STATE OF NEW JERSEY v. CANDIDA HERBIN

 
(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NOT FOR PUBLICATION WITHOUT THE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-1424-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CANDIDA HERBIN a/k/a CANDIDA

JOHNSON a/k/a SHAWANA JOHNSON,

Defendant-Appellant.

____________________________

October 22, 2010

 

Submitted: September 29, 2010 - Decided:

 

Before: Judges Cuff and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-09-0769.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, on the brief).

 

PER CURIAM

In this case involving a warrantless search, defendant, Candida Herbin, appeals from a February 8, 2008 order denying her motion to suppress marijuana and cocaine seized from a car in which she was a passenger.1 Defendant was justifiably removed from the car, marijuana was observed in plain view, and exigent circumstances existed warranting a search under the front passenger seat where cocaine was located. We affirm.

At 12:30 a.m., Bedminster Township Officer John Dapkins observed a small two-door Acura with Pennsylvania license plates speeding in the center lane of Interstate 78 westbound. Dapkins paced the Acura, determined its speed to be eighty miles per hour, and observed it weaving from left to right in the lane. The Acura approached a slower moving car in the same lane, tailgated it, and then switched from the center lane to the left lane as if to pass it. Instead of passing the slower moving car, the Acura traveled next to it for a "period of time." Dapkins notified dispatch that he intended to make a stop, pulled into the left lane, and activated his emergency lights. Dapkins followed the Acura approximately one and one-half miles before the Acura pulled over in the right-hand shoulder.

Dapkins approached the Acura on the passenger side because it was about to rain heavily and it was safer. Through the passenger window, Dapkins asked the driver, Treese, to produce his license and registration. Treese indicated he had no identification for himself or the Acura. Dapkins requested Treese to step out of the car and instructed defendant and Heintzelman to remain in the Acura and not move.

Dapkins walked Treese about ten to fifteen feet in front of the Acura and asked him for his name. Treese attempted to give Dapkins his name but had difficulty spelling it correctly. Dapkins observed Treese s speech and body movements were "very rapid" and his pupils were "extremely large." Dapkins, a drug recognition expert with extensive experience evaluating whether someone is under the influence of drugs, concluded that Treese exhibited signs of ingesting a stimulant.

Dapkins conducted a pat down search to determine if Treese had any weapons. He identified a sponge-like object in his front pocket, "a large squishy ball," that Treese voluntarily removed. Dapkins observed that the object was a stainless steel scouring pad that he recognized was commonly used to smoke crack cocaine.

While Dapkins was talking to Treese, Dapkins observed that defendant and Heintzelman were having a heated conversation and that defendant turned around and faced Heintzelman in the back seat. He shone his flashlight at the car, defendant turned around, and both looked straight ahead. Dapkins instructed Treese to remain still, and he returned to the Acura rapidly.

Dapkins asked defendant and Heintzelman for identification. Heintzelman indicated he had none and defendant produced her New York identification. Both told Dapkins that they traveled to the Bronx to celebrate defendant s birthday and that they "had just dropped off her three children." Dapkins questioned them about how six people could fit in the compact Acura, especially because Heintzelman was a large man who occupied most of the back-seat, and Heintzelman responded that "we managed."

Dapkins told both to remain in the car and he returned to Treese and questioned him about whether there were any other people in the car that night. Treese indicated that no other people had been in the car. Dapkins used defendant s New York identification and asked if Treese knew who she was. Treese attempted to read her name off the identification card in Dapkin s hand and then accused Dapkins of asking a trick question.

Dapkins returned to the Acura, asked defendant to step out, and inspected her clothing visually to determine if she had any weapons. He looked into the car and observed marijuana in plain view, located in the center console area near the front passenger seat. Dapkins immediately contacted dispatch and requested back-up.

Dapkins asked Heintzelman to step out of the Acura but Heintzelman did not comply immediately. While Dapkins told him repeatedly to exit the Acura, Dapkins observed Heintzelman kicking his left foot under the front passenger seat multiple times. Dapkins directed him to exit the Acura and proceed to the patrol car but Heintzelman disregarded that direction. Finally, Heintzelman went to the patrol car and waited.

Bedminster Township Officer Joseph Haggerty then arrived at the scene. Before Dapkins returned to Treese, he instructed Haggerty to run a background check on defendant. Dapkins placed Treese under arrest and read him his Miranda2 rights.

Officer Jason Shanaphy arrived from the Far Hills Police Department because the Bedminster police were shorthanded. By this time the storm had arrived and rain fell heavily. Dapkins directed Shanaphy to secure Treese with handcuffs, but neither defendant nor Heintzelman were secured and Dapkins was concerned about the officers safety because he suspected a weapon was under the front passenger seat.

