STATE OF NEW JERSEY v. STEVEN HARRIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1462-06T41462-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN HARRIS, a/k/a STEVEN

RAFAEL HARRIS,

Defendant-Appellant.

__________________________________________________________

 

Submitted December 15, 2008 - Decided

Before Judges Carchman and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-02-0267.

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

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

PER CURIAM

Defendant Steven Harris appeals from a judgment of conviction entered August 16, 2006, and an order denying his motion to suppress evidence entered June 2, 2006. We have considered defendant's arguments in light of the record and applicable law, and we affirm the orders from which the appeal is taken.

In the early hours of September 16, 2005, detectives from the Trenton Police Department, TAC Unit, were dispatched to a location in what is regarded as a high crime area. There, a group of men had gathered, one of whom was reported to be in possession of a rifle. Upon arriving at the scene, the detectives observed defendant holding a large rifle case. As the detectives approached, defendant placed the rifle case in the trunk of his parked vehicle. The detectives immediately detained defendant and his passenger, patted them both down and seized the gun case defendant had placed in the trunk. Both suspects were taken into custody.

In February 2006, the Mercer County Grand Jury returned Indictment Number 06-02-0267, charging defendant with the following crimes committed on September 16, 2005: count one, third degree unlawful possession of a rifle in violation of N.J.S.A. 2C:39-5c(1); count two, fourth degree possession of hollow-point bullets in violation of N.J.S.A. 2C:39-3f; and count three, second degree certain persons not to have a weapon in violation of N.J.S.A. 2C:39-7. Having moved unsuccessfully to suppress evidence, defendant pled guilty to count three, certain persons not to have a weapon, N.J.S.A. 2C:39-7. He was sentenced, in accordance with the plea agreement, to five years in prison to be served consecutively with any time imposed for defendant's violation of the terms of his Intensive Supervision Program (ISP).

Defendant now appeals his conviction and the order denying his motion to suppress evidence on federal and state constitutional grounds. Defendant argues that the warrantless search of the trunk of his vehicle was a violation, among other things, of his Fourth Amendment rights. He contends that the officer had no probable cause to search the trunk and that the resulting seizure of the rifle was not based on exigent circumstances.

The State contends the police reasonably believed that the gun case they observed defendant placing into the trunk contained either a rifle or a shotgun and that, given the accessibility of that weapon to defendant and to other potentially hostile observers in this high crime area, it was reasonable for the officers to secure the gun immediately in the interest of their own protection and the protection of others. The State also argues that the presence of a gun, initially reported in a broadcast alert from the dispatcher and corroborated by their visual observation of the gun case, justified immediate action to preserve a safe environment. The trial court accepted the position advocated by the State, as do we.

"Warrantless searches are presumptively unreasonable and thus are prohibited unless they fall within a recognized exception to the warrant requirement." State v. Pena-Flores, 198 N.J. 6, 18 (2009). "Under federal constitutional law, a warrantless search of a motor vehicle pursuant to the automobile exception [to the warrant requirement] is permissible so long as the vehicle is readily mobile and there is probable cause to believe it contains evidence of criminality." Id. at 20 (citing Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 137 L. Ed. 2d 1031, 1036 (1996). "[T]he Fourth Amendment of the United States Constitution has 'no separate exigency requirement.'" State v. Hammer, 346 N.J. Super. 359, 366 (App. Div. 2001) (quoting State v. Cooke, 163 N.J. 657, 671 (2000)).

However, the New Jersey State Constitution requires both probable cause and exigent circumstances to search an automobile without a warrant. Pena-Flores, supra, 198 N.J. at 11; N.J. Const. art. I, 7. The warrantless search of an automobile in New Jersey is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant. Id. at 28. Exigency must be determined on a case-by-case basis. Ibid. "Exigent circumstances are present when law officers do not have sufficient time to obtain any form of warrant." Id. at 6 (quoting State v. Johnson, 193 N.J. 528, 556, n. 7, (2008)). "No one factor is dispositive; courts must consider the totality of the circumstances." Ibid.

In Hammer, supra, we held that a trooper who searched a suspect's trunk, based on his personal observation of bullets in the defendant's possession, had probable cause to expand the scope of his search to the trunk of the vehicle. 346 N.J. Super. at 367-68. There, we found exigent circumstances existed to justify the search of the trunk because waiting for a warrant to issue would have posed a risk to the trooper's safety and a risk that the evidence would be moved. Ibid.

