STATE OF NEW JERSEY v. SIDNEY FELTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4841-04T44841-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SIDNEY FELTON,

Defendant-Appellant.

___________________________

 

Submitted November 27, 2006 - Decided December 22, 2006

Before Judges Seltzer and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

03-05-0624.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Maura K. Tully, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After his motion to suppress evidence obtained as the result of a warrantless search of his automobile was denied, defendant pled guilty to a charge of third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(3). He appeals now from the order denying his motion to suppress, arguing that the search was conducted in the absence of both probable cause and exigent circumstances. We reverse and remand for further proceedings.

The facts were developed in a three-day hearing during which testimony was taken on plaintiff's motion. The motion judge made the following factual findings:

[T]his is a case involving a warrantless search. And, therefore, the burden is on the State to demonstrate the reasonableness of the search under the totality of the circumstances. Now, in support of its burden, the State called two Police Officers.

And essentially the Police testified, first of all, through Lieutenant Paul Schuster of the New Brunswick Police Department Anticrime Unit, which is

essentially a Narcotics Unit. And it's important to -- to note that Lieutenant Schuster is a -- I believe he's a 25-year veteran of the New Brunswick Police Department and having spent most of his time in the field of narcotics investigations. He testified -- and I -- I will say at the outset that I found his testimony to be

credible and, despite lengthy cross examination, did not see any reason to question his credibility. He testified that, in late January of this year, a citizen informant contacted him with information that the defendant was selling drugs. It is important to note that Lieutenant Schuster also testified that he was familiar with the defendant. That the defendant actually had been involved in a -- in a case where the defendant's home had been the subject of a drug raid in the past. And apparently the defendant had been arrested and convicted of a drug related offense some -- sometime ago. The informant allegedly told Lieutenant Schuster that he had seen the defendant, on occasions, making drug delivery runs using his vehicle, a white Ford Explorer with a particular license plate number. And also told the Lieutenant that the defendant delivered cocaine to the various customers by using the vehicle and that the drugs, that were being distributed by the defendant, were kept in the console of the vehicle.

According to Lieutenant Schuster, over a period of approximately a month, the informant would call Lieutenant Schuster and advise him that the defendant was in the process of making a drug delivery, leaving his home and going to other locations. And the Police would attempt to maintain a surveillance of the defendant. The -- although Lieutenant Schuster testified that, to a certain extent, he was able to corroborate the information supplied by the informant; that is, that Mr. Felton did live at the address that the informant stated, which was 286 Power Street; that he did use this particular kind of vehicle, it did have the -- the same plate number with the same color; and indeed it would -- it would be seen driving to and from various locations [that had been identified by the informant]; it is true that the Lieutenant was never able nor were any of the Police able to confirm any illegal narcotics transaction. The -- the closest -- closest thing that the surveillance produced to that, was that, on -- on one occasion, it is alleged, by the Lieutenant and -- and Police Officers in the Anticrime Unit, that the defendant drove as if he knew he was being followed and apparently attempted to elude the Police surveillance vehicles.

In any event, on February 20th, after this period of surveillance took place, the informant again contacted Lieutenant Schuster and advised that the defendant was making a delivery to a -- a customer at the Lakewood Court Motel on Route 130 in South Brunswick and that he would be returning to his home with drugs in his vehicle. Lieutenant Schuster, according to his testimony, followed up on this information. And observed the defendant's vehicle parked at the motel in question and then ultimately leave the motel, at -- at which time the Lieutenant instructed members of the Anticrime Unit to maintain surveillance at the defendant's home and to attempt to stop him and presumably arrest him when he came home.

This recitation compresses the testimony of Schuster who actually testified that he received two calls on February 20. While on his way to work, he received a phone call from the informant at approximately 2:00 p.m. The informant told Schuster that defendant "was supposed to be making some cocaine deliveries in his truck" and that one of the deliveries was to be made at the Lakewood Court Motel. Schuster passed the motel shortly thereafter and saw defendant's van "at the southern most end of the motel." Schuster did nothing more until he heard from the informant again "[b]etween approximately 10:00 p.m. and maybe 10:20 p.m." The informant related that defendant "was making more cocaine deliveries and it would be in the truck and he was going back down to this Lakewood Court Motel to drop off the cocaine."

