Opinion
DOCKET NO. A-6126-09T2
11-17-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHAYNA A. KLINE, Defendant-Appellant.
Wronko & Loewen, attorneys for appellant (James R. Wronko, of counsel and on the brief). Paula T. Dow, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and
Sapp-Peterson.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County,
Indictment No. 07-02-0108.
Wronko & Loewen, attorneys for appellant
(James R. Wronko, of counsel and on the
brief).
Paula T. Dow, Attorney General, attorney for
respondent (Ashlea D. Thomas, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
Five days before the Court decided State v. Pena-Flores, 198 N.J. 6 (2009), the motion judge denied defendant's motion to suppress evidence seized from the trunk of the motor vehicle she was driving based upon the plain view and exigent circumstances exceptions to the warrant requirement. In light of Pena-Flores, defendant sought reconsideration, limited solely to the arresting officer's stop and initial entry into the vehicle. The motion judge concluded that defendant's reliance upon Pena-Flores to support relief on this limited issue was misplaced and that under Pena-Flores, the requisite probable cause and exigent circumstances justified the warrantless seizure of the drugs and contraband from defendant's vehicle. We affirm.
The facts presented at the suppression hearing, which the motion judge credited, were as follows: Bernards Township Police Officer Michael Sweeney observed defendant make a U-turn against a red light on Martinsville Road after exiting a nearby Exxon gas station and proceed towards the entrance ramp to Route 78. Officer Sweeney pulled the vehicle over and approached the passenger side of defendant's vehicle, where another occupant, a Hispanic male, was seated. Officer Kazinsky, operating another patrol vehicle, pulled up to the area of the stop as Officer Sweeney approached defendant's car. Once Officer Sweeney arrived at the vehicle, he illuminated his flashlight through the windows and observed what he believed to be, based upon his training and experience, "loose pieces of marijuana and loose pieces of tobacco" on the floorboards.
Officer Sweeney requested defendant's driver's license, registration, and insurance identification card. Officer Sweeney testified that defendant "didn't have a certified card license[,] I could say, an identification card, but [defendant] provided [him] with a paper, almost photocopy[-]like ID." The passenger, Vladimir Reynoso, presented a non-governmental identification card from Maryland. Officer Sweeney directed defendant to exit her vehicle. She complied and went to the rear of the vehicle, while Reynoso remained in the passenger seat.
Defendant provided her name and date of birth to Officer Sweeney. She could not remember her Social Security number. She told the officer she was returning from Manhattan, en route to Maryland, and that she and Reynoso, whom she had known for about three years, were in a dating relationship. She did not, however, know Reynoso's last name. Defendant did not make eye contact with Officer Sweeney during this encounter and appeared nervous. Reynoso denied that the two were dating.
After learning that defendant's driver's license had been revoked, Officer Sweeney separately secured defendant and Reynoso in different patrol cars. Once the third officer arrived, Officer Sweeney entered the vehicle and conducted a search, during which he found numerous loose pieces of marijuana, loose tobacco, and cotton balls. He searched the rear of the vehicle and detected a strong odor of raw marijuana coming from the trunk area. Officer Sweeney next sought consent from defendant to search the vehicle, which she refused. Patrolman Dockery, the senior officer present, requested assistance from a canine dog. Upon the dog's arrival, it alerted to the presence of marijuana in the vehicle. Officer Sweeney once again requested defendant's consent to search the vehicle, and defendant again refused consent. The officer then advised defendant that her vehicle would be seized and that a search warrant would be sought.
Defendant and Reynoso were placed under arrest and transported to police headquarters at approximately 3:30 a.m. A search warrant was sought from the emergent judge, who advised the officers that they were not "allowed to her house until [seven] a.m." The officers drove to the judge's residence and waited for her to consider their search warrant application, which she granted.
Defendant testified that she stopped at the Exxon gas station for approximately twenty-eight to thirty minutes and saw the police vehicle when she first pulled into the gas station. When she exited the gas station, she proceeded to the far left turning lane of the two left-hand turning lanes. She stopped for the red light and, when it turned green, she made a U-turn. Shortly thereafter, Officer Sweeney pulled her over and told her that she ran the red light. She told the officer that the light had been green.
