and [] parked their vehicle out of the location"; the absence of CDS in plain view inside the vehicle; and the lack of any indication that the third parties were aware that CDS was inside the car.

Following the suppression ruling, the court once again invited counsel to present supplemental evidence concerning Ricardo's jailhouse search. The judge emphasized that supplemental evidence was necessary to determine this issue since "the State did not have an officer present to testify at the hearing. And at this point, it would be, for me, conjecture. I would have to make several assumptions based on evidence not on the record as to what had transpired and how that was discovered." Despite the court's repeated invitation, the State offered no additional evidence as to what occurred immediately before, during, and after the search of Ricardo at the station house. Instead, the State submitted a three-page letter brief "regarding the legal issues and the basic facts" contained in the initial police report. The State relied on the doctrine of inevitable discovery as Ricardo's body search would have resulted, in any event, from a valid arrest warrant, as it "was routine procedure for the defendant to be searched at the Toms River jail prior to [being] placed in any holding cell." Defendant argued that his extensive body search was beyond that justified by an arrest on a traffic warrant and that, in any event, the search was performed only as a result of the CDS improperly recovered from the vehicle.

On February 23, 2009, the judge suppressed the CDS evidence uncovered in Ricardo's sock and shoe, finding it to be the tainted "fruit of the poisonous tree" inadmissible derivative evidence which the State failed to prove would have been inevitably discovered apart from the illegal initial search. Citing State v. Sugar (Sugar II), 100 N.J. 214 (1985), the court focused on the lack of any evidence concerning Ricardo's jailhouse search: "[h]ere there has been no evidence offered as to the circumstances of the search of Ricardo Ortiz. I gave

. . . the State the opportunity to call a witness, because at this point in time, all I would be left with would be speculation and assumptions." The judge further reasoned:

I have no evidence, no testimony in the record from which I can make any reasonable inference as to what occurred . . . that led to the discovery of that additional evidence. Nothing has been submitted as to who performed the search, where or what time the search occurred, or the extent of the search, itself. And by failing to produce any witness or evidence regarding the search of Ricardo Ortiz, the State has failed to meet the burden of showing that no constitutional violation occurred.

On leave to appeal, the State argues:

I. UNDER THE TOTALITY OF THE CIRCUMSTANCES TEST, WHICH THE JUDGE FAILED TO APPLY, THERE WAS AN "ARTICULABLE EXIGENCY" OVER AND ABOVE THE MOBILITY OF THE AUTOMOBILE TO SATISFY THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT.

II. THE SEARCH OF THE GLOVE BOX IS JUSTIFIED AS A WEAPONS SEARCH.

III. THE SUPPRESSION OF EVIDENCE SEIZED FROM RICARDO ORTIZ'S PERSON AT THE JAIL WAS ERRONEOUS.

I.

As a threshold matter, in reviewing a motion to suppress, this court must "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007); see also State v. Locurto, 157 N.J. 463, 474 (1999); State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990). Moreover, we defer to those findings of the trial judge "which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. In essence, a trial court's findings should be disturbed only if "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (citing Johnson, supra, 42 N.J. at 162).

Defendant Arnaldo argues that the initial stop of the Honda was unconstitutional. "It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997). "To satisfy the articulable and reasonable suspicion standard, the State is not required to prove that the suspected motor-vehicle violation occurred." Locurto, supra, 157 N.J. at 470. Here, Officer Koeppen observed what he believed was illegal after-market tint on Arnaldo's front windows, and was therefore justified in stopping the motor vehicle. Contrary to defendant's contention, Koeppen need not have precisely measured the degree of the tint to ensure a violation of N.J.S.A. 39:3-74. As noted, the State need prove only that the police lawfully stopped the car, not that it could convict the driver of the motor vehicle offense. State v. Williamson, 138 N.J. 302, 304 (1994). In any event, Officer Koeppen's belief "that the darkly-tinted windows represented a significant obstruction, even if not violative of Title 39, is a sufficient reason to implicate 'the community caretaking function' and permit inspection of what appears to be a hazardous vehicular condition that deviates from the norm." State v. Cohen, 347 N.J. Super. 375, 381 (App. Div. 2002).

