STATE OF NEW JERSEY v. JONATHAN G. CAVALUCCI

NOT FOR PUBLICATION WITHOUT THE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.

JONATHAN G. CAVALUCCI, a/k/a

JONATHAN GEORGE CAVALUCCI

and JONATHAN CAVALLUCCI,

Defendant-Appellant.

____________________________

Submitted May 9, 2016 Decided June 2, 2016

Before Judges Messano and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-10-1327.

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

Robert Lougy, Acting Attorney General, attorney for respondent (Garima Joshi, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress, defendant Jonathan G. Cavalucci pled guilty to second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b). On appeal, defendant contends the judge erred in denying the motion as neither exigent circumstances nor consent justified a warrantless search. We disagree, and affirm.

I.

We derive the following facts from the evidence presented at the motion hearing. At approximately 6:30 p.m. on July 6, 2013, the New Jersey State Police received a report of an assault in progress between two individuals standing outside a vehicle on the shoulder of the New Jersey Turnpike southbound in New Brunswick. State Trooper Travis arrived at the scene and saw that the driver, Kamalakar Atluri, the front-seat passenger, defendant, and the rear-seat passenger, Diana Greenwood, were inside the vehicle, and ordered them to exit.1 Greenwood told Trooper Travis that she had been assaulted inside the vehicle. She initially refused to identify her attacker, but later said that Atluri struck her inside the vehicle while he and defendant were engaged in a confrontation. Greenwood had visible injuries to her right eye and bruises on both arms.

Atluri told Trooper Travis that defendant possibly had a gun in a duffle bag in the vehicle and he feared for his life. The trooper handcuffed defendant, frisked him for weapons, and placed him in his patrol car. Trooper Travis also handcuffed Atluri, frisked him for weapons, and placed him against the guardrail outside his vehicle, where the trooper also placed Greenwood, unhandcuffed. All three were administered their Miranda2 rights. Trooper Travis secured the keys to Atluri's vehicle and locked it.

Trooper Marcin Ziobron arrived at the scene. Greenwood told him there possibly was a handgun in a duffle bag inside Atluri's vehicle, but she did not know who owned it. Trooper Ziobron then placed Atluri in his patrol car. Two more troopers arrived thereafter, and Greenwood was placed, unhandcuffed, in a patrol car.

Traffic was heavy at the time, and the troopers determined the roadway was unsafe to continue an investigation there. They decided to transport the individuals and Atluri's vehicle to the Cranbury headquarters. The troopers secured the vehicle and summoned a tow truck. Based on the statements about a possible handgun inside the vehicle, before the tow truck arrived, Trooper Travis "frisked" the passenger compartment for weapons and found hollow-nose bullets in a duffle bag located in the back seat. No one acknowledged ownership or possession of the duffle bag. Atluri, defendant, Greenwood and Atluri's vehicle were transported to headquarters.

At headquarters, Atluri signed a consent to search the entire vehicle.3 He was present when the troopers searched the vehicle and found five bags in the trunk, including a Nike duffle bag, a computer bag, a black and gray duffle bag, and a Prot g suitcase, none of which had any indicia of ownership. Atluri and defendant denied ownership or possession of all of the bags; Greenwood admitted ownership of the black and gray duffle bag and Prot g suitcase, and consented to a search of both bags, which revealed nothing illegal. Atluri consented to the search of the three remaining bags. A search of the Nike duffle bag in his presence revealed a handgun with a laser and defaced serial number, two magazines, thirty-six hollow-point bullets, and defendant's New Jersey identification card. Defendant denied he owned or possessed that bag.

Defendant argued that because he, Atluri, Greenwood, and Atluri's vehicle were secured, and because there were four troopers at the scene, there was no exigency justifying the warrantless search of Atluri's vehicle. Defendant also argued that because Atluri disclaimed ownership or possession of the Nike duffle bag, he lacked authority to consent to search it.

The judge held that the warrantless search of the vehicle was justified under the automobile exception. The judge found the detention of Atluri's vehicle was unexpected; the troopers had probable cause to believe the vehicle contained a loaded firearm; and there were exigent circumstances that made it impracticable to obtain a warrant. The judge determined that leaving Atluri's vehicle on the heavily-trafficked Turnpike posed a hazard to other travelers and the troopers investigating the matter. Citing State v. Wilson, 362 N.J. Super. 319, 333 (App. Div.), certif. denied, 178 N.J. 250 (2003), the judge then found that a firearm poses a special threat to the public and police; the presence of a deadly weapon is a significant factor in evaluating whether there are exigent circumstances which justify a warrantless search; and the troopers' concern that Atluri's vehicle would be towed by a civilian with a loaded handgun inside was an exigent circumstance entitling them to enter the passenger compartment to secure the weapon.

The judge determined that Atluri's consent to search his vehicle was knowing and voluntary. Regarding the search of the Nike duffle bag, citing State v. Kelley, 271 N.J. Super. 44 (App. Div.), certif. denied, 137 N.J. 167 (1994), the judge found as follows

[F]rom the objective viewpoint of the [troopers], it was reasonable to assume that Atluri's ownership interest in the bag was superior to [] defendant's. The bag was located in the trunk of Atluri's car. Furthermore, defendant vehemently denied any possession or ownership of the bag. Accordingly, Atluri had authority to authorize a complete search of the vehicle . . . and any bags found therein. And defendant's conduct did not put the trooper on notice that he had a superior . . . privacy interest in the bag superior to Atluri.

This appeal followed. On appeal, defendant reiterates the arguments made to the trial judge.

II.

We first address whether there were exigent circumstances justifying the warrantless search of Atluri's vehicle. At the time of the search, the automobile exception permitted a warrantless search of an automobile when: "(1) the stop [was] unexpected; (2) the police ha[d] probable cause to believe that the vehicle contain[ed] contraband or evidence of a crime; and (3) exigent circumstances exist[ed] under which it [was] impracticable to obtain a warrant." State v. Pena-Flores, 198 N.J. 6, 28 (2009), overruled by State v. Witt, 223 N.J. 409 (2015).4 Defendant does not dispute that the stop was unexpected or that the troopers had probable cause to search; rather, he argues the there was no exigency justifying the warrantless search.

Exigency must be determined on a case-by-case basis. State v. Dunlap, 185 N.J. 543, 551 (2006). The fundamental inquiry is how the facts of the case relate to the issues of officer safety and the preservation of evidence. Ibid. Basically, "[f]or purposes of a warrantless search, exigent circumstances are present when law enforcement officers do not have sufficient time to obtain any form of warrant." Pena-Flores, supra, 198 N.J. at 29-30 (alteration in original). "[A]n officer's belief that exigent circumstances are present must be based on more than mere speculation." State v. Stott, 171 N.J. 343, 358 (2002).

In Pena-Flores, the Court gave the following factors in identifying the exigency presented

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.

[Pena-Flores, supra, 198 N.J. at 29.]

This list is not exhaustive, and there are other factors, such as the presence of a deadly weapon.

Our courts have placed special emphasis on the possession and potential use of firearms to present exigent circumstances. Wilson, supra, 362 N.J. Super. at 332; State v. De La Paz, 337 N.J. Super. 181, 195-96 (App. Div.), certif. denied, 168 N.J. 295 (2001). As we stated in Wilson,

[o]ur State law has long recognized the special significance of firearms and the threat they represent to public safety. A deadly weapon poses a special threat to both the public and police, and its presence is a significant factor in evaluating whether there are exigent circumstances which justify a warrantless search.

[Wilson, supra, 362 N.J. Super. at 333 (citing State in re H.B., 75 N.J. 243, 245-47 (1977)).]

See also State v. Alston, 88 N.J. 211 (1981); State v. Esteves, 93 N.J. 498, 505 (1983). We held that

exigent circumstances [created by the presence of a deadly weapon] do not dissipate simply because the particular occupants of the vehicle may have been removed from the car, arrested, or otherwise restricted in their freedom of movement. . . . [W]hen there is probable cause to conduct an immediate search at the scene of the stop, the police are not required to delay the search by seizing and impounding the vehicle pending review of that probable cause determination by a magistrate.

