STATE OF NEW JERSEY v. LIONEL POWELL, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5243-07T45243-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LIONEL POWELL, JR.,

Defendant-Appellant.

______________________________________________________

 

Submitted July 7, 2009 - Decided

Before Judges Fisher and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-09-735-I/B.

Genora Rosypal, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

In this appeal, we address defendant's contention that police unlawfully stopped his motor vehicle and thereafter unlawfully searched his person as well as his vehicle. Defendant argues that the judge erred in denying his motion to suppress the evidence then seized. We reverse insofar as the judge failed to suppress evidence seized from defendant's vehicle, but affirm insofar as the judge refused to suppress evidence seized from defendant's person.

Defendant was charged with third-degree possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(11), and fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3). Defendant thereafter moved to suppress evidence and an evidentiary hearing was conducted at which time the judge heard the testimony only of State Trooper Steven Swift, who conducted the stop of defendant's vehicle and, along with another officer, conducted the search that followed.

Following the hearing, the judge issued a very thorough written opinion. The judge explained why he found Trooper Swift to be credible:

Trooper Swift was able to describe the incident from memory and provided an internally consistent, detailed description of the facts leading to the motor vehicle stop and the events which unfolded during the stop. He made eye contact with the questioners. His answers were direct and responsive. He was not evasive. There was nothing about his body language, vocal inflection or demeanor to suggest he was not being truthful. Simply put, the [c]ourt finds that his testimony was candid and had the ring of truth.

As a result, the judge found that Trooper Swift was on routine patrol in Fairfield Township at approximately 8:00 p.m. on April 21, 2007, when he saw a black male driving a Cadillac Eldorado. He observed that the driver was alone, was not speeding and did not appear to be in violation of any motor vehicle laws. The trooper decided to run a random inquiry into the vehicle's status; he learned there was an outstanding warrant against the registered owner.

Based on this outstanding warrant, Trooper Swift activated his vehicle's overhead lights and siren and directed the vehicle to stop. Defendant's vehicle made a left turn into a residential driveway and stopped. Trooper Swift followed the vehicle into the driveway and parked behind, directing the driver to remain inside his vehicle. It turned out that defendant had pulled into the driveway of his home.

Trooper Swift was alone at the time; backup had not yet arrived when he approached the driver side window and asked the driver who he was and whose vehicle it was. As he asked these questions, Trooper Swift smelled the odor of raw marijuana emanating from the passenger compartment. According to the judge, Trooper Swift

then directed the driver to exit the vehicle and conducted a "probable cause search" of the driver's person, which revealed a clear plastic bag containing suspected marijuana in the driver's pants pocket. Trooper Swift arrested and handcuffed the driver and secured him in the rear of the troop car. At this point defendant could not leave and did not pose any risk. He asked the driver his name and advised the driver of his Miranda[] rights.

Another trooper arrived soon after defendant was arrested. The troopers did not ask for or receive consent to search the vehicle; they did not apply -- telephonically or otherwise -- for a warrant to search the vehicle. Instead, they proceeded to search the passenger compartment where Trooper Swift found two more small bundles of marijuana in the center console. Believing the amounts of marijuana discovered, in the words of the judge, "were not consistent with the strength of the odor that he detected," Trooper Swift opened the trunk using a key obtained from defendant when he was searched. Upon opening the trunk, "the odor of raw marijuana increas[ed] greatly." Inside the trunk, the troopers found two large bricks of marijuana, weighing approximately one pound each, inside double plastic bags.

During the search,

defendant's mother came out of the house. Trooper Swift told her what they were doing and directed her to return inside the house. She complied. At another point, several cars had pulled up to observe, but they were instructed to leave. No other backup ar-rived on the scene.

Upon completing the search, the troopers "stayed on the scene until [the] car was towed and impounded."

Based on these facts, the judge found that Trooper Swift had a legitimate reason for directing the vehicle to stop and, upon approaching the vehicle to speak with defendant -- at which time he smelled raw marijuana -- the trooper had a right to search defendant and thereafter both the passenger compartment and the trunk. He also found that exigent circumstances permitted the warrantless search of the vehicle. As a result, the judge denied defendant's motion to suppress evidence.

Defendant thereafter pled guilty to third-degree possession of marijuana with the intent to distribute. He received a three-year probationary term, on the condition that he serve thirty days in the county jail, and the dismissal of the remaining counts of the indictment.

Defendant appealed, presenting the following arguments for our consideration:

I. VEHICLE STOP BASED UPON LICENSE INQUIRY SHOULD NOT GO BEYOND INFORMATION REGARDING THE REGISTRATION, WHETHER OR NOT THE VEHICLE IS STOLEN AND THE LICENSE STATUS OF THE REGISTERED OWNER UNLESS THE ORIGINAL INQUIRY DISCLOSED A BASIS FOR FURTHER POLICE ACTION.

II. IS A WARRANTLESS SEARCH OF A MOTOR VEHICLE PERMISSIBLE WHEN THE ARRESTEE HAS BEEN HANDCUFFED AND PLACED IN THE TROOP CAR THEREBY ELIMINATING ANY RISK OF HARM TO THE OFFICER OR ANY CHANCE OF DESTROYING EVIDENCE.