II.

Having determined the legality of the stop, we next address the glove compartment search. It is well-settled that "[w]arrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004). The State has the burden to demonstrate that the search "falls within one of the few well-defined exceptions to the warrant requirement." State v. Maryland, 167 N.J. 471, 482 (2001) (internal citations omitted); State v. Patino, 83 N.J. 1, 7 (1980). The State must demonstrate by a preponderance of the evidence that there was no constitutional violation. State v. Wilson, 178 N.J. 7, 13 (2003).

For a warrantless search of an automobile in New Jersey to be valid, not only must the police have "probable cause to believe that the vehicle contains contraband or evidence of a crime", but "exigent circumstances [must] exist under which it is impracticable to obtain a warrant." State v. Pena-Flores, 198 N.J. 6, 28 (2009); State v. Cooke, 163 N.J. 659, 667-68 (2000). "Probable cause has been defined as a well-grounded suspicion that a crime has been or is being committed." Cooke, supra, 163 N.J. at 671. "New Jersey courts have recognized that the smell of marijuana itself constitutes probable cause 'that a criminal offense ha[s] been committed and that additional contraband might be present.'" State v. Nishina, 175 N.J. 502, 515-16 (2003) (quoting State v. Vanderveer, 285 N.J. Super. 475, 479 (App. Div. 1995)); see also Pena-Flores, supra, 198 N.J. at 30 ("The overwhelming smell of marijuana emanating from the automobile gave the officer probable cause to believe that it contained contraband."); State v. Guerra, 93 N.J. 146, 151 (1983) (same).

Here, as the motion judge correctly found, there was probable cause based simply on the odor of unburnt marijuana emanating from the car as sensed by both police officers at the scene. Furthermore, Ricardo's nervousness and proffer of a name other than the one his brother gave in identifying him added to the officers' well-grounded suspicion that criminal activity was afoot.

As noted, the existence of probable cause alone is insufficient to justify the search of an automobile by New Jersey law enforcement authorities. There must also be an exigency. For "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). In determining whether exigency existed, "the dispositive question is whether 'the circumstances . . . make it impracticable to obtain a warrant when the police have probable cause to search the car.'" Pena-Flores, supra, 198 N.J. at 23 (citing State v. Colvin, 123 N.J. 428, 437 (1991)); Cooke, supra, 163 N.J. at 676.

In New Jersey, "exigency above and beyond the mere mobility of the vehicle is required." Pena-Flores, supra, 198 N.J. at 24. In this regard, "'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.'" Cooke, supra, 163 N.J. at 672 (citing State v. Alston, 88 N.J. 211, 234 (1981)). "[U]ntil the vehicle is seized by the police and removed from the scene, 'it is potentially accessible to third persons who might move or damage it or remove or destroy evidence contained in it.'" Cooke, supra, 163 N.J. at 672 (citing Alston, supra, 88 N.J. at 234); Johnson, supra, 193 N.J. at 553. Exigency will be found "when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene." Ibid.

The question of exigency is to be determined "on a case-by-case basis with the focus on police safety and preservation of evidence." Pena-Flores, supra, 198 N.J. at 11. "In each case it is the circumstances facing the officers that tell the tale." Id. at 29. While there is "no magic formula," a court should examine the "totality of the circumstances" to see whether it was impracticable to secure a warrant prior to the search. Id. at 28-29; Cooke, supra, 163 N.J. at 675; State v. Dunlap, 185 N.J. 543, 551 (2006). In engaging in this factual analysis the Pena-Flores Court set forth a non-exhaustive list of factors:

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.

[198 N.J. at 29.]

Pena-Flores, supra, was a consolidated appeal challenging the legality of two different warrantless vehicle searches. In the one instance, the Court found that there "was simply no urgent, immediate need for the officers to conduct a full search of the automobile" where the driver had been arrested and secured inside the police cruiser, no third parties were present who might have attempted to destroy evidence, and the vehicle could have been impounded or an officer could have remained at the car while a warrant was obtained by telephone or in person. 198 N.J. at 32. In the other instance, where exigency was found, the driver and passenger were removed from the vehicle but neither placed under arrest nor secured within a police cruiser, the "ratio of officers to suspects was two-to-two, and there was no available back-up." Id. at 30.

