STATE OF NEW JERSEY v. JOSEPH J. MERCADO

NOT FOR PUBLICATION WITHOUT THE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.

JOSEPH J. MERCADO,

Defendant-Appellant.

________________________________

January 11, 2016

Submitted December 7, 2015 - Decided

Before Judges Sabatino and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-09-1513.

Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joseph J. Mercado was charged with various offenses following a motor vehicle stop. After the trial court denied his motion to suppress heroin and other incriminating evidence seized in a warrantless search of his vehicle, defendant entered into a negotiated plea agreement with the State. He pled guilty to third-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10, third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), driving while intoxicated, N.J.S.A. 39:4-50, driving while suspended, N.J.S.A. 39:3-40, and a probation violation. Consistent with the plea agreement, the court sentenced defendant to a five-year custodial sentence, with various concurrent terms and appropriate fines and penalties.

Pursuant to Rule 3:5-7(d), defendant raises on appeal the following solitary issue, challenging the denial of his suppression motion

POINT I

THE PROTECTIVE SWEEP EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY OFFICER FRIEDMAN'S WARRANTLESS ENTRY INTO THE VAN THAT MERCADO WAS DRIVING.

Having considered this argument in light of the record and the applicable law, we affirm, substantially for the reasons detailed in Judge John T. Mullaney's written decision dated January 8, 2013.

The sole witness who testified before Judge Mullaney at the suppression hearing was Lieutenant Brett Friedman of the Sea Bright Police Department. Friedman, who has been on the police force for over twenty-three years, was the officer who conducted the motor vehicle stop and searched defendant's vehicle. Defendant did not testify or call any witnesses.

According to Lieutenant Friedman, he was on patrol alone in a squad car on the night of March 25, 2012. At approximately 9:07 p.m., he was driving around the 1300 block of Ocean Avenue (State Highway 36) on "a normal routine patrol." Friedman described the area as "residential, with some businesses." The road at that location is "basically just a straight highway separated by a double yellow line with white markings on the shoulder of each side" known as "the fog line."

Friedman testified that while he was going northbound on Ocean Avenue he came up behind a beige van that was also traveling northbound. He noticed that the van was "swaying back and forth over the double yellow line," and that "the driver kept hitting [his] brakes for no apparent reason." He estimated that the car was going about 25 to 30 mph, even though the area had a 45 mph speed limit. Friedman did not see anything in the road that would explain why the driver was going that slow or crossing over the double yellow lines. There were no other cars in the vicinity.

According to Friedman, "[a]fter the vehicle came over the double yellow line for approximately the third time," he "initiated the motor vehicle stop" by "activat[ing] the overhead lights [and] hit[ting] the siren as [he] normally would." The van then came to a stop and pulled over to the shoulder.

Friedman called in the motor vehicle stop to headquarters. He got out of his squad car and walked to the driver's side of the van. According to Friedman, as soon as he got to the driver's side door, "the door opened up and the [van] driver attempted to get out extremely quick[ly]." Friedman stated that the driver's rapid emergence from the stopped vehicle was atypical, as drivers usually remain in their vehicles.

Once Friedman saw this, he ordered the driver, later identified as defendant, back into the van. He did so both for the driver's safety and his own safety. As Friedman explained, "[w]hen someone gets out of a car that fast on you, it becomes a dangerous situation" as "[y]ou don't know why he's getting out of that car."

Defendant got back into his van. Friedman stood by the driver's side window and asked defendant for his license, registration, and insurance card. Defendant did not produce any of these credentials. According to Friedman, defendant appeared to be "profusely sweating" and looked "white as a ghost." The police officer also noted that defendant had "eyes [that] were just big as could be, bloodshot" and that he could not "produce any kind of identification[.]"

According to the officer, defendant "kept reaching into the center [of the van] with both hands" while the officer was speaking with him. In response, Friedman ordered defendant to "[p]lease get your hands where I can see them" several times. When asked to explain defendant's actions more descriptively, Friedman recalled that defendant was "taking both hands . . . and he was reaching into the center between the two seats. There's like a big area in between the two bucket seats of the van. So he kept reaching over where [Friedman] couldn't see his hands."

Despite the fact that the lieutenant asked defendant "numerous times" to show his hands, defendant would not do so. Friedman recalled that by this point defendant was turned "all the way over looking down into the center" and "wouldn't . . . turn back and look at [Friedman], [he] just kept going into the middle."

