STATE OF NEW JERSEY v. LUIS MUNOZ-CHAIREZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2610-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS MUNOZ-CHAIREZ, a/k/a LUIS

MUNOZ, LUIS CHAIREZ,

Defendant-Appellant.

__________________________________

November 2, 2012

Submitted April 18, 2012 - Decided

Before Judges Sapp-Peterson and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-02-00302.

Bailey & Orozco, LLC, attorneys for appellant (Michael A. Orozco, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After the court denied his motion to suppress evidence seized from a warrantless search of the vehicle in which he was traveling, defendant Luis Munoz-Chairez entered a conditional guilty plea to first degree possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(10)(a). Judge Liliana DeAvila-Silebi sentenced defendant in accord with his plea agreement to a term of fifteen years, with a five-year period of parole ineligibility. Defendant now appeals from the denial of his suppression motion. We affirm.

I.

We discern ample support in the record for Judge DeAvila-Silebi's fact-findings. See State v. Elders, 192 N.J. 224, 243 (2007) (appellate court must uphold trial court's fact findings on motion to suppress "so long as those findings are supported by sufficient credible evidence in the record") (quotation and citation omitted).

The court principally relied on the testimony of the sole witness at the hearing, Ft. Lee Police Officer Ricky Mirkovic, who initiated the motor vehicle stop and led the subsequent investigation. The court also relied on the on-board video recordings played in court, and the officer's written report. Officer Mirkovic had been a patrol officer for over seven years, and briefly served in a specialized narcotics unit until it was disbanded. He had made hundreds of drug stops, including five to ten involving a large quantity, such as over a pound of marijuana.

While observing traffic from a stationary position on Bergen Boulevard at around 10:10 p.m. on December 3, 2009, Officer Mirkovic observed a maroon Pontiac drive by in the left lane at around sixty mph, in a forty-five mph zone. The car had heavily tinted windows. The car's brake lights were illuminated and the car coasted into the right lane, then swerved back into the left lane. The officer began to follow. He observed the car had Arizona license plates. As he approached, it quickly moved into the right lane again and slowed by ten mph. Based on his experience, the officer perceived this to be an effort by the driver to let the officer pass, but the officer continued to follow, he in the left lane and the Pontiac in the right.

The Pontiac accelerated to the speed limit, the officer kept pace, and then the Pontiac illuminated its brake lights for four seconds. The Pontiac proceeded to a ramp leading to the entrance to the lower level of the George Washington Bridge. The officer activated his overhead lights to initiate a stop. The Pontiac and the officer stopped in a small triangular area, just beyond an overpass, with traffic passing on both sides. Although the officer stopped the Pontiac because of careless driving, failure to keep right, and tinted windows, his suspicions were aroused by the other circumstances, including the driver's erratic operation of the vehicle, his apparent desire to have the officer pass, the tinted windows that obscured the car's interior, and the out-of-state plates. He described the area as a high crime area, used for the transportation of illegal contraband.

The officer approached the driver's side to speak to the driver, Enrique Avila, Jr., and to request his driving credentials. Avila's hand was trembling as he handed the documents to the officer. Defendant was seated in the front passenger seat.

The officer smelled and observed one air freshener hanging from the rear-view mirror, and three hanging from the left side of the steering wheel. This further aroused suspicions, because, based on his experience and training, multiple air fresheners were commonly used to mask the odor of illegal narcotics. The car was also strewn with food and food containers, indicating to the officer that Avila and defendant had taken a long trip. While traffic passed behind him, the officer asked Avila to exit the vehicle and walk to the rear of the Pontiac, where the officer could continue his questioning without the risk of getting sideswiped.

As evident from the video recording, the officer conducted his inquiry in a calm, conversational, and non-intimidating manner. He inquired about where Avila had come from and where he was going, who owned the Pontiac, how long they had traveled, and how many stops they made along the way. Avila said that defendant and he were on their way from Phoenix to Boston to visit Avila's grandmother and defendant's grandmother; the vehicle belonged to defendant's father; and they stopped twice on the two-day journey from Arizona. The officer was mindful that Phoenix, given its proximity to the Mexican border, was considered a "source city" for narcotics distribution.

The officer perceived Avila to be nervous; he avoided eye contact. During the officer's questioning, Avila repeatedly put his hands in his pockets, despite the officer's request that he not do so. Although it was early December, and Avila's hands might just have been cold, the officer expressed concern that Avila might be reaching for something. The officer patted Avila's pockets; felt a bulge; and detected Avila's wallet. Avila said he had only $2, which the officer found to be odd, if Avila had been traveling cross-country.

A back up officer, Marc Miskovitz1 arrived, about three minutes after the stop began. He remained with Avila while Officer Mirkovic approached defendant, who was still seated in the vehicle. Defendant was talking on the cell phone. Officer Mirkovic asked defendant to terminate the conversation. The officer observed four more cell phones in the vehicle. He testified that, based on his training and experience, drug traffickers commonly possess and use multiple cell phones.

The officer then continued his questioning of defendant in front of the Pontiac. Defendant said they had stopped twice on the way from Phoenix, in Albuquerque and in Illinois. A discrepancy between Avila's and defendant's accounts became apparent. Defendant stated they were traveling to visit Avila's dying aunt or grandmother, not defendant's. He was carrying $70. The officer patted defendant down and discovered no weapons or contraband.

Officer Mirkovic returned to his vehicle, radioed his supervisor and obtained authorization to seek consent to search. He also called for a K-9 officer, to conduct an exterior test in the event Avila denied consent. By this time, fourteen minutes had elapsed since the stop began.

The officer then returned to Avila to continue his inquiries. When asked where he and defendant had stopped on their way from Arizona, Avila said they stopped in Albuquerque and Indianapolis. Officer Mirkovic asked Avila whether there was anything in the Pontiac that Avila should not have in his possession. Avila first said that all they had was their clothing. He began breathing more heavily and repeatedly looked at the trunk of the car, which led the officer to believe it contained contraband. When asked, Avila denied there was anything illegal in the trunk, and said the officer could check.2

The officer confirmed Avila's answer, but then asked Avila if he had marijuana in the vehicle. Avila then said he did. The officer asked how much, and Avila said, "maybe like seventy" pounds.

Avila and defendant were then placed under arrest, twenty-two minutes after the stop began. Shortly before the arrest, a third officer had arrived with a K-9 dog, which indicated that there were drugs in the trunk. The officers then unlocked the trunk, searched it, and seized several large, bundles of what appeared to be marijuana.

Officer Mirkovic testified that delaying the search while he obtained a warrant would have posed a significant inconvenience to the traveling public. The officer stated that had he decided to wait for a search warrant, he would have "secure[d] the scene" which most likely would have entailed shutting down the ramp from Route One north to Interstate 95, and would have caused a heavy backup of traffic. He also explained that defendant, who was conversing with someone on his cell phone, may have alerted a cohort of his predicament and advised them to come to the scene. Traffickers of such large quantities of narcotics are often accompanied by "lead or trail vehicles that know of the location due to the amount that it costs." He also stated that weapons are sometimes involved in cases involving a large quantity of narcotics. The officers outnumbered the defendants three-to-two after the K-9 officer arrived.

Judge DeAvila-Silebi denied the motion in an extensive written opinion. Defendant conceded the initial stop was justified by the motor vehicle violations and other suspicious circumstances. The court found that facts and circumstances discovered after the initial stop justified continued investigation by the officer. The officer had probable cause to believe the vehicle contained drugs, particularly once Avila admitted the car contained seventy pounds of marijuana. Applying the principles set forth in State v. Pena-Flores, 198 N.J. 6 (2009), the judge found exigent circumstances relieved the officers of the need to first secure a search warrant.

Defendant argues on appeal:

The Trial Court erred when it denied Appellant's Motion to Suppress, as the search of the vehicle and the seizure of the drugs was [sic] not supported by exigent circumstances sufficient to invoke the Automobile Exception to the warrant requirement.

II.

We affirm, substantially for the reasons set forth in Judge DeAvila-Silebi's written opinion. Defendant does not challenge the initial motor vehicle stop. Rather, he complains the police engaged in a lengthy roadside interrogation in an attempt to establish a basis to support a warrantless search. He also challenges the officer's decision to proceed, without a warrant, to search the trunk and seize the marijuana that Avila admitted was there. He argues the officers either should have awaited a warrant on the scene, or impounded the vehicle and then awaited a warrant. We disagree.

A.

We reject defendant's argument that the officer unlawfully extended the detention. "If during the course of the stop or as a result of the reasonable inquiries initiated by the officer, the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions." State v. Dickey, 152 N.J. 468, 479-80 (1998) (quotations and citations omitted). That is what happened here.

The circumstances of the initial stop included not just the moving motor vehicle violations themselves, but also the tinted windows, the out-of-state plates, the driver's apparent evasiveness, and the route through a high crime area. In short, the officer had grounds to suspect more was afoot than a simple traffic violation, although the traffic violation supplied the reasonable and articulable suspicion for the initial stop. State v. Golotta, 178 N.J. 205, 212-13 (2003).