In assessing the totality of circumstances, we conclude that sufficient credible evidence in the record supports the motion judge's finding that the police lacked exigency to search the glove compartment without first obtaining a warrant, either via telephone or in person. The traffic stop occurred while it was still light out on a residential street, albeit near a busy commercial road. Back-up arrived within two minutes of being dispatched and before Arnaldo was arrested and secured in the back seat of Koeppen's police cruiser. Both defendants were cooperative during the traffic stop and their subsequent arrests. Although the precise time of the SUV's arrival on the scene is not clear, it was sometime after Arnaldo was arrested and Ricardo had exited the vehicle and, inferentially, after Koeppen began searching the glove compartment. In any event, at all times, the occupants of the SUV complied with police directions, including moving their vehicle some distance from the scene. There was no indication they knew Arnaldo's vehicle contained CDS, nor was any CDS in plain view. Far from presenting any threat to the officers' safety or preservation of the evidence, one of the SUV occupants, a relative of defendants, was actually given the keys to Arnaldo's Honda to take possession of the vehicle upon the defendants' transport to jail.

Throughout the entire ten to fifteen minutes of the traffic stop, neither officer requested additional back-up to guard the car while a warrant was obtained by telephone or in person, see Dunlap, supra, 185 N.J. at 551, and there is no indication in the record that had back-up been deemed necessary, it would have been unavailable. Indeed, any on-the-scene searches revealed no weapon or additional contraband. Equally lacking is any indication that any delay occasioned by obtaining a warrant to search the car would have jeopardized either the officers' safety or the integrity of the evidence. Thus, under the totality of the circumstances presented, we find no error in the motion judge's conclusion that the State failed to sustain its burden of proving exigency by a preponderance of the evidence.

Nevertheless, for the first time, the State now seeks to justify the search of the glove compartment as a protective weapons search under both Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977), and Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). The argument is not only precluded from review on appeal, Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973), but devoid of any support in the record.

Under Long, supra, a search is restricted:

to those areas in which a weapon may be placed or hidden, . . . if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.

[463 U.S. at 1049, 103 S. Ct. at 3481, 77 L. Ed. 2d at 1220 (internal citations omitted).]

Here, there is no proof of an articulable, much less reasonable, belief that defendants posed a danger to the police officers. To the contrary, the officer testified that defendants were cooperative the entire time, and the third-party occupants of the SUV were fully compliant with police directions. Significantly, by the time Koeppen began the search of the glove compartment, Arnaldo was already under arrest and secured in the police cruiser, and McDowell was in the process of determining the identity of Ricardo, who had exited the vehicle. Equally important, Koeppen, upon opening the glove compartment and observing the bag, did not believe the bag contained a weapon of any kind. Even if Koeppen lawfully opened the glove compartment, there would have been no justification under the State's theory for further searching the plastic bag, which did not appear on its exterior to contain any weapon therein. The State relies on State v. O'Neal, 190 N.J. 601, 625 (2007), for the proposition that in the Terry stop context, "objective evidence of drug dealing gives rise to a fair, objective inference that weapons also are present." In O'Neal, supra, however, the police observed the defendant complete a drug sale and subsequently arrested him for possession of CDS with the intent to distribute, during which time the protective search was conducted. 190 N.J. at 606-08. In contrast, here, there was only the odor of unburnt marijuana. Although sufficient in itself to give rise to a well-grounded suspicion of drug use, this fact alone, in our view, does not establish objective evidence of defendants' drug dealing, from which to further infer the presence of weapons. We, therefore, conclude the police search of the glove compartment cannot be justified as a protective weapons search.

III.

The unlawful search of the glove compartment and seizure of its contents taint defendants' subsequent arrest on drug charges and searches incident thereto, unless otherwise justified. On this score, the State argues, as it did below, that because Ricardo was also arrested on an outstanding warrant, the evidence uncovered in his shoe and sock would have been inevitably discovered, and thus legally obtained, during his jailhouse inventory search, conducted as part of routine administrative booking procedure or as a further search incident to arrest. The motion judge found the State did not sustain its burden of proof under this theory, and we agree.

