STATE OF NEW JERSEY v. ALAMIN S. ABRAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4365-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALAMIN S. ABRAMS, a/k/a MIKE

GOODWIN,

Defendant-Appellant.

_______________________________

October 18, 2012

Submitted September 19, 2012 - Decided

Before Judges Lihotz and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-03-0523.

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Alamin S. Abrams appeals from his February 23, 2011 judgment of conviction, following his entry of a guilty plea to possession of a controlled dangerous substance (CDS), cocaine, within 1000 feet of school property, N.J.S.A. 2C:35-7, for which he was sentenced to a four-year term of imprisonment with a two-year period of parole ineligibility. We reject defendant's argument that the judge wrongly denied his pretrial suppression motion and affirm defendant's conviction.

In a suppression hearing conducted by Judge Kevin G. Callahan, the State presented the following evidence. Lieutenant Mark Cowan, a twenty-five year veteran of the Jersey City Police Department, was on patrol driving a marked police car, at approximately 4 a.m. on December 1, 2009. Lt. Cowan effectuated a stop of a vehicle he observed traveling in the wrong direction on Summit Avenue, a one way street. After the stop, Lt. Cowan approached the driver's side of the vehicle using a flashlight. In addition to the driver, who was defendant, he noted a woman sitting in the front passenger's seat and a man in the rear. Defendant was cooperative and presented his credentials. However, he did not have a driver's license and offered a state-issued identification card. Lt. Cowan took the documents, walked to the rear of the vehicle and checked the license plate against the registration.

Three back-up officers arrived, Sergeant Vincent Glenn, and Officers Nunez and Burrows. Sgt. Glenn also testified at the motion hearing. He explained he was within two blocks of the area when Lt. Cowan's call was transmitted over the police radio. Sgt. Glenn described the neighborhood as "a dangerous area" compared to the rest of the city.

When Lt. Cowan returned to defendant's vehicle to advise defendant he would be issued motor vehicle summonses for the traffic violations, he saw a blue plastic baggie in a water glass located in the center console. Based on his experience, Lt. Cowan recognized the baggie as packaging typically used for marijuana. He testified the glass "was apparently being used as an ashtray because it was . . . full of ashes with this little bag in top." Seeing these two items together, Lt. Cowan concluded, "there's marijuana being smoked."

Lt. Cowan instructed defendant to exit his vehicle. Sgt. Glenn stood next to Lt. Cowan near the driver's door. As defendant stepped from the car, he turned his back to Lt. Cowan, and faced the car for approximately "three to five seconds[.]" Sgt. Glenn heard "a popping noise and . . . saw [defendant] taking an object out of his jacket, trying to manipulate it and stuff it under the driver's seat." He described the sound coming from inside the vehicle as "like a jar opening." Concerned for the officers' safety, Sgt. Glenn reached into the vehicle to remove the object defendant attempted to hide to see if it was "dangerous" or contained something "hazardous." The object was a clam-style, hard, eyeglass case with a zipper. Sgt. Glenn unzipped the case to check its content for small weapons, such as "a box cutter, . . . a lipstick knife, a belt buckle knife, [or] a key knife." Sgt. Glenn acknowledged nothing about the case suggested its contents, and he did not determine whether the case was the source of the popping sound. Inside the eyeglasses case, Sgt. Glenn found fifteen bags of heroin and twelve vials of cocaine.

Lt. Cowan escorted defendant toward the rear of his vehicle and placed him under arrest. A search of defendant's person incident to arrest recovered $120. No glasses were found.

Defendant was issued two summonses for the driving infraction and being an unlicensed driver. An indictment was later issued, charging defendant with two counts each of the following third-degree offenses: possession of CDS (cocaine and heroin), N.J.S.A. 2C:35-10a(1) (counts one and four); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (counts two and five); possession of CDS with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (counts three and six).

Defendant testified on his own behalf. He stated he wears glasses, had done so for ten years, and had them on when stopped by Lt. Cowan. Defendant, however, did not wear glasses at trial, explaining he lost them.

