STATE OF NEW JERSEY v. RAHEIM HOLLOWAY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5171-05T15171-05T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

RAHEIM HOLLOWAY,

Defendant-Respondent.

_______________________________________________________

 

Submitted February 28, 2007 - Decided April 24, 2007

Before Judges Stern and Collester.

On appeal from the Superior Court of New

Jersey, Law Division, Cumberland County,

Indictment No. 05-11-01096-I.

Ronald J. Casella, Cumberland County Prosecutor,

attorney for appellant (Matthew M. Bingham,

Assistant Prosecutor, of counsel and on the brief).

Powell & Baltimore, attorneys for respondent

(Wayne Powell, on the brief).

PER CURIAM

We granted leave to appeal from an order of April 27, 2006, suppressing evidence obtained after officers from the Vineland Police Department responded to the scene of a domestic violence dispute. We now affirm the order.

Detective Ronald Farabella was the only witness to testify at the hearing. His testimony revealed that on March 30, 2005, officers from the Vineland Police Department were dispatched to 70 Myrtle Street in Vineland to investigate a report of domestic abuse. The officers were notified that the actor was outside the residence and that a knife was involved.

According to Farabella, upon arriving at the scene of the dispute, he saw the defendant standing behind a car that was parked in back of the residence and walked toward defendant. Farabella witnessed the defendant close the trunk of the car and walk towards him. At the same time, Farabella surveyed the area and noticed "several broken windows" on the front and side of the house and broken glass on the ground. As the defendant got closer to him, Farabella could see that defendant was in an angry "rage." Farabella then "side-stepped" the defendant and proceeded to the vehicle "to recover the knife" while the other officers "secured" the defendant and detained him.

Upon opening the trunk, which was left a few inches ajar by the defendant, Farabella observed a silver handgun, U.S. currency, a belt, and a bag containing what the officer believed to be cocaine. After closing the trunk, Farabella walked over to defendant, who was now in handcuffs and detained by other officers, to get the keys to the vehicle. Once he obtained the keys, Farabella "unlocked the front portion of the car" and, because the knife was not "visible," "checked the interior of the car." Farabella did not find the knife but then learned from another officer that the victim reported it had been "taken from a belt buckle and a belt." In response, Farabella returned to "look for the knife once again inside [the] trunk," and failed to find it. No knife was found on defendant's person.

On cross-examination, Farabella acknowledged that he did not see defendant's hand "before it went into the trunk[,] observe defendant with a knife, weapon, or other object in his hand, or "see anybody put a weapon into the trunk of the car."

According to the report of Vineland Police Officer Filluzzi, defendant had already been placed under arrest before Filluzzi arrived at the scene, and Farabella arrived after he did. Upon questioning about this report during cross-examination, Farabella maintained that the defendant was not yet secured when he arrived, and he was there, perhaps "behind the residence," prior to Filluzzi's arrival.

In granting the motion to suppress, Judge John M. Waters, Jr., made the following findings of fact:

[Farabella] saw the condition of the house with the broken windows. He saw the condition of the defendant in terms of excitement, anger, if you will, rage, he said. Madness. And he also saw the individual with a hand in the car, [but] he did not observe a weapon. He was very truthful. Absolutely no question was his dishonesty -- notwithstanding the discrepancy between somebody's report, which may or may not be correct, and -- or accurate, and what he testified. I have absolutely no question at all with his credibility.

The difficulty I have is whether or not there is probable cause in the constitutional sense to allow a search of the automobile. There has to be probable cause before we search a person's automobile. And here the only thing we have is a person who may or may not have been the person who had a weapon, had his hand in a car and shut the trunk. And then approached the officer. Now, that individual was then later secured.

There were at least four officers. I've got Detective Farabella, Detective Casio (sic), Patrolman Hall, the patrolman that wrote that report, Filluzzi, I think his name was. And I may have heard another officer's name, but I'm not a hundred percent sure. I think there might have been another officer's name. So you certainly had enough individuals to apply for a warrant and to impound the car. Or get on the telephone and call a judge and say -- or to further investigate. To secure the defendant and further investigate. To talk to the victim. "Tell me what he had." You know, "Where was it? Did he have it when he walked out of the house? Did he -- is there a chance he put it in the car?" You know, to get further information that might cause -- might lay the basis for probable cause.

But that didn't happen. The detective's gut reaction told him to get right in that car and look for a weapon. He did that. You know, was that a good police procedure? Probably was. But was it a constitutional police procedure where the evidence could be used against the defendant? I think not.

My finding is that there was insufficient probable cause. I find there were insufficient exigent circumstances. I think this is a Dunlap situation. [Bec]ause you had all these officers. And he was in custody. He was out of the picture. He was out of commission. He could not use that weapon or get that weapon to cause anyone any damage at that point in time. Good police work, but it didn't pass constitutional muster.

We affirm the order as there is substantial evidence on the record to sustain the findings. See State v. Locurto, 157 N.J. 463, 473-74 (1999).

"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. Johnson, 171 N.J. 192, 214 (2002), and that "'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. Demeter, 124 N.J. 374, 380-81 (1991), quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983).

We cannot disturb the finding that the officers did not have sufficient probable cause to search the trunk of the car. The record warranted Judge Waters' conclusion that:

[i]n this particular instance, the only thing he can recite that gave him that happened prior to the search is a radio call saying that there had been a domestic. A knife was involved . . . The actor . . . is outside the residence. . . . [T]here was no identification [of] this defendant as being the actor.

. . . .

. . . And here the only thing we have is a person who may or may not have been the person who had a weapon, had his hand in a car and shut the trunk. And then approached the officer.

See also State v. Ekles, 185 N.J. 523 (2006) (a car cannot be searched incident to lawful arrest when its occupants are in custody; this was not asserted as a basis for the search here); State v. Cooke, 163 N.J. 657 (2005) (probable cause and exigent circumstances are required for a warrantless search of a car).

In State v. Dunlap, 185 N.J. 543 (2006), the Supreme Court held that exigent circumstances did not exist to search a car that officers believed contained contraband, but the suspect was being detained by the police and was unable to reach the alleged contraband. Ibid. at 550. In the instant matter, as the judge noted, "you had all these officers. And [defendant] was in custody. He was out of the picture. He was out of commission. He could not use that weapon or get that weapon to cause anyone any damage at that point in time." Accordingly, there is no basis for concluding that the search can be sustained based on exigent circumstances. See Dunlap, supra; see also State v. Cooke, supra.

The order suppressing the evidence is affirmed.

 

Defendant was indicted on CDS and weapons charges, but the weapon related only to a handgun found in the trunk as well as the CDS therein.

(continued)

(continued)

7

A-5171-05T1

April 24, 2007