Under the exclusionary rule, derivative evidence obtained as a result of a constitutional violation is suppressed unless it fits into an applicable exception, like the inevitable discovery doctrine. Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 453-54 (1963). Such derivative evidence is commonly referred to as "fruit of the poisonous tree." Nix v. Williams, 467 U.S. 431, 441, 104 S. Ct. 2501, 2508, 81 L. Ed. 2d 377, 386 (1961). The reason for the exclusion of illegally obtained derivative evidence is to "compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it." United States v. Calandra, 414 U.S. 338, 347, 94 S. Ct. 613, 620, 38 L. Ed. 2d 561, 571 (1974) (internal citations omitted).

In New Jersey, the inevitable discovery doctrine was adopted in Sugar II as an exception to the "judicially-created exclusionary rule applicable to an unreasonable search and seizure." State v. Worthy, 141 N.J. 368, 389-90 (1995). "[T]he central question to be addressed in invoking the 'inevitable discovery' rule 'is whether that very item of evidence would inevitably have been discovered, not merely whether evidence roughly comparable would have been so discovered.'" Id. at 390 (citing Wayne La Fave, Search and Seizure, 11.4(a), at 380 (1987)). The rule's rationale is "that exclusion of evidence that would inevitably have been discovered [would] put the government in a worse position, [than it would have been in, absent police error or misconduct] because the police would have obtained that evidence if no misconduct had taken place." Nix, supra, 467 U.S. at 444, 104 S. Ct. at 2509, 81 L. Ed. 2d at 387. It is, therefore, the government's burden to prove that the evidence would have otherwise been lawfully discovered to avoid suppression of that evidence as "fruit of the poisonous tree."

Under Sugar II, supra, in order to invoke the inevitable discovery doctrine, the State must show that:

(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.

[100 N.J. at 238.]

The State must "show by clear and convincing evidence that had the illegality not occurred, it would have pursued established investigatory procedures that would have inevitably resulted in the discovery of the controverted evidence, wholly apart from its unlawful acquisition." Id. at 240; see also State v. Johnson, 120 N.J. 263, 290 (1990).

The State would otherwise seek to justify Ricardo's jailhouse search as either incident to his arrest on the outstanding warrant or as an inventory search. As to the former, a search incident to arrest "that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention." United States v. Edwards, 415 U.S. 800, 803, 94 S. Ct. 1234, 1237, 39 L. Ed. 2d 771, 775 (1974); Chimel v. California, 395 U.S. 752, 755-56, 89 S. Ct. 2034, 2036, 23 L. Ed. 2d 685, 689 (1969). So long as it is not remote in time or place from the arrest, a "search incident to an arrest may be valid . . . even though it is not conducted contemporaneously with the arrest." State v. Oyenusi, 387 N.J. Super. 146, 156 (App. Div. 2006), certif. denied, 189 N.J. 26 (2007); see also United States v. Chadwick, 433 U.S. 1, 15, 97 S. Ct. 2476, 2485, 53 L. Ed. 2d 538, 550-51 (1977).

The exception to the warrant requirement, however, is not limitless in either purpose or scope. State v. Dangerfield, 171 N.J. 446, 461 (2002). Such a search "is permitted to protect the safety of the officer and to preserve evidence that may be destroyed or removed." State v. Bradley, 291 N.J. Super. 501, 509 (App. Div. 1996). Moreover, the Supreme Court has interpreted some provisions of our Motor Vehicle Code to hold that the police may not undertake full-blown searches of a motor vehicle or its occupants based on contemporaneous arrests for minor motor vehicle violations. State v. Pierce, 136 N.J. 184, 209-10 (1994); see also Dangerfield, supra, 171 N.J. at 461. Indeed, in Pierce, supra, the Court took note of cases, standards and commentators that had questioned the propriety of detention or arrest "in respect of offenses that pose little threat to public safety." 136 N.J. at 193.

