STATE OF NEW JERSEY v. JOSEPH WIGGINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH WIGGINS,

Defendant-Appellant.

_________________________________________________

December 29, 2016

Argued December 6, 2016 Decided

Before Judges Fisher and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-06-01634.

James Leonard, Jr. argued the cause for appellant (Leonard Law Group, attorneys).

John Santoliquido argued the cause for respondent (Diane Ruberton, Acting Atlantic County Prosecutor, attorney; Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following the denial of his suppression motion, defendant pleaded guilty to second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-7, and was sentenced to an eight-year prison term subject to a five-year period of parole ineligibility. In this appeal, defendant does not challenge any aspect of the judgment of conviction; he seeks our review only of the denial of his motion to suppress evidence seized during a warrantless search of his motor vehicle.1 In deferring to the trial judge's findings, State v. Robinson, 200 N.J. 1, 15 (2009), and recognizing the judge applied correct legal principles in determining whether exigent circumstances justified the warrantless search, we affirm.

Because the search of defendant's vehicle occurred on April 20, 2013, its legitimacy was governed by State v. Pena-Flores, 198 N.J. 6 (2009), rather than the modified standard adopted in State v. Witt, 223 N.J. 409 (2015), which was given only prospective effect, id. at 449-50. Pena-Flores held that a warrantless search of a motor vehicle is permissible: (1) where the stop is unexpected; (2) when there is probable cause to believe the vehicle contained contraband or evidence of a crime; and (3) when exigent circumstances exist so as to render it impracticable for the officer to wait for a warrant. 198 N.J. at 28. We find insufficient merit, to the extent defendant may argue the first two requirements were not present, to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We briefly add that the judge found, after a two-day suppression hearing, that during the early morning hours of April 20, 2013, an Egg Harbor police officer observed a dark-colored Chrysler with tinted windows make an un-signaled left turn. The officer snapped on his overhead lights but the Chrysler did not stop. Instead, defendant's Chrysler "sped up and then" made a "quick[]" left turn and stopped in the middle of the road in front of his cousin's residence. The judge found the officer's valid stop of the vehicle was unexpected and justified by the moving violations.

The judge also found the officer, upon approaching the vehicle, smelled raw marijuana, was concerned by defendant's downward glances toward the passenger side floor, and observed three pills, which he recognized as oxycodone, in the inside door handle on the driver's side. When asked about the pills, defendant "panicked, grabbed the pills in his palm, and closed his fist." This generated a struggle as the police officer attempted to loosen defendant's grip. These circumstances, the judge found, created probable cause that the vehicle contained contraband or evidence of a crime.

As defendant was being arrested, the only other officer then on duty in Egg Harbor arrived. The arresting officer was concerned, based on defendant's earlier suspicious glances toward the front passenger floor, that a weapon might there have been concealed. The judge found that the other officer "opened the passenger side front door, and in plain view, he observed, and subsequently retrieved, the pistol grip of a firearm protruding from underneath the passenger side front seat." This .357 caliber revolver, loaded with hollow point bullets, was the evidence defendant sought to suppress.

There being no question that the first two requirements of the Pena-Flores test were met, we turn to the third: whether exigent circumstances existed so as to justify the warrantless search. Pena-Flores required consideration of: the time of the day; the location of the stop; the nature of the neighborhood; the unfolding events that established probable cause; the ratio of officers to suspects; the locale of confederates who could remove evidence or contraband from the vehicle; the observation of the arrest by passersby who could tamper with the car or its contents; and whether it would be safe to leave the car unguarded and, if not, whether the delay in obtaining a warrant would place the officers or evidence at risk. Id. at 29-30. In a thorough and well-reasoned written opinion, Judge Mark H. Sandson found that nearly all these factors demonstrated the exigency of the situation and authorized the warrantless search.

The stop occurred at approximately 4:00 to 4:15 a.m., and occurred in front of defendant's cousin's residence, which, the judge found was a known drug-distribution location in a high crime area. The judge recited the unfolding circumstances outlined above, and the ratio of officers to suspects (one suspect; two officers). And the judge relied on the presence of confederates; defendant, during the events leading to his arrest, yelled out to his cousin, who was on the porch of her home, to "park my car and lock it!" In response, defendant's cousin moved toward the vehicle but was instructed by the officers to return to her residence. The judge also found there were no passersby but that, absent the warrantless search, defendant's cousin might have had the opportunity to tamper with or secure evidence from the vehicle and, consequently, as well as in light of the lack of other law enforcement personnel on duty, "it would have been unduly burdensome on the police department if a police officer was required to guard the vehicle" while waiting for a warrant as the only other officer on duty was transporting defendant. We agree that the facts as found by the judge overwhelmingly demonstrated that the exigent circumstances required by Pena-Flores were present.

We affirm the order denying suppression of the seized handgun substantially for the reasons set forth by Judge Sandson in his well-reasoned written opinion.

Affirmed.

1 Defendant's notice of appeal cites only the October 2, 2015 judgment of conviction as that which he would have us review; he did not cite the October 28, 2014 order which denied his suppression motion. Notwithstanding this oversight, we will review the latter.