Opinion
DOCKET NO. A-2842-11T1
06-25-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JASON D. PATTERSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-01-0141. Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jason D. Patterson appeals the denial of his motion to suppress evidence of a .177 caliber marksman BB gun found in his car during a traffic stop. For the reasons that follow, we reverse the judgment of conviction and remand for further proceedings.
I
On March 4, 2010, a jury convicted defendant of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and on June 28, 2010, he was sentenced to a three-year term with a three year period of parole ineligibility. Before trial, defendant filed a motion to suppress evidence of the BB gun, as well as evidence of heroin, hypodermic syringes and drug paraphernalia that was also found in his car during the stop. The following was adduced during the suppression hearing.
Defendant was also indicted for third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); possession of hypodermic syringes, N.J.S.A. 2C:36-6; and possession with intent to use drug paraphernalia, N.J.S.A. 2C:36-2. Just before trial, the State dismissed all charges but for possession of the BB gun.
At 2:45 p.m. on Monday, December 1, 2008, police officer Kenneth Bauer of the Metuchen Police Department observed a Jeep Cherokee come to an abrupt stop at a yellow light and "go a little past the intersection." Bauer looked up the license plate number and discovered that defendant owned the vehicle, his driver's license had been suspended and there was a warrant out for his arrest for the failure to pay a municipal court fine. Bauer initiated a traffic stop and verified the driver was defendant. The location where defendant was pulled over was in front of the Metuchen Fire Department, next to which was the Metuchen Police Department.
Although Bauer admitted the VIN number on defendant's vehicle indicated he was driving a Jeep Wrangler, Bauer claimed defendant's vehicle was a Jeep Cherokee.
Another police officer, Robert Beluccio, arrived while Bauer was speaking to defendant at the driver's window. Beluccio went to the right front passenger door and told defendant to roll down his window. Defendant advised Beluccio the window was inoperable, and either he or Beluccio opened the front passenger door. At that point, Beluccio saw a "few flakes" of what he believed was marijuana on the passenger floorboard and a shoelace tied in a manner associated with intravenous drug use. Bauer then told defendant to go to the back of the car and place his hands on the rear fender.
Beluccio went into the car and informed Bauer he saw a syringe, which caused Bauer to place defendant under arrest. Defendant was handcuffed and placed in the back of one of the patrol cars. While he was being put into the patrol car, defendant volunteered that there were more syringes in his car. Both officers then searched the entire car. In the "front area" of the car they found five syringes and three wax folds of heroin, and in the pouch attached to the front passenger seat they found two syringes, nine wax folds of suspected heroin, and a small container that contained a substance used to process heroin. One of the syringes contained blood and an unknown liquid.
The officers also opened up the "rear" door, and discovered a BB handgun lying on top of the spare tire. The spare tire was stored below the trunk and in an area that was covered with a floor mat. Bauer removed the gun and, because the car was going to be impounded, arranged to have a tow company take the Jeep to "the yard." He stated the police did not have to do anything to the car before it was towed.
It was not clear whether Bauer was referring to one of the two rear passenger doors or the door directly above the rear bumper.
Bauer also testified that there were a total of four officers on patrol that afternoon, two of which were involved in a dispute between neighbors. Neither officer applied for a search warrant before they searched the Jeep.
The trial court found the police saw both the marijuana and the shoelace in plain view, and thus had probable cause
to believe that the items viewed were associated with criminal activity.
In going into the automobile to secure the items that were found inside, the court finds there's no violation of the defendant's right.
The finding of the syringes and other material is appropriate police conduct and
those matters are not suppressed. Police have a right to secure the interior of the vehicle. . . .
As a result of [defendant's admission there were more syringes in the car,] the officers went back to the vehicle; and, quite frankly, the court so finds, searched the vehicle, searching the vehicle for additional syringes. Multiple needles were found, glassine bags were found; and to some extent the real issue before the court on this portion of the search is the BB gun that was found in the well of the tire. . . .
The issue before the court is whether or not this was a [community] care taking function or a police investigation. . . . When the police officers were told that there were additional needles in that vehicle, it is the finding of the court that they had an obligation to ensure that those dangerous items were removed before that vehicle was taken and moved from that site. . . . The removal of that cover [over the spare tire] to see if there was anything underneath [was a] perfectly appropriate police care taking function.
