STATE OF NEW JERSEY v. ORION BYRD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3344-05T43344-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

ORION BYRD,

Defendant-Appellant.

__________________________________

 

Submitted: November 28, 2007 - Decided:

Before Judges Cuff and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 04-07-1026; 04-07-1027; 04-01-0101; 05-02-0158.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following denial of his motion to suppress, defendant Orion Byrd entered guilty pleas to four indictments. On Indictment Nos. 04-01-0101 and 04-07-1026, defendant pled guilty to third degree possession with intent to distribute a controlled dangerous substance (CDS) (heroin) on or near school property, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7. On Indictment No. 04-07-1027, he pled guilty to second degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. He also pled guilty to third degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-5b(3), on Indictment No. 05-02-0158. Judge Cantor sentenced defendant to a ten-year term of imprisonment with a five-year period of parole ineligibility on Indictment No. 04-07-1027 (certain person not to have weapons). On the school zone offenses, Indictment Nos. 04-01-0101 and 04-07-1026, defendant was sentenced to five-year terms with three-year period of parole ineligibility, with the sentence on I-04-01-0101 to run consecutive to the terms imposed on I-04-07-1027 and I-04-07-1026, and the sentence on I-04-07-1026 to run concurrent to I-04-07-1027. On I-05-02-0158, defendant was sentenced to a concurrent flat five-year term. Defendant's aggregate sentence on the four indictments is fifteen years imprisonment with eight years parole ineligibility. The appropriate fees, penalties, assessments and revocation of driver's license were also imposed.

Three confidential informants (CIs) advised New Brunswick police that defendant was selling drugs and maintaining his stash in a car parked behind a house owned by the Brown family. The CIs identified the location of the house and the area where defendant sold drugs.

Police commenced surveillance of the area. Using binoculars, an undercover officer observed defendant unlock and enter the car parked in the yard behind the Brown house. The officer saw defendant unlock the glove compartment and remove a bag from which he removed what appeared to be bundles of heroin. Defendant then locked the car and walked away.

The surveilling officer lost sight of defendant and instructed other officers to intercept defendant. They did so; a frisk revealed no drugs, but $796 and the key to the car.

Another officer promptly went to the car. Looking through the window, he saw a bag of heroin on the floor and packaging from a brick of heroin. The officer spoke to Mrs. Brown, who advised him that the car did not belong to her and might belong to someone in prison. She said the car had been parked in her yard for some time and she wanted it removed. Police later learned that the last prior owner of the car was a woman and that the car registration had not been renewed in two years.

A detective entered the car using the key taken from defendant. He found an empty bag on the floor, which he believed had once contained heroin, along with drug packaging material. In the glove compartment, the detective found a brown paper bag containing a sandwich bag, which held thirty bags of heroin packaged in bundles and a small bag of marijuana.

On appeal, defendant raises the following arguments:

POINT I

BECAUSE THERE WERE NO EXIGENT CIRCUMSTANCES WHICH JUSTIFIED AN EXCEPTION TO THE REQUIREMENT THAT THE POLICE OBTAIN A SEARCH WARRANT, THE ENTRY INTO THE INFINITY WAS UNCONSTITUTIONAL AND THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED.

POINT II

DEFENDANT'S SENTENCE IS EXCESSIVE.

We disagree and affirm.

We will assume for purposes of this opinion that the vehicle was not abandoned and that defendant had a property interest in it. We hold that the motion to suppress was properly denied because the police had probable cause to believe that the car contained CDS and exigent circumstances existed to justify the warrantless search of the car.

The automobile exception to the warrant requirement depends on the existence of probable cause and exigent circumstances. State v. Dunlap, 185 N.J. 543, 549 (2006); State v. Birkenmeier, 185 N.J. 552, 562-63 (2006); State v. Cooke, 163 N.J. 657, 661 (2000). The observations by the surveilling officer provided probable cause to believe that CDS was stored in the car. The next inquiry is whether exigent circumstances existed to justify a warrantless search.

In Dunlap, supra, the defendant had been alerted by his girlfriend that her mother had found heroin and a gun in her room. 185 N.J. at 544. Police were informed that the defendant used three cars and drugs and weapons would likely be found in each car. Id. at 545. When the defendant arrived at his girlfriend's house, he parked his car at the curb. Ibid. As the defendant approached the house, he was arrested by waiting police officers. Ibid. Following his arrest, the police searched the interior of the car and found a large quantity of heroin and a loaded handgun. Id. at 546.

The Court recognized that application of the automobile exception to the warrant requirement necessitates an analysis of the facts of each case, id. at 549, and then held that the circumstances were not exigent to excuse the warrant requirement. Id. at 550-51. The Court noted that the car was parked on the street in a residential area that was neither a high crime area nor an area known for drug trafficking. Id. at 550. There was no known third party who might arrive on the scene and take the car or destroy the contraband. Ibid. Moreover, eight to ten police officers were present. Id. at 545, 550.

