STATE OF NEW JERSEY v. AARON CROOMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4118-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AARON CROOMS,

Defendant-Appellant.

______________________________________________

May 11, 2011

Argued November 17, 2010 Decided

Before Judges Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-07-1579.

Edward C. Bertucio argued the cause for appellant (Hobbie, Corrigan, Bertucio & Tashjy, P.C., attorneys; Mr. Bertucio, on the brief).

Monica do Outeiro, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, MonmouthCounty Prosecutor, attorney; Ms. do Outeiro, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence seized from his automobile, defendant Aaron Crooms agreed to enter a guilty plea to count two of Indictment No. 07-07-1579, second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(b)(2), and count one charging third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) was to be dismissed. On the date set for sentencing, defendant also entered a guilty plea to an unrelated accusation, charging resisting arrest by flight, a fourth-degree offense. In accordance with the plea agreement, defendant was sentenced to six years in prison with a three-year period of parole ineligibility on the indictment and to a concurrent term of eighteen months flat on the accusation.

In this appeal, defendant contends the warrantless search of the car at the scene was illegal as there were no exigent circumstances, and this was not a valid search incident to arrest. Because we agree that there was an insufficient showing of exigent circumstances to excuse law enforcement from seeking a search warrant, we reverse the order denying defendant's motion to suppress the evidence seized from the car.

On defendant's motion to suppress evidence, the trial court conducted a hearing in which two Freehold police officers testified. Patrolman Christopher Otlowski testified on behalf of the State and Patrolman Christopher Colaner was subpoenaed to testify on behalf of the defense. With minor variations, not material to our decision, the testimony of the two patrolmen was consistent. They were on duty in the early evening hours of February 2, 2007, in plain clothes, driving an unmarked car. They had been assigned to patrol for street crimes in an area of Freehold, known for drug transactions and other crimes. At about 10:30 p.m., they observed a blue Ford Taurus pull into a parking lot between a grocery store and liquor store, an area known for high crime. Patrolman Otlowski recognized defendant, whom he knew from prior cases, as the driver of the Ford Taurus and confirmed with police dispatch that defendant's driver's license was suspended. In addition, prior to the evening in question, the patrolmen had received general information from an anonymous informant and from a confidential informant described by Patrolman Colaner as "a proven reliable confidential informant" that defendant was residing in Asbury Park and coming to Freehold to sell drugs. The informants had not provided any date or time with reference to defendant's activities in Freehold, and the patrolmen testified they were not at their specific location that evening because of that information. Patrolman Colander characterized their observation of defendant at the time and place as "dumb luck."

The patrolmen parked the undercover vehicle approximately thirty-five to forty feet away from defendant's vehicle. Defendant's vehicle was parked behind a maroon Ford Taurus. From their location, Patrolmen Otlowski and Colaner observed defendant exit his vehicle, take two items from his trunk, a funnel and what appeared to be an oil bottle of some sort, then open his hood. Defendant seemed to engage himself under the hood until the patrolmen observed an individual, whom they knew to be Melvin Ivory, exit the grocery store and engage in a very brief conversation with defendant.

Ivory then unlocked the door to the maroon Taurus and walked back inside the grocery store. Shortly thereafter, defendant walked over to the maroon Taurus with his right fist "clenched." Although the patrolmen were unable to discern whether there was actually an object inside defendant's clenched fist, defendant opened the driver's side door of the Taurus and appeared to place something into the panel on the driver's side door. Both patrolmen admitted that they did not observe any direct exchange of any item between defendant and Ivory and did not see whether defendant actually placed anything in Ivory's car.

Defendant walked back to his car, closed the hood, and placed the funnel and oil container back into his trunk. He sat back in his car and picked up his cell phone. Based upon their observations, the patrolmen indicated defendant had been acting as if he were putting something in the car, but neither patrolman observed defendant actually pour the oil through the funnel. Patrolman Colaner conceded, however, that "anything [was] possible." Eventually, Ivory exited the store in the company of a female. Both he and the female were carrying bags of groceries. Without engaging in any further conversation with defendant, Ivory and his female companion drove away.

Based upon his training and experience, Patrolman Otlowski was "pretty positive" the transaction the patrolmen witnessed was a CDS exchange. They decided to approach defendant's vehicle, and they called for two other units to try to locate and stop Ivory's vehicle.1 In the meantime, Sergeant Michael Sweetman arrived as back up. Defendant's car was approached with at least one weapon drawn by the three officers, until defendant compliantly exited his vehicle at the request of the officers. After he first denied speaking to Ivory, defendant advised Patrolman Colaner that he had asked Ivory "for a flashlight to assist him in changing or adding transmission fluid or whatever he was supposedly doing under the hood of his car."

After defendant was out of the car, Patrolman Colaner asked him what he was doing and defendant indicated to him that he had nothing to hide and that the officers could go ahead and search the car and the trunk. Shortly thereafter, defendant changed his mind and indicated that they could not search the trunk. As a result, the officers terminated the search and called for a police canine to sniff the exterior of defendant's vehicle for narcotics. Patrolman Otlowski testified due to the time of night and lack of manpower on the weekend, the officers decided not to pursue a search warrant. Defendant's reaction to the call for the police canine was to state that "[he'll] just roll the dice."

During an exterior sniff, the dog reacted positively to the passenger side compartment of the vehicle but when that area was searched, nothing was found. The dog then signaled that contraband was in the hood of the car. The officers searched the hood and found a plastic bag containing four smaller sandwich bags of cocaine. Defendant was detained for approximately twenty-five to thirty minutes before the drugs were found. When the drugs were discovered, defendant was placed under arrest.

Finding that each of the patrolmen testified in a truthful manner, the trial court denied defendant's motion to suppress. In doing so the court, citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 911 (1968), found that there was "ample, reasonable, and articulable suspicion for the police officer to conduct an investigatory stop of the defendant based upon the totality of the circumstances they observed." Further, the court found that "calling for the canine sniff dog was reasonable police conduct[,]" and that twenty to twenty-five minutes detention was reasonable for an investigation with a narcotics sniff dog. The court noted that based on the totality of circumstances, it specifically "does not fault the decision to call for a canine sniff dog rather than apply for a warrant, even a telephonic warrant."

Finally, in finding exigent circumstances for the search, the court looked at numerous factors and stated:

[I]t was reasonable for these experienced narcotics officers, Otlowski and Colaner, based on what they saw, what they knew about the defendant, to conclude that they had witnessed a drug transaction.

Colaner listed the reasons that formed his reasonable suspicion. One, the location is one where drug dealers do business. Two, the previous arrests of the defendant including his knowledge that the defendant was previously involved in narcotics. Three, the confidential informant information. Colaner said the confidential informant had provided accurate information in the past and he had said that the defendant was residing in Asbury Park and coming to Freehold to sell drugs.

He also said that the informant provided no further specific information about this with regard to either a date or a time or a description of Mr. Crooms' vehicle. He described this factor as follows: "It was dumb luck." Meaning, dumb luck that they were there that night and saw what they saw.

He also listed as part of the totality of things he considered, the defendant's actions that we observed. All of these things led him to conclude the defendant was involved in a narcotics activity in the parking lot on that night.

The court went on to deny the motion to suppress reasoning:

Otlowski testified that based on his observations and experience the defendant's conflicting stories and his knowledge that his conflicting story with what Otlowski had observed and his knowledge of Ivory's involvement in drugs, he felt he needed to conduct a narcotics investigation by calling for a canine sniff dog.

Colaner said we brought a dog in because of our suspicion that there was narcotics activity that we had observed. The totality of all these circumstances provides more than ample reasonable suspicion to detain the defendant in order to investigate this further and I find calling for a canine sniff dog was reasonable police conduct.

. . . .

The dog alert capped a probable cause that's necessary for a vehicle search and the Court finds the circumstances presented exigency. And the circumstances are that there were three officers present. It was a late hour, they were in a public parking area alongside a State highway.

There were other individuals who are unaccounted for and had left the scene and the defendant had been observed on a cell phone in the beginning of the incident.

. . . .

And I find here the dog search was reasonably related to the quick moving events that the officers observed. Calling for the dog was the best course of conduct. . . . The wait for the dog was short in duration and as I said, was in a public parking lot with a defendant who was parked not traveling when the officers approached and a defendant with a suspended driver's license who could not drive away anyway.

Accordingly, I find a 20 to 25 minute extension of the investigation to obtain a canine sniff dog was reasonable in the light of the officers' initial purpose considering everything they knew beforehand, had witnessed, and their conversation with the defendant.

As earlier noted, defendant raises the following argument on appeal:

POINT I: THE SEARCH OF THE CAR AT THE SCENE OF APPELLANT'S ARREST WAS ILLEGAL AS THERE WERE NOT EXIGENT CIRCUMSTANCES AND THIS WAS NOT A VALID SEARCH INCIDENT TO ARREST. Therefore the physical evidence should have been suppressed and the trial court's denial of the motion to suppress should be reversed.

We have considered defendant's arguments in light of the facts and the applicable law, and we reverse the denial of defendant's motion to suppress.

In reviewing a motion to suppress evidence, this court must defer to the trial court's fact findings underlying its decision, "'so long as those findings are supported by sufficient credible evidence in the record.'" State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We may not substitute our own conclusions regarding the evidence, even in a "close" case. State v. Locurto, 157 N.J. 463, 471 (1999). We specifically defer to the credibility determinations of the trial court, particularly its review of competing factual testimony. Locurto, supra, 157 N.J. at 474. These factual determinations "are substantially influenced by [the trial court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We reverse only when the determination is "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. However, we need not defer to any legal conclusions reached from the established facts. State v. Brown, 118 N.J. 595, 604 (1990).

"The Fourth Amendment to the United States Constitution, and Article I, paragraph 7 of the New Jersey Constitution require that police officers 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. Cassidy, 179 N.J. 150, 160 (2004) (quoting State v. DeLuca, 168 N.J. 626, 631 (2001)); see also State v. Pena-Flores, 198 N.J. 6, 18 (2009). A warrantless search is presumed invalid, and places the burden on the State to prove that "'[the search] falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Pineiro, 181 N.J. 13, 19 (2004) (alteration in original) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).

Here, the pivotal issue arising out of the facts is whether the evidence showed exigent circumstances to conduct the motor vehicle search without a warrant. The automobile exception to the warrant requirement permissibly allows a search upon the finding of probable cause to believe the vehicle contains evidence of criminal activity and "exigent circumstances," including "the unforeseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile stopped on the highway." State v. Alston, 88 N.J. 211, 233 (1981); accord State v. Cooke, 163 N.J. 657, 664 (2000). The automobile exception under New Jersey law differs from the federal exception in that "(1) . . . the stop ha[s] to be unforeseen and spontaneous and (2) . . . exigency must be assessed based on the particular facts and circumstances of the case, and does not automatically flow from the mobility of the vehicle." Pena-Flores, supra, 198 N.J. at 22; accord State v. Colvin, 123 N.J. 428, 429-30, 434-35, 437 (1991). "[T]he dispositive question is whether 'the circumstances . . . make it impracticable to obtain a warrant when the police have probable cause to search the car.'" Pena-Flores, supra, 198 N.J. at 23 (emphasis omitted) (quoting Colvin, supra, 123 N.J. at 437).

In Pena-Flores, the Court reaffirmed the automobile exception to the warrant requirement, as well as the absolute necessity that the State prove exigent circumstances to justify a warrantless search. Id. at 28. In accordance with "our unwavering precedent," the warrantless search of an automobile in New Jersey is permissible

where (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. The notion of exigency encompasses far broader considerations than the mere mobility of the vehicle.

 
[Ibid. (citations omitted).]

The Court observed that exigency must be determined on a "case-by-case basis" and "[n]o one factor is dispositive; courts must consider the totality of the circumstances." Ibid. However, the analysis remains constant because "the issues of officer safety and the preservation of evidence [are] the fundamental inquiry." Id. at 29.

Although "[t]here is no magic formula -- it is merely the compendium of facts that make it impracticable to secure a warrant[,]" ibid., the Court identified a non-exhaustive list of considerations when determining the existence of exigent circumstances, including:

the location of the [search]; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; . . . 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.

 
[Ibid.]

"[U]ntil the vehicle is seized by the police and removed from the scene, 'it is potentially accessible to third persons who might move or damage it or remove or destroy evidence contained in it.'" Cooke, supra, 163 N.J. at 672 (quoting Alston, supra, 88 N.J. at 234). Exigency will be found "when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene." State v. Johnson, 193 N.J. 528, 553 (2008). Applying these factors to the instant case, we find that the State has not sufficiently established that exigent circumstances existed rendering it impracticable to obtain a warrant.

We recognized our cases have held that an open-air sniff by a drug-detection dog does not intrude upon the privacy rights of a defendant and does not require a warrant provided that the police have reasonable and articulable suspicion of criminal activity. State v. Elders, 386 N.J. Super. 208, 228-30 (App. Div. 2006), rev'd on other grounds, 192 N.J. 224 (2007); State v. Cancel, 256 N.J. Super. 430, 432-37 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993). We agree with the motion judge that the twenty to twenty-five minutes detention of defendant in calling the canine unit impermissibly extended the stop into a de facto arrest,2 but we part company on whether exigent circumstances precluded an application to an impartial magistrate for a search warrant.