Upon his initial contact with Avila, his suspicions were further aroused by the presence of multiple air fresheners, often used to mask the odor of drugs. Three were closest to the driver's side door, where the driver might confront an officer. This, and the lived-in look of the vehicle gave rise to reasonable and articulable suspicion that justified further inquiry.

During Officer Mirkovic's continued interview at the rear of the vehicle, Avila's behavior increased, rather than allayed, the officer's suspicion. Avila was nervous. He implausibly stated he was traveling cross-county by car for the purpose of visiting his grandmother in Boston, staying three days, and then traveling back. See, e.g., United States v. Walker, 719 F. Supp. 2d 586, 596-97 (W.D. Pa. 2010) (noting that long trip with a relatively short turn-around contributed to reasonable suspicion). On this lengthy journey, he had but two dollars in his pocket. He was traveling from what the officer considered a "source city," Phoenix, to a large urban area, Boston. See State v. Stovall, 170 N.J. 346, 364 (2002) (travel from narcotics source city is factor in reasonable suspicion analysis).

Perhaps, Avila used multiple air fresheners because he liked the smell, and the purpose of his trip was as innocent as he said. Officer Mirkovic had no evidence to the contrary. But, that is not the test. "The fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions. . . ." State v. Citarella, 154 N.J. 272, 279-80 (1998) (citation omitted).

Here, the officer saw not one, but four air fresheners. Three were hung not from the rearview mirror, where they usually are placed if used for legitimate reasons, but from the steering wheel. These facts reasonably added to the officer's suspicions. See, e.g., United States v. Foreman, 369 F.3d 776, 785 (4th Cir. 2004) ("several air fresheners commonly used to mask the smell of narcotics hanging from [defendant's] rearview mirror" was a factor establishing reasonable suspicion); United States v. Foley, 206 F.3d 802, 804, 806 (8th Cir. 2000) (presence of masking odor from air freshener was factor in establishing suspicion); Unites States v. Alexander, 589 F. Supp. 2d 777, 786 (E.D. Tex. 2008) (citation omitted) (presence of numerous air fresheners, particularly "strangely placed air fresheners," is a factor "properly considered in a reasonable suspicion analysis"); United States v. Parada, 289 F. Supp. 2d 1291, 1301 (D. Kan. 2003) (multiple air fresheners, along with other factors, justified prolonged investigative detention); Jackson v. Maryland, 988 A.2d 1154, 1167 (Md. Ct. Spec. App. 2010) (presence of multiple air fresheners a factor in creating suspicion warranting extension of traffic stop).

We also recognize nervousness alone is insufficient "grounds for the reasonable and articulable suspicion necessary to extend the scope of a detention beyond the reason for the original stop." State v. Carty, 170 N.J. 632, 648 (2002), modified on other grounds, 174 N.J. 351 (2002); see also Elders, supra, 192 N.J. at 249-50 (defendants' nervous behavior, conflicting statements about where they had been, and a fallen-off gas tank, were insufficient to conduct an investigatory stop). On the other hand, nervousness and conflicting responses to police inquiries may still be considered in conjunction with other factors. See, e.g., Stovall, 170 N.J. at 370 (sustaining stop, nervousness considered, along with various other factors); State v. Abreu, 257 N.J. Super. 549 (App. Div. 1992) (sustaining stop, nervousness considered, along with two taxi passengers' conflicting accounts of ownership of a brown bag and their destination).

The "indicators" of possible criminal activity, as Officer Mirkovic described them, continued to mount once he interviewed defendant. He observed that defendant was speaking on the phone, and there were four additional ones in view. The officer considered this to be additional evidence of drug trafficking, noting that "new cell phones, some [of] which are boost cell phones, . . . [are] hard to trace" and "they are commonly used . . . if they're trafficking." See United States v. Pena-Ponce, 588 F.3d 579, 584 (8th Cir. 2009) (presence of multiple cell phones factor in establishing reasonable suspicion); Jackson, supra, 988 A.2d at 1167 (presence of multiple cell phones a factor in creating suspicion warranting extension of traffic stop).

After obtaining approval to request consent to search, and knowing a K-9 officer was on the way, Officer Mirkovic resumed his discussion with Avila. The suspicions continued to mount, as Avila responded nervously, eyeing the trunk when asked if he was transporting contraband.

