STATE OF NEW JERSEY v. IDIVINE CLARK

FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3977-10T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

IDIVINE CLARK,

Defendant-Respondent.

________________________________

April 3, 2013

 

Argued October 13, 2011 - Decided

 

Before Judges Fuentes and Koblitz.

 

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-06-1090.

 

Mary R. Juliano, Assistant Prosecutor, argued the cause for appellant (Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the brief).

 

Edward C. Bertucio argued the cause for respondent (Hobbie, Corrigan & Bertucio, P.C., attorneys; Mr. Bertucio, of counsel and on the brief).

PER CURIAM

By leave granted, the State appeals from the order of the Criminal Part of the Law Division granting defendant Idivine Clark's motion to suppress $866 found on defendant's person following a search conducted pursuant to a motor vehicle stop for driving without wearing a seatbelt. After hearing the evidence presented by the State at an N.J.R.E. 104 hearing, the court found insufficient evidence to justify the seizure of the funds. Specifically, the only witness called by the State at the N.J.R.E. 104 hearing regarding the seizure of the funds was the patrolman who made the initial motor vehicle stop. This witness was not present at the time defendant's personal property was seized and did not have any personal knowledge of any of the particular facts that lead to the seizure of the funds.

In light of this record and mindful of our standard of review, we affirm substantially for the reasons expressed by the motion judge. The following salient facts are taken from the record developed at the N.J.R.E. 104 hearing.

On Saturday, September 26, 2009, at approximately 3:30 p.m., Borough of Tinton Falls Patrolman John Tallarico was parked in the proximity of Route 520 and Shrewsbury Avenue when he saw a Nissan sedan drive by. Patrolman Tallarico observed the driver of the vehicle operating it without a seatbelt. According to Patrolman Tallarico, he pulled out and "went after the suspect and pulled him over." He pursued the Nissan for "[a]pproximately one quarter of a mile" after activating his patrol car's overhead lights. The driver, subsequently identified as defendant, "pulled over right away," without making any attempt to elude the officer or leave the scene.

When Patrolman Tallarico approached defendant's car from the passenger's side, he "immediately smelled an odor of fresh marijuana coming from inside the vehicle." Patrolman Tallarico radioed for backup units to respond to the scene, including a K-9 unit with a dog trained to detect the presence of marijuana. Patrolman Tallarico testified that the backup officers arrived "a few minutes"1 after the initial stop of defendant's car. Based on the dog's reaction and his and his fellow officers' training and experience, Patrolman Tallarico and the backup officers2 concluded that there was raw marijuana concealed somewhere inside defendant's car.

When defendant declined to consent to a search of his car's trunk area, Patrolman Tallarico called the assistant prosecutor on duty to ask for legal advice as to how to proceed. According to Patrolman Tallarico, the assistant prosecutor told him "to impound the vehicle and secure it and then identify the suspect and make sure he was who he was, and then release him so we could get a search warrant." (Emphasis added.)

Following the prosecutor's advice, Patrolman Tallarico called for a tow truck while another officer stayed behind with defendant's car to secure the vehicle and preserve the chain of custody. Although not a "hundred percent sure," Patrolman Tallarico testified that he believed he was the officer who transported defendant from the scene to police headquarters. In light of the prosecutor's specific instructions to release defendant after verifying his identity, Patrolman Tallarico testified as follows at the N.J.R.E. 104 hearing on direct:

Q. How did you go about [identifying defendant]?

 

A. I'm not sure if he had his driver's license on him. We brought him into headquarters. I don't recall if he had his driver's license on him, and I don't recall if we fingerprinted him either. We just brought him into headquarters because he didn't have a ride, you know, back to headquarters.

 

Q. The motor vehicle summons was issued?

 

A. Yes, sir.

 

. . . .

 

Q. And there were no other summonses issued at that time?

 

A. No, I don't believe so.

 

Q. Now, when you said that you inventoried him, do you recall -- you refer to "we." Do you recall if it was you or someone else who had done that?

 

A. The subject?

 

Q. The subject, yeah.

 

A. I believe it was Officer [Schuler] at the scene, and then I brought [defendant] back to headquarters in my car.

 

Q. Now, why would you go ahead and -- was he searched at the scene; do you recall?

 

A. I can't speak for Officer [Schuler]. He did say he checked the subject and alerted me to him having a large quantity of money on him.

 

Q. Do you recall if that was at the scene, or was that back at headquarters?

 

A. That was at the scene I believe.

 

Q. You believe it was at the scene. Okay. Why would someone be searched at the scene when you're just issuing a motor vehicle summons?