[Wilson, supra, 362 N.J. Super. at 334 (second alteration in original) (quoting Alston, supra, 88 N.J. at 234-35).]

We found that "[t]he police were confronted with a dangerous situation which was not dissipated by the arrest and search of the suspects. There remained an urgent need to locate a missing and, in all probability, loaded handgun to eliminate the potential for deadly harm in a vulnerable public area." Id.at 336.

In State v. Hammer, 346 N.J. Super. 359 (App. Div. 2001), we upheld a warrantless search where the automobile was secured by the police and the suspects were in custody. We found that the trooper's observation of bullets falling from the driver's coat justified an immediate search of the car's interior for weapons, and the subsequent discovery of cocaine taken together with the bullets formed a sufficient basis to search the trunk for weapons. Id.at 367-68. We held as follows

New Jersey does not require a police officer involved in a fluid, on-going criminal investigation on a busy highway to stop what he is doing, post a special detail to guard the vehicle, to obtain a warrant where to do so could endanger his life, or the lives of others. [] The fact that back-up assistance had arrived, and secured the occupants does not mean that the exigency had dissipated . . . [I]n these circumstances, instead of searching the trunk on a dangerous highway, the trooper would have been justified in arresting the occupants and having his back-up officers transport them and the vehicle to the trooper's barracks, where the search could proceed without a warrant.

[Id. at 370 (citation omitted).]

Here, exigent circumstances were created by the presence of a deadly weapon inside Atluri's vehicle. Atluri's and Greenwood's statements about the existence of a handgun inside the vehicle justified an immediate search of the interior for the deadly weapon. There clearly was an urgent need to locate the handgun to eliminate the potential for deadly harm in a public area. The exigent circumstances did not dissipate simply because four troopers were on the scene and defendant and his colleagues were secured. We, therefore, conclude that there were exigent circumstances justifying the warrantless search of Atluri's vehicle.

III.

We next address the consent to search issue. Defendant does not dispute that: Atluri had authority to consent to search his vehicle at headquarters; the consent was knowing and voluntary; and the troopers had a reasonable and articulable suspicion that the vehicle contained evidence of criminality. Rather, defendant argues that Atluri lacked authority to consent to search the Nike duffle bag found in the trunk because Atluri disclaimed ownership or possession of the bag. We disagree.

Consent is a well-recognized exception to the warrant requirement. State v. Farmer, 366 N.J. Super. 307, 313 (App. Div.), certif. denied, 180 N.J. 456 (2004). "To justify a search on the basis of consent, the State must prove that the consent was voluntary and that the consenting party understood his or her right to refuse consent." State v. Maristany, 133 N.J. 299, 305 (1993). In addition, the police must have a reasonable and articulable suspicion that the vehicle contains evidence of criminality before they can request consent. State v. Carty, 170 N.J. 632, 647 (2002).

"Consent to a search may be obtained not only from the owner of the property to be searched but also from a third party who possesses common authority over the property . . . or from a third party whom the police reasonably believe has authority to consent[.]" Kelley, supra, 271 N.J. Super. at 48 (citations omitted). "In assessing an officer's reliance on a third party's consent, we consider whether the officer's belief that the third party had the authority to consent was objectively reasonable in view of the facts and circumstances known at the time of the search." Id. at 48-49. The "validity of the search does not depend on whether the [officer] used the best procedure, but rather on whether the officer's conduct was objectively reasonable under the circumstances." Maristany, supra, 133 N.J. at 308.

In this case, defendant did not own the vehicle, and he disclaimed ownership of all of the bags found in the trunk, which had no indicia of ownership. Thus, the troopers' belief that Atluri, the vehicle owner, had the authority to consent to search the three remaining bags was objectively reasonable under the circumstances.

Affirmed.

1 There was an aggressive dog in the back seat, which Greenwood was ordered to secure and remove from the vehicle.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 Defendant has not supplied Atluri's signed consent to search, which was admitted into evidence at the suppression hearing.

4 Witt applies prospectively. Witt, supra, 223 N.J. at 450. Thus, we analyze the warrantless search under the guidelines of Pena-Flores.