In seeking suppression of the evidence, defendant argued that the initial stop was not based upon any motor vehicle violation but instead motivated by the officer's desire to stop a vehicle with out-of-state license plates. Defendant urged the court to consider that within seconds after she left the gas station, Officer Sweeney's vehicle exited the gas station and another patrol car pulled up, suggesting that Officer Sweeney had already called for backup in advance. Defendant also pointed to inconsistencies between Officer Sweeney's report and his testimony, most notably the absence of any reference to defendant crossing a double yellow line in his report, yet testifying about this violation after acknowledging there were neither signs prohibiting U-turns at the location where defendant made the turn nor signs indicating "Left Turn Only."
In denying the motion, the court first found the testimony of the officers "forthright, responsive, credible, and therefore worthy of belief." The court next concluded that Officer Sweeney stopped defendant's vehicle based upon the officer's "observation that . . . defendant had committed an illegal U- turn[,]" which in turn justified the initial stop of defendant's vehicle. The court then concluded that Officer Sweeney "immediately became aware of circumstances tending to provide evidence of illegal activity unrelated to the motor vehicle violation[,]" namely, the loose marijuana the officer observed as he illuminated his flashlight into the vehicle upon approaching it. The court reasoned that based upon "the presence of marijuana . . . the conflicting stories from . . . defendant and Mr. Reynoso, and defendant's nervous and evasive behavior in response to questioning," which the court found appropriate, "Officer Sweeney had probable cause to search the passenger compartment of defendant's vehicle." Thereafter, the court found that while in the course of searching the passenger compartment, Officer Sweeney detected a strong odor of raw marijuana emanating from the trunk area of defendant's vehicle. The court then reasoned:
The investigation into the motor vehicle violation was continually expanded by the observation of marijuana in defendant's vehicle, defendant's and Mr. Reynoso's conflicting and evasive responses to questioning, the odor of raw marijuana detected in the vehicle, and the fact that the canine indicated the presence of narcotics in the vehicle.
Each action by the officers was reasonable, as they attempted to diligently conduct their investigation. The [c]ourt finds no undue delay in this investigation.
Due to the early morning hour, it cannot be held that a request from the emergent duty judge to wait until [seven] a.m. for the search warrant application to be heard was unreasonable. Therefore, the detention of . . . defendant under the circumstances here was not unlawful.
With respect to the seizure of the suspected marijuana from the floorboards, the court found the seizure was justified by the plain view exception to the warrant requirement. The court, relying upon State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984), found that the circumstances surrounding the seizure of the drugs satisfied the requisite three requirements for application of the plain view exception to the warrant requirement: (1) "Officer Sweeney had a reasonable and articulable suspicion to stop defendant's vehicle [and] [t]hus, . . . was lawfully within the viewing area[]"; (2) "Officer Sweeney inadvertently discovered the evidence because he did not know he would observe marijuana when he approached defendant's vehicle to question her about the motor vehicle violation he had witnessed"; and (3) "it was readily apparent to Officer Sweeney that what he observed on the floor was in fact marijuana and tobacco shavings."
Turning to Officer Sweeney's search of the interior of the vehicle, the court concluded that exigent circumstances and probable cause also justified the warrantless search of the interior of the vehicle. The factual findings upon which the court reached this conclusion included Officer Sweeney's observation of narcotics on the floorboards, the conflicting and evasive answers from the vehicle occupants, and defendant's nervous demeanor. The court then addressed whether exigent circumstances justified the warrantless search of the vehicle's interior. In justifying the search, the court reasoned the vehicle was traveling late at night in a known narcotics corridor, both defendant and Reynoso were from out of state, and the canine dog alerted the officers to the presence of narcotics in the vehicle.
On appeal, defendant raises the following points for our consideration:
POINT I
THE STOP OF DEFENDANT'S VEHICLE WAS UNLAWFUL.
POINT II
NO EXIGENT CIRCUMSTANCES EXISTED TO JUSTIFY A SEARCH UNDER THE AUTOMOBILE EXCEPTION.
POINT III
DETENTION OF DEFENDANT FOR WELL OVER TWO HOURS UNTIL A NARCOTIC CANINE ARRIVED WAS UNLAWFUL.
We have considered the points raised in light of the record, briefs submitted, and applicable legal principles. We conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief remarks.