In the present case, denying defendant's motion to suppress, Judge Thomas P. Kelly gave considerable weight to the detectives' personal observation of defendant placing the rifle in the trunk of his car. The motion judge further articulated his reasons for finding probable cause for the officers to search the trunk:

I think they had an obligation as police officers to retrieve that weapon, and they did so, because they had probable cause to believe there was a weapon placed in there and there very well could have been more weapons. They found some shells, et cetera.

The judge also articulated sufficient reasons for finding that exigent circumstances existed:

Weapons are, I think, almost intrinsically they present, at least under today's standards in our urban society, and with police experience, in this Court's experiences that weapons, especially weapons that are shootable, such as rifles and handguns and things along those lines, they have a certain built-in exigency to them. The question is did the police have to sit on this car and go wake up somebody to get a warrant? I don't think they did under these circumstances.

In State v. Alston, 88 N.J. 211 (1981), our Supreme Court upheld an automobile search where a speeding vehicle was stopped on a highway for reasons unconnected to the subsequent seizure. The Court explained that "[t]he requirement of a search warrant be obtained before evidence may be seized is not lightly to be dispensed with, and the burden is on the State, as the party seeking to validate a warrantless search, to bring it within one of the recognized exceptions." Id. at 330. Probable cause is a well grounded suspicion that a crime has been or is being committed. Id. at 231. The Court further noted that the primary rationale for the automobile exception lies in the exigent circumstances created by the inherent mobility of vehicles that often make it impracticable to obtain a warrant. Id. at 231.

Thus, exigent circumstances may sometimes be found where "the unanticipated circumstances that give rise to probable cause occur swiftly." State v. Cooke, supra, 163 N.J. at 672 (citing Alston, 88 N.J. at 234). In addition, exigent circumstances may arise where the element of surprise is lost; the vehicle contained the "'contraband'" [weapons]; there were "'confederates waiting to move the evidence'"; or the officers would require "'a special police detail to guard the immobilized automobile.'" Id. (quoting State v. Colvin, 123 N.J. 428, 434-35 (1991)). Judge Kelly placed these circumstances and more into proper context to find exigency:

This is a residential area, it's 12:30, it's between 12:30 and 1 o'clock in the morning, and there are others there. I think it would be unreasonable to require that these police have to go obtain a warrant to search the trunk under these factors and circumstances. One has to be practical and what is the reasonableness here? They saw this thing, they knew it was a weapon, it's in a car, it's moveable, the car belongs to a third party, and there's a lot of people around who probably saw the same thing that the police saw. I mean this wasn't a sneak move by all means from what I got from the testimony. This was a man that just walked with the gun case and put it in a trunk and he was seen doing it by the police who happened to be rolling up on them as a result of the dispatch.

See also Alston, supra, 88 N.J. at 234, where the Court observed that until the car is seized, removed from the scene and securely impounded by the police, "it is potentially accessible to third persons who might move or damage it or remove or destroy evidence contained in it."

There can be no question that this was a fluid situation in which the detectives were operating. Judge Kelly summarized:

Based on these circumstances, I find the police had constitutional, shall we say, warrant to open that trunk and retain that gun that was in the case, as well as the weapons that apparently were of the same caliber as the weapon itself, and therefore, for those reasons this fluid ongoing criminal investigation that was the subject that the Hammer case was very similar to this, and the police there were permitted to do their search and seizure, and I find that they could have done it in this particular case as well for the same reasons.

We have carefully reviewed the record and conclude that defendant's arguments challenging the propriety of the search lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). Based upon our review of the record and applicable law, we are satisfied that Judge Kelly's ruling on the suppression motion is well supported by the record. Although his decision was rendered prior to the announcement of the Court's decision in Pena-Flores, he correctly applied the governing legal principles. Thus, we affirm substantially for the reasons stated by Judge Kelly in his oral decision of June 2, 2006.

Affirmed.

 

We recognize that Pena-Flores was decided February 25, 2009, well after the entry of the orders from which this appeal is taken; however, in issuing its opinion, the Court noted that it was "reaffirmed[ing] our longstanding precedent that permits an automobile search without a warrant only in cases in which the police have probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement." 198 N.J. at 11.

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A-1462-06T4

August 18, 2009