While perhaps none of the indicators alone would have sufficed, the mounting totality of circumstances justified the officer's continued inquiries. Stovall, supra, 170 N.J. at 369 (court must consider totality of circumstances); see also Pena-Ponce, supra, 588 F.3d at 584 (totality of circumstances, including multiple cell phones, conflicting stories, nervousness, and attempt to kick one cell phone, justified expansion of motor vehicle stop); United States v. Branch, 537 F.3d 328, 340 (4th Cir. 2008) (totality of circumstances including "evident nervousness, the presence of air fresheners, and the fact that Branch was driving a car not registered to him" established reasonable suspicion of drug trafficking to justify extending stop to await drug-sniffing dog); Foreman, supra, 369 F.3d at 785 (unusual travel plan to drive seven hours to source city, stay a few hours, and then return; presence of several air fresheners; nervousness; and travel on high crime route established reasonable suspicion); Jackson, supra, 988 A.2d at 1166-68 (air fresheners, multiple cell phones, travel on I-95 corridor, out-of-state tags, and nervousness justified continuation of stop).

B.

We turn next to whether exigent circumstances justified the officers' entry into the Pontiac's trunk before seeking and obtaining a warrant. The automobile exception to the warrant requirement, as applied by our Court,3 requires three elements: (1) an "unplanned and unforeseen" stop; (2) "probable cause to believe the automobile contains contraband or evidence of criminality"; and (3) "exigent circumstances making it impracticable to obtain a warrant." State v. Minitee, 210 N.J. 307, 320-21 (2012).

There is ample evidence to satisfy the first two elements, inasmuch as the stop was prompted initially by Avila's driving, and probable cause was created by the totality of circumstances, including most significantly, Avila's admission there were seventy pounds of marijuana in the trunk. We therefore focus on element three.

Trial courts must determine exigency on a case-by-case review of facts that "bear on the issues of officer safety and the preservation of evidence[.]" Pena-Flores, supra, 198 N.J. at 28-29. "There is no magic formula." Id. at 29. The Court listed numerous factors a trial court may consider:

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.

[Ibid.]

However, that list "was never intended to be an exhaustive list of the factors that must come into play." Minitee, supra, 210 N.J. at 321. In applying these factors, the court determines whether the police's actions were objectively reasonable. "'[T]he question is not whether the police could have done something different, but whether their actions, when viewed as a whole, were objectively reasonable.'" Id. at 323 (quoting State v. O'Donnell, 203 N.J. 160, 162 (2010)).

Applying these factors, we discern sufficient evidence for the court's finding that exigent circumstances justified immediate search of the trunk. The stop occurred on a busy ramp leading to the George Washington Bridge, over which passes major arterial roadways, Interstate 95 and U.S. Route One. As Officer Mirkovic testified, given the large quantity and value of drugs involved, another vehicle with cohorts of defendant could have been nearby, in a lead or trail vehicle, and weapons may have been involved as well. The officer's concern on that score was heightened by the fact that defendant was speaking on the cell phone when the officer first confronted him. Thus, there was reason to be concerned that confederates had been alerted and would seek to intervene.

These factors supported the officer's statement that if he had awaited a search warrant, he would have had to secure the area by closing roadways that passed the immediate scene. We presume that would include not only roads that passed to the right and left of the Pontiac, but the road overhead from which confederates may have attempted to interfere. Closing roadways would have caused a major traffic jam.

We are unpersuaded by defendant's argument that police could have avoided the warrantless search by impounding the vehicle. While waiting for the tow truck to arrive, the same need to secure the roadway would have applied. Officers would have had to provide security for the Pontiac once in transit and once at its destination, given the quantity of drugs involved and the risk confederates might attempt to recover the drugs. Police were not required under the circumstances to assume the uncertain risks of securing a moving target.

While officers placed Avila and defendant under arrest immediately after Avila admitted the presence of seventy pounds of marijuana, the officers still only narrowly outnumbered defendants three-to-two. Officer Mirkovic had no way of knowing how many confederates may have been nearby.

In sum, exigent circumstances relieved the police of the obligation to secure a warrant. Compare State v. Lewis, 411 N.J. Super. 483, 489-90 (App. Div. 2010) (finding exigent circumstances under Pena-Flores where van stopped at night, in high crime and drug neighborhood, in view of others, and five or six people had congregated in the area), with State v. Shannon, 419 N.J. Super. 235 (App. Div. 2011) (exigent circumstances lacking where vehicle stopped not in high crime area, but in a residential area, not late at night, defendant was alone in presence of four officers, and no evidence "suggested that the police officers or potential evidence in the car were in danger").

A

1 Sometimes in the transcript, Officer Miskovitz is referred to as Martin, not Marc.

2 The State does not argue the search was justified on the basis of consent, presumably because the officer did not apprise defendant of his right to refuse. See State v. Johnson, 68 N.J. 349, 354 (1975) (requiring proof that a defendant knew he had the right to refuse consent to search, in order to establish that consent was voluntary).

3 We recognize that our Court has charted a path independent of the federal courts in this area. Pena-Flores, supra, 198 N.J. at 20.