In response to this refusal, Friedman opened up the van door, unholstered his gun, pointed the gun at defendant, and pulled him out of the vehicle. Friedman explained that he did this in order to see defendant's hands, because he "didn't know what [defendant] was reaching for."

Friedman then called for backup and walked defendant to the back of the van. Defendant was secured, but not handcuffed, at that spot by a backup police officer, Detective Huegel, who had arrived a few minutes after the radio call. Friedman was concerned for his safety. As Friedman explained, "the way [defendant] was reaching with two hands and wouldn't comply with any of [Friedman's] directions, [Friedman] knew something was wrong."

Once defendant was held behind the van by Detective Huegel, Friedman walked back up to the front to see what defendant had been reaching for inside the vehicle. When asked what he was concerned might be in the van, Friedman replied: "Obviously a gun or some type of a weapon."

Friedman recounted that "[t]he first place [he] looked was right in the carpeting in front of him and right to the center where [defendant] was trying to reach," where the officer "saw numerous white small folds." The folds consisted of "small white package[s] containing heroin" that were "scattered around" with "[s]ome of the small envelopes . . . [being] stuck together in . . . a small brick type piece." Because Friedman's training and experience led him to believe these packages contained narcotics, defendant was placed under arrest.

Once at police headquarters, Friedman was able to confirm defendant's identity and the status of his driver's license. Friedman also learned that defendant had warrants out for his arrest. Friedman requested a police officer with expertise in drug recognition to come to the station "because [defendant] admitted to [the officers] that he was using some of the heroin on the way down" to the stationhouse. According to Friedman, from the way defendant was acting, he appeared to be under the influence of alcohol or drugs.

Friedman acknowledged on cross-examination by defense counsel that he did not actually see any weapons when he walked up to the van. Friedman also acknowledged that when defendant was inside the van and reaching, he "wasn't going towards the center console," but rather "was going towards the floor in front of the center console[.]" He also agreed that the situation and defendant were "under control" once Detective Huegel arrived. However, Friedman maintained that even though defendant was not doing anything that was "reckless or threatening" at the time, "it was still a dangerous situation" as the police "still didn't know who [defendant] was, what he was doing, what exactly he was trying to reach for[,]" and defendant "wasn't searched yet so it wasn't a secure situation yet."

Defense counsel argued at the suppression hearing that Friedman should have applied for a telephonic search warrant before going inside the van. The State countered that Friedman's warrantless inspection of the area where defendant had been reaching near the console with his back to the officer was a justifiable "protective sweep" allowed under case law.

Judge Mullaney agreed with the State's position that this particular warrantless search was permissible under the federal and state constitutions. In his written opinion analyzing the search, the judge made several key points.

First, Judge Mullaney found that the motor vehicle stop was lawful since Lieutenant Friedman "had reasonable suspicion to pull defendant over because he observed the [vehicle] which defendant was driving swerve over the double[]yellow [line] three times and almost head into oncoming traffic." Defendant does not contest this finding.

Second, the judge ruled that Lieutenant Friedman's order commanding defendant to get out of the vehicle was lawful. As the judge noted, defendant's conduct, such as repeatedly attempting to grab something and ignoring Lieutenant Friedman's requests that he show his hands, "created circumstances which led . . . Friedman to exercise a heightened level of caution." Defendant does not contest this point, either.

Third, the judge concluded that Lieutenant Friedman had lawfully seized the heroin during a valid protective search. The judge determined that "[b]ased on the totality of the circumstances," Friedman had "reasonable suspicion to believe that defendant was armed and dangerous." The judge found it significant in this regard that: (1) defendant was pulled over on a dark night and on the side of the highway (what the judge termed an "uncontrolled environment"); (2) defendant "tried to get out of the car without being asked"; (3) defendant "could not produce a valid driver's license [and] kept repeatedly reaching into the area near the center console"; (4) defendant "refused to obey" Friedman's orders to "show his hands"; and (5) "defendant was sweating profusely and had extremely bloodshot eyes."

The judge specifically noted that concerns for officer safety still persisted even after Detective Huegel arrived at the scene. Consequently, Lieutenant Friedman was "justified in searching the area of the vehicle in which defendant [had] kept reaching into."