"Under the Fourth Amendment of the United States Constitution and Article I, paragraph [seven] of the New Jersey Constitution, a search or an arrest by the police must be reasonable, measured in objective terms by examining the totality of the circumstances." State v. Ravotto, 169 N.J. 227, 235 (2001). Generally, the search or seizure must either be based upon a warrant or fall under one of the recognized exceptions to a warrant. Ibid.
[T]he warrantless search of an automobile in New Jersey is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant. The notion of exigency encompasses far broader considerations than the mere mobility of the vehicle.
Exigency must be determined on a case-by-case basis. No one factor is dispositive; courts must consider the totality of the circumstances. How the facts of the case bear on the issues of officer safety and the preservation of evidence is the fundamental inquiry. There is no magic formula-it is merely the compendium of facts that make it impracticable to secure a warrant. In each case it is the circumstances facing the officers that tell the tale.
[Pena-Flores, supra, 198 N.J. at 28-29 (citations omitted).]
The trial court credited the officers' testimony and the record demonstrates that the initial stop of defendant's vehicle was justified based upon the U-turn defendant made while the traffic signal was red. While the court concluded defendant made an illegal U-turn, the illegality was in the timing of the turn, against a red light, rather than based upon the existence of a "No U-turn" sign, as Officer Sweeney acknowledged. Upon approaching the vehicle, the officer was well within his authority to illuminate his flashlight into the interior of the vehicle where he observed suspected marijuana on the passenger side floorboards. See State v. Johnson, 171 N.J. 192, 210 (2002) (quoting Texas v. Brown, 460 U.S. 730, 740, 103 S. Ct. 1535, 1542, 75 L. Ed. 2d 502, 512 (1983)) (holding that "the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection"); State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999) (determining that "the use of a flashlight does not transform an otherwise reasonable observation into an unreasonable search within the meaning of the Fourth Amendment or under the New Jersey Constitution").
Moreover, the subsequent seizure of the marijuana from the floorboards was justified under the plain view exception to the warrant requirement. State v. Mann, 203 N.J. 328, 341 (2010).
Upon entering the vehicle to seize this contraband, Officer Sweeney detected a strong odor of raw marijuana, heightening his suspicion that additional narcotics were located within the vehicle. Officer Sweeney was justified in calling for a canine sniffing dog when defendant refused consent to search the vehicle. The canine dog's alerting the officers to the presence of narcotics intensified the officers' suspicion that narcotics would be found within the interior of the vehicle.
We disagree, however, with the trial judge's ultimate conclusion that based upon all of these circumstances, the subsequent warrantless search of the vehicle's interior and under the hood was justified. While there were sufficient facts, measured objectively, from which Officer Sweeney had probable cause to believe that evidence of a crime may be found in the car, the circumstances at that point were not exigent. Defendant's vehicle was not stopped in a high crime area. Pena-Flores, supra, 198 N.J. at 22. Defendant and Reynoso were being detained by at least two, possibly four, Bernard's Township police officers when Officer Sweeney commenced his search of the vehicle's interior. The testimony also revealed that there was a prosecutor and a judge on emergent duty. Id. at 23. Moreover, although the judge inexplicably required the officers to wait until seven a.m. to obtain the search warrant, this delay was not unreasonable, particularly since defendants were in custody based upon the seizure of narcotics found in plain view. Therefore, making an application for a search warrant was not impractical. Ibid. Under these circumstances, beyond entering defendant's vehicle to retrieve the suspected marijuana observed in plain view on the floorboards, the search of the interior and under the hood of defendant's vehicle was not justified under exigent circumstances.
Nonetheless, no drugs or other contraband were seized as a result of this illegal intrusion. Moreover, the search warrant subsequently issued was valid. The facts upon which the warrant was issued did not include Officer Sweeney's detection of a strong odor of raw marijuana upon entering the vehicle. Rather, the judge was advised of his observation of suspected marijuana during the course of a motor vehicle stop for a traffic violation, that defendant did not have a driver's license, and that the canine dog alerted to the presence of drugs from the exterior of the vehicle before entering the vehicle and alerting to drugs from the interior. Thus, the illegal search of the vehicle's interior by Officer Sweeney and the canine dog was sufficiently attenuated from an otherwise valid seizure of drugs based upon the plain view exception to the warrant requirement and a validly-issued search warrant. Hence, there is no basis to reverse the order denying defendant's motion to suppress the evidence seized from the trunk.
The remaining arguments related to defendant's detention, which extended over two hours, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION