STATE OF NEW JERSEY v. RICARDO GONZALEZ

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0066-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICARDO GONZALEZ,1

Defendant-Appellant.

_______________________________________

October 22, 2010

 

Argued October 5, 2010 Decided

 

Before Judges Skillman and Yannotti.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-07-1656.

 

Frank J. Pugliese, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Pugliese, of counsel and on the brief).

 

Brian Uzdavinis, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Mr. Uzdavinis, of counsel and on the brief).

PER CURIAM

Defendant Ricardo Gonzalez pled guilty to second-degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b), and was sentenced to three years of incarceration with a one-year period of parole ineligibility. Defendant appeals from the judgment of conviction dated April 3, 2009. We affirm.

Defendant was charged, along with Dave P. DaSilva (DaSilva) and Michael T. Clouse (Clouse), with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count one); fourth-degree possession of a prohibited device, specifically hollow point bullets, N.J.S.A. 2C:39-3(f) (count two); and third-degree receiving stolen property, N.J.S.A. 2D:20-7(a) (count three). Defendant also was charged with the possession of fifty grams or less of marijuana, which is a disorderly person offense, N.J.S.A. 2C:35-10(a)(4). Defendant, DaSilva and Clouse moved to suppress the evidence obtained in the search of defendant's motor vehicle. Following an evidentiary hearing, the court denied the motion.

The State thereafter filed a motion pursuant to N.J.S.A. 2C:43-6.2 to reduce the required mandatory minimum period of parole ineligibility on count one to one year. On January 22, 2009, the court granted the State's motion. On that same day, defendant pled guilty to count one.

In exchange for defendant's guilty plea, the State agreed to recommend a three-year prison term with a one-year period of parole ineligibility. The State also agreed to the dismissal of the other charges against defendant and all of the charges against DaSilva and Clouse.

On April 3, 2009, the trial court sentenced defendant to three years of incarceration with one year of parole ineligibility. The court dismissed the other charges in the indictment against defendant and the charges against his co-defendants. The court also imposed appropriate penalties and assessments. This appeal followed.

Defendant raises the following arguments for our consideration:

THE STATE FAILED TO SATISFY ITS BURDEN OF PROVING THAT THE WARRANTLESS SEARCH OF THE CAR WAS JUSTIFIED BY THE SEARCH INCIDENT TO ARREST EXCEPTION OR THE AUTOMOBILE EXCEPTION. THUS, THE FRUITS OF THAT UNCONSTITUTIONAL SEARCH SHOULD HAVE BEEN SUPPRESSED.

 

A. Search Incident to Arrest Exception.

 

B. Search Incident to Automobile Exception.

 

We briefly summarize the testimony presented at the suppression hearing. On May 10, 2008, Officer James McCue (McCue) of the Sea Bright Police Department (SBPD) was on duty, working the 8:00 a.m. to 4:00 p.m. shift. McCue was one of two SBPD officers on duty at the time. They had responsibility for covering the entire municipality. At approximately 1:00 p.m., McCue was in his patrol vehicle in a parking lot observing traffic.

McCue saw a white Jeep drive past on Ocean Avenue. McCue testified that the vehicle's license plate was "laying on top of the dashboard," rather than affixed to the front bumper. The vehicle was headed southbound. McCue drove his police vehicle out of the parking lot onto Ocean Avenue, activated his emergency lights and effected a motor vehicle stop.

The Jeep pulled over to the side of Ocean Avenue. McCue testified that he observed some movement inside the vehicle. He stated that there appeared to be three people in the Jeep. He exited his vehicle and, for safety reasons, walked down the sidewalk towards the vehicle. McCue said that at the time there was a significant amount of traffic on Ocean Avenue and the vehicle was stopped in an area where the speed limit is forty miles per hour.

McCue approached the passenger side of the Jeep. The passenger in the front seat lowered the window. McCue detected the odor of burned marijuana coming from inside the vehicle. McCue told the occupants of the car to place their hands where he could see them. He radioed Corporal Lovgren (Lovgren) of the SBPD for assistance and waited for him to arrive.