In Birkenmeier, the Court found that exigent circumstances justified the warrantless search of the automobile. There, a confidential informant advised police that the defendant would leave his house in the late afternoon with a large quantity of marijuana, which the defendant intended to deliver to another for distribution. Birkenmeier, supra, 185 N.J. at 555-56. When the defendant was en route to the delivery point, police stopped the car. Id. at 556. The defendant was arrested, id. at 557, and police detected a strong odor of marijuana emanating from the large laundry bag on the front seat of the car. Ibid. The bag was removed from the car and opened. Ibid. The officer discovered three white plastic bags containing thirty-five pounds of marijuana. Id. at 556-57.

The Court found the circumstances of the stop presented exigent circumstances to remove the bag from the car and inspect its contents. Id. at 563. Although the Court did not identify the facts that created the exigent circumstances, the difference between the facts in Dunlap and in Birkenmeier are readily apparent. In Birkenmeier, the defendant was intercepted on a city street en route to deliver a substantial quantity of illicit drugs. Others, including the informant and the person or persons who would accept delivery of the marijuana, knew that the defendant was transporting a large quantity of drugs. The possibility that someone may seek to retrieve or destroy the evidence was very real.

Similarly, the Court found exigent circumstances in Cooke where the car that was subject to the warrantless search was parked in the parking lot of a housing complex known for drug-trafficking. Cooke, supra, 163 N.J. at 673. During a surveillance, an officer observed the defendant selling drugs in the vicinity of the car and using the car to store his inventory. Id. at 662. In fact, before the defendant left the scene in another car, the surveilling officer observed three drug transactions and also watched as the defendant placed a plastic bag containing suspected drugs under the passenger seat of the car. Ibid. Finally, the police commenced the surveillance operation based on a tip from an informant. Id. at 671.

In finding exigent circumstances justified the warrantless search, the Court stated that the potential for removal or destruction of the drugs existed because several people knew the defendant was engaged in drug transactions and used the car to store the drugs. Id. at 673. In addition, the police might not have possessed the only set of keys to the car, and events unfolded swiftly from the time of the surveillance to the defendant's apprehension. Id. at 673-74. Moreover, the surveilling officer could not risk revealing his observation location to guard the car. Id. at 674.

Here, police had observed defendant use the car to store his inventory of heroin. The area in which the car was parked was in a known drug distribution area. Defendant was actively engaged in the distribution of heroin and his activities were known by at least three individuals. No one knew whether any other person possessed keys to the car. As in Birkenmeier and Cooke, loss of the contraband was a real possibility while an application for a search warrant was prepared and submitted to a judge. Exigent circumstances justified this warrantless search.

Defendant is serving a fifteen-year term of imprisonment with an eight-year period of parole ineligibility. Defendant urges that the sentence is derived from a flawed qualitative analysis of the aggravating factors, and because "there are no factors found which aggravated the offenses, the imposition of consecutive maximum sentences cannot be supported."

On appeal, a reviewing court must first determine whether the correct sentencing guidelines have been followed. State v. Roth, 95 N.J. 334, 365 (1984). The fundamental sentencing guideline of the criminal code is that the punishment fit the crime, not the criminal. State v. Hodge, 95 N.J. 369, 376 (1984). The "inexorable focus" upon the offense is required when formulating a sentence. Roth, supra, 95 N.J. at 367. A reviewing court must then determine whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines. Finally, it must determine whether, in applying those guidelines to the relevant facts, the trial court clearly erred in reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. Id. at 365-66.

When a trial court follows the sentencing guidelines, a reviewing court should not second-guess the sentencing court's decision. State v. Jabbour, 118 N.J. 1, 5 (1990). Indeed, an appellate court "does not sit to substitute its judgment for that of the trial court." Id. at 6; State v. O'Donnell, 117 N.J. 210, 215 (1989). So long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent, credible evidence in the record, it must affirm defendant's sentence. Jabbour, supra, 118 N.J. at 6; O'Donnell, supra, 117 N.J. at 215. In other words, unless the sentencing court was "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), or a sentence otherwise "shocks the judicial conscience," Roth, supra, 95 N.J. at 365, an appellate court is bound to affirm. See O'Donnell, supra, 117 N.J. at 215. Cf. State v. Dunbar, 108 N.J. 80, 83 (1987) (sentence within statutory guidelines may strike reviewing court as harsh, but that is a consequence of the legislative scheme and not error by trial court).

We discern no mistaken exercise of the considerable discretion reposed in the sentencing judge. Defendant has an extensive juvenile and adult criminal history. Prior to this plea to four indictments, defendant had two prior convictions for which he received prison terms. He has violated parole once in the past. His juvenile history extended over five years; he was adjudicated delinquent six times. The application of considerable weight to aggravating factors three and six by the judge is fully supported by this record.

 
Affirmed.

Defendant does not contest, nor could he, the minimum mandatory terms. Each are required by statute. N.J.S.A. 2C:39-7b (five-year parole ineligibility term required); N.J.S.A. 2c:35-7 (three-year parole ineligibility term required).

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A-3344-05T4

December 20, 2007