So too, "[a]n inventory search of personal effects of an arrestee at a police station is permissible under the Fourth Amendment." State v. Paturizzio, 292 N.J. Super. 542, 550 (App. Div. 1996). The police may "remove and list or inventory property found on the person or in the possession of an arrested person who is to be jailed." Illinois v. Lafayette, 462 U.S. 640, 646, 103 S. Ct. 2605, 2609, 77 L. Ed. 2d 65, 71 (1983). In fact, administrative regulations of the Department of Corrections (DOC) mandate that "[e]ach person detained, arrested or lawfully confined to a municipal detention facility shall be thoroughly searched prior to placement in a cell." N.J.A.C. 10A:34-3.2(a). By parity of reasoning, a warrantless jailhouse inventory search is without justification when the arrestee is not going to be incarcerated and is therefore constitutionally impermissible. For minor offenses, however, "[e]ven if bail [were] to be required, rather than release on personal recognizance, a full body search should be precluded until the individual has been given a reasonable opportunity to post bail." State v. Dangerfield, 339 N.J. Super. 229, 241 (App. Div. 2001), modified in part on other grounds, 171 N.J. 446, 461-64 (2002); State v. Hurtado, 219 N.J. Super. 12, 22 (App. Div. 1987) (noting that "a person arrested for a minor offense must first be informed of his right to post collateral, and given an opportunity to do so prior to conducting an inventory search[]"), rev'd on other grounds as stated in dissent, 113 N.J. 1 (1988); see also 3 La Fave, Search & Seizure, 5.3(d) at 185 (4th Ed. 2004). But see State v. Vonderfecht, 284 N.J. Super. 555, 560 (App. Div. 1995) (upholding full stationhouse inventory search of an individual arrested for the petty disorderly person's offense of defiant trespass).

In State in the Interest of J.M., 339 N.J. Super. 244, 256-57 (App. Div. 2001), we found that the juvenile's body search was not justified as either a search incident to arrest or an inventory search. There, the juvenile was frisked on the scene, detained on criminal trespass charges, and later subjected to a "full search" at the stationhouse, which uncovered drugs inside his right sock and under the arch of his foot. Id. at 247. We held that the full blown search at the police station was not justified under the "search incident" exception because the traditional rationales for that rule safety of police and preservation of evidence were not implicated. Id. at 249. In this regard, we reasoned that J.M. was detained merely for a petty disorderly offense; that there was no evidence or instrumentality of criminal trespass ever at risk of being lost or destroyed; and the officers' safety concerns, if any, were addressed by the on-the-scene frisk. Ibid.

We next addressed the inventory exception, but found that inapplicable as well because the juvenile was not "lawfully deemed subject to detention in the first instance." Id. at 250. We held that J.M. was not properly detained since police failed to follow statutory provisions that require them to immediately contact the juvenile's parents once taken into custody. Id. at 251. Nor was there any evidence that police obtained, or even sought, the permission of a judge or the court intake service before detention. Ibid.

Here, to avoid suppression as fruit of the poisonous automobile search, the State had to prove by clear and convincing evidence that the cocaine in Ricardo's shoe and sock would have inevitably been discovered as a result of a search incident to a lawful warrant or an inventory search prefatory to his incarceration on that charge. Yet the State has offered no evidence much less clear and convincing proof of the circumstances attending Ricardo's stationhouse search. For instance, there is no explanation why, after the initial on-the-scene pat down uncovered nothing, a second search of unknown extent, duration, origin or location was deemed necessary for police safety or evidence preservation. Even if a search beyond a mere frisk were valid as incident to his arrest, the State has offered no proof why it lawfully extended to the suspect's shoes and socks when there was no visible bulge or any reasonable suspicion to search that area.

Moreover, there is no evidence to suggest that Ricardo would have been lawfully confined to a municipal or county detention facility, that he would not otherwise have been released on his own recognizance, or have posted bail if, in fact, bail had been set on the warrant charge. To the contrary, the record is silent even as to the underlying charge on which Ricardo's outstanding warrant was based. Equally lacking is any evidence of routine internal police administrative procedures regarding booking, detaining, setting bail, searching and jailing a suspect charged with minor offenses in order to determine whether the evidence would have been legally obtained had departmental rules been followed in this instance.

