STATE OF NEW JERSEY v. BRIAN WILK

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0628-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN WILK,

Defendant-Appellant.

____________________________

October 20, 2010

 

Submitted: September 29, 2010 - Decided:

 

Before: Judges Cuff and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 08-04-0403.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark P. Stalford, Designated Counsel, on the brief).

 

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

In this case involving a warrantless search of a car, defendant, Brian Wilk, appeals from a judgment of conviction after he pled guilty to third degree possession of a controlled dangerous substance (heroin), in violation of N.J.S.A. 2C:35-10a(1).1 The primary question is whether exigent circumstances existed making it impractical to obtain a warrant prior to searching defendant s car. We reverse.

On Friday, December 28, 2007, Officer Gregory Garcia stopped defendant s car around 12:15 p.m., because he suspected him of driving under the influence of either alcohol or drugs. Garcia observed that defendant obstructed traffic as he attempted to turn right out of a parking lot. Defendant pulled onto Main Street, immediately turned onto Orange Street, and Garcia followed him. Defendant then attempted to make a u-turn and his front right tire drove up onto a sidewalk nearly striking a fire hydrant.

Garcia stopped defendant s car in a business and residential neighborhood. There is no evidence that the location of the stop was a high crime area. Garcia suspected that he recognized defendant from previous drug-related arrests. As Garcia notified dispatch about the stop, he noticed defendant moved his hands near the center console of his car. As a result, Garcia requested a back-up unit.

Defendant exited his car and told Garcia that he intended to pick up his brother and go pay an outstanding summons. Garcia ordered defendant to remain at the rear of the car. Although defendant was nervous, would not make eye contact with Garcia, and had a total lack of concentration, he cooperated. Garcia asked defendant for his identification and to empty his pockets. Defendant complied and produced an outstanding summons and a torn cigarette filter.

Garcia suspected that defendant had heroin in the car because he knew that heroin could be strained through a torn cigarette filter. Garcia asked if drugs were in the car, and as defendant looked through the rear window at the console in his car, he said "no." Garcia then asked dispatch to confirm whether there was an outstanding warrant.

Officer Katsigiannis arrived as back-up and Garcia briefed him. Katsigiannis searched the console and located three empty glassine bags and one bag with white powder in it. After the search, dispatch verified that an outstanding warrant existed. Garcia arrested defendant and transported him to headquarters. Before defendant was transported, a third officer arrived at the scene. Katsigiannis remained there to await a tow truck. The car had to be impounded because Garcia suspected defendant of driving under the influence.

On January 8, 2009, the motion judge denied defendant s motion to suppress, finding that the automobile exception to the warrant requirement applied because exigent circumstances existed. The judge stated that:

Our courts have held, both the U.S. Supreme Court and our New Jersey Supreme Court, that the automobile exception and the exigent nature of the movement of the automobile or the potential movement of the automobile alone create the exigency. The court cites State v. Cooke, 163 N.J. 657, . . . 671 (2000). Each case is to be determined on a case-by-case basis. State v. Dunlap, 185 N.J. 543, [] 549 [(2006)] which cited the Cooke case. [I]n Dunlap, the Appellate Division found that when you have a good number of officers at the scene it's difficult to make the argument that there was the exigency of the removal or destruction of evidence.

Here we have two officers at the scene. One of them is charged with removing Mr. Wilk from the scene, based upon his arrest. The other is charged with remaining on the scene to potentially do an inventory.

The Court finds, under these particular circumstances, and based upon the mobility of the vehicle itself, that there could well have been the potential for any destruction of evidence.

 

(emphasis added)

 

On July 1, 2009, the judge sentenced defendant to a split probationary term of three years and 180 days in the county jail. Defendant was expected to serve the jail time at the end of his probationary term, or move to reduce or eliminate it. The appropriate fines and penalties were imposed.

On appeal, defendant raises the following argument: POINT I:

THE TRIAL COURT ERRED IN RULING THAT THE WARRANTLESS SEARCH OF DEFENDANT'S VEHICLE WAS CONSTITUTIONAL[LY] JUSTIFIED PURSUANT TO THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT

 

In reviewing an order disposing of a motion to suppress evidence we must defer to the trial court's factual findings, "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted). "'That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); see also State v. Robinson, 200 N.J. 1, 15 (2009); Elders, supra, 192 N.J. at 243-44. "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474; State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966). "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 (quoting Johnson, supra, 42 N.J. at 162). However, we need not defer to any legal conclusions reached from established facts. See State v. Brown, 118 N.J. 595, 604 (1990) (holding that "if the trial court acts under a misconception of the applicable law," we need not defer to its ruling). The trial court's application of the law is subject to plenary review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

"Consistent with the Fourth Amendment to the United States Constitution, and Article I, paragraph 7 of the New Jersey Constitution, police officers must obtain a warrant . . . before searching a person's property, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'" State v. DeLuca, 168 N.J. 626, 631 (2001) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)); see also Robinson, supra, 200 N.J. at 3 ("the warrant requirement embodied in both" the State and Federal Constitutions "limits the power of the sovereign to enter our homes and seize our persons or our effects"). A warrantless search is presumed invalid. State v. Pineiro, 181 N.J. 13, 19 (2004). The burden is placed on the State to prove that the search "'falls within one of the few well[-]delineated exceptions to the warrant requirement.'" Ibid. (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).

To apply the automobile exception to the warrant requirement, the following three factors must be satisfied: "(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." State v. Pena-Flores, 198 N.J. 6, 28 (2009) (citing Cooke, supra, 163 N.J. at 667-68). The automobile exception is premised on the inherent mobility of automobiles and the diminished expectation of privacy in one's automobile. Id. at 20; State v. Patino, 83 N.J. 1, 9 (1980).

"[A] warrantless search of a motor vehicle pursuant to the automobile exception is permissible so long as the vehicle is readily mobile and there is probable cause to believe it contains evidence of criminality." Pena-Flores, supra, 198 N.J. at 20 (citing Labron, supra, 518 U.S. at 940, 116 S. Ct. at 2487, L. Ed. 2d at 1036). In New Jersey, exigent circumstances must "be determined on a case-by-case basis." State v. Dunlap, 185 N.J. 543, 551 (2006). No one factor is controlling; instead, courts must weigh the totality of the circumstances. Cooke, supra, 163 N.J. at 675. "In each case it is the circumstances facing the officers that tell the tale." Pena-Flores, supra, 198 N.J. at 29.

Determinants of exigency are police safety and the preservation of evidence. Dunlap, supra, 185 N.J. at 551. "How the facts of the case bear on the issues of officer safety and the preservation of evidence is the fundamental inquiry." Pena-Flores, supra, 198 N.J. at 28-29 (citing Dunlap, supra, 185 N.J. at 551).

To determine whether exigent circumstances exist, we may consider the following possible scenarios outlined by the Pena-Flores court2:

[T]he 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.]

 

The first two prongs of the automobile exception are present. Garcia stopped defendant unexpectedly and he had probable cause to believe that defendant's car contained contraband. Garcia had a well-grounded suspicion that heroin was in the car because defendant produced a torn cigarette filter. Garcia testified at the suppression hearing that "through experience . . . I've seen filters used, like that, to strain heroin." Defendant also acted nervously and looked at the center console when Garcia questioned him about whether the car contained drugs.

We conclude, however, that the third prong was not met because exigent circumstances that precluded obtaining a warrant were not present. Neither the officers' safety nor the preservation of evidence were in jeopardy, and it was not impractical to obtain a warrant prior to searching defendant s car.

Garcia stopped defendant s car on Friday afternoon around 12:15 p.m. Defendant was the sole occupant; the surrounding area was part business and residential; the stop was not in a high crime area; traffic was light and not obstructed by defendant's car; back-up arrived immediately; defendant cooperated; and he was not arrested until after the search. Two officers were present and no other people were in the area.

Moreover, police had control of the car and never left it unguarded. Katsigiannis remained with the car when Garcia took defendant to police headquarters because the car had been impounded. Impounding the car obviated any concern for the destruction of any potential evidence. Any delay in obtaining a search warrant would not have placed the officers' safety in jeopardy or compromised the integrity of the evidence.

Reversed.

 

1 The State dismissed the following charges: a disorderly persons offense of use or possession with intent to use (a cut straw to inhale heroin), in violation of N.J.S.A. 2C:36-2; reckless driving, in violation of N.J.S.A. 39:4-96; improper turn, in violation of N.J.S.A. 39:4-123; and possession of a controlled dangerous substance in a motor vehicle, in violation of N.J.S.A. 39:4-49.1

2 We note that the motion judge's decision pre-dated Pena-Flores. Although Pena-Flores did not create new law, it summarized and clarified the relevant factors for determining whether exigent circumstances are present.