We reject the arguments contained in Point I substantially for the reasons set forth by the trial judge in his written opinion.

We also conclude that the judge correctly determined, in light of his factual findings -- to which we defer, State v. Locurto, 157 N.J. 463, 470-71 (1999) -- that Trooper Swift had probable cause to search defendant's person, as well as the passenger compartment and the trunk of the vehicle, based upon the trooper's detection of the smell of raw marijuana. See State v. Judge, 275 N.J. Super. 194 (App. Div. 1994). On these points, we again agree with the judge's conclusions substantially for the reasons set forth in his written opinion.

However, the State was required to show more than probable cause to search the vehicle. The State was also obligated to demonstrate that "exigent circumstances exist[ed] under which it is impracticable to obtain a warrant." State v. Pena-Flores, 198 N.J. 6, 28 (2009). In Pena-Flores, in summarizing its prior decisions, the Court described the State's burden in this regard in the following way:

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).

[Id. at 28-30.]

In considering the alleged exigency of the circumstances, the judge recognized that defendant was under arrest and secured in the trooper's vehicle and, therefore, unable to destroy evidence or remove his vehicle. The judge referred to the fact that defendant's mother had come out of the house during her son's encounter with the troopers "to find out what was happening," and that she returned back in the house at Trooper Swift's request. However, without any support from the record other than what might be inferred from that circumstance, the judge concluded that defendant's mother "could easily have contacted her husband, the car's registered owner." The judge also found "that other unknown individuals had apparently pulled up during the stop and had to be told to leave." In addition, he determined that "[o]nly two troopers were present at the scene," and "[n]o other backup arrived." These were the facts upon which the judge concluded that exigent circumstances existed and permitted a warrantless search.

We disagree that the judge's findings support a conclusion that exigent circumstances were present. To the contrary, the record overwhelmingly demonstrates that exigent circumstances were not present. In canvassing the record for evidence regarding the first four factors identified in Pena-Flores, we observe that defendant's vehicle was stopped at 8:00 p.m., and, according to Trooper Swift's testimony, the search occurred quickly thereafter. The stop occurred in the driveway of defendant's mother's home. There is nothing in the record to indicate that this was a high-crime neighborhood or that the particular location represented a danger to the officers; Trooper Swift did not indicate there was a danger caused by the mother's presence in the home. There was nothing about the "unfolding of the events establishing probable cause" that suggested the possibility of the loss of evidence or a danger to the troopers. Id. at 29.

As for the remaining four Pena-Flores factors, there were two troopers present during the search; the only suspect was handcuffed in the back of the police vehicle and of no danger. In short, the police outnumbered the suspect, two to one. The judge mentioned that cars had driven by and slowed down, but were told to move along and complied. The judge also referred to the possibility that defendant's mother may have called defendant's father, who could have come along -- assuming the trooper left -- and removed the vehicle. There was no direct evidence to support that finding, and it is arguable whether this is a reasonable inference to be drawn merely from the fact that defendant's mother was in the house; for present purposes, we will indulge that inference.

Lastly, Pena-Flores instructs that courts in such matters should consider "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." Ibid. This is probably the most telling point in determining whether the State demonstrated exigent circumstances. In this regard, Trooper Swift testified that no effort was made to obtain a warrant and, following the arrest of defendant and the search of the vehicle, both he and the other trooper remained with the vehicle until a tow truck arrived. The fact that the officers remained, with both defendant and the evidence seized and secured, while waiting for the tow truck to arrive, represents irrefutable proof -- let alone the absence of any testimony or other evidence -- that the troopers never had reason to believe and never felt that they were in danger at the scene or were concerned that the vehicle would be removed by others if time was taken to request a warrant.

The search occurred in the early evening; there was no evidence that the arrest and search occurred in a high crime area; there is little evidence, other than the inferences drawn by the judge, to suggest that confederates of defendant may have been waiting for the police to leave in order to obtain the contraband in the vehicle; the troopers were never outnumbered; and there was no evidence to suggest that a warrant could not be expeditiously obtained telephonically or otherwise.

As a result, we find that the State failed to demonstrate exigent circumstances and that the evidence seized from the troopers' search of the vehicle, both the passenger compartment and the trunk, must be suppressed. On the other hand, we agree that the search of defendant's person was permissible absent a warrant. Accordingly, we vacate the judgment of conviction, reinstate all counts of the indictment, direct the entry of an order granting in part defendant's suppression motion in conformity with this opinion, and remand for trial.

 
Affirmed in part and reversed in part.

The outstanding warrant was for the forty-one-year-old vehicle owner. Defendant was twenty-one at the time and, according to the judge's findings, "look[ed] his age." The judge also found that Trooper Swift "quickly realized that the driver was not the owner of the car or the person described in the warrant"; instead the trooper "knew that the warrant was for the driver's father."

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Although Pena-Flores was decided after the trial judge's decision in this case, we note that the Court recognized it had not established a new rule in Pena-Flores; instead, the Court held that its decision represented "nothing more than a reaffirmation of over three decades of prior jurisprudence." Id. at 29 n.5.

The record does not disclose how much time passed before the tow truck arrived.

(continued)

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11

A-5243-07T4

July 27, 2009