 

A. Well, we didn't want to leave him at the scene, since we were taking his vehicle --

 

[(Emphasis added.)]

Defense counsel immediately lodged an objection to this question, and the following exchange occurred:

[COUNSEL]: Objection to this question, since it was [Officer Schuler] that apparently dealt with the money.

 

THE COURT: What was your question again?

 

[PROSECUTOR]: I asked why would someone be searched at the scene if all they were going to do was issue a motor vehicle summons.

 

THE COURT: [Patrolman Tallarico] didn't search him at the scene; right?

 

[PROSECUTOR]: No, he didn't search him.

 

THE COURT: I'll sustain the objection to that. I think [Officer Schuler] would have to answer to that.

 

[(Emphasis added.)]

 

The prosecutor then questioned Patrolman Tallarico concerning the policies and procedures of the Borough's police department regarding searching a suspect before placing him or her inside a police vehicle. According to Patrolman Tallarico, under the circumstances encountered by this motor vehicle stop, i.e., the odor of raw marijuana, police policy required that a suspect be searched before entering a police vehicle to ensure that he or she was not carrying a weapon. The motion judge sustained defense counsel's objection, however, when the prosecutor asked Patrolman Tallarico whether "any other officer [would] put someone into a car without first conducting some sort of pat down of the individual?" The court again reminded the State that Patrolman Tallarico could only testify about what he personally did or experienced. The State rested after Patrolman Tallarico testified about what was found in defendant's car from the execution of a search warrant.3

From this record, the motion judge found that Patrolman Tallarico's initial motor vehicle stop was proper. The judge also found that defendant's vehicle was lawfully impounded and thereafter searched pursuant to the warrant issued. Concerning the $866 found on and seized from defendant's person without a warrant, the judge found only two ostensibly applicable justifications for such an act: (1) a search conducted based on a reasonable fear for the police officer's safety; and (2) a search incident to a lawful arrest. The judge carefully analyzed and rejected both of these grounds.

As to the first potential justification, the judge reached the following conclusion:

Because the State has not proffered any testimony, or any other evidence in regard to the search of [d]efendant's person, this court cannot determine, directly or circumstantially, how or why Officer Schuler conducted the search. Nor can this court surmise, with the evidence before it, whether Officer Schuler immediately believed that the $866.00 was a weapon or immediately believed it was contraband. Thus, this court finds the [S]tate has not met its burden of proof, in a motion to suppress evidence seized without a warrant, to prove the legality of the search of [d]efendant's person by a preponderance of the evidence. The search, therefore, cannot be justified under the "reasonable fear of officer safety" exception.

 

[(Emphasis added.)]

 

Addressing the second argument, the court immediately noted that following the prosecutor's advise at the scene, defendant was not arrested and was free to leave. The court further noted that defendant was not arrested until after the impounded vehicle was searched and its content inventoried pursuant to the execution of a valid search warrant issued by the court two days after the initial stop. Under these circumstances, there was absolutely no legal basis to apply the search incident to an arrest exception to the warrant requirement. The court thereafter granted defendant's motion to suppress the $866 found on his person.

The State now raises the following arguments in support of its duly granted interlocutory appeal:

POINT I

 

THE SEARCH OF DEFENDANT'S PERSON WAS LAWFUL UNDER THE "EXIGENT CIRCUMSTANCES" EXCEPTION TO THE WARRANT REQUIREMENT

 

POINT II

 

THE WARRANTLESS SEARCH OF DEFENDANT'S PERSON AT THE SCENE WAS LAWFUL AS INCIDENT TO ARREST

 

We reject these arguments and affirm substantially for the reasons expressed in the statement of reasons issued by Judge Daniel M. Waldman pursuant to Rule 1:6-2(f), as memorialized on November 16, 2010. R. 2:11-3(e)(2).

Affirmed.

1 In his memorandum of opinion, explaining his reasons for granting defendant's motion to suppress, the motion judge found that it took "approximately 10-30 minutes from the time [Patrolman] Tallarico[] radioed for backup . . . and [the] K-9 [unit] arrived."

2 The motion judge noted the hearsay nature of this part of Patrolman Tallarico's testimony, since the State decided not to call any other officer to corroborate his testimony.

3 Defendant's car was impounded and towed from the scene of the stop on September 26, 2009. Another Superior Court Judge issued a warrant to search the vehicle two days later on Monday, September 28, 2009.