STATE OF NEW JERSEY v. WILLIAM ECKEL

This case can also be found at 374 N.J. Super. 91, 863 A.2d 104.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0363-03T40363-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM ECKEL,

Defendant-Appellant.

_________________________________________________

Submitted on October 18, 2004 - Decided December 29, 2004

 
Remanded by the Supreme Court - January 10, 2006

Resubmitted May 24, 2006 - Decided

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New Jersey,

Law Division, Cape May County, Ind. No. 02-07-0493.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel,

of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for

respondent (Maura K. Tully, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

After the trial court denied his motion to suppress evidence, defendant William Eckel pled guilty to third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(3). Defendant appealed and we reversed. State v. Eckel, 374 N.J. Super. 91 (App. Div. 2004). In so doing, we rejected the sole basis on which the State sought to justify the search that led to discovery of the drugs which defendant sought to suppress, i.e., that the search was incident to defendant's arrest. The State sought and was granted certification by the Supreme Court, State v. Eckel, 183 N.J. 214 (2005), which thereafter affirmed our ruling. State v. Eckel, 185 N.J. 523 (2006). Despite the fact that the State had abandoned all other justifications for the search, the Court remanded the case to us to consider other possible bases on which the search might be upheld.

On remand, we directed the State to submit its brief first, setting out its arguments in support of the constitutionality of the search, with defendant to respond. In its supplemental brief, the State now contends that the warrantless search was valid under the "community caretaking" doctrine, see Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), and the "automobile exception," see State v. Cooke, 163 N.J. 657 (2000). At the outset of its brief, the State asserts that it had "never argued below, and is not suggesting on appeal, that the police entry into the vehicle was pursuant to a consent to search."

In order to frame the issues before us, we set out the facts outlined in the Supreme Court's opinion:

On June 30, 2002, at around 3:20 p.m., while on routine patrol, Officer Douglas Whitten received a report of a stolen vehicle, described as a green Mercury Cougar bearing the license plate FTY1380. Earlier in the day, the owners of the vehicle, Mr. and Mrs. Sanfillipo, reported that the car had been stolen by their daughter, Dana, and that Dana's boyfriend, defendant William B. Eckel, also might be in the car. At the time, Officer Whitten knew that there was a warrant issued by Upper Township for Eckel's arrest based on failure to appear for municipal court dates.
 
Officer Whitten waited across the street from defendant's residence on Seashore Road and observed the green Mercury Cougar pulling out of the driveway. A young woman, later identified as Dana Sanfillipo, was at the wheel and defendant was in the front passenger seat. A male juvenile was sitting in the rear passenger seat. Officer Whitten stopped the vehicle with the assistance of Sergeant Jack Beers.
 
When Officer Whitten approached the driver's side of the vehicle and asked Dana Sanfillipo for her license, registration and insurance documents, Sergeant Beers approached the passenger side and asked defendant to exit the car. Sergeant Beers informed defendant that he was under arrest on an outstanding warrant, placed him in handcuffs and put him in the rear seat of the patrol car, which was parked behind the Sanfillipo vehicle. Officer Whitten estimated that it took only "a couple of minutes" for Sergeant Beers to arrest defendant and place him in the back of the patrol car.
 
Officer Whitten then asked Dana Sanfillipo to exit the vehicle and step to the rear, off to the side of the road. During a subsequent conversation with Officer Whitten, Dana asked permission to kiss defendant goodbye and give him the clothing he had left in the car. Officer Whitten told Dana to stay where she was and that he would retrieve the clothing. He testified that he would not let Dana go to the vehicle to retrieve defendant's clothes because it could have jeopardized the officers' safety.
 
Officer Whitten went to the front passenger side of the vehicle, where the door was open, and began picking up the clothing from the floor by the passenger seat. Underneath the clothing, Officer Whitten observed a phone book with some "green vegetation and stems" lying on top that he believed to be marijuana. The officer also observed an open box of "Philly Blunt" cigars behind the passenger seat, which contributed to his belief that the vegetation was marijuana.
 
Officer Whitten then retrieved a pair of blue denim shorts from behind the passenger seat. The officer found a softball-sized baggie rolled up in the shorts and opened it. Inside, there was an additional baggie, inside of which were several different items, including a clear plastic baggie containing a white powdery substance, an electronic scale with white residue on the tray, and several different types of small glassine bags. Officer Whitten suspected the white powder to be cocaine. He asked the juvenile to step out of the back seat of the car, and continued to search the passenger compartment. In between the rear seat and the door, Officer Whitten found a larger baggie containing green vegetation that he believed to be marijuana.
When questioned, the occupants all denied ownership of the suspected marijuana and cocaine found in the vehicle. Dana Sanfillipo indicated that the shorts might belong to her brother who also used the car.

[Eckel, supra, 185 N.J. at 524-26 (footnotes omitted).]

