STATE OF NEW JERSEY v. STEVEN J. PINEIRO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3004-04T13004-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN J. PINEIRO,

Defendant-Appellant.

_______________________________________________

 

Argued December 7, 2005 - Decided January 30, 2006

Before Judges Weissbard, Winkelstein,

and Sabatino.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

No. 91-04-04.

Donald F. Manno argued the cause for appellant.

James F. Smith, Assistant Atlantic County

Prosecutor, argued the cause for respondent

(Jeffrey S. Blitz, Atlantic County Prosecutor,

attorney; Mr. Smith of counsel and on the brief).

PER CURIAM

This case presents a uniquely post-9/11/01 application of the "community caretaking" exception to the State and Federal constitutional requirement that a warrant be obtained from a judicial officer before police undertake to search private property, in this case an automobile parked unattended and unlocked on a desolate road adjacent to an airport used by civilian and military aircraft. Defendant Steven Pineiro appeals from his conviction, after a trial de novo in the Law Division, of the disorderly persons offense of possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10a(4). He was sentenced to pay a fine of $350. Appropriate penalties and assessments were also imposed, as well as a six-month driver's license suspension. On appeal, defendant challenges the validity of the search of his automobile which led to the evidence that provided the basis for his arrest and conviction. His motion to suppress evidence was denied in the Municipal Court after which defendant pled guilty, automatically preserving his right to appeal the suppression ruling. R. 3:5-7(d). In his appeal to the Law Division, he again unsuccessfully challenged the search. We affirm.

On May 18, 2004, at about 10:50 a.m., Officer Owen of the Egg Harbor Township Police Department was on patrol on Wescoat Avenue when he observed a Cadillac automobile parked in the area of Afom Avenue, within fifty to one hundred feet of property containing the Federal Aviation Administration Technical Center, the Atlantic City International Airport and the base for a squadron of military fighter jets. Although the main airport runway was "quite a way" distant, and not within sight, the location of the car was in a direct line, due west, of the flight path for planes landing and departing when wind is from the west. According to the Law Division judge, the planes "go right over the road," "flying low." Owen described the area as desolate, without residences or businesses. The location caused Owen to have "heightened awareness," based on his training, regarding possible terrorist activity in the vicinity of airports. His training included being on the alert "for vehicles that possibly could have terrorists with . . . shoulder-fired missiles, especially in those areas." Owen pulled up behind the vehicle, which was parked just off the roadway. He did not see anyone in the area. The car was parked near the entrance to a fire trail, which ran along a power line. Owen saw a backhoe about one hundred meters down the trail, but no one was in the vicinity of the backhoe.

Owen called in the license plate to his headquarters and was told that the registered owner was defendant. The car had not been reported stolen. He then approached the car and opened the passenger door, which was unlocked. Owen proceeded to enter the car, looking for information such as a driver's license or insurance card that might help determine who was actually operating the vehicle. Owen had great concern that, given the isolated area and the unlocked door, the driver may have "left the vehicle in a hurry." Upon entering the car, Owen smelled raw marijuana. He checked the car's center console and found defendant's driver's license. He transmitted the information to his dispatcher so that an effort could be made to locate defendant. A phone call to defendant's home was attempted to no avail, and then the information was transmitted to the police department in Blackwood, where defendant lived, to see if he could be located. The Blackwood police did not find anyone home at the address listed on the license.

After about ten or fifteen minutes, during which Owen waited in his patrol car, a "white work truck" arrived with defendant and four or five other men, later determined to be co-workers. Defendant waved at the officer as the truck approached and called, "that's my car, that's my car." Owen took defendant aside, out of the presence of the other men, and asked what he was doing at the location. Defendant explained that he and the other men were there, with the backhoe, pursuant to a contract to clear the power line area. Owen asked about the smell of marijuana, and defendant admitted there was marijuana in the vehicle in a black leather case. Owen found the marijuana in a "plastic sandwich-type bag," as well as a package of rolling paper and a blue smoking pipe. Thereupon, he arrested defendant.

As these facts make clear, we face a situation where the officer effectuated a warrantless search of defendant's vehicle. Such a search is presumptively unlawful unless it falls within one of the recognized exceptions to the warrant requirement. State v. Diloreto, 180 N.J. 264, 275 (2004). In upholding the search, the Municipal Court judge and the Law Division judge both relied on the "community caretaking" exception. On appeal, the State continues to justify the search on that basis, although it also alternatively suggests, as it did in the Law Division, that the vehicle could be deemed "abandoned," which would likewise obviate the need for a warrant.

We reject the State's invocation of abandonment to support the search of defendant's car. As the Law Division judge said, there was no "clear evidence of abandonment." In the context of search and seizure law, abandonment is not to be understood in the "strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search." State v. Burgos, 185 N.J. Super. 424, 428 (App. Div. 1982) (quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973)). The issue of abandonment is "factual in nature." State v. List, 270 N.J. Super. 252, 258-59 (Law Div. 1990), aff'd, 270 N.J. Super. 169, 174 (App. Div. 1993). While there were, as the Law Division judge also noted, "indicia of abandonment," which do support the State's argument, see State v. Adams, 224 N.J. Super. 669, 673 (App. Div. 1988), we reject this basis for the search of defendant's vehicle under the circumstances presented.

On the other hand, we conclude that those same circumstances justify Officer Owen's actions under the community caretaking exception, now well recognized and applied in our state. See Diloreto, supra, 180 N.J. at 275-76; State v. Hill, 115 N.J. 169, 174-78 (1989); State v. Garbin, 325 N.J. Super. 521, 525-27 (App. Div. 1999), certif. denied, 164 N.J. 560 (2000); State v. Navarro, 310 N.J. Super. 104, 108-09 (App. Div.), certif. denied, 156 N.J. 382 (1998). The exception was first given explicit sanction in Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706, 715 (1973), where the Supreme Court noted that police frequently engage in activities "described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." In Diloreto, supra, 180 N.J. at 276, the Court quoted with approval from a commentator who described the difference between law enforcement and 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.

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

We conclude that the circumstances presented to Officer Owen on the morning of May 18, 2004 justified his entry into defendant's car under that rationale. Our conclusion is not dictated simply by the fact that the car was left unlocked and unattended, even in an isolated area. Compare Hill, supra, 115 N.J. at 174-78 (search of unlocked vehicle improperly parked on residential street by officer looking for evidence of ownership not justified under community caretaking exception). Here, the police were able to quickly ascertain that the vehicle was properly registered to defendant and was not reported stolen. Rather, the close proximity of the vehicle to the flight path of an airport utilized by commercial and military aircraft, while parked on a desolate street, justifiably gave Owen "heightened awareness," given the threat of terroristic activity attendant to such locations. In reviewing police conduct under the community caretaking exception, we "employ a standard of reasonableness." Diloreto, supra, 180 N.J. at 276 (quoting Kevin G. Byrnes, New Jersey Arrest, Search and Seizure, 14:1-1 at 289 (2003)). Judged by that standard, Owen's actions were reasonable. We live in a new era and constitutional guarantees against unlawful search and seizure must be adapted to the realities of a post-September 11, 2001 environment, in our own country and abroad. As Professor LaFave has well noted,

In the aftermath of 9/11/01, the perceived need to maintain heightened security against the threat of terroristic attacks has meant that merely limiting access to certain buildings and facilities is not enough; the authorities must also be concerned with persons and vehicles found in the general vicinity of such places.

[5 LaFave, Search and Seizure, A Treatise on the Fourth Amendment, 10.7(a) at 321 (4th ed. 2004).]

This is not to say that our civil liberties are to be routinely diminished by the threat of terroristic activity but only that the existence of such threats is a factor, and in the unique setting of this case an important factor, in deciding whether a police officer has acted within his constitutional authority. To be clear, we are not adopting a per se rule that all private property in close proximity to an airport is automatically subject to a warrantless search.

In addition, the officer here expressed a legitimate concern for the well-being of the operator of the vehicle, given the car's isolated location and its failure to be secured, perhaps suggesting a medical emergency, a potential theft not yet reported, or that the operator had met with foul play.

We do not take defendant's arguments lightly. In Diloreto, supra, 180 N.J. at 278, the Court concurred with Judge Stern's observation when the case was before the Appellate Division, 362 N.J. Super. at 617-18, that "[w]e recognize that the issues before us pose difficult questions and that their resolution is debatable, particularly in a State in which we have afforded greater protection to criminal defendants under the State Constitution, N.J. Const. art. I, 7, than the Fourth Amendment to the Federal Constitution." Our holding is a limited one, intended to go no further than the facts presented. Here, as in Diloreto, "we are convinced that the officer[] did not perform the community caretaker function as a pretext for a criminal investigation." Id. at 280.

 
Finally, we do not agree with defendant's suggestion that a vehicle search under the caretaking exception requires that the vehicle be impounded. It is true that in Hill, supra, 115 N.J. at 176, the Court did state "that Cady and [South Dakota v.] Opperman, [ 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976)] suggest that a predicate to the 'community caretaking' exception is the impoundment of the vehicle (Opperman) or at least the exercise by police of custody of or control over it (Cady)," predicates which were not present in Hill. See also id. at 178 ("the 'community caretaking' exception has not been applied outside of the 'impounded automobile' context.") However, as Diloreto, Navarro and Garbin all illustrate, the caretaking exception has been given a flexible interpretation, applicable to a variety of scenarios, and we see no reason why it cannot, and should not, be applied in the unique circumstances presented here.

Affirmed.

Defendant was charged with possession of 3.2 grams of marijuana. A separate charge of possession of a marijuana pipe and rolling paper, N.J.S.A. 2C:36-2, was dismissed by the Municipal Court.

(continued)

(continued)

10

A-3004-04T1

January 30, 2006