II
Defendant raises the following points for our consideration.
POINT I - THE WARRANTLESS SEARCH AND SEIZURE OF DEFENDANT'S AUTOMOBILE VIOLATED HIS RIGHTS GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
POINT II - THE LOSS, MISAPPROPRIATION AND/OR DESTRUCTION OF THE VIDEO OF THE CAR STOP DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT III - IT WAS ERROR OF THE TRIAL COURT TO REFUSE TO INSTRUCT THE JURY ON MISTAKE OF LAW.
POINT IV - THE TRIAL COURT'S RESPONSE TO THE JURY'S QUESTION REGARDING IGNORANCE OF THE
LAW WAS ERRONEOUS AND DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT V - THE DEFENDANT'S NEW TRIAL MOTION SHOULD HAVE BEEN GRANTED BY THE COURT.
"Appellate courts reviewing a grant or denial of a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). "A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference." State v. Lamb, 218 N.J. 300, 313 (2014) (citing State v. K.W., 214 N.J. 499, 507 (2013)). "Therefore, a trial court's legal conclusions are reviewed de novo." Ibid. (citing State v. Gandhi, 201 N.J. 161, 176 (2010)).
As for the first argument point, defendant argues the trial court erred when it found the search of the area below the floor mat where the spare tire was stored justifiable under the community caretaking doctrine. In the context of motor vehicle searches, this doctrine applies when police officers encounter accidents, disabled vehicles, or drivers who are not fit to operate a vehicle "in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706, 714-15 (1973). "A police officer's observation of a person operating a motor vehicle in a manner that indicates something may be wrong with the vehicle or its driver is one recognized circumstance in which the police may take appropriate action in the performance of their community caretaking responsibilities." State v. Garbin, 325 N.J. Super. 521, 526 (App. Div. 1999), certif. denied, 164 N.J. 560 (2000).
"Courts have allowed warrantless searches under the Fourth Amendment when police officers have acted not in their law enforcement or criminal investigatory role, but rather in a community caretaking function." State v. Bogan, 200 N.J. 61,73 (2009). Under this doctrine the police are not required to "'demonstrate probable cause or an articulable suspicion to believe that evidence of a crime will be found'" before searching an automobile. State v. Diloreto, 180 N.J. 264, 276 (2004) (quoting Kevin G. Byrnes, New Jersey Arrest, Search and Seizure § 14:1-1 at 289 (2003)). "When courts review those forms of citizen-police encounters they 'employ a standard of reasonableness to determine the lawfulness of police conduct.'" Ibid. (quoting Byrnes, supra, § 14:1-1 at 289). However, the community caretaking doctrine represents a narrow exception to the warrant requirement, id. at 282, reserved for "'a core set of community caretaking activities that have a longstanding tradition and that have achieved relatively unquestioned acceptance in local communities[,]'" based on a service notion that police serve to ensure the safety and welfare of the citizenry at large. Id. at 281 (quoting Debra Livingston, Police, Community Caretaking, and the Fourth Amendment, 1998 U. Chi. Legal F. 261, 302 (1998)).
The State contends the officer's actions were justified under both the community caretaking doctrine and the automobile exception to the warrant requirement, see State v. Minitee, 210 N.J. 307, 320-21 (2012). Specifically, the State argues exigent circumstances existed to search for and remove all syringes because they posed a risk of harm to others. The State also contends the officers were conducting an inventory search, see State v. Vargas, 213 N.J. 301, 315-16 (2013), before the car was impounded and thus their discovery of the BB gun during the course of that search was legitimate.
Here, the basis for the vehicular stop was that defendant's license had been suspended and a warrant was out for his arrest. Thereafter, Beluccio entered the vehicle after he saw the marijuana and shoelace in plain view. He then spotted and announced to Bauer that he saw a syringe. When defendant volunteered there were other syringes in the car, the police conducted a search of the entire interior of the car, including the area where the spare tire was stored.
Bauer, the only witness at the suppression hearing, never said the police were searching for syringes or other items to protect the safety of others. Moreover, the car was about to be towed and impounded, making unlikely anyone would be going into the interior of the car, let alone into the somewhat inaccessible area where the spare tire was stored. Further, Bauer testified that he did not need to do anything to prepare the car before it was towed, including searching for and removing any object from the car that posed a risk of harm.