The first two prongs of the automobile exception are present. First, the patrolmen stopped defendant based on "dumb luck." Second, they had probable cause to believe that defendant's car contained contraband since the totality of circumstances support the patrolmen's well-grounded suspicion that they had witnessed a drug transaction. The patrolmen testified at the suppression hearing that they observed defendant, who had a prior conviction for possession of CDS with intent to distribute, engage in a brief conversation with a man known from previous narcotics investigations in an area known for drug crimes. Defendant also acted nervously when questioned 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 was in jeopardy, and it was not impractical to obtain a warrant prior to searching defendant's car. To assert exigent circumstances, the State relied, in part, on our recent decision in State v. Lewis, 411 N.J. Super. 483 (App. Div. 2010). There, the officers observed a suspected narcotics transaction and pulled over the van which received the money. Id. at 485. The officers observed the defendant place something under his seat and believed that the defendant had discarded something. Ibid. The officer then retrieved a black leather case and looked inside, which revealed a large quantity of cocaine. Ibid. There were five or six people within the vicinity of the stop at the time of the search. Ibid. The motion judge, however, found that the State failed to establish "exigency" required to uphold the validity of the search of the van. Id. at 486. The decision to suppress the evidence was based on the fact that the defendants were detained in the back of the officers' vehicle and the black leather case was closed and did not appear dangerous. Ibid. On appeal, we applied the factors set forth in the then recently decided case, Pena-Flores, supra, 198 N.J. at 28-29, and found that the State made a sufficient showing of exigent circumstances to uphold the search. Lewis, supra, 411 N.J. Super. at 489-90. We based our decision on the fact that the observations were unanticipated and the officers involved in the investigation were "stretched out kind of thin." Id. at 490. We also noted that the stop occurred in a high crime area and five or six people congregated in the area of the stop. Id. at 489.

Here, there was no indication that the Freehold police officers did not have sufficient time to obtain a telephonic warrant from a municipal court judge pursuant to Rule 3:5-3(b). Although there was testimony that Superior Court judges cannot be contacted after 11:00 p.m., there was nothing to support that the officers could not contact a municipal court judge at that hour. Though it was late at night, there were three police officers initially present, four including the officer with the canine unit, at the scene with defendant, who was alone. The stop was located in a grocery store parking lot without any evidence of third parties who might tamper with the evidence, since Patrolman Otlowski indicated that no one had approached the vehicle during the stop. There was no testimony elicited at the suppression hearing suggesting that the officers or potential evidence in the car were in danger. Defendant was cooperative and had stepped away from the passenger compartment of the vehicle. Finally, there was no evidence that the Freehold Police were shorthanded, except the unsupported testimony of the officers stating that there is less manpower on the weekend.

In the companion case to Pena-Flores, State v. Fuller, 198 N.J. 6 (2009), the Court found that because the stop took place in broad daylight, and sufficient police officers were at the scene and not in danger, "[t]here was simply no urgent, immediate need for the officers to conduct a full search of the automobile." Id. at 32. Here, the circumstances were similar as (1) the police were in no danger; (2) the State conceded that the defendant was detained in the officer's custody and was not free to leave; and (3) a telephonic warrant could have been sought expeditiously. As in Pena-Flores, "[t]he vehicle could have been impounded or one officer could have remained with it while a warrant was sought by telephone or in person." Fuller, supra, 198 N.J. at 32. "'The requirement that a search warrant be obtained before evidence may be seized is not lightly to be dispensed with, and the burden is on the State . . . to bring it within one of those recognized exceptions.'" Pena-Flores, supra, 198 N.J. at 25 (quoting Cooke, supra, 163 N.J. at 664). In Pena-Flores, the Court went on to explain:

Without a requirement of exigent circumstances, virtually every search of an automobile would be valid provided the police had probable cause to act. For example, . . . a car parked in the home driveway of vacationing owners would be a fair target of a warrantless search if the police had probable cause to believe the vehicle contained drugs. Such a broad ruling has no basis in our case law.

[Id. at 26 (quoting Cooke, supra, 163 N.J. 667-68).]

In light of Pena-Flores, we find that the court's reasons for exigency, namely, that it was a late hour and that the stop occurred in a parking area next to a highway, is insufficient. Accordingly, we reverse the order denying defendant's motion to suppress the evidence.

Reversed.

1 The two other units were unsuccessful in their attempt to locate Ivory's vehicle.

2 "[A]n investigative stop becomes a de facto arrest when 'the officers' conduct is more intrusive than necessary for an investigative stop.'" State v. Dickey, 152 N.J. 468, 478 (1998) (quoting United States v. Jones, 759 F.2d 633, 636 (8th Cir.), cert. denied, 474 U.S. 837, 106 S. Ct. 113, 88 L. Ed. 2d 92 (1985)).