We address the State's arguments in reverse order. The State contends that defendant had no reasonable expectation of privacy "in a stolen car," citing State v. Bohuk, 269 N.J. Super. 581, 595, certif. denied, 136 N.J. 29, cert. denied, 513 U.S. 865, 115 S. Ct. 183, 130 L. Ed. 2d 117 (1994), and State v. Lugo, 249 N.J. Super. 565, 568 (App. Div. 1991). Noting that defendant must have had "'an actual (subjective) expectation of privacy' and 'one that society is prepared to recognize as reasonable,'" State v. Evers, 175 N.J. 355, 369 (2003) (quoting Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576, 588 (1967) (Harlan, J., concurring)), the State argues that "defendant cannot claim he had a subjective expectation of privacy in a car when he clearly lacked the owner's permission to be there." Under the facts set out above, this argument is without merit. Defendant was a passenger in the car being operated by his girlfriend and owned by her parents. Whatever may have motivated the parents to report the car as stolen, there is no basis upon which to suggest that defendant did not believe Dana had permission to use her family's car. For the same reason, defendant's expectation of privacy was, under these circumstances, one that society would readily be prepared to recognize as reasonable. Bohuk, and Lugo, which involved actual stolen vehicles, provide no support for the State's argument.

The State's argument in support of the automobile exception is premised on what it claims was "Officer Whitten's plain view observation of marijuana in the stolen car, after lawfully entering the car as an exercise of his community caretaking function." The automobile exception, of course, requires that the police have "probable cause to believe the vehicle contains evidence of a crime," and that there exist "exigent circumstances" making it "impracticable" for the police to obtain a search warrant. Cooke, supra, 163 N.J. at 676. Of course, here the police did not have probable cause to believe the vehicle contained contraband when Whitten entered the car. For that reason, in order to support the initial entry with its concomitant plain view observation of marijuana underneath defendant's clothes on the front seat floor, the State must justify that initial entry. As noted, it does so by relying on the community caretaking doctrine, the sole basis on which the trial judge relied in denying the suppression notion. We turn to that argument.

The "community caretaking doctrine," first articulated in Cady, was most recently addressed and explicated in State v. Diloreto, 180 N.J. 264 (2004). The facts in Diloreto were unique, and we see no need to set them out in detail. What is important is the Court's explanation of the standard to be applied in utilizing that exception. The doctrine "applies when the 'police are engaged in functions, [which are] totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a [criminal statute].'" Id. at 275 (quoting State v. Cassidy, 179 N.J. 150, 161 n.4 (2004)). The Court quoted one commentator as explaining the "dual roles" that police are called upon to perform:

Law enforcement officers generally act pursuant to either law enforcement or community caretaking objectives. The difference between the two stems from the officers' underlying motives. The law enforcement function includes conduct that is designed to detect or solve a specific crime, such as making arrests, interrogating suspects, and searching for evidence. Community caretaking, on the other hand, is based on a service notion that police serve to ensure the safety and welfare of the citizenry at large.

[Id. at 276 (quoting John F. Decker, Emergency Circumstances, Police Responses, and Fourth Amendment Restrictions, 89 J. Crim. L. & Criminology 433, 445 (1999)).]

The "most significant factor" in the Court's conclusion that the search in Diloreto fell within the caretaker doctrine was that the police "were responding to an alert regarding an endangered missing person." Id. at 281. The police "conduct at the encounter's outset was totally divorced from a criminal investigatory role," thereby satisfying the doctrine. Id. at 282.

Here, if viewed very narrowly, it could be said that Whitten's entry into the car was "totally divorced from [his] criminal investigatory role" in that he was acting at Sanfillipo's request to remove defendant's clothing. However, that view is, as we see it, much too narrow in its focus. The entire event, of which the automobile entry and search were part, was directly related to the police function as investigators of criminal activity, to wit, stopping the Sanfillipo car to investigate the report that it had been stolen and thereafter arresting defendant on an outstanding warrant. It would require us to put on blinders to conclude that the car entry and ensuing search were "totally divorced" (emphasis added) from the "criminal investigator role" of the police. Our conclusion is reinforced by the Court's admonition that the "community caretaker doctrine remains a narrow exception to the warrant requirement," id. at 282, which is not to be given "wide application" outside the setting presented in Diloreto. Ibid. Giving the doctrine's application in the present setting "meticulous judicial review," ibid., we conclude that it does not apply.

In view of the issues raised by the State in its brief, this should conclude our decision. However, the grounds advanced by the State, or not advanced, do not limit our responsibility to determine whether the denial of defendant's motion was correct. See State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2001) (we review "judgments and orders, not reasons"). For the second time, the State has declined to advance "consent" as a basis for upholding the motion judge's determination. We are not so readily persuaded that consent is inapplicable in these circumstances. Sanfillipo asked Whitten if she could give defendant the clothing he had left in her car. When the officer replied that she could not, but he would do so, Sanfillipo did not object. Whether under these circumstances Sanfillipo intended to consent to Whitten's entry into her car and whether Whitten believed Sanfillipo had consented, and whether such a belief by Whitten was "objectively reasonable," are questions that have not been answered. See State v. Maristany, 133 N.J. 299, 307-08 (1993) and id. at 310-14 (Pollock, J., concurring in part and dissenting in part); State v. Suazo, 133 N.J. 315, 320-23 (1993). We decline to resolve these issues on the present record. Rather, we remand to the motion judge so that a focused inquiry can be conducted on the consent issue, followed by appropriate findings of fact and conclusions of law. R. 1:7-4(a). We express no view on whether there was a constitutionally valid consent in these circumstances.

Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

Defendant takes issues with both cases, noting the absence of legal analysis. We have no need to address whether the decisions support the proposition for which the State cites them.

(continued)

(continued)

10

A-0363-03T4

June 30, 2006