Accordingly, we reject the premise that the discovery of the BB gun was incidental to the police executing a community caretaking function. There is no evidence the police were engaged in any such activity and thus the community caretaking doctrine cannot justify their failure to obtain a warrant before searching the car.
The State contends they had probable cause to search the car and that exigent circumstances excused the police from securing a search warrant. First, a search conducted without a warrant is presumed to be invalid. State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). Second, although there are exceptions to the rule that a warrant be secured, the burden is on the State to prove by a preponderance of the evidence that one of the exceptions applies. State v. Wilson, 178 N.J. 7, 12-13 (2003).
There are two exceptions to the warrant requirement that are pertinent here. Evidence seized when found in plain view is one exception. State v. Mann, 203 N.J. 328, 340-41 (2010). The rationale for the plain view doctrine is that "'a police officer lawfully in the viewing area'" need not "'close his eyes to suspicious evidence in plain view.'" State v. Johnson, 171 N.J. 192, 207 (2002) (quoting State v. Bruzzese, 94 N.J. 210, 237 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). For the plain view exception to apply, the State must show that
(1) the officer was lawfully in the viewing area, (2) the officer discovered the evidence inadvertently, meaning that he did not know in advance where evidence was located nor intend beforehand to seize it, and (3) it was immediately apparent that the items were evidence of a crime, contraband, or otherwise subject to seizure.
[State v. Earls, 214 N.J. 564, 592 (2013) (quoting Mann, supra, 203 N.J. at 341 (2010)) (internal quotation marks omitted).]
Here, defendant is not disputing Beluccio lawfully seized the marijuana, shoelace, and the first syringe under the plain view exception. There is no evidence Beluccio knew in advance such evidence would be in that location, and it was immediately apparent that what he saw was evidence of a crime or contraband. The other syringes, heroin, drug paraphernalia and the BB gun were not in plain view. However, the other exception to the warrant requirement that is pertinent here is the automobile exception.
To qualify for the automobile exception, the State must meet the following three criteria. First, the vehicular stop must be unplanned and unforeseen. Minitee, supra, 210 N.J. at 320 (citing State v. Colvin, 123 N.J. 428, 437 (1991)). Second, the police must have probable cause to believe the vehicle contains evidence of criminality. Id. at 321 (citing State v. Pena-Flores, 198 N.J. 6, 28 (2009)). Third, exigent circumstances must exist that make obtaining a warrant impracticable. Ibid. Various factors have been recognized that may indicate the presence of exigent circumstances. They are
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.]
Here, there is no dispute the stop was unexpected and unplanned. When defendant admitted he had syringes in the car, the police had probable cause to believe the Jeep contained contraband or evidence of criminality. However, there is no evidence that the search for those syringes, which led to the discovery of the gun, was necessary because of exigent circumstances.
The stop occurred during the course of a business day, just feet from the police department. Court houses were open and judges immediately accessible to consider an application for a search warrant. The defendant could have been taken to the police station while the other officer remained behind to guard the car until a decision on the application for the search warrant was obtained. The car also could have been towed temporarily to the Police Department parking lot and kept under watch if there was undue delay in getting a search warrant and the officer guarding the car was needed elsewhere. Finally, there was no evidence the police considered that any of the contents of the car posed a risk of harm, let alone posed a risk that required that they remove such contents before getting a warrant. Because the circumstances were not exigent, the police were required to obtain a search warrant before they searched the car.
Even if the court houses were closed, emergent duty judges were available to hear telephonic search warrant applications. R. 3:5-3(b). --------
Finally, the State contends the police were merely conducting an inventory search, see generally, Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987) (upholding a warrantless inventory search designed to secure and protect vehicles and their contents within police custody), in preparation for impounding the vehicle when they discovered the gun. There is no evidence to support the claim the police were engaged in an inventory search. Bauer never testified the police conducted an inventory. Moreover, he stated nothing needed to be done to prepare the car for towing.
Evidence of the BB gun should have been suppressed. In light of this disposition, there is no need to consider defendant's remaining arguments. The judgment of conviction is reversed and the matter remanded for further proceedings in conformity with this decision.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION