STATE OF NEW JERSEY v. FOSHEA D. WOODEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FOSHEA D. WOODEN,

Defendant-Appellant.

_____________________________

December 20, 2016

Argued November 9, 2016 Decided

Before Judges Fasciale and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 10-05-1264.

Audwin F. Levasseur argued the cause for appellant (Thomas R. Ashley, attorney; Ms. Ashley, on the brief).

Tiffany M. Russo, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Maria I. Guerrero, Special Deputy Attorney General/ActingAssistant Prosecutor,of counsel and on the brief).

PER CURIAM

This is defendant's second appeal from orders denying his motion to suppress the seizure of a handgun and bullets. In 2011, following the denial of his motion to suppress, defendant Foshea Wooden pled guilty to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). In accordance with his plea agreement, he was sentenced to five years in prison, with three years of parole ineligibility as called for under the Graves Act, N.J.S.A. 2C:43-6(c). Defendant appealed the denial of his motion to suppress and, in 2013, we remanded the motion to allow an expert witness to testify for defendant. After conducting additional hearings on remand, the trial court again denied the motion to suppress in an order filed on July 7, 2014. Defendant now appeals the July 7, 2014 order denying his motion to suppress. We affirm because the facts found by the trial judge are supported by substantial credible evidence and the judge correctly applied the law.

The facts were established at evidentiary hearings. Three witnesses testified: State Trooper Nicholas Rubino testified for the State, and a lay witness and an expert witness testified for the defense.

In December 2009, State Troopers Rubino and Louis Gardenia were on patrol in a marked vehicle on Interstate 280. Shortly after midnight, Rubino observed a 2006 black, four-door Kia enter onto Interstate 280 from the Garden State Parkway (the GSP). The troopers began to follow the Kia, and Rubino estimated that the car was travelling at eighty-five miles per hour. Rubino also observed the vehicle make an unsafe lane change. The vehicle then exited Interstate 280 at First Street in Newark and the troopers initiated a motor vehicle stop at the intersection of First Street and Orange Street.

Both troopers exited their vehicle and approached the Kia. At approximately the same time, a New Jersey Transit officer arrived at the scene. Rubino approached the driver's side while Gardenia approached the passenger's side. The troopers observed three individuals inside the Kia: the driver, later identified as defendant; and two passengers, one in the front seat and another in the back. Rubino testified that he detected the odor of alcohol and noticed that defendant had bloodshot and glassy eyes. Defendant informed Rubino that he had consumed three beers earlier that day. Rubino then performed the horizontal gaze nystagmus test and directed defendant to exit the vehicle for further sobriety testing. Based on the results of those sobriety tests, Rubino believed that defendant was driving while intoxicated (DWI) and he placed him under arrest.

After defendant was arrested, Rubino conducted a search of defendant's person incident to the arrest. That search revealed a clear plastic bag containing bullets. Rubino asked defendant whether there was a gun and where it was located. Initially, defendant denied knowing anything about a gun, but shortly thereafter he stated that he had thrown the gun inside the vehicle. At the time that Rubino questioned defendant, defendant had not yet been provided with his Miranda rights.1

Rubino advised Trooper Gardenia and the Transit officer that there was a gun in the car and the passengers were ordered to get out of the vehicle. After defendant and the passengers were all secured, Rubino called for backup. Thereafter, Rubino conducted a warrantless search of the interior of defendant's vehicle. Rubino testified that when he made the stop of defendant's vehicle and when he conducted the search, there were vehicles and pedestrians on the street where defendant's car was located. While Trooper Rubino was searching the interior of the car, an Essex County Sheriff's officer, who was standing outside the car, observed the butt of a gun sticking out of the front center console on the passenger's side. He advised Rubino of what he saw, and Rubino seized the gun.

Defendant was then transported to a State Police barracks. An Alcotest was administered and defendant registered a .06 percent blood alcohol content. Defendant, therefore, was not charged with DWI, but he was charged with speeding and an unsafe lane change. Thereafter, defendant was indicted for second-degree unlawful possession of a weapon. In a separate indictment, he was also indicted for second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7(b).

I.

Defendant moved to suppress the bullets and the handgun recovered from his person and vehicle. The trial court conducted several days of hearings and then denied the motion in an order entered on March 29, 2011.

As previously noted, defendant appealed. During the first appeal, defendant argued, among other things, that the trial court had erred in not allowing a defense expert to testify. Defendant had sought to introduce the expert's testimony to challenge the credibility of Trooper Rubino. We remanded the motion to suppress for supplementation of the record, including allowing the defense expert to testify. We also directed the trial court to reconsider the ruling on the motion to suppress after hearing the supplemental evidence. See State v. Foshea Wooden, No. A-2769-11 (App. Div. September 18, 2013). In light of that remand, we did not address the other issues defendant had raised in his first appeal.

On remand, defendant presented testimony from the expert and the State recalled Trooper Rubino. Defendant's expert, who was a retired police officer then working as a private investigator, testified that he had re-enacted the drive between the entrance ramp of Interstate 280 from the GSP and the exit at First Street in Newark. He testified that defendant could not have been traveling at eighty-five miles per hour because Rubino had testified that he had followed defendant for approximately two minutes. The expert explained that it was only approximately one mile between the entrance and the exit. Moreover, the expert testified that it only took approximately one minute to travel the distance driving at between fifty-seven miles per hour to sixty miles per hour.

After hearing the supplemental evidence, the trial court again denied the motion to suppress. The court found Rubino to be credible and, thus, found that defendant's vehicle had been speeding and had made an unsafe lane change. The court rejected the defense's attack on Rubino's credibility, finding that the expert's re-enactment of the drive was not "credible and reliable." Thus, the trial court found that the stop of defendant's vehicle was lawful because it was based on a reasonable and articulable suspicion that defendant had committed two separate motor vehicle offenses.

The court went on to find that Rubino had probable cause to arrest defendant for DWI based on the result of the field sobriety tests the trooper had conducted. The court also found that defendant was lawfully searched incident to his arrest. In addition, the court found that defendant was properly questioned about the presence of a gun and its location because defendant had been found to be in possession of bullets. Specifically, the trial court reasoned that although defendant was in custody, and he had not yet been given his Miranda warnings, Rubino's questions and defendant's responsive statements were given for public safety reasons concerning the location of the gun. In making that ruling, the trial court relied on the New Jersey Supreme Court case of State v. O'Neal, 190 N.J. 601 (2007).2

Finally, the trial court found that the search of defendant's vehicle was lawful because there was probable cause to believe that there was a contraband weapon in the vehicle and there was no need to obtain a warrant given the totality of the circumstances. The court explained its reasons on the record on June 26, 2014, and issued an order denying the motion to suppress on July 7, 2014. The defendant now appeals from the 2014 order denying his motion to suppress.

II.

On appeal, defendant argues

THE WARRANTLESS SEARCH WAS ILLEGAL AND VIOLATED DEFENDANT'S FOURTH AMENDMENT RIGHTS BECAUSE THERE WAS NO EXIGENT CIRCUMSTANCES PREVENTING THE POLICE FROM OBTAINING A SEARCH WARRANT

In his brief, defendant breaks his argument down into three sub-arguments. He challenges the trial court's fact findings that (1) defendant's motor vehicle was lawfully stopped; (2) there was probable cause to arrest defendant for DWI; and (3) exigent circumstances justified a search of the vehicle without a warrant. Defendant also challenges the trial court's finding that Trooper Rubino was credible.

In reviewing a motion to suppress, we defer to the factual and credibility findings of the trial court, "so long as those findings are supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Deference is afforded "because the 'findings of the trial judge . . . are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Reese, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "An appellate court should disregard those findings only when a trial court's findings of fact are clearly mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015). The legal conclusions of the trial court "are reviewed de novo." Id. at 263.

The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution protect individuals from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, 7. "There is a constitutional preference for" law enforcement officers to obtain a warrant from a neutral magistrate before conducting a search or seizure. State v. Pineiro, 181 N.J. 13, 19 (2004); State v. Ravotto, 169 N.J. 227, 236 (2001). Among the exceptions to a search or seizure conducted without a warrant are: (1) an investigatory stop, State v. Coles, 218 N.J. 322, 342 (2014); (2) a search incident to an arrest, State v. Oyenusi, 387 N.J. Super. 146, 153 (App. Div. 2006) (citing Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)), certif. denied, 189 N.J. 426 (2007); and (3) an automobile search, State v. Witt, 223 N.J. 409, 422 (2015); State v. Pena-Flores, 198 N.J. 6, 18 (2009).

A. The Motor Vehicle Stop

An investigatory stop is permissible if it is "reasonable and justified by articulable facts[.]" Coles, supra, 218 N.J. at 343. The burden is on the State to show "by a preponderance of the evidence that it possessed sufficient information to give rise to the required level of suspicion." State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). That reasonable suspicion standard "requires 'some minimal level of objective justification for making the stop.'" Id. at 211-12 (quoting State v. Nishina, 175 N.J. 502, 511 (2003)). "The principal components of a determination of reasonable suspicion . . . [are] the events which occurred leading up to the stop . . ., and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion." State v. Stovall, 170 N.J. 346, 357 (2002) (alteration in original) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661-62, 134 L. Ed. 2d 911, 919 (1996)).

Applying these principles, we discern no basis to disturb the trial court's determination that the motor vehicle stop here was lawful. Trooper Rubino testified that he stopped defendant's vehicle because he observed it speeding and engaging in an unsafe lane change. The trial court found that testimony to be credible and reliable. While defendant challenges Trooper Rubino's credibility on this appeal, he effectively asks us to substitute our judgment for that of the trial court. Our standard of review does not permit such a substitution. There was substantial credible evidence supporting the trial court's fact findings and we have no basis to question the court's credibility finding. With Trooper Rubino's testimony credited, there was articulable and reasonable suspicion that defendant had committed two motor vehicle offenses. Thus, the stop of the vehicle was lawful.

B. The Probable Cause for the Arrest

An arrest is lawful when the law enforcement officer has probable cause to believe that an offense has been or is being committed by the person arrested. State v. Brown, 205 N.J. 133, 144 (2011). Though "probable cause" eludes precise definition, "it is safe to say that a police officer has probable cause to arrest a suspect when the officer possesses 'a well grounded suspicion that a crime has been or is being committed.'" State v. Basil, 202 N.J. 570, 585 (2010) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). "Although several factors considered in isolation may not be enough," when analyzed under the totality of the circumstances, their cumulative effect can support probable cause. State v. Moore, 181 N.J. 40, 46 (2004).

Here, once defendant's vehicle was stopped, Trooper Rubino made observations that led him to believe that there was probable cause to arrest defendant on suspicion of DWI. Specifically, Trooper Rubino smelled alcohol and observed defendant had bloodshot and glassy eyes. He then conducted a series of sobriety tests and concluded defendant did not pass those tests.

On this appeal, defendant challenges the lack of specificity concerning the types of sobriety tests conducted. The relevant question, however, is whether Rubino had probable cause to effectuate the arrest. The trial court, again, relying on Rubino's credibility, found that he did have probable cause to make an arrest. We discern no basis for disturbing that fact finding and the related legal conclusion.

C. Exigent Circumstances

The law concerning the automobile exception to the warrant requirement has recently evolved. The history of that evolution and the new rule were explained by our Supreme Court in Witt, supra, 223 N.J. at 427-39.

Prior to Witt, a warrantless search of a vehicle was 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." Id. at 433 (quoting Pena-Flores, supra, 198 N.J. at 28).

In Witt, our Supreme Court eliminated the exigent circumstances prong and "held that the automobile exception authorized the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous." Id. at 447. In so holding, the Court returned to the standard announced in State v. Alston, 88 N.J. 211 (1980). Id. at 448.

The rule announced in Witt, however, was a new rule and, thus, it only applies prospectively. Id. at 449. Since Witt was issued on September 25, 2015, and this case involves a stop and search in 2009, the three-part test set forth in Pena-Flores controls. See Pena-Flores, supra, 198 N.J. at 28.

Here, there is no dispute that the facts found by the trial court satisfy the first two prongs. The stop was unexpected since the troopers were on routine patrol when they observed defendant's vehicle speeding and making an unsafe lane change. Trooper Rubino also found bullets on defendant and defendant stated that there was a gun in the car. As a consequence, the trooper had probable cause to believe that there was a contraband gun in defendant's vehicle.

Defendant, however, disputes the exigent circumstances prong.

"[E]xigent circumstances may exist if the unanticipated circumstances that give rise to probable cause occur[red] swiftly." State v. Hammer, 346 N.J. Super. 359, 369 (App. Div. 2001) (quoting State v. Cooke, 168 N.J. 657, 672 (2000)). Accordingly, exigent circumstances "refers to a need for prompt action without a warrant 'when the police have no advanced knowledge of the events to unfold.'" Ibid. (quoting State v. Colvin, 123 N.J. 428, 433 (1991)).

Here, the State police were conducting a rapidly developing investigation involving "unforeseeable and spontaneous" events and it would have been potentially dangerous to delay searching the automobile. See Alston, supra, 88 N.J. at 233 (stating that the unforeseeability and spontaneity of the circumstances, among other things, justify the invocation of the automobile exception). While defendant and the two passengers had been removed from the vehicle, there was still a potential danger that at least one of them could have accessed the gun in the vehicle. Moreover, Trooper Rubino testified that the stop occurred on a street where there was both vehicle and pedestrian traffic. Thus, there were safety risks to both the officers and the public. Accordingly, exigent circumstances existed and the search of the interior of the vehicle was lawful.

Affirmed.

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

2 O'Neal stands for the proposition that "in limited circumstances, based on an 'objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon[,]' a safety exception to Miranda is appropriate." O'Neal, supra, 190 N.J. at 618 (alteration in original) (quoting New York v. Quarles, 467 U.S. 649, 659 n.8, 104 S. Ct. 2626, 2633, 81 L. Ed. 2d 550, 559 (1984)).