STATE OF NEW JERSEY v. DANTE SANFORD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2237-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANTE SANFORD,

Defendant-Appellant.

________________________________

December 28, 2010

Argued December 7, 2010 - Decided

Before Judges Parrillo and Yannotti.

On appeal from the Superior Court of New Jersey,

Law Division, Somerset County, Indictment No.

05-08-0706.

Stephen W. Kirsch, Assistant Deputy Public Defender,

argued the cause for appellant (Yvonne Smith Segars,

Public Defender, attorney; Mr. Kirsch, of counsel and

on the brief).

Steven A. Yomtov, Deputy Attorney General, argued the

cause for respondent (Paula T. Dow, Attorney General,

attorney; Mr. Yomtov, of counsel and on the brief).

PER CURIAM

Following denial of his motions to suppress and to reopen the suppression hearing, defendant Dante Sanford pled guilty to fourth-degree impersonating a law enforcement officer, N.J.S.A. 2C:28-8b; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d; fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f; and second-degree possession of a handgun by a convicted person, N.J.S.A. 2C:39-7b. He was sentenced in accordance with the negotiated plea agreement to an aggregate term of six years with a five-year period of parole ineligibility. Defendant appeals from the denial of his suppression motions, and we affirm.

According to the State's proofs at the suppression hearing, around 2:00 a.m. on July 23, 2005, defendant was pulled over by a police officer on Route 206 in Montgomery Township because the license plate light to his vehicle, a Ford Crown Victoria, was out. As Sergeant James Gill approached, he noticed that defendant's vehicle was almost identical to an unmarked police vehicle, with tinted windows, a police interceptor emblem on the rear of the car, a red emergency lamp on the dashboard and, next to it, a blue placard that reflected "official business." Upon further observation, Gill saw on the rear seat of the vehicle a standard-issued reflective traffic vest with the word "POLICE" on it and a uniform shirt with a police patch on the shoulder.

Defendant was the lone occupant of the car, which was registered in his name. Suspecting that he might be dealing with a police officer, Gill inquired of defendant's employment. Evasive at first, defendant subsequently replied "Essex County Campus Police," but when asked for identification, he became nervous and eventually admitted he was not a police officer. Having determined to arrest defendant for impersonating a police officer, Gill, the sole officer on the scene, had defendant remain in the car and waited until back-up arrived. When Officer Larson responded, both officers approached defendant's vehicle and defendant was asked to exit the car. Gill then advised defendant he was under arrest and asked whether defendant had any weapons on him. Defendant replied no, but then reached toward his right front pants' pocket. Gill then ordered defendant to turn around and place his hands on top of his head. After handcuffing defendant, Gill put his hand into the pocket where defendant had reached and found five live rounds of .40 caliber hollow-point bullets. Defendant was then placed into Gill's police vehicle.

Because defendant was obviously impersonating a police officer and in possession of live rounds of ammunition, Gill strongly suspected a gun was inside defendant's car, possibly loaded. Concerned for the safety of anyone coming into contact with the vehicle, Gill immediately searched the passenger compartment and retrieved the police paraphernalia. Upon further inspection, Gill found a .40 caliber "Highpoint" firearm in a leather holster underneath the driver's seat. The handgun was loaded with eight rounds in the magazine and one in the chamber. Its serial number had been filed off and painted over. Gill also found several spent 9-milimeter shell casings in the center console.

Meanwhile, a private tow truck operator had been called to impound defendant's vehicle and tow it back to headquarters where it would be parked in an unsecured and unguarded rear lot. This was standard operating procedure (SOP) necessitated by the fact that the police department did not have its own towing or emergency services unit. Moreover, on the evening in question, only five police officers were on duty to patrol the township's thirty-two square miles, one of whom was "in-training" and "shadowed" by another officer. At the time of defendant's arrest, two other police officers were involved in another motor vehicle stop occurring at the southwest border of the township.

At the close of evidence, Judge Frank Gasiorowski denied defendant's motion to suppress, finding both probable cause and exigent circumstances, the latter based on the live ammunition on defendant's person, the likely presence of a gun inside his vehicle, the shortage of police officers on duty at the time, and the accessibility of the car to a private tow operator, who would then transport the vehicle to an unsecured lot accessible to anyone. Thereafter, defendant moved to reopen the suppression hearing in light of the Supreme Court's decisions in State v. Pena-Flores, 198 N.J. 6 (2009), and its companion case, State v. Fuller, 198 N.J. 6 (2009), as well as State v. Johnson, 193 N.J. 528 (2008). After hearing oral argument, Judge Paul Armstrong denied defendant's application, finding no reason to disturb the original decision.