Dapkins searched under the seat and discovered forty-four grams of crack cocaine loosely wrapped in cellophane. Defendant and Heintzelman were then secured and all three were transported to headquarters. At the police station, Treese gave consent to search the impounded car and one more bag of marijuana was located.

On February 8, 2008 Judge Robert B. Reed issued a comprehensive written opinion denying defendant's motion to suppress the marijuana in the center console and the cocaine found under the seat. Judge Reed concluded that the stop was valid, the pat down of Treese and the removal of the occupants from the Acura were justified, the marijuana in the center console was seized in plain view, and the automobile exception to the warrant requirement applied because probable cause and exigent circumstances existed. The judge suppressed the one bag of marijuana seized from the impounded car because Treese's consent to search was not obtained validly.3

On February 15, 2008, defendant pled guilty to third-degree possession of a controlled dangerous substance (cocaine), in violation of N.J.S.A. 2C:35-10a(1) (Count Two). The sentencing judge imposed a three-year term of probation and 364 days in the county jail, which would be suspended if defendant completed an in-patient drug treatment program.

On appeal, defendant raises the following arguments:

POINT I:

THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE WAS ERRONEOUSLY DENIED

 

A. The Relevant Legal Principles

 

B. The Marijuana Was Improperly Seized

 

C. The Seizure Of The Cocaine Was Not Justified Under the Automobile Exception

 

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 "[i]f 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 ("[t]he 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)).

The standard for determining whether, in the context of a traffic violation, a police officer may order a passenger to step out of a vehicle was set forth in State v. Smith, 134 N.J. 599, 618 (1994).

[T]he officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car.

 

[Ibid.]

 

Generally, evidence left in plain view may be seized

without a warrant. See State v. Bruzzese, 94 N.J. 210, 235-36

(1983) (adopting the plain view warrant exception set forth in

Texas v. Brown, 460 U.S. 730, 743, 103 S. Ct. 1535, 1544, 75 L. Ed. 2d 502, 514 (1983) (plurality opinion)). The "plain view" doctrine requires that the police discovery of the evidence be "inadvertent," meaning the officers "did not know in advance where evidence was located or intend beforehand to seize it." Bruzzese, supra, 94 N.J. at 236. Additionally, the officers must have recognized the objects immediately as "evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 207 (2002); Brown, supra, 460 U.S. at 738, 103 S. Ct. at 1541, 75 L. Ed. 2d at 511. Finally, the police must "lawfully be in the viewing area." Johnson, supra, 171 N.J. at 206.

To apply the automobile exception to the warrant requirement, 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 Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, L. Ed.2d 1031, 1036 (1996)). 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 court4:

[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.]

 

We now apply the foregoing principles to the facts here. We reject defendant's argument that Dapkins removed her from the Acura improperly and that the discovery of the marijuana under the plain view doctrine was unjustified.

Removing defendant from the car was justified because Dapkins had a heightened awareness of danger that required the scene to be made more secure. Smith, supra, 134 N.J. at 618. Treese was suspected of being under the influence of narcotics; Heintzelman and defendant argued and moved around in the car; Treese and defendant gave conflicting information about other travel companions; it was dark and pouring; the stop occurred in the early hours of the morning on a major highway; Dapkins was alone; and two out of the three occupants had no identification.

The marijuana was observed properly under the plain view doctrine because Dapkins was lawfully in the viewing area, it was discovered inadvertently, and the officer had probable cause to associate marijuana with a crime.

We now turn to the question of whether exigent circumstances existed. We conclude that under the totality of the circumstances, exigent circumstances justified the warrantless search under the seat.

"Police safety . . . [is a] preeminent determinant[] of exigency." Dunlap, supra, 185 N.J. at 551. Dapkins testified that his "true concern" was "not so much the drugs[,] but a weapon." Heintzelman, a large gentleman who occupied most of the back seat, did not comply immediately with Dapkin's request to step out of the car. Instead, Heintzelman kicked his left foot under the front passenger seat repeatedly and disregarded Dapkin's instructions to go to the patrol car.

That evening the Bedminster police were shorthanded. When the second officer arrived at the scene, none of the occupants were secured. By the time the third officer arrived at the scene, it was pouring and Dapkins directed him to secure Treese with handcuffs, but neither defendant nor Heintzelman were secured.

We agree with Judge Reed that the facts of this case "required quick and decisive action." Searching under the seat was justified to address the many safety concerns that existed that night.

Affirmed.

 

 

1 Codefendant, John Treese, was the driver; codefendant, Heintzelman, was a rear-seat passenger; and defendant was a front-seat passenger. Codefendants did not participate in the appeal.

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

3 The State does not contest this ruling.

4 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.