Opinion
DOCKET NO. A-0235-09T4
08-10-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FREDDIE VINCE WILLIAMS, Defendant-Appellant.
Yvonne Smith Segars, Public Defender, attorney for appellant (Nathaniel Jones, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (William A. Guhl, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodriguez, Grall and C.L. Miniman.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-02-0127.
Yvonne Smith Segars, Public Defender, attorney for appellant (Nathaniel Jones, Designated Counsel, on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (William A. Guhl, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Freddie Vince Williams appeals from his conviction, following a jury trial, for second-degree possession of marijuana with intent to distribute within 500 feet of public housing, contrary to N.J.S.A. 2C:35-7.1. He was sentenced to an extended-term sentence of seven years with a parole disqualifier of three and one-half years, to run consecutively to a prior sentence imposed in Middlesex County on June 1, 2009. Defendant also appeals his conviction for third-degree possession of marijuana with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1), and fourth-degree possession of marijuana, contrary to N.J.S.A. 2C:35-10a(3), which were merged for sentencing purposes with the public-housing offense. We now affirm.
I.
The following facts are drawn from the testimony at the suppression hearing. On January 29, 2008, Franklin Township Police Officers Michael J. Opaleski and Rocco Marswillo were on patrol during the midnight shift in "area one," the northern part of Franklin bordering New Brunswick and Piscataway. Both officers were in uniform in a marked car; Opaleski was driving.
Opaleski had been assigned to Mercer County's Violent Crime and Street Narcotics Interdiction Task Force in Trenton for two years and had training in narcotics enforcement, including "in the detection of the odor of marijuana." Throughout his career, Opaleski had been involved in over 300 marijuana arrests.
At about 10:17 p.m., the officers began to check Naaman Williams Park for vagrants and criminal activity. The park is closed from sunset to sunrise. There had been prior incidents of criminal activity in the park and surrounding areas, including burglaries, drug transactions, prostitution, a shooting, and fights, as well as a homicide that occurred about fifteen months earlier at Mark Street and Matilda Avenue, which is at a corner of the park.
From Matilda Avenue, the officers observed a black Mazda pickup truck in Naaman Williams Park's parking lot that was driving through the lot at a slow rate of speed. They saw that one of the rear license plate bulbs was not operational. The truck exited the parking lot and made a left-hand turn onto Matilda Avenue. The officers followed the truck closely enough that their headlights permitted them to identify and enter the truck's license plate number into their Mobile Data Terminal (MDT). While awaiting the MDT results, Opaleski activated the overhead lights to perform a motor vehicle stop on Matilda Avenue due to the inoperable rear license plate bulb. The truck continued for approximately fifty yards down Matilda Avenue towards Hamilton Street and then turned right onto Mark Street. While pursuing the truck, the officers learned that the registered owner of the truck had suspended driving privileges. The officers observed one male in the car, but they did not know if the driver was the registered owner, "Freddie Williams." While the truck was being operated, the driver was moving around, reaching toward the front passenger floor or seat. When he turned onto Mark Street from Matilda Avenue, he parked on the left-hand side of the roadway.
Mark Street is a dead-end street. There are two houses on the left side and an abandoned garage on the right. Opaleski radioed dispatch and then exited his vehicle. He saw an individual approaching the truck and patrol car from the center of the road whom Marswillo engaged. Opaleski approached the driver's side of the truck when he noticed that "[t]he driver immediately exited the vehicle and . . . attempted to approach [him] or [his] patrol vehicle." Opaleski commanded the driver to return to his vehicle.
Marswillo was familiar with this area of Mark Street and knew defendant and his brother, Ricky Williams, the individual whom he engaged in the roadway. Marswillo had previously completed a theft report from their residence on Mark Street and "toward[] the end of December [2007,] several officers became involved in a physical altercation with the Williams[] brothers in that residence." Ricky asked Marswillo what they were doing and stated that defendant was there to take him to work. Marswillo said that they were conducting a motor vehicle stop and asked Ricky to return to his residence; Ricky complied. Marswillo watched the residence and provided cover for Opaleski.
Opaleski in the meantime approached the driver's side of the truck to ask for defendant's driver's license, registration, and insurance card. The driver's window was halfway down. Opaleski "detected an extremely pungent odor of raw marijuana emitting from the interior of the vehicle." Defendant provided his documents, and Opaleski explained the reason for the motor vehicle stop. As he spoke to defendant, Opaleski found him to be "polite" and "cooperative," but noticed that he was "extremely nervous," was not making good eye contact, and was "constantly looking towards the passenger side of the vehicle." Opaleski asked defendant to exit the vehicle and stand at the rear of the truck. He then searched defendant's person for contraband or weapons. By then, Patrol Officer Jonathan Tuchmatulin had arrived on the scene and was standing with Opaleski while Marswillo was standing in the middle of the street on the right side of the truck.