Judge Callahan issued a thirteen-page written opinion addressing defendant's challenges to the stop and warrantless search. He found the vehicle stop was unexpected, resulting from an observed traffic violation; probable cause that narcotics activity had taken place was proven, based upon Lt. Cowan's observations; and the totality of the evidence revealed exigent circumstances existed, making it impractical to secure a search warrant. Judge Callahan denied defendant's suppression request.

Subsequently, defendant pled guilty to the charges stated in count three pursuant to a plea agreement. He was sentenced to four years imprisonment subject to two years of parole ineligibility. This appeal ensued.

Defendant appeals his conviction, arguing:

POINT I

THE STATE FAILED TO SATISFY ITS BURDEN OF PROVING BOTH PRONGS OF THE 'AUTOMOBILE EXCEPTION,' WHICH REQUIRES PROBABLE CAUSE AND EXIGENCY TO VALIDATE A WARRANTLESS SEARCH. THUS, THE FRUITS OF THAT UNCONSTITUTIONAL SEARCH SHOULD HAVE BEEN SUPPRESSED.

THERE WAS NO PROBABLE CAUSE TO SEARCH VEHICLE OR ABRAM'S EYEGLASSES CASE FOR WEAPONS SINCE THERE WAS NEVER ANY REASON TO SUPPOSE ABRAMS OR HIS PASSENGERS WERE ARMED.

UNDER THE TOTALITY OF THE CIRCUMSTANCES, WHICH INCLUDED A SCENE DESCRIBED AS 'CONTROLLED,' EXIGENT CIRCUMSTANCES DID NOT EXIST.

Following our review of the arguments in light of the record and applicable law, we affirm substantially for the reasons set forth in Judge Callahan's thorough and well-reasoned opinion, and determine defendant's arguments lack sufficient merit to warrant detailed discussion in a written opinion. R. 2:11-3(e)(2). We add these brief additional comments.

In State v. Pena-Flores, 198 N.J. 6, 28 (2009), our Supreme Court identified the requisite proofs to uphold a search based on the automobile exception to the warrant requirement stating there are "three elements to the automobile exception: an unexpected stop, probable cause, and 'exigent circumstances . . . under which it is impracticable to obtain a warrant.'" State v. Minitee, 210 N.J. 307, 319-20 (2012) (quoting Pena-Flores, supra, 198 N.J. at 28). Since then, courts have struggled to define exigency. Recently, in Minitee, the Court addressed "exigency" pronouncing "we have adhered to the principle that the presence of exigent circumstances is an essential element of the automobile exception to the warrant requirement." Ibid.

Deferring to Judge Callahan's factual findings and his "'feel'" of the case, State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)), the events as they unfolded in this matter -- particularly the unexpected popping noise, defendant's purposeful act of removing the glasses case from his pocket to surreptitiously slip it under the driver's seat, combined with the time of day, the dangerous and drug-ridden neighborhood, the number of passengers in the vehicle, the officers' specialized experience and work-a-day knowledge, and the physical evidence of drug activity -- support the finding of exigency. Therefore, the need to secure the police officers' safety permits a protective search for weapons, including opening the glasses case which defendant sought to hide. Pena-Flores, supra, 198 N.J. at 29-30. "'[T]he question is not whether the police could have done something different, but whether their actions, when viewed as a whole, were objectively reasonable.'" State v. O'Donnell, 203 N.J. 160, 162 (2010) (quoting State v. Bogan, 200 N.J. 61, 81 (2009)).

Under these circumstances, we agree with the trial judge's conclusion that the evidence presented amply demonstrated the existence of exigent circumstances and reject defendant's contention the police should have sought and obtained a warrant before checking the glasses case. We likewise reject defendant's contention Lt. Cowan lacked probable cause to believe illicit narcotics were in the vehicle. The cup filled with ashes along with the packaging commonly used for marijuana supports a "'well[-]grounded' suspicion" of drug activity. State v. Waltz, 61 N.J. 83, 87 (1972) (quoting State v. Burnett, 42 N.J. 377, 387 (1964)). Defendant's furtive conduct to hide the glasses case heightens the suspicion that criminal activity was afoot.

Therefore, we determine the evidence supports Judge Callahan's findings that exigent circumstances and probable cause justified the warrantless search of the vehicle. The order denying defendant's motion to suppress will not be disturbed.

Affirmed.