When Lovgen arrived, McCue asked the occupants of the Jeep to exit the vehicle. McCue identified defendant as the driver of the vehicle. Clouse and DaSilva were passengers in the Jeep. All three exited the vehicle and McCue got in. He looked on the floor and observed "green brown vegetation" that he believed was marijuana. McCue picked up the substance and placed it on the seat. He said it was "raw marijuana." McCue continued to look for the source of the odor of burned marijuana.

McCue went to the rear of the Jeep. He found a few more pieces of a substance he believed to be raw marijuana. McCue continued to look for the source of the odor. He noticed a cigarette package and a lighter wedged into the seat, where the bottom cushion meets the back cushion. McCue went to retrieve the package, believing that evidence could be located inside of it.

McCue pulled the seat cushion forward and, when he did so, noticed a bottom compartment. He observed a red bag and went to move it. McCue felt something heavy in the bag. He opened the bag and found a long-sleeved shirt. He unfolded the shirt and saw a silver-colored metal handgun. Next to the gun was a plastic bag which held a magazine. In the magazine, McCue found hollow-point bullets.

McCue placed these items on the roof of the car and informed Lovgren what he had found. Defendant, Clouse and DaSilva were placed under arrest. McCue said that, at that point, he planned to have the vehicle taken back to police headquarters for forfeiture. Patrolman Murphy, another SBPD officer, who was off duty at the time, pulled up in his vehicle to provide assistance. Murphy eventually drove defendant's vehicle to the police station.

On cross-examination, McCue stated that defendant's vehicle was stopped on a "busy highway." When the three occupants were ordered to exit the Jeep, Lovgren had them sit on the rocks. They were not free to leave. McCue also said that if the two officers on duty needed assistance, the SBPD's procedure is to call another town for back up. McCue stated that this was not done in this instance because he did not believe he needed assistance.

McCue was asked whether he had attempted to obtain a telephonic warrant before he placed his body inside the vehicle. He responded that he did not know he could obtain a warrant in that manner. McCue also stated that it never occurred to him to seek a warrant. He acknowledged that the occupants of the car were cooperative, did not threaten anyone and there was no need to divert the traffic around the stopped vehicles.

McCue also acknowledged that he did not seek a search warrant after he observed the cigarette package and thought that there might be something under the seat. He testified that he did not believe it was necessary to obtain a warrant. He stated that he did not know if he and Lovgren had the time to obtain a warrant. McCue noted that there were only two officers on duty and Lovgren was "keeping an eye on three people" while he was searching the car. McCue also said that he did not believe it was necessary to impound the vehicle until a warrant could be obtained.

After hearing arguments from counsel, the court placed its decision on the record. The court noted that to justify a warrantless search of a stopped vehicle, the State must establish that the officers had probable cause to believe the vehicle contained contraband or evidence of a crime and exigent circumstances permitted a search of the vehicle without a warrant. The court found that both requirements had been satisfied and denied the motion to suppress.

On appeal, defendant does not contest the officer's decision to effect a traffic stop of his car. Defendant also does not argue that the officer did not have probable cause to believe that his vehicle contained contraband or evidence of a crime. Defendant argues, however, that the State failed to establish that there were exigent circumstances that made it impractical to obtain a warrant before searching the vehicle. We disagree.

In New Jersey, a warrantless search of an automobile is permissible when "(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" State v. Pena-Flores, 198 N.J. 6, 28 (2009) (citing State v. Cooke, 163 N.J. 657, 667-68 (2000)); State v. Alston, 88 N.J. 211, 230-34 (1981)). Whether exigent circumstances exist must be determined on a "case-by-case basis." Id. at 28 (citing State v. Dunlap, 185 N.J. 543, 551 (2006)).

In determining whether an exigency existed, the court "must consider the totality of the circumstances." Id. at 28 (citing Cooke, supra, 163 N.J. at 675). The relevant considerations include:

the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.