In one of defendant's pockets, Opaleski located a medium-sized black bag containing "numerous smaller Ziploc bags," which he knew were used for packaging and selling narcotics. Opaleski also located other items, including CDs, a Game Boy, cell phones, cell phone accessories, money, varied paperwork, and a toothbrush. Opaleski returned all the items to defendant's pocket as they did not pose any danger to the officers.
Tuchmatulin then stayed with defendant at the rear of the truck while Opaleski searched its interior, beginning with the driver's side, but finding nothing there. He then searched the passenger side where he discovered "a large black plastic bag which contained a large Ziploc bag, which contained a . . . greenish brown vegetative substance which [he] believed to be suspected . . . raw marijuana." Opaleski estimated the weight to be "between a quarter to half a pound." Opaleski then advised defendant that he was under arrest, handcuffed him, searched him again, and placed him in the back seat of the patrol car. Opaleski continued to search the vehicle and also found two Rubbermaid containers with glass vials inside. The containers also held other Ziploc bags and "unknown liquids," which were later identified as fragrant body oils.
A field test later confirmed the substance to be just over one-half pound of marijuana.
Shortly after defendant's arrest, Opaleski requested that a supervisor, Sergeant Borlan, respond to the scene due to the quantity of narcotics. Detectives Lacewell, Gilmurray, and Kenneth Schwarz, as well as Borlan, subsequently arrived there.
At the police station, Marswillo and Tuchmatulin took an inventory of defendant's property. Among the items inventoried were cell phone accessories, CDs, a Game Boy, rolls of tape, and $2,475.16 in cash. Defendant was charged with, and subsequently indicted on, three drug charges. He was also charged with other offenses, including three motor vehicle violations.
At the September 16, 2008, suppression hearing at which defendant testified, defense counsel argued that exigent circumstances did not exist to conduct a warrantless search of defendant's vehicle and the marijuana was not in plain view. Counsel also noted that there was no probable cause for the warrantless search of his person. The prosecutor argued that, subsequent to a valid motor vehicle stop, the officers detected the odor of marijuana; as such, the search of defendant's person was proper. The drug paraphernalia found on defendant "increased the probable cause that already existed . . . to search the vehicle." It was a "quick-moving situation with only a few officers on the scene."
The motion judge denied defendant's application, finding Opaleski and Marswillo's testimony to be credible and that of defendant to be "basically non-responsive, [not ]forthright, implausible, and therefore not worthy of belief." He found that the motor vehicle stop was justified and the warrantless search of defendant fell within the search-incident-to-arrest exception to the warrant requirement. Citing State v. Nishina, 175 N.J. 502 (2003), and State v. Vanderveer, 285 N.J. Super. 475, 481 (App. Div. 1995), he found that the strong odor of marijuana emerging from defendant's truck "established probable cause sufficient to justify the search of defendant as a search incident to [a] lawful arrest." The presence of drug paraphernalia on defendant's person "further established probable cause that the vehicle contained contraband." Citing State v. Dunlap, 185 N.J. 543, 551 (2006), and State v. Cooke, 163 N.J. 657, 672 (2000), the judge found that probable cause and
exigent circumstances were . . . present to justify the warrantless search of the vehicle under the automobile exception to the warrant requirement. [Defendant's] truck was stopped in a residential area . . . known for its drug activity and violence.
During the stop the truck was located outside of a residence with a history involving violence towards police officer[s] by both [defendant] and his brother, [Ricky].
[Ricky] attempted to approach the vehicle during the stop but complied with [Marswillo's] request that he return to the residence. There were only three officers present at the time that the truck was searched.
Under the circumstances it would have been impractical to require the officers to post guard at the vehicle while a search warrant was obtained. Due to the truck's location in a high-crime area, . . . the presence of [defendant's] brother in a nearby residence, and his knowledge of the seizure of [defendant] by the officers, coupled with the fact that . . . only three
officer[s] were present on the scene, exigent circumstances were present . . . .
II.
At trial, Opaleski, Tuchmatulin, Schwarz, and Sergeant Joseph Walsh, who was the commander of the Somerset County Liaison Task Force and called as an expert, testified for the State. Defendant testified on his own behalf; Marswillo passed away before trial. Opaleski testified about the facts detailed above concerning the motor vehicle stop and resulting searches. He suspected that the numerous small baggies found on defendant were used for distribution of marijuana. Moreover, the large quantity of money found, along with the packaging and "large quantity of marijuana would be consistent [with] distribution in [his] experience and training." On cross, he stated that based on his experience, failure to make good eye contact is an "indicator" of criminality.