Schuster sent two detectives to verify that the van was not at defendant's residence, and drove to the motel where he saw defendant's van exiting the parking lot. He immediately called the officers stationed at defendant's home and told them, "if you [see] the vehicle coming back to his house, stop it and search it." Thereafter, as the judge continued:

[T]he defendant did in fact arrive at his home at approximately 10:30, 10:40 p.m. on February 20th. And, at this point, Lieutenant Schuster was not present, but Detective Timothy Sutton and [three] other Detectives from the Anti-crime Unit were there waiting for the defendant.

According [to] Detective Sutton, who testified, the defendant pulled up by his parking lot adjacent to his home, exited the vehicle, and, as the Officers attempted to approach the defendant, and identified themselves and attempted to stop him, he closed his truck door and began to walk away. The Officers then seized the defendant and a struggle ensued. And the defendant was placed under arrest first for, according to Detective Sutton, interfering with their investigation and then for resisting arrest as the scuffle turned into physical resistance.

Thereafter, the defendant became quite agitated, began to scream for help, called for his mother; and neighbors and others began to come to the scene. This was happening as the Officers began to search the defendant's vehicle. As the people started to converge around the scene, Detective Sutton determined that it was dangerous to remain there. He got into the defendant's vehicle -- after first being requested by the defendant's mother to turn over the car keys, he got into the defendant's vehicle and drove it to Police Headquarters, where the search was completed. According to the Officer, twenty-five bags of cocaine were found in the center console and the defendant also had over $2,000 on his person.

Those findings were grounded in substantial credible evidence in the record and will not be disturbed on appeal. State v. Johnson, 42 N.J. 146, 162 (1964); State v. Watson, 261 N.J. Super. 169, 177 (App. Div. 1992), certif. denied, 133 N.J. 441 (1993); State v. Boone, 114 N.J. Super. 521, 525 (App. Div.), certif. denied sub nom., State v. Terry, 58 N.J. 595 (1971). The legal conclusions that flow from those facts, however, are given no special deference on appeal. Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Both the Fourth Amendment to the Federal Constitution and Article I, Paragraph 7 of the New Jersey Constitution prohibit unreasonable searches and seizures. Warrantless searches, which are presumed invalid, may be undertaken only in circumstances constituting certain specific and narrowly drawn exceptions to the general requirement of a warrant. State v. Ercolano, 79 N.J. 25, 41-42 (1979); State v. Sims, 75 N.J. 337, 351 (1978). One of those exceptions relates to searches of an automobile. Whether a warrantless search is permissible "depends on the satisfaction of two requirements: the existence of probable cause and exigent circumstances, and . . . the determination regarding those elements must be made on a case-by-case basis." State v. Dunlap, 185 N.J. 543, 549 (2006) (citing State v. Cooke, 163 N.J. 657, 671 (2000); Peter G. Verniero, New Jersey Search-and-Seizure Law: A Recent Perspective, 36 Seton Hall L. Rev. 45 (2005)). "Probable cause exists if at the time of the police action there is 'a "well grounded" suspicion that a crime has been or is being committed.'" State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). Probable cause "def[ies] scientific precision." State v. Evers, 175 N.J. 355, 381 (2003). Nevertheless, "[i]t requires nothing more than a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Johnson, 171 N.J. 192, 214 (2002) (internal citation and quotations omitted).

Applying this standard, we have no doubt that the police had probable cause to believe defendant's car contained contraband. They had received, over a period of several months, information that defendant was selling drugs from his vehicle. That information, delivered by a person assumed to "'be motivated by factors which are consistent with law enforcement goals[,]'" Wildoner v. Borough of Ramsey, 162 N.J. 375, 391 (2000) (quoting Sanducci v. City of Hoboken, 315 N.J. Super. 475, 482 (App. Div. 1998)), was corroborated both by direct observation of the vehicle at locations identified by the informant and by observations of evasive behavior by defendant while driving the vehicle.