On appeal, defendant does not contest his traffic stop, arrest or search of his person incident to that arrest. Nor does he challenge the finding of probable cause to believe that his vehicle contained evidence of a crime or a gun. Defendant argues, however, that the State failed to establish exigent circumstances that made it impracticable to obtain a telephonic warrant before searching the vehicle. We disagree.

In New Jersey, a warrantless search of an automobile is

permissible when "(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." Pena-Flores, supra, 198 N.J. at 28 (citing State v. Cooke,

163 N.J. 657, 667-68 (2000)). Whether exigent circumstances exist must be determined on a "case-by-case basis." Ibid. (citing State v. Dunlap, 185 N.J. 543, 551 (2006)).

In determining whether an exigency existed, the court "must consider the totality of the circumstances." Ibid. (citing Cooke, supra, 163 N.J. at 675). The relevant considerations include:

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.

[Id. at 29.]

There is "no magic formula" for determining whether exigent

circumstances exist. Ibid. Rather, the facts must establish that it is impracticable to obtain a warrant. Ibid. (citing State v. Colvin, 123 N.J. 428, 434 (1991); Coolidge v. New Hampshire, 403 U.S. 443, 462, 91 S. Ct. 2022, 2036, 29 L. Ed. 2d 564, 580 (1971)).

In Pena-Flores, supra, Officer Donald Zsak made a traffic

stop of a motor vehicle on a street in Cranford, New Jersey at

about 11:00 p.m. Id. at 12. Zsak approached the vehicle, and

noted that its windows were darkly tinted. Ibid. He also noticed a strong odor of raw marijuana coming from inside the car. Ibid. Zsak asked the driver to exit the car and move to the rear of the vehicle, where he "conducted a pat-down search." Ibid.

As Zsak searched the driver, another officer, Ryan Greco,

arrived at the scene to provide assistance. Ibid. Zsak ordered the passenger out of the car and conducted a pat-down search. Ibid. The occupants of the car were then turned over to Greco. Ibid. Zsak entered the passenger side of the car and began a search. Ibid. He discovered two clear plastic bags of marijuana on the floor on the front passenger side of the car. Ibid. Zsak instructed Greco to arrest the two occupants. Ibid.

Zsak then searched the backseat and found a handgun. Ibid.

He also found a large plastic bag that contained twenty-two

plastic bags of suspected marijuana; a bag with fifteen bags of

suspected marijuana; a bag with 111 bags of suspected marijuana;

eight bags containing the residue of a suspected controlled dangerous substance; and two boxes with empty, small plastic bags. Id. at 12-13.

The Court held that the warrantless search of the

vehicle was permissible, stating that "[t]he overwhelming smell of marijuana emanating from the automobile gave the officer probable cause to believe that it contained contraband." Id. at 30-31 (citing State v. Nishina, 175 N.J. 502, 515-16 (2003)). The Court also found that the exigencies of the situation made it impracticable for the officers to obtain a warrant. Ibid.

The Court noted that the traffic stop had been unexpected

and the police had no prior notice of criminality. Id. at 30.

The Court pointed out that Zsak could not look for weapons or

contraband from outside of the car because the windows were

darkly tinted. Ibid. Further, the two occupants had been removed from the car but had not been arrested or secured inside a patrol car. Ibid. The Court observed that "[t]he ratio of police officers to suspects was two-to-two, and there was no available back up." Ibid.

We conclude, as did the Court in Pena-Flores, that the warrantless search of defendant's vehicle at issue here satisfied the standards governing the automobile exception to the warrant requirement. Here, as in Pena-Flores, the motor vehicle stop was spontaneous and unexpected, and Sergeant Gill had no prior information that defendant had committed or was in the process of committing a crime. But even more compelling than the odor of marijuana emanating from the vehicle in Pena-Flores, here, there was a strong probability that a firearm was inside defendant's vehicle, and possibly loaded. This circumstance contributed significantly to the exigency of the situation because, even though defendant had been secured, his vehicle remained off the open highway, late at night, and exposed to oncoming traffic. See State v. Wilson, 362 N.J. Super. 319, 333 (App. Div.), certif. denied, 178 N.J. 250 (2003); see also State v. Alston, 88 N.J. 211, 234 (1981). The presence of a gun inside posed a very real and serious danger not only to the two investigating police officers, but to the motoring public and the private tow operator called to the scene. That danger would have persisted and likely have increased in the time required for obtaining a warrant, either written or telephonic. Moreover, no back-up was immediately available to assist in the rapidly developing investigation, as there were only five officers on duty to cover the entire township, two of whom were on scene and two others were similarly engaged in another motor vehicle stop.

We conclude that the exigencies facing the police officers

here made it impracticable to obtain a warrant before searching

defendant's car. Therefore, we affirm the denial of defendant's

motion to suppress the evidence found in the search.

A