 

[Id. at 29.]

There is "no magic formula" for determining whether exigent circumstances exist. Ibid. Rather, the facts must establish that it is impracticable to obtain a warrant. Id. at 29 (citing State v. Colvin, 123 N.J. 428, 434 (1991); Coolidge v. New Hampshire, 403 U.S. 443, 462, 91 S. Ct. 2022, 2036, 29 L. Ed. 2d 564, 580 (1971)).

In Pena-Flores, Officer Donald Zsak (Zsak) made a traffic stop of a motor vehicle on a street in Cranford, New Jersey at about 11:00 p.m. Id. at 12. Zsak approached the vehicle, and noted that its windows were darkly tinted. Ibid. He also noticed a strong odor of raw marijuana coming from inside the car. Ibid. Zsak asked the driver to exit the car and move to the rear of the vehicle, where he "conducted a pat-down search." Ibid.

As Zsak searched the driver, another officer, Ryan Greco (Greco), arrived on the scene to provide assistance. Ibid. Zsak ordered the passenger out of the car and conducted a pat-down search. Ibid. The occupants of the car were then turned over to Greco. Ibid. Zsak entered the passenger side of the car and began a search. Ibid. He discovered two clear plastic bags of marijuana on the floor on the front passenger side of the car. Ibid. Zsak instructed Greco to arrest the two occupants. Ibid.

Zsak then searched the backseat and found a handgun. Ibid. He also found a large plastic bag that contained twenty-two plastic bags of suspected marijuana; a bag with fifteen bags of suspected marijuana; a bag with 111 bags of suspected marijuana; eight bags containing the residue of suspected CDS; and two boxes with empty, small plastic bags. Id. at 12-13.

The Supreme Court held that the warrantless search of the vehicle was permissible. Id. at 30-31. The Court stated that the "overwhelming smell of marijuana emanating from the automobile gave the officer probable cause to believe that it contained contraband." Id. at 30 (citing State v. Nishina, 175 N.J. 502, 515-16 (2003)). The Court also found that the exigencies of the situation made it impracticable for the officers to obtain a warrant. Id. at 30-31.

The Court noted that the traffic stop had been unexpected and the police had no prior notice of criminality. Id. at 30. The Court pointed out that Zsak could not look for weapons or contraband from outside of the car because the windows were darkly tinted. Ibid. The Court also pointed out that the two occupants had been removed from the car and had not been arrested or secured inside a patrol car. Ibid. The Court observed that "[t]he ratio of police officers to suspects was two-to-two, and there was no available back up." Ibid.

The facts here parallel those in Pena-Flores and we conclude, as the court concluded in Pena-Flores, that the warrantless search of defendant's vehicle satisfied the standards governing the automobile exception to the warrant requirement. Here, as in Pena-Flores, the motor vehicle stop was unexpected and McCue had no prior information that defendant had committed or was in the process of committing a crime. Like the officer in Pena-Flores, McCue smelled the odor of marijuana emanating from the vehicle, thereby giving him probable cause to believe that the vehicle contained contraband or evidence of a crime.

In addition, in this case, the ratio of police officers to suspects was two-to-three, rather than two-to-two as in Pena-Flores. Furthermore, the occupants were removed from the vehicle but they had not been arrested or secured in a police vehicle when McCue began to search the Jeep. Although the three occupants cooperated and did not engage in any threatening behavior, they were under the control of only one police officer while the search was underway. Moreover, there were only two officers on duty in the municipality and backup was not immediately available.

We conclude that the exigencies facing the police officers here made it impracticable to obtain a warrant before searching defendant's car. Therefore, we affirm the denial of defendant's motion to suppress the evidence found in the search.

Affirmed.

 

 

1 In the indictment and judgment of conviction, defendant's last name is spelled "Gonzales." However, when he entered his plea, defendant stated that his name was "Gonzalez." We have accordingly changed the caption.