STATE OF NEW JERSEY v. MIGUEL DURAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIGUEL DURAN a/k/a MIGUEL DURAN

DELVALLE,

Defendant-Appellant.

________________________________

May 8, 2014

Submitted December 9, 2013 Decided

Before Judges St. John and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-01-0279.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Renee G. Kelleher, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Miguel Duran for the second time appeals a judgment of conviction arising from his drug offense. He argues the trial court erred in denying his motion to suppress. Although we are troubled by his seriatim appeals, we reach the merits of his claim and affirm.

I.

On December 26, 2009, defendant was arrested after being found with cocaine and drug paraphernalia. Defendant was charged with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (Count One); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (Count Two); and third-degree possession of cocaine with the intent to distribute within a 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Three).

Defendant filed a motion to suppress the cocaine and drug paraphernalia, which the trial court denied on October 27, 2010. On January 10, 2011, defendant pled guilty to Count Two, pursuant to a negotiated plea agreement. On April 15, 2011, defendant was sentenced to five years special probation in accordance with N.J.S.A. 2C:35-14. Counts One and Three were dismissed. Defendant was resentenced to the same probationary term, with different conditions, on June 3, 2011, with the judgment of conviction signed June 13, 2011.

Defendant violated the terms of his probation by testing positive for cocaine. On August 12, 2011, the sentencing judge, without finding defendant guilty of violating his probation, vacated his June 2011 sentence and imposed a three-year prison term. On November 2, 2011, defendant filed a notice of appeal from that sentence. After hearing oral argument, we remanded to the trial court for a determination of guilt. State v. Duran, No. A-1391-11 (App. Div. April 23, 2012). On August 7, 2012, a different sentencing judge accepted defendant's guilty plea to violating his probation, and sentenced defendant to time served.

II.

Meanwhile, on April 16, 2012, defendant filed a notice of appeal from the vacated June 13, 2011 judgment of conviction. We are concerned by the ten-month delay in filing this notice of appeal. See State v. Johnson, 396 N.J. Super. 133, 140-41 (App. Div. 2007). "[T]he timely filing of a notice of appeal is mandatory and jurisdictional." State v. Molina, 187 N.J. 531, 540-41 (2006). "Appeals from final judgments of courts . . . shall be taken within 45 days of their entry." R. 2:4-1. We may extend the time within which an appeal may be taken "upon a showing of good cause and the absence of prejudice," but only for 30 days, within which the notice of appeal must be served and filed. R. 2:4-4(a); State v. Fletcher, 174 N.J. Super. 609, 614 (App. Div. 1980) , certif. denied, 89 N.J. 444 (1982); see R. 1:3-4(b). Defendant here failed to file the notice of appeal within the thirty-day extension period, or to show good cause. See N.J. Div. of Youth & Family Servs. v. R.G., 354 N.J. Super. 202, 206 (App. Div. 2002), certif. denied, 177 N.J. 491 (2003).

In 1977, the Supreme Court required this Court "'to relax Rule 2:4-4(a) in favor of allowing an out-of-time appeal nunc pro tunc on behalf of an indigent criminal defendant in any case where it satisfactorily appears that the defendant, personally, within time, requested his trial counsel or the Public Defender's Office to file an appeal on his behalf.'" Molina, supra, 187 N.J. at 541 (quoting 100 N.J.L.J. 1208 (1977)); see State v. Altman, 181 N.J. Super. 539, 541 (App. Div. 1981). The Supreme Court in Molina modified that directive, holding that "a defendant who has been advised of his right to appeal as provided under R. 3:21-4(h) yet fails to prosecute his appeal in a timely manner presumptively is not entitled to as within time relief." Molina, supra, 187 N.J. at 542. A defendant may rebut that presumption if "he satisfies the burden of demonstrating, by his own certification and by a preponderance of the credible evidence, that [he] did request the filing of an appeal in a timely manner and that his then counsel failed to prosecute it." Ibid. (footnote omitted).

At his sentencings on April 15, June 3, and August 12, 2011, defendant was advised of the need to file his notice of appeal within forty-five days, but failed to do so. In a certification accompanying the notice of appeal filed April 16, 2012, defense counsel certified that "[o]ur file indicates that a timely request for an appeal was made by the defendant on June 3, 2011," but "[t]he additional delay in submitting this Notice of Appeal was caused by this office's staff shortages and overwhelming workload." Here, as in Molina, "the State does not contest the factual assertions in defendant's certification or assert[] any actual prejudice." Id. at 544.

However, unlike in Molina, defendant here already filed an appeal. Then, on the day before oral argument in that appeal, he filed this notice of appeal challenging that suppression ruling. We cannot believe that the Supreme Court intended to permit defense counsel to delay filing a notice of appeal while awaiting developments in another appeal, or to file a second appeal as a backup in case the earlier appeal is unsuccessful.

It has long been "a cardinal principle" of the New Jersey courts to avoid "piecemeal appeals." State v. Lefante, 14 N.J. 584, 591-92 (1954); see House of Fire Christian Church v. Zoning Bd. of Adjustment of Clifton, 426 N.J. Super. 157, 167 (App. Div. 2012). As the Supreme Court stated in State v. Mitchell, 126 N.J. 565, 584 (1992):

Without procedural rules requiring the consolidation of issues, litigation would continue indefinitely in a disconnected and piecemeal fashion. Each time a petitioner brought forward a new issue, attorneys and courts would waste their limited resources acquainting themselves with all of the complex details necessary to adjudicate it. When the grounds for challenging a conviction are consolidated, that investment need occur only once, and judicial resources can be more efficiently used to decide cases in a timely fashion.

Thus, "'[a] party is required to raise in a single appeal all of his challenges to the judgment appealed from,'" and "the filing of separate appeals by the same party from the same final judgment is an obvious, untenable, and intolerable violation of the overriding policy of judicial administration that litigation be conducted expeditiously, economically, and efficiently." Shimm v. Toys from the Attic, Inc., 375 N.J. Super. 300, 304 (App. Div. 2005); see Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 550 (App. Div. 2007) (declaring piecemeal appellate review to be an "'anathema to our practice'").

Because "appellate resources are too scarce," Grow Co., Inc. v. Chokshi, 403 N.J. Super. 443, 459-60 (App. Div. 2008), "the judiciary must be a watchful steward of its constrained economic and human resources" even in the absence of an objection by the respondent. House of Fire, supra, 426 N.J. Super. at 167; see Vitanza v. James, 397 N.J. Super. 516, 519 (App. Div. 2008). If we allow improper appeals just because there has been no objection and the appeal is fully briefed, "there will be no adherence to the Rules." Parker v. City of Trenton, 382 N.J. Super. 454, 458 (App. Div. 2006). "At a time when this court struggles to decide [almost] 7,000 appeals a year in a timely manner, it should not be presented with piecemeal litigation[.]" Ibid.

In Molina, the Court looked to Rule 3:22, governing post-conviction relief, as a source for a needed limit on appeals as within time. Molina, supra, 187 N.J. at 542 & n.6 (adopting a five-year limit on some appeals as within time based on Rule 3:22-12). We note that Rule 3:22 also provides that "[a]ny ground for relief not raised . . . in any appeal taken [from the proceedings resulting in the conviction] is barred from assertion" in a post-conviction relief proceeding unless

the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (2) [the] enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or (3) [the] denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.

[R. 3:22-4(a).]

This rule is designed to guard against piecemeal proceedings. Mitchell, supra, 126 N.J. at 584-89. We see no reason why a similar requirement should not be imposed when a defendant seeks to bring piecemeal appeals by appealing and then filing a second appeal as within time.

In the absence of prior warning to defense counsel, we are reluctant to impose such a restriction in this appeal. See Molina, supra, 187 N.J. at 542-43 (making prospective its new limitations on appeal as within time). However, we advise the Public Defender and other counsel that a defendant who appeals a judgment of conviction must raise all of his challenges in his initial appeal, or he may have to meet requirements similar to Rule 3:22-4.

III.

Defendant's current appeal raises the following argument:

THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION TO SUPPRESS EVIDENCE WAS ERROR.

Denial of a motion to suppress "may be reviewed on appeal from a judgment of conviction notwithstanding that such judgment is entered following a plea of guilty." R. 3:5-7(d).

"'[O]n appeal, we may only consider whether the motion to suppress was properly decided based on the evidence presented at that time.'" State v. Robinson, 200 N.J. 1, 15 (2009) (citation omitted). Accordingly, we recount the evidence at the October 7, 2011 suppression hearing. The investigating officer, Charles Stuart, defendant, and a witness for defendant testified at the hearing. The witnesses gave conflicting accounts concerning what transpired on December 26, 2011.

Officer Stuart testified to the following. Stuart has made fifteen to twenty narcotics arrests during the three years he has been employed with the Atlantic City Police Department. He was familiar with the three-story rooming house in question, as it was specifically known for "narcotics activity," and was in a high-crime area.

At approximately 2 a.m. on December 26, 2011, Officers Stuart, Herbert, and Lasco were dispatched to the rooming house in response to a call from a building security officer indicating that two men were engaged in narcotics trafficking in the building.1 The officers were greeted at the scene by a man who identified himself as the security officer, and stated that he was a tenant in the building. The security officer then informed the officers that "a couple of males" who did not live in the building were selling drugs out of a vacant apartment on the third floor.

The security officer then led the officers to the third floor hallway. The officers and the security officer saw defendant standing half in the open doorway to Room 304, "leaning out" of the doorway and "looking down the hallway." The security officer pointed at defendant and stated "[t]hat's the male." The security officer also informed the police that Room 304 had been recently vacated, and that "nobody should be in that apartment."

The officers approached defendant, and asked where he was staying and what he was doing in the building. Defendant responded that Room 304 was not his room, that he was staying with friends in Room 303, and that he was "just, you know, hanging out."

From the hallway, while talking to defendant, Officer Stuart could see through the open door into Room 304. The room was small, and Stuart could see the entire room over defendant's shoulder. There was no one else in the room. The officer observed in the room a digital scale, a "razor that had a white powdery substance on it," a "box of sandwich baggies," and "a baggy" containing a white powdery substance sticking out from underneath the end of an air mattress near the door. The officer believed the items were being used for the preparing and packaging of narcotics.

While the other two officers continued to question defendant, Officer Stuart entered room 304 and seized the observable baggie from under the air mattress. When he pulled the baggie out, he realized there was a second baggie next to it. He also saw defendant's name on paperwork around a briefcase. Stuart later conducted a field test of the white powdery substance, and confirmed that the baggies contained approximately seventeen grams of cocaine.

Officer Stuart placed defendant under arrest while Officers Herbert and Lasco knocked on the door to Room 303 and spoke with the male and female occupants. Stuart found $350 in cash in defendant's pockets. Defendant "offered to have the person he was buying [cocaine] from come to this location if [the police] would cut him a break." Defendant also said another male was on the way. Later, a male arrived, was questioned, and released. At the police station, defendant said he lived in Egg Harbor City.

Next, Margaret Kelleman testified to the following. Defendant lived with her and her boyfriend in Room 303. Defendant was in the room with her from 9 p.m. until the police woke her up by knocking on the door. The officers searched her apartment while defendant was present, found nothing, and then stepped out into the hallway. Kelleman heard the officers enter Room 304, and then they asked defendant to step outside into the hallway.

Lastly, defendant testified. Defendant denied the drugs were his, and denied having anything to do with room 304. Defendant then testified to the following. Defendant had gone to the store around 12:30 a.m., and upon his return saw the police officers in front of the rooming house. Defendant was speaking with Kelleman's son in front of room 303 when the officers arrived on the third floor. Officer Herbert pointed at him, the officers searched him, and Herbert stated: "I told you we was going to get you." The officers searched room 303, found nothing, and then searched room 304 while defendant waited in the hallway.

Defendant also testified that after he was placed under arrest, he told the officers that the former tenant of room 304 and a male had gone into that room earlier. Defendant then called the former tenant and asked him to come to the room. Defendant stated that he called the tenant, who he identified as "Nick," Nick came to the room, and the police questioned him but did not arrest him.

The motion judge issued an oral opinion on October 27, 2010, denying defendant's motion to suppress. The judge found Officer Stuart to be credible, adopted Stuart's version of events, and disbelieved the versions proffered by defendant and Kelleman.

In reviewing defendant's challenge to the suppression court's ruling, we must hew to our standard of review. "We defer to the trial court's factual findings 'so long as those findings are supported by sufficient credible evidence in the record.'" State v. K.W., 214 N.J. 499, 507 (2013) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). In particular, we "must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Mann, 203 N.J. 328, 336-37 (2010). However, we owe "no deference to the trial court in deciding matters of law." Id. at 337.

The motion judge correctly found that defendant had standing to challenge the constitutionality of the seizure of the drugs and paraphernalia. A criminal defendant has automatic standing to contest a search or seizure under Article I, Paragraph 7 of the New Jersey Constitution "'if he has a proprietary, possessory or participatory interest in either the place searched or the property seized.'" State v. Johnson, 193 N.J. 528, 541 (2008) (quoting State v. Alston, 88 N.J. 211, 228 (1981)). A defendant also "has standing if he 'is charged with an offense in which possession of the seized evidence at the time of the contested search is an essential element of guilt.'" Ibid. Defendant was charged with possession of a CDS, including possession of cocaine with intent to distribute, making defendant's possession of the cocaine an essential element of the offense. Thus, defendant had standing to file the motion to suppress the two baggies of cocaine.

The motion judge determined that the warrantless search of room 304 and seizure of the narcotics and paraphernalia therein were justified under the doctrines of plain view and exigent circumstances. At a suppression hearing, "'the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure falls within one of the few well-delineated exceptions to the warrant requirement.'" Mann, supra, 203 N.J. at 337-38.

A.

Under the doctrine of "plain view," a warrantless seizure by the police is justified when the State shows

(1) the officer was lawfully in the viewing area, (2) the officer discovered the evidence inadvertently, meaning that he did not know in advance where the evidence was located nor intend beforehand to seize it, and (3) it was immediately apparent that the items were evidence of a crime, contraband, or otherwise subject to seizure.

[State v. Earls, 214 N.J. 564, 592 (2013) (quotation marks omitted).]

It is clear that the officers were lawfully in the viewing area, namely the third-floor hallway. The security officer, who identified himself as the building's security officer, invited the officers to enter the building and took them to the third-floor hallway. See State v. Farmer, 366 N.J. Super. 307, 313 (App. Div.) (finding officers may rely on consent given by one who has the "appearance[] of control" at the time of the search), certif. denied, 180 N.J. 456 (2004); State v. Miller, 159 N.J. Super. 552, 558-59 (holding tenants "assume[] the risk that one of their number might permit the common area to be searched") (quoting United States v. Matlock, 415 U.S. 164, 169-72, 94 S. Ct. 988, 993, 39 L. Ed. 242, 248-50 (1974)). Moreover, "a tenant does not have a reasonable expectation of privacy in the common areas of a building." State v. Brown, 282 N.J. Super. 538, 547 (App. Div.), certif. denied, 143 N.J. 322 (1995); see State v. Smith, 37 N.J 481, 496 (1962); see also State v. Nunez, 333 N.J. Super. 42, 48-49 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001).

Defendant contends the discovery of the evidence was not inadvertent because the officers were standing outside of room 304 with the purpose of finding evidence of drug activity in connection with defendant. However, the officers had no advance knowledge that the drugs and related paraphernalia would be located in room 304. The officers did not even know where the two males would be found. It was reasonable for Officer Stuart to approach and question defendant, and Officer Stuart acted lawfully when he looked through the open door and saw plastic bags believed to contain CDS in plain view. See Mann, supra, 203 N.J. at 341. The discovery was thus "inadvertent" under the plain view doctrine. See ibid.2

Finally, there is no dispute that it was immediately apparent that the items in room 304 were "'evidence of a crime, contraband, or otherwise subject to seizure.'" Earls, supra, 214 N.J. at 592. In the context of the plain view doctrine, "immediately apparent" requires the officers to have had probable cause to believe the evidence was contraband. State v. Johnson, 171 N.J. 192, 208 (2002). Considering Officer Stuart's experience, his knowledge that the rooming house was known for narcotics trafficking, and the security officer's identification of defendant as one of the drug traffickers, there was "'[a] "practical, nontechnical" probability that incriminating evidence [was] involved.'" Id. at 207 (citing State v. Bruzzese, 94 N.J. 210, 237 (1983)).

Thus, Officer Stuart did not violate defendant's rights when he saw the cocaine baggie in plain view from the common hallway. Of course, the seizure of the evidence is permitted under the plain view doctrine only where "the seizure can be made without intruding into any constitutionally protected area or the intrusion can be made in conformity with the Fourth Amendment." State v. Pineiro, 369 N.J. Super. 65, 73-74 (App. Div.), certif. denied, 181 N.J. 285 (2004). Thus, the remaining questions are whether for defendant Room 304 was a constitutionally protected area, or whether an exception to the Fourth Amendment's warrant requirement permitted Stuart to enter Room 304.

As an initial matter, defendant's automatic standing to contest the constitutional validity of the seizure "does not equate to a finding that he . . . has a substantive right of privacy in the place searched that mandates the grant of that motion." State v. Hinton, 216 N.J. 211, 235 (2013). "'[A]lthough we do not use a reasonable expectation of privacy analysis for standing purposes in criminal cases, we do apply that analysis to determine whether a person has a substantive right of privacy in a place searched or an item seized.'" Ibid. (quoting State v. Johnson, 193 N.J. 528, 547 (2008)). "[T]he objective reasonableness of the defendant's expectation of privacy in that property, for purposes of Article I, Paragraph 7, turns in large part on his or her legal right to occupy the property at issue." Id. at 236.

We note that occupants of a boarding house are entitled to the same constitutional protections with respect to their rooms as a homeowner. See State v. Mollica, 114 N.J. 329, 342 (1989) (citing Stoner v. California, 376 U.S. 483, 490, 84 S. Ct. 889, 893, 11 L. Ed. 2d 856, 861 (1964)). However, a defendant cannot successfully "challenge a search if an officer had an objectively reasonable basis to believe he was a trespasser." State v. Brown, 216 N.J. 508, 535 (2014). "That follows because a trespasser, by definition, does not have a possessory or proprietary interest in property where he does not belong where he does not have permission or consent to be." Ibid. Thus, "a trespasser who hides drugs in someone else's vacant and unsecured property" does not have a "'constitutionally-reasonable expectation of privacy'" in that vacant property. Id. at 537 (quoting State v. Linton, 356 N.J. Super. 255, 259 (App. Div. 2002)). "[T]he State bears the burden of proving by a preponderance of the evidence" that, "in light of the totality of the circumstances, a police officer had an objectively reasonable basis to conclude that . . . a defendant was a trespasser before the officer entered or searched the home." Id. at 529, 535-36.

In State v. Smith, 291 N.J. Super. 245, 250-52 (App. Div. 1996), rev d on other grounds, 155 N.J. 83, 102, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998), the defendant was storing drugs in an apartment without the permission of the tenant, who was in the hospital. We held that because the "defendant had no right to enter the apartment," the "defendant lacked a sufficient privacy interest in the apartment to support the conclusion that the search violated his constitutional rights." Id. at 261; see Hinton, supra, 216 N.J. at 237, 239 (finding a tenant who remains in an apartment after the date for eviction "does not have a reasonable expectation of privacy in a property that he or she occupies unlawfully").

Here, defendant repeatedly stated that he was not staying in Room 304. Further, the security officer informed the officers that the room was vacant, and that "nobody should be in that apartment." Defendant now claims that it was apparent the room was occupied, as it contained the air mattress, clothes, and papers. However, nothing in the record indicates that defendant had "a possessory or proprietary interest" in Room 304. Brown, supra, 216 N.J. at 535. Thus, Officer Stuart had an objectively reasonable basis to conclude that defendant was a trespasser in Room 304 before Officer Stuart entered the room. Id. at 535-36. Defendant, as a trespasser who hides drugs in someone else's property, "lacked a sufficient privacy interest in the apartment to support the conclusion that the search violated his constitutional rights." Smith, supra, 291 N.J. Super. at 261-62 ("[I]t is plain that our Supreme Court did not intend [Alston] to create a safe haven for criminally inclined trespassers."). Accordingly, the seizure of the cocaine was justified under the plain view doctrine.

B.

The seizure was also justified under the exception to the warrant requirement for exigent circumstances. Whether there were exigent circumstances sufficient to justify a warrantless search or seizure is a "'highly fact-sensitive'" inquiry. State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990); see State v. Johnson, 193 N.J. 528, 552 (2008). The pertinent factors include

the degree of urgency and the amount of time necessary to obtain a warrant; the reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene; the severity or seriousness of the offense involved; the possibility that a suspect was armed or dangerous; and the strength or weakness of the underlying probable cause determination.

[State v. Walker, 213 N.J. 281, 292 (2013).]

"[E]xigent circumstances will be present 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." Johnson, supra, 193 N.J. at 553.

Defendant argues that there was no exigency compelling enough to justify a warrantless search because he did not pose an obvious threat to the officers. However, defendant was not yet arrested when the search was made. The officers, moreover, had received a report of drug trafficking by two men, and had detainedonly oneof them. The officers thus had reason to believe another suspect was unaccounted for and perhaps nearby, and had no way of knowing whether the unaccounted-for suspect was armed. Indeed, defendant soon told the officers that men connected with Room 304 were nearby, and one of those men did appear. Further, the officers were aware that defendant's friends were present in the next room. Finally, the rooming house was known for narcotics and other offenses, there were people gathered outside and in the first floor hallway, and it was in a high-crime area.

"'[U]nlike an encounter on the street . . . an in-home arrest puts the officer at the disadvantage of being on his adversary's "turf." An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.'" State v. Laboo, 396 N.J. Super. 97, 107 (App. Div. 2007) (quoting Maryland v. Buie, 494 U.S. 325, 333, 110 S. Ct. 1093, 1098, 108 L. Ed. 2d 276, 285 (1990). Because the officers were not required to remain in the narrow hallway while a warrant was being obtained and subject themselves to the risk of being attacked, there were sufficient exigent circumstances to justify the warrantless seizure of the evidence. See Alvarez, supra, 238 N.J. Super. at 570.

For similar reasons, there was a reasonable belief that the evidence would be secreted away or destroyed had the police waited to obtain a warrant. See Walker, supra, 213 N.J. at 296. "'[D]rugs may be easily destroyed by flushing them down a toilet or rinsing them down a drain.'" Id. at 292-93 (quoting Kentucky v. King, ___ U.S. ___, ___, 131 S. Ct. 1849, 1857, 179 L. Ed. 2d 865, 876 (2011)). It was reasonable for the officers "to assume that [those] third parties might have had knowledge of the [cocaine] and that 'those same parties could have attempted to remove or destroy the drugs in the time necessary to obtain the warrant.'" State v. Nishina, 175 N.J. 502, 518 (2003).

Here, as in Alvarez, "the 'fluidity of [the] ongoing investigation of the distribution of narcotics [made] the obtaining of an adequate search warrant more difficult to time in the flow of events.'" Alvarez, supra, 238 N.J. Super. at 570. In that case, the police "reacted immediately to information received from [a] citizen informant," and "did not have probable cause to obtain a warrant until they overheard the occupants of [a motel room] discussing the need to obtain more drugs." Ibid. We noted that "drugs and drug paraphernalia, by their very nature, can be rapidly secreted or destroyed." Ibid. Especially as "the ability of police officers to secure . . . a hotel room poses peculiar risks," we found exigent circumstances. Id. at 571. Similarly, here "'the exigencies of the situation ma[de] the needs of law enforcement so compelling'" that the search was "'objectively reasonable.'" Walker, supra, 213 N.J. at 291 (quoting King, supra, __ U.S. at __, 131 S. Ct. at 1856, 179 L. Ed. 2d at 874-75).3

We recognize that a telephonic warrant may be issued if the "judge is satisfied that exigent circumstances exist sufficient to excuse the failure to obtain a written warrant." R. 3:5-3(b). "When the circumstances are sufficiently exigent that appearing before a judge to obtain a written warrant is either impossible or impracticable, but not so exigent that there is insufficient time to stabilize the situation and call for a warrant, police officers must obtain a telephonic warrant rather than conduct a warrantless search or seizure." Johnson, supra, 193 N.J. at 556. As the United States Supreme Court has recently noted, however, even telephonic "[w]arrants inevitably take some time for police officers or prosecutors to complete and for [issuing] judges to review," and "improvements in communication technology do not guarantee that [an issuing] judge will be available after making a late-night arrest." Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 1563, 185 L. Ed. 2d 696, 709 (2013). In the cramped, fluid, and dangerous circumstances here, it was reasonable to conclude that even the delay to obtain a telephonic warrant at 2 a.m. could imperil the officers or the evidence.

Affirmed.

1 In the tape of the call, the caller stated that two men were selling drugs from Room 304.

2 Accordingly, we need not decide whether inadvertence, which is no longer required under the United States Constitution, Horton v. California, 496 U.S. 128, 130, 110 S. Ct. 2301, 2304, 110 L. Ed. 2d 112, 118-19 (1990), is still required by the New Jersey Constitution. State v. Padilla, 321 N.J. Super. 96, 109 n.7 (App. Div. 1999), aff'd o.b., 163 N.J. 3 (2000); see State v. Johnson, 171 N.J. 192, 211-13 (2002).

3 Accordingly, we need not review the motion judge's other findings that the officer's entry into Room 304 was justified as a protective sweep or as a search incident to arrest.