Although the citizen informant had refused to participate in a taped conversation with defendant, or to participate in a "controlled buy" of drugs, the information provided was more than sufficient to provide a common-sense belief that defendant was engaged in the sale of narcotics and was using his vehicle as a base from which to dispense the drugs. The information obtained on February 20 heightened the belief that on that date drug transactions were being conducted from defendant's van. We have no doubt that there was probable cause to believe that drugs would be found in defendant's vehicle.

The second element that must be found before a warrantless search of a vehicle is permitted is exigent circumstances. We dispose first of defendant's suggestion that any exigent circumstances that might have existed were dissipated by the removal of the vehicle from the scene to police headquarters. We recognize the force of that argument. At least one commentator has suggested that exigent circumstances cannot exist once a vehicle is "safely impounded and thereby secured

. . . ." Kevin G. Byrnes, N.J. Arrest, Search & Seizure, 17:2-1(c)(1) at 402 (2006-2007). Nevertheless, our Supreme Court has held that where a warrantless search of an automobile may be conducted "at the spot where the officers encounter the car, they may constitutionally remove the vehicle to police headquarters and there conduct the search without first obtaining a warrant." State v. Martin, 87 N.J. 561, 568 (1981); see also State v. La Porte, 62 N.J. 312, 316-17 (1973). Although those cases were decided when factors other than exigent circumstances permitted vehicle searches without a warrant, in the absence of a direction from the Supreme Court that exigent circumstances existing at the scene of the seizure of the motor vehicle are dissipated by the removal of the vehicle to a secure location, we are bound by those prior decisions.

Accordingly, we determine whether exigent circumstances existed at the initial contact with the vehicle. As is the case with the probable cause, exigent circumstances are "incapable of precise definition," Cooke, supra, 163 N.J. at 676, and require "a fact-sensitive, objective analysis." State v. DeLuca, 168 N.J. 626, 632 (2001). "In essence, '[t]he justification to conduct a warrantless automobile search . . . turns on the circumstances that make it impracticable to obtain a warrant when the police had probable cause to search the car.'" Cooke, supra, 163 N.J. at 667 (quoting State v. Colvin, 123 N.J. 428, 437 (1991)).

Some of the factors utilized to determine exigency may include whether the police had "advance knowledge of the events to unfold," Colvin, supra, 123 N.J. at 437; whether the delay needed to secure a warrant would implicate a threat to the safety of the police officers or others, State v. Hammer, 346 N.J. Super. 359, 370 (App. Div. 2001); whether the vehicle is

located in a high crime area, Cooke, supra, 163 N.J. at 675; whether sufficient officers are present to guard the car, ibid.; and whether there is reason to believe that some third party would have access to the car and a motivation to destroy the evidence. Cooke, supra, 163 N.J. at 675. Moreover, the circumstances said to be exigent may not have been created by the police as, for example, by failing to apply earlier for a warrant. State v. Williams, 168 N.J. Super. 352, 358 (App. Div. 1979).

Our examination of the record leads us to conclude that it is insufficient for us to determine whether the circumstances claimed to be exigent were created by the police by virtue of a failure to apply earlier for a warrant or existed at all.

The exigent circumstances justifying the search are claimed to be the threatening crowd of onlookers. The judge concluded that

when [the officers] attempted to [arrest defendant], exigent circumstances were created by the defendant's physical resistance and by the emergence of a group of neighbors or a crowd, if you will, that the Police at least had good reason to fear would make it dangerous or unsafe for them to remain in that location and attempt to search the vehicle while the defendant was screaming for help. And so, I find there were exigent circumstances as well.

The motion judge's reliance on defendant's behavior is misplaced since defendant was ultimately subdued and his initial resistance would not have made it impractical for the police to seek a warrant before initiating a search. The difficulty with the judge's analysis of the effect of the onlookers is his failure to determine whether those onlookers constituted a threat to either the police or to the evidence they suspected was contained in the van. The judge described the evidence relating to that issue thusly:

Detective Sutton took the position that there was a fairly large crowd of people, and that they were close by and hovering over the Police while the search was being conducted of the defendant's vehicle. And the defendant's description and his mother's description of what occurred, suggests that there were less people present, and -- and they were some distance away and not in anyway representing a threat to the Police.