Tuchmatulin testified about his role as a backup officer and his observations of the searches of defendant's person and vehicle. He assisted with placing defendant under arrest and took defendant to headquarters for processing. He and Marswillo searched defendant again. The $2,475.16 in cash consisted of fifteen one-hundred-dollar bills, fourteen fifties, thirteen twenties, fifteen ones, and some change. Some of the money was loose, but some was contained in a bank envelope.
Schwarz testified about reporting to the scene with Gil-murray and Lacewell to assist. He later examined the glass vials found in defendant's truck back at headquarters and determined that they were not drug-related; they were not logged into evidence as they did not have evidential value.
Walsh testified as an expert without objection to his qualifications. He testified about marijuana distribution using baggies that can hold from one-half to a full gram of marijuana. Larger amounts are distributed in larger bags. A "dime bag" typically is sold for ten dollars, but it could be sold for more depending on the quality. The prosecutor provided a hypothetical factually similar to defendant's motor vehicle stop and asked Walsh follow up questions about it. Walsh said that, based on the hypothetical situation, it was his opinion that the marijuana "would be possessed with intent to distribute." An important factor was the weight of the marijuana. A half pound would be enough marijuana to equal about 686 marijuana cigarettes. Because marijuana goes stale over time, it would be unusual for one individual to have such a large quantity for personal use.
Walsh also testified that the possession of a large amount of cash would be consistent with narcotics sales. The presence of bills in higher denominations is typical of wholesaling. Smaller denominations would indicate street sales and the selling of dime bags. The presence of two cell phones would be an indicator of narcotics sales as an individual would typically have a personal phone in addition to one used for communicating with clients. Finally, the presence of empty plastic bags would indicate future use for street sales.
Defendant testified and admitted that he was driving with a suspended license on the night of his arrest. He was driving the truck to his brother's home so that his brother could take it to work. Defendant testified that he had Ziploc bags on his possession for the sale of Muslim oils and incense, which have strong smells. The bags "keep the distinct smells from rubbing each other." Further, he had not noticed a black shopping bag on the floor of the vehicle nor the smell of marijuana. His brother had used his truck earlier that day. He had a large sum of money because he worked as a computer technician, had recently been paid, and cashed his paycheck and a tax return check at the bank.
Defendant testified that he had two cell phones because he had a lot of contacts for his work as a logistics manager. His nephew gave him the second phone with a charger compatible with defendant's phone because defendant's charger broke; the nephew's phone did not have service.
Because the trial judge and defense counsel agreed that defendant did not have proper notice that he was also being tried on the disorderly persons offense and motor-vehicle violations, the judge directed that those charges would be returned to the municipal court for disposition. During summation, the prosecutor highlighted inconsistencies in defendant's testimony and submitted that defendant intended to deceive the jury about the cash in his possession and was "trying to blame his brother." Defense counsel did not object. On March 13, 2009, the jury determined that the quantity of marijuana was greater than fifty grams and found defendant guilty of all three charges. Defendant was sentenced as described above on June 23, 2009. This appeal followed.
The motion judge did not preside over the trial.
III.
Defendant raises the following issues for our consideration:
POINT I - IT WAS AN ABUSE OF DISCRETION TO DENY THE SUPPRESSION MOTION WHEN THE SEARCH INCIDENT TO ARREST AND AUTO SEARCH LACKED PROBABLE CAUSE, SAFETY THREAT OR EXIGENT CIRCUMSTANCES.
POINT II - THE MERE SMELLING OF MARIJUANA WAS NOT PROBABLE CAUSE OF ILLEGAL POSSESSION AND A WARRANT[LESS] SEARCH OF THE BLACK BAG
WAS AN ILLEGAL SEARCH, PLAIN ERROR NOT RAISED BELOW.
POINT III - [DEFENDANT'S] RIGHT TO A SPEEDY TRIAL, DOUBLE JEOPARDY, DUE PROCESS AND FAIR TRIAL WAS VIOLATED; HE WAS DENIED FUNDAMENTAL FAIRNESS AND HIS REASONABLE EXPECTATION, PLAIN ERROR[] NOT RAISED BELOW.
POINT IV - IT WAS PROSECUTORIAL MISCONDUCT TO SUMMARIZE [DEFENDANT'S] TESTIMONY AS LIES AND DECEPTION; IT WAS WITHIN THE FOUR CORNER'S [SIC] OF EVIDENCE, PLAIN ERROR[] NOT RAISED BELOW.
