STATE OF NEW JERSEY - v. JOSEPH IRIZARRY -

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5042-06T45042-06T4

A-5044-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NESTOR A. TREMINO, a/k/a ANTHONY

MOLINA,

Defendant-Appellant.

_____________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH IRIZARRY,

Defendant-Appellant.

______________________________________

 

Submitted November 18, 2008 - Decided

Before Judges Winkelstein and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-09-00988.

Rodney D. Ray, attorney for appellant Nestor A. Tremino.

Jaime Kaigh, attorney for appellant Joseph Irizarry.

Anne Milgram, Attorney General, attorney for respondents (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

In these two back-to-back cases, defendants appeal from the orders of November 8, 2006, denying their motions to suppress. After the denial of their motions, defendant Joseph Irizarry, the driver of the automobile, pled guilty to possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), and received a sentence of fifteen years imprisonment, including a five year period of parole ineligibility; defendant Nestor A. Tremino, the passenger in the vehicle, pled guilty to the same offense, and also received a sentence of fifteen years imprisonment, but with a seven year period of parole ineligibility. We affirm.

I

The events that led to the seizure of 2.4 kilos of heroin from defendants' vehicle began with a wiretap investigation by the Union County Prosecutor's Office. In the course of intercepting calls between the United States and Colombia on February 17 and 19, 2005, investigators learned that individuals from Camden would be picking up controlled dangerous substances (CDS) on the evening of February 19, 2005. The detectives concluded that the transaction would occur at either 1009 Jackson Avenue in Elizabeth or 1816 Manor Drive in Union.

One of the detectives who participated in the surveillance testified at the suppression hearing that a vehicle left the Manor Drive address and arrived at the Jackson Avenue address at approximately 12:25 p.m. The detective observed one of the targets of the investigation, Wilson Valdez, also known as "Tabby," exiting the vehicle carrying a bag and entering the building at the Jackson Avenue address. About five minutes later, a Nissan arrived at the Jackson Avenue address, and two men left that vehicle and entered the building. After another five minutes, the two men returned to the Nissan, carrying a shopping bag that they placed in the trunk of the vehicle. Through a motor vehicle check, the detective learned that the Nissan was registered to a person with a Camden address.

In order to maintain the integrity of the wiretap investigation, the law enforcement personnel did not stop the Nissan at that point, but using a number of unmarked cars, maintained mobile surveillance of it as it headed down the New Jersey Turnpike toward Camden. The Camden Police Department was alerted to the situation, and at about 2 a.m. on February 20, 2005, two Camden police officers in a patrol car picked up the mobile surveillance of the Nissan on Route 30, as it headed toward Camden. After observing the Nissan traveling recklessly at a high rate of speed, almost colliding with two other vehicles, the officers stopped the vehicle, and it pulled into an empty parking lot.

The officers exited their vehicle and were approaching the Nissan, when the trunk of the Nissan unexpectedly popped halfway open. Louis Sanchez, one of the Camden police officers, testified that, based on his experience in narcotics investigations, he recognized a package sticking out of a shopping bag in the trunk as one possibly containing a large quantity of CDS. Sanchez stated that when he told Irizarry that the trunk was open, Irizarry became nervous and exchanged glances with his passenger. According to Sanchez, Irizarry verbally consented to a search of the vehicle. Without a warrant, the officers then searched the vehicle, finding 2.4 kilos of heroin in the package in the trunk. In addition, they confiscated four cell phones from the front seats of the car. No weapons were found.

Defendants were each indicted for racketeering conspiracy, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:41-2(d); possession of heroin, N.J.S.A. 2C:35-10(a)(1); and possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1). In addition, Irizarry was issued summonses for reckless driving and wearing no seat belt.

After holding a hearing on defendants' motions to suppress, the trial judge issued a written Statement of Reasons on November 9, 2006, denying the applications. He specifically found the State's witnesses to be credible. He rejected the State's argument that the search was consensual, holding that the evidence did not establish a knowing and voluntary consent; that decision has not been appealed. The trial judge did, however, uphold the search, finding that it fell within two exceptions to the warrant requirement, namely, the automobile exception and the plain view exception.

On appeal, defendants raise the following issues:

POINT I

EXIGENT CIRCUMSTANCES DID NOT EXIST AND THUS, THE WARRANTLESS SEARCH OF THE APPELLANT'S CAR WAS PER SE UNLAWFUL, AND ALL EVIDENCE ILLEGALLY SEIZED MUST BE SUPRESSED.

POINT II

EVEN IF EXIGENT CIRCUMSTANCES EXIST, THEY WERE CREATED BY LAW ENFORCEMENT, AND AS SUCH DO NOT FALL WITHIN THE AUTOMOBILE EXCEPTIN [sic], THUS A WARRANTLESS SEARCH WAS NOT JUSTIFIED AND THE EVIDENCE OBTAINED BY SUCH ILLEGAL SEARCH SHALL BE SUPPRESSED.

POINT III

THE PLAIN VIEW DOCTRINE DOES NOT APPLY AND AS SUCH, THE WARRANTLESS SEARCH WAS NOT JUSTIFIED, AND ALL EVIDENCE ILLEGALLY OBTAINED SHOULD BE SUPPRESSED.

In reviewing a motion to suppress, we must uphold the factual findings of the trial judge provided they are supported by sufficient credible evidence. State v. Elders, 192 N.J. 224, 243 (2007). 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).

The United States and New Jersey Constitutions require as a general rule that a warrant be issued before the police may search and seize evidence. U.S. Const. amend. IV; N.J. Const. art. I, 7. A warrantless search is presumptively invalid unless it "falls within one of the few well-delineated exceptions to the warrant requirement." State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). The burden is on the State to show that the search falls within one of the recognized exceptions to the warrant requirement. Ibid. Where the warrantless search fails to fall within one of these exceptions, 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"). Here the State maintains that the search of the Nissan falls within two exceptions to the warrant requirement: the automobile exception and the plain view exception. We will address each separately.

II

Under the automobile exception to the warrant requirement, the police may stop and search a vehicle on the highway when both probable cause and exigent circumstances are present. State v. Dunlap, 185 N.J. 543, 551 (2006). The probable cause and exigent circumstances must make "it impracticable for the police to obtain a warrant." State v. Cooke, 163 N.J. 657, 671 (2000). Probable cause is "a well-grounded suspicion that a crime has been or is being committed." Ibid. Exigent circumstances has been explained in the following way:

Exigent circumstances have been described as "unforeseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile . . . ." Exigent circumstances may exist if the unanticipated circumstances that give rise to probable cause occur swiftly. In addition, exigent circumstances may arise where "[a]ny element of surprise had been lost; the vehicle contained the 'contraband' drugs; there were 'confederates waiting to move the evidence'; the police would need 'a special police detail to guard the immobilized automobile.'"

[Id. at 672 (citations omitted) (alterations in original).]

Here, based on the interceptions of the telephone conversations coupled with the observations of the detectives in Elizabeth and Union, the Camden police officers had probable cause to believe that the Nissan contained CDS. Further, they had probable cause to stop the Nissan due to the motor vehicle violations they observed. Thus, the probable cause requirement has been met.

Defendants argue that exigent circumstances were not present because the law enforcement officials had three hours from the time they intercepted the telephone calls until the stop to obtain a search warrant. We disagree. This is not a lengthy time period. Until the officers saw the bag being placed into the Nissan, they had no probable cause to seek a search warrant. Only ninety minutes or so elapsed from the time they observed the bag being placed into the Nissan and the stop in Camden. During that short time period, the law enforcement officials were conducting a mobile surveillance of the Nissan as it raced down the New Jersey Turnpike in the middle of the night. That mobile surveillance involved a number of unmarked law enforcement vehicles that had to be coordinated, and the officers also had to coordinate their efforts with the Camden Police Department. These were certainly exigent circumstances. Once the vehicle was stopped, exigent circumstances remained present. This was a dangerous stop in the middle of the night in a deserted area involving a large quantity of CDS and defendants who were thought to be part of an international drug conspiracy. The cell phones found in the vehicle could have been used to signal for help once the police had sounded their sirens to begin the stop. Armed confederates may have been nearby or on the way. Only two officers were at the scene. Due to the mobility of the car and CDS, the vehicle certainly could not be left unattended. These exigent circumstances warranted the search and seizure of the CDS.

Defendants also argue that this was a police created exigency, arguing that the police knew for hours that they would eventually have to conduct a search and waited to do so without obtaining a warrant. However, exigent circumstances created by "reasonable investigative law enforcement behavior" may necessitate a warrantless search. State v. Stanton, 265 N.J. Super. 383, 388 (App. Div. 1993) (concerning warrantless search of a motel room); see also State v. Laboo, 396 N.J. Super. 97, 106-08 (App. Div. 2007) (finding exigent circumstances when police tracked a cell phone to an apartment). Here the interest in protecting the security of the wiretap investigation was a legitimate law enforcement consideration that precluded the immediate seizure of the vehicle.

Thus, the search falls within the automobile exception to the warrant requirement.

III

In addition, we concur with the trial judge's finding that the search falls also within the plain view exception. Under the plain view exception, a law enforcement officer may seize evidence that is in plain view provided he is lawfully in the viewing area and he has "probable cause to associate the property with criminal activity." State v. Johnson, 171 N.J. 192, 206-07 (2002) (quoting State v. Bruzzese, 94 N.J. 210, 236-38 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). Here, the Camden police officer was lawfully in the viewing area, and he had probable cause to believe that the package in the trunk contained CDS.

However, the law has long imposed the additional requirement of inadvertency, namely, that the officer "did not know in advance where evidence was located nor intend beforehand to seize it." Id. at 206 (quoting State v. Bruzzese, supra, 94 N.J. at 236). This inadvertency requirement has now been eliminated from federal constitutional law. Horton v. California, 496 U.S. 128, 130, 110 S. Ct. 2301, 2304, 110 L. Ed. 2d 112, 118-19 (1990). The law is unclear whether the inadvertency requirement still applies under New Jersey constitutional law. State v. Padilla, 321 N.J. Super. 96, 109 n.7 (App. Div. 1999), aff'd, 163 N.J. 3 (2000). However, we need not resolve this question, since the requirement of inadvertency, if viable, has been met under the facts of this case.

Although Sanchez learned in advance of the stop that the trunk likely contained CDS, it was solely through inadvertence that he saw the CDS. As the trial court stated: "[t]he defendant's inadvertent hitting of the trunk release makes the officer's observation inadvertent and based upon his prior experience it was immediately apparent to him that the package contained CDS." In this respect, the facts are similar to those in State v. Padilla, supra, 321 N.J. Super. at 102-03, where the police had received an anonymous call that three people in a particular hotel room had a gun. The police went to the room, were admitted entrance, and observed a gun and CDS which they seized. Id. at 103-04. Despite the fact that the police had reason to believe a gun was in the room, the search and seizure of the gun was deemed "inadvertent." Id. at 109-10. In so holding, we explained:

While the police had a reason to investigate the report that someone in the room had a gun, they did not know its precise location let alone that it would be in plain view. The purpose of the inadvertence requirement is to prevent the police from engaging in planned warrantless searches where they know in advance the location of certain evidence and intend to seize it, relying on the "plain view" exception as a pretext. Here, the officers were not aware of the specific location of the gun and clearly did not enter the premises in order to rely on the plain view exception as a pretext. Their purpose in entering the room was to perform their duty and investigate the tip.

[Id. at 109 (citation omitted).]

Here, Officer Sanchez was legitimately in a place he needed to be in order to carry out his law enforcement responsibilities when he saw the trunk unexpectedly open, and he observed the package he suspected contained CDS. He was not present as a pretext in order to seize evidence in plain view.

For all of these reasons, we find that the search and seizure of the evidence found in the vehicle was justified under both the plain view and automobile exceptions to the warrant requirement. The denial of the motions to suppress is affirmed.

 

(continued)

(continued)

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A-5042-06T4

January 26, 2009