STATE OF NEW JERSEY v. DAVID SANTOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID SANTOS, a/k/a DAVID CANO,

Defendant-Appellant.

________________________________

November 6, 2014

Submitted August 27, 2014 Decided

Before Judges Messano and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-02-0470.

Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

JamesP. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, 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 he was driving, defendant David Santos entered a guilty plea on April 24, 2012, to second-degree certain person not to have weapons, N.J.S.A. 2C:39-7. The State agreed to seek dismissal of counts charging him with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). Judge Kyran Connor sentenced defendant in accord with defendant's plea agreement to a term of five years, with a three-year period of parole ineligibility.

Defendant's sole point on appeal is: "THE TRIAL JUDGE ERRED IN FAILING TO SUPPRESS THE HANDGUN SEIZED WITHOUT A WARRANT." Having reviewed defendant's arguments in light of the record and applicable law, we affirm.

Two witnesses testified at the suppression hearing Atlantic City Police Detective Jeremy Nirenberg, and one of defendant's two passengers, Charlotte Martinez. The detective testified that he performed a motor vehicle stop in the 700 block of Atlantic Avenue after he observed defendant speed and run a red light at about 9:45 p.m. on January 19, 2011. Martinez denied that defendant committed either violation. The court credited Nirenberg that the violations occurred and prompted the stop.

Nirenberg had followed defendant from the 300 block of Oriental Avenue. He described the area as a low income residential area not frequented by tourists. It was also a high-drug area at certain times of day. The police had maintained surveillance there because of an arrest the previous week involving drugs and a weapon. Nirenberg noticed defendant pull up in a BMW 745 to a specific address, double park, leave, return and double-park. He then saw Martinez and another female exit a building, and quickly enter the vehicle, with Martinez in the front seat. Nirenberg had determined that the vehicle was registered to a woman in Vineland.

After defendant was stopped for the motor vehicle violations, the detective observed defendant abruptly close the center console as he approached defendant's vehicle. Nirenberg told his partner to be careful. The partner reached the passenger side window, and was speaking to Martinez when Nirenberg reached the driver's side window, startling defendant. Defendant was leaning away, with his right arm on the console. Nirenberg detected the odor of raw marijuana.

Nirenberg told defendant why he had stopped him, and asked him to step out of the car. He conducted a pat down, which revealed no contraband. Defendant appeared nervous. Nirenberg asked defendant to stand to the rear of his vehicle, near a back-up officer who had just arrived. There was some vehicular traffic at the time, but Nirenberg did not recall any foot traffic.

Without delay, Nirenberg then opened the console and saw a black semi-automatic pistol. He ordered the women out of the vehicle. The women and defendant were arrested. Another officer seized the pistol. Police then discovered cocaine and marijuana in the search of defendant's person incident to arrest.

Nirenberg testified that his suspicions were aroused by the totality of circumstances, including the appearance of a Vineland-registered vehicle in a non-tourist area; the vehicle's speed and mode of travel; the late hour; the females' quick entry into the vehicle; defendant's movements in the vehicle; and the smell of marijuana. He was concerned about what defendant may have placed in the console, and that he and his partner were outnumbered.

The trial court found that exigent circumstances justified the search of the console and seizure of the gun. The court found that defendant was not yet under arrest, confined to a police vehicle, or in restraints. The two passengers remained seated in the vehicle, within easy reach of the console.

Defense counsel suggested that defendant innocently closed the center console in the course of searching for his credentials. The court was unpersuaded, noting that Nirenberg did not recall retrieving defendant's credentials at that point. The court found that officer safety, as well as preservation of evidence, warranted Nirenberg's quick entry into the console.

We defer to Judge Connor's findings of fact. 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") (internal quotation marks and citation omitted). However, we review de novo the trial court's application of legal principles to such factual findings, State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005), as well as the trial court's pure determinations of law. State v. Mann, 203 N.J. 328, 337 (2010).

This case involves application of the automobile exception to the warrant requirement under N.J. Const. art. I, para 7. See State v. Minitee, 210 N.J. 307, 318 (2012). Under New Jersey law, the State may conduct a warrantless search of an automobile "under the automobile exception 'so long as the vehicle is readily mobile[,] . . . there is probable cause to believe it contains evidence of criminality,'" and exigent circumstances justify the search. Id. at 319 (quoting State v. Pena-Flores, 198 N.J. 6, 20 (2009)).

Probable cause and exigency must each be determined on a case-by-case basis. Pena-Flores, supra, 198 N.J. at 28. Probable cause is a concept that is difficult to define with precision. State v. Brown, 205 N.J. 133, 144 (2011). "[P]robable cause requires 'more than a mere suspicion of guilt' but less evidence than is needed to convict at trial." Ibid. (quoting State v. Basil, 202 N.J. 570, 585 (2010)). Our Court has held that the "smell of marijuana [from a vehicle] constitutes probable cause to believe [a] crime has been committed and that additional contraband might be present." Pena-Flores, supra, 198 N.J. at 30 (citing State v. Nishina, 175 N.J. 502, 515-16 (2003)).

The presence of exigent circumstances must be based on a 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 actions of the police officers 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 (internal quotation marks and citation omitted).

Applying these principles, we discern no error in the trial court's order. The facts established probable cause to search the console. The totality of the circumstances before the stop created suspicion of illegal activity including the appearance of a car registered out-of-county in a residential neighborhood known to be a high-crime and high-drug area; the circling of the block; the urgency with which the passengers entered; and defendant's speed. The fact that "innocent connotations" could be ascribed to these activities "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).

However, the stop was firmly grounded on the observed motor vehicle violations. See State v. Golotta, 178 N.J. 205, 212-13 (2003). Nirenberg's subsequent detection of the strong smell of marijuana created probable cause to believe contraband was present. See Pena-Flores, supra, 198 N.J. at 30. Defendant's sudden closure of the console, his nervousness, and his leaning on the console lid, created more than a mere suspicion that contraband was hidden in the console.

Exigent circumstances justified a warrantless search of the console. Although defendant was removed from the vehicle, he was neither restrained nor under arrest. He stood near only one officer at the rear of his vehicle. The two women remained in the vehicle, and could quickly and easily reach into the console. There was no time to obtain a warrant, while the console was susceptible to immediate entry by the vehicle's occupants, or, if he suddenly returned, defendant. Detective Nirenberg acted reasonably, and with necessary dispatch, to ascertain whether the console contained a weapon that threatened his and others' safety, or other contraband that could be easily destroyed.

Affirmed.