Finally, the judge ruled that the arrest of defendant was lawful. The judge found that Lieutenant Friedman "had probable cause to arrest defendant because the circumstances support[ed] a well-grounded suspicion that defendant possessed heroin" in violation of the criminal laws.

We approach this appeal guided by several well-established principles. When reviewing a grant or denial of a motion to suppress, this court must uphold the factual findings underlying the trial court's decision "so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). Such deference to factual findings is "required because those findings 'are substantially influenced by [an] opportunity to hear and see the witness and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 424-25 (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

We reverse "only when the trial court's determination is 'so clearly mistaken "that the interests of justice demand intervention and correction."'" Id. at 425 (quoting Elders, supra, 192 N.J. at 244). However, a "trial court's interpretation of the law . . . and the consequences that flow from established facts are not entitled to any special deference," and its legal conclusions are thus reviewed de novo. Ibid.

Under both the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, warrantless searches by the police are presumed invalid unless they fall within one of the recognized exceptions to the warrant requirement. Ibid. At a suppression hearing, the State "must demonstrate by a preponderance of the evidence that there was no constitutional violation." State v. Pineiro, 181 N.J. 13, 20 (2004) (quoting State v. Wilson, 178 N.J. 7, 13 (2003)); see also State v. Shaw, 213 N.J. 398, 409 (2012).

We agree with Judge Mullaney that the State met its burden to justify the warrantless search here, under the circumstances as described in Lieutenant Friedman's unrebutted testimony. In particular, we concur with the judge and the State that Friedman's entry into the van and focused check of the area where defendant had been repeatedly reaching was justified as a protective sweep.1

When police officers making a traffic stop have reasonable suspicion that those inside the vehicle may be armed and dangerous, police are permitted to effectuate "limited protective searches of vehicles . . . to 'ferret out weapons that might be used against police officers.'" Gamble, supra, 218 N.J. at 433 (quoting State v. Davila, 203 N.J. 97, 129 (2010)). Such protective sweeps "must be cursory and limited in scope to the location where the danger may be concealed." Ibid.

In evaluating whether a protective search was based on reasonable suspicion, courts must consider "the totality of the circumstances the whole picture." Id. at 431 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)). "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) (alterations 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)).

The trial court soundly applied these principles. Considering the totality of the circumstances, Lieutenant Friedman was justified in performing a limited protective sweep of the area inside the van where defendant had been reaching. The situation initially raised heightened concerns for officer safety when the driver immediately jumped out of the car on a dark night, and had to be commanded back inside. Defendant resisted showing his hands despite being ordered by the officer to do so. He appeared to be under the influence of drugs or alcohol. He was unable to produce credentials or identification.

Most importantly, defendant kept repeatedly reaching towards the floor of the vehicle by the console area while shielding that spot from the officer with his back turned. The officer had a reasonable basis to be concerned that a weapon or contraband could be in the area where defendant was reaching. The envelopes with heroin were discovered by the officer in plain view on the floor. He did not exceed the limited scope justified for the protective sweep.

We recognize that defendant was not accompanied in the van by any passengers who could have elevated the safety risks. We also are mindful that the backup officer was standing alongside defendant outside of the rear of the van while Lieutenant Friedman conducted his protective sweep. However, defendant was not yet handcuffed, and it is not inconceivable that he could have attempted to flee or act aggressively towards the officers.

The main case on protective sweeps cited in defendant's brief, State v. Lund, 119 N.J. 35, 48 (1990) (invalidating a search of a vehicle compartment after a traffic stop), does not compel reversal of Judge Mullaney's decision here. In Lund, the defendant driver appeared to the testifying officer to be "generally nervous" during the traffic stop, and he "kept looking toward the back seat slightly." Id. at 41. The driver also could not produce a registration for his rented vehicle. The Supreme Court found these assorted observations inadequate to allow a protective sweep. Id. at 48. The situation here encountered by Lieutenant Friedman was more worrisome, considering factors such as defendant's immediate action in stepping out of the van, his refusal to show his hands despite police commands, and his multiple attempts to reach down on the floor by the console with his back turned to the officer.

In sum, defendant's suppression motion was justifiably denied and his conviction pursuant to the negotiated plea agreement must stand.

Affirmed.

1 We do not analyze whether, as an alternative to the protective sweep doctrine, the search would have been permitted under our State Supreme Court's revised criteria for the "automobile exception," as set forth prospectively in State v. Witt, ___ N.J. ___ (2015). The search in this case predated Witt.