Without a factual determination as to the number and behavior of the onlookers, we cannot determine if they posed a threat to the integrity of any evidence contained in the van or to the safety of the police. We simply cannot tell if the record justifies the judge's conclusion that the police had a basis for believing such danger existed. There are obvious factors suggesting to the contrary, not the least of which was the order to search the van without a warrant delivered well before the van was stopped and the initiation of the search before the crowd had assembled.

Moreover, the judge did not consider the other factors we have enumerated. The return of the vehicle was anticipated and the need to search the van was not simply a rapid development in an ongoing investigation; rather, it was one that might have been anticipated and for which preparations might have been made. The record does not explain why additional police were not dispatched or whether the crowd, even if unhappy with the arrest of defendant, was unlikely to respect a police order to remain away from the van while a warrant was secured. The record is also unclear as to whether the number of policemen at the scene after removing defendant would have been insufficient to guard the van and whether there was any reason to believe a third party would attempt to gain access to the vehicle so as to destroy the evidence.

Similarly we cannot determine if the claimed exigency was self-created. Schuster was first contacted by the citizen informant at 2:00 p.m. and was able to confirm defendant's vehicle at the Lakewood Motel, which had been identified by the informant as one of the stops being made by defendant to deliver drugs. Although Schuster was on his way to work, for reasons unexplained by this record, he took no action. He was again contacted between 10:00 p.m. and 10:30 p.m. by the informant indicating that defendant was making more deliveries and was going back to the Lakewood Motel. Schuster directed officers to defendant's home and ordered them to search the car if they found it. That order, issued before the vehicle was stopped, could not have contemplated that exigent circumstances would later exist. The vehicle returned at 11:00 p.m. and the events described in the judge's opinion ensued.

There was no indication as to why a warrant was not sought after the call at 2:00 p.m. It appears to us that the police had the same information after the 2:00 p.m. call that they had after the 10:00 p.m. call. They had received approximately a dozen calls or more in the weeks preceding February 20th; had confirmed much of the information received from the citizen informant; knew at 2:00 p.m. that defendant's van was in a location identified by the informant as the location of a drug sale; and, nevertheless, took no action.

The reason for the failure of the police to present the information they had to an independent judicial authority immediately after the 2:00 p.m. call is not apparent, but we are hesitant to find, on this record, where the issue is not discussed, that they had no reason for their inaction. However, if the police had obtained a warrant at 2:00 p.m., there would have been no need to search the vehicle at the scene. While the gathering of a crowd might be unexpected, the need to deal with the situation would have been obviated by obtaining a warrant when the probable cause first existed.

A reasonable interpretation of the events described by the judge is that the police delayed until circumstances existed such that it would be impractical to obtain a warrant. We ascribe no improper motives to the police, but the order to search and the initiation of a search prior to the assembly of the onlookers suggests that the crowd was not an exigent circumstance but a post hoc justification. The inexplicable failure to seek a warrant when probable cause existed may prohibit the assertion that exigent circumstances justified the search. Williams, supra, 168 N.J. Super. at 358.

The failure to explore these questions at the suppression hearing makes it impossible to determine if the exigent circumstances cited by the judge existed and, if so, whether they were created by police failure to earlier seek a warrant. Accordingly, we remand so that those issues may be explored and the factual dispute resolved.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

The record reflects that there were "probably at least a dozen, if not more" such calls.

The record reflects that the informant refused to participate in either a "controlled buy" or a recorded phone conversation.

Although the record is not clear, it appears that the search started before onlookers gathered.

Searches of a motor vehicle may no longer be justified as incident to the arrest on an occupant. State v. Eckel, 185 N.J. 523, 540-41 (2006).

Sutton testified that "There were at least ten to fifteen people outside, everybody screaming, yelling, you know, yelling out things like that . . . ."

(continued)

(continued)

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A-4841-04T4

December 22, 2006