All the record reveals is that a search of Ricardo either at the municipal or county jail uncovered cocaine in his shoe and sock. Absent any additional proof, the State has failed to meet its burden of proving by clear and convincing evidence, Sugar II, supra, 100 N.J. at 240; Johnson, supra, 120 N.J. at 290, that the contraband would have been lawfully seized as a result of Ricardo's arrest on the outstanding warrant, and thus failed to prove by a preponderance of the evidence, Pineiro, supra, 181 N.J. at 19; Wilson, supra, 178 N.J. at 13, the constitutionality of police action in this case.

 
Affirmed.

There is no record evidence of the underlying charge on which the warrant was based. In his appellate brief, defendant represents that he was arrested on a motor vehicle warrant, and the State has not refuted this assertion. The motion judge, in his oral opinions, stated that Ricardo was arrested for an outstanding traffic warrant. See State v. Johnson, 42 N.J. 146, 162 (1964).

The record does not even allow a finding as to where the search of Ricardo actually took place. At the February 2009 hearing, the judge stated the search occurred at the Ocean County Jail, yet at the January 2009 hearing, he stated that the search occurred at "Toms River municipal jail", noting that the "circumstances are not entirely clear because we did not have any testimony on that particular issue and what occurred at the Toms River Police Department." The State, in its brief, simply noted that the search occurred at "the jail." Defendant's brief states that the search occurred at the "Toms River County Jail." To complicate matters further, the Ocean County Jail is located within the city limits of Toms River, New Jersey. See Ocean County Department of Corrections,

http://www.co.ocean.nj.us/corrections/index.htm (last visited Oct. 6, 2009). At oral argument, the State represented that the search occurred at the Toms River municipal jail.

In that factual circumstance, involving defendants Paredes and Pena-Flores, the vehicle was stopped by a police officer after the driver had engaged in an aggressive traffic maneuver and the officer later observed the car had illegally tinted windows in violation of N.J.S.A. 39:3-74. Id. at 30.

At the time Koeppen searched the glove compartment, Arnaldo was already secured in the police cruiser and Ricardo had exited the vehicle, as the officers requested, and was talking with McDowell.

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

A similar provision, N.J.A.C. 10A:31-8.3, applies to adult county detention centers.

Dangerfield, supra, involved an adult arrested for defiant trespass and subjected to a full search incident to his arrest. 339 N.J. Super. at 232-34. In our ruling suppressing the resultant evidence, we stated that the authority of the police to search incident to an arrest for minor offenses is not absolute. Id. at 238-39. However, because probable cause to arrest the defendant was lacking, the search incident thereto was invalid, and therefore the Court did not need to resolve whether any limitations are appropriate on the right of police officers to search an arrestee in connection with a valid arrest for the petty disorderly offense of defiant trespass. 171 N.J. at 463-64.

Although Ricardo contends he was "strip searched," the record does not reflect the extent of his body search other than cocaine was found in his shoe and sock. We simply note in this regard that strip searches are defined and governed by N.J.S.A. 2A:161A-1(c), which requires that: (1) the suspect be lawfully confined in a municipal detention facility; (2) there be reasonable suspicion that a weapon, CDS, or contraband will be found; and (3) the search be conducted pursuant to DOC regulations. Those regulations, in turn, authorize strip searches for those arrested for the commission of an offense other than a crime and confined in a municipal detention facility only when authorized by the custody staff member in charge and the search is based on a warrant, consent, or reasonable suspicion that the person is concealing a weapon, contraband or evidence of a crime. N.J.A.C. 10A:34-3.4.

Although we do not presume Ricardo was subjected to a body cavity search, the scant record contains no evidence that such a search, if conducted, would have been lawful. See State v. Harris, 384 N.J. Super. 29, 50 (App. Div.), certif. denied, 188 N.J. 357 (2006).

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(continued)

29

A-4026-08T4

December 28, 2009