STATE OF NEW JERSEY v. ELROSS L. HARRIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4757-03T14757-03T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELROSS L. HARRIS,

Defendant-Appellant.

_______________________________

 

Submitted: November 15, 2005 - Decided:

Before Judges Axelrad and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 03-04-0036.

Roberta Bonnette Cooper, attorney for appellant.

Peter C. Harvey, Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Elross Harris appeals from denial of his motion to suppress a handgun and hollow-nosed bullets seized from the engine compartment of a minivan over which he had control, pursuant to a warrantless search. The court found the search of the minivan was justified under the automobile exception to the warrant requirement. We affirm.

During pre-surveillance one evening of a residential property prior to executing a search warrant for CDS, Trooper Fife observed defendant standing in the driveway facing and looking in the direction of the front bumper of a blue minivan. When the officer and team returned about forty-minutes later, the officer observed defendant standing in the same spot. When defendant saw the police officers, he turned around and began walking away, discarding an object, which was retrieved and determined to be a bag containing under fifty grams of marijuana. Defendant was arrested, and a search of defendant incident to the arrest revealed that he was carrying $606 and a key to the minivan. Defendant was handcuffed and placed in the patrol car.

Shortly thereafter, Trooper Gray visually inspected the minivan by flashlight, and observed additional marijuana in plain view on the front driver's seat. Contemporaneously, an explosive-detecting K-9 dog indicated the presence of firearms or explosives in the front portion of the vehicle. Trooper Gray then entered the minivan with the key recovered from defendant and pressed the interior hood latch. The officers found a handgun loaded with six nine-millimeter hollow-nosed bullets and a holster on top of the engine. While inside the vehicle, the officers also retrieved the marijuana from the front seat and recovered additional marijuana behind the rear passenger seat.

Following an evidentiary hearing, the court denied defendant's motion to suppress the evidence, finding the totality of the circumstances justified the warrantless search. Following trial, defendant was convicted of third-degree unlawful possession of a handgun, fourth-degree possession of hollow-nosed bullets, and second-degree possession of a weapon by a previously convicted felon.

The only matter before us on appeal is the court's denial of defendant's suppression motion. The courts in New Jersey have consistently held that the justification to conduct a warrantless automobile search "turns on the circumstances that make it impracticable to obtain a warrant when the police have probable cause . . . to believe that the car contains criminal contraband and have articulable reasons to search the vehicle immediately to prevent the loss or destruction of the evidence." State v. Colvin, 123 N.J. 428, 437 (1991). Thus, a warrantless search of an automobile requires both probable cause and exigent circumstances. State v. Cooke, 163 N.J. 657, 671 (2000); State v. Hammer, 346 N.J. Super. 359, 366 (App. Div. 2001). Because of the mobility of an automobile, exigent circumstances exist when the circumstances giving rise to probable cause are "unforeseen" and "spontaneous." Cooke, supra, 163 N.J. at 672; State v. Alston, 88 N.J. 211, 233 (1981). "[T]he degree of exigency is heightened when the police are involved in an ongoing investigation of events occurring close in time to the search." Cooke, supra, 163 N.J. at 673. Moreover, exigent circumstances for the search are not dissipated merely by the removal and arrest of the occupants or the officer's possession of a set of keys for the vehicle, particularly where the vehicle is owned by someone other than the arrested individual, as is the case here. Id. at 672-73.

Defendant argues the State failed to present sufficient evidence of probable cause and exigent circumstances to justify the warrantless search of the minivan. We disagree. State v. Santiago, 319 N.J. Super. 632 (App. Div. 1999) is inapposite and lends no support for defendant's position, as the officers here had no advance knowledge of the events to unfold.

We defer to the factual findings and legal conclusions of the trial judge as amply supported by the record. State v. Johnson, 42 N.J. 146, 157 (1964). We are satisfied the totality of the circumstances justified the warrantless search of the minivan. The warrant for the residence and several automobiles did not encompass the subject vehicle. The residence was owned and operated by someone other than defendant, and the officers had no advance notice defendant was involved in criminal activity there or would be at the premises when the warrant was executed. Defendant's conduct in hovering around the minivan for about forty minutes, coupled with the knowledge that the premises were a known drug location, gave rise to probable cause that the vehicle contained evidence of a crime. Additionally, and perhaps most critically, the reaction of the trained dog led the police to objectively believe there were explosives or firearms in the vehicle.

Exigent circumstances were also present. It was impracticable for the police to post a special detail to guard the minivan and obtain a warrant. The delay and attention it would have drawn would have jeopardized the execution of the search warrant. Furthermore, there was obvious, immediate danger of explosives being detonated or a person taking unsecured firearms from the minivan while the officers were inside the house serving the warrant.

 
Affirmed.

There is no indication in the record that defendant was charged with possession of marijuana. Additionally, defense counsel does not challenge the seizure of the marijuana.

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A-4757-03T1

December 2, 2005