POINT V - THE PROSECUTOR'S FAILURE TO PRODUCE THE VIDEO WAS A [BRADY ] VIOLATION THAT DENIED [DEFENDANT] A FAIR TRIAL, DUE PROCESS, AND FUNDAMENTAL FAIRNESS, PLAIN ERROR NOT RAISED BELOW.
POINT VI - WALSH'S EXPERT TESTIMONY DENIED [DEFENDANT'S] RIGHT TO CONFRONTATION, FAIR TRIAL AND AGAINST HEARSAY AND OTHER WRONG ACTS RULES, PLAIN ERROR NOT RAISED BELOW.
POINT VII(A) - THE COURT'S DECISION TO RETURN [DEFENDANT'S] CHARGES TO MUNICIPAL COURT VIOLATED HIS SIX[TH] AMENDMENT RIGHT TO A JURY TRIAL, PLAIN ERROR NOT RAISED BELOW.
POINT VII(B) - THE COURT FAILED TO APPLY A MITIGATING FACTOR SUPPORTED BY CREDIBLE EVIDENCE; IT WAS UNFAIR, UNREASONABLE AND AGAINST THE INTEREST OF JUSTICE, PLAIN ERROR NOT RAISED BELOW.
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
IV.
We begin with the issues defendant raised at the suppression hearing. He contends that Opaleski had no objective reasonable basis to believe that he was armed and dangerous when he made this traffic stop and, thus, the pocket-by-pocket search of him was unconstitutional. After he was removed from the vehicle and was in the presence of multiple officers, he had no access to any potential weapons in the vehicle. He urges that the search of the vehicle without a warrant cannot be sustained where it was not a search incident to an arrest, there were no exigent circumstances, and the police could have secured a telephonic warrant or impounded the car. Further, nothing about the black bag, which was observed in plain view, suggested that it was contraband, and its seizure was thus impermissible as no ground for arrest existed until it was opened.
The State responds "that the trial court properly admitted the evidence[,] which was discovered during a motor vehicle stop where officers had sufficient probable cause to search the vehicle, as well as the existence of exigent circumstances justifying the warrantless search."
The scope of our review of the denial of a motion to suppress evidence requires us to "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. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted). We "should give deference to those findings of the trial judge which are substantially influenced by his oppor- tunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). Accordingly, we accept the testimony of Opaleski and Marswillo as credible and disregard the testimony of defendant in reviewing the issues before us.
Also, "[a]n appellate court should not disturb the trial court's findings merely because it might have reached a different conclusion were it the trial tribunal or because the trial court decided all evidence or inference conflicts in favor of one side in a close case." Elders, supra, 192 N.J, at 244 (internal quotation marks omitted). Rather, "[a] trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." Ibid, (internal quotation marks omitted). Because the motion judge's fact-findings are not so clearly mistaken, we examine only his application of search-and-seizure law to the facts as found by him. Such a review is plenary. See State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.) ("Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal."), certif. denied, 182 N.J. 148 (2004).
Both the United States and New Jersey Constitutions protect against unreasonable searches and seizures. State v. Baum, 199 N.J. 407, 421 (2009). "A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." Cooke, supra, 163 N.J, at 664. We begin with the search of defendant's person.
When Opaleski ordered defendant to the rear of the truck, Tuchmatulin and Marswillo were at the scene, and Opaleski had already detected "an extremely pungent odor of raw marijuana emerging from the interior of the vehicle." He patted defendant down, did not feel a weapon, and then went through his pockets, one by one, looking for narcotics or any type of device that could be used as a weapon.
Defendant relies on the proposition that a warrantless search of the person is "prima facie invalid unless the search falls within one of the exceptions that the United States Supreme Court has recognized," State v. Dangerfield, 171 N.J. 446, 455 (2002). He argues that the facts presented here do not fall within any recognized exception.
In Dangerfield, as here, the search was allegedly incident to a lawful arrest, an "exception articulated in Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)." Id. at 455-56. As the Court pointed out, "[t]he first critical issue, therefore, is whether there was probable cause to arrest defendant." Id. at 456. "It requires nothing more than a prac- tical, common-sense decision whether, given all the circum-stances[ ]there is a fair probability that contraband or evidence of a crime will be found in a particular place." Ibid. (internal quotation marks omitted).
Unlike the totality of the circumstances in Dangerfield, the facts here support a well-grounded suspicion that defendant was possessed contraband. He had been slowly cruising through the parking lot of a park located in a high-crime area when the park was closed. He then drove to his brother's home, in the same high-crime area, while reaching down into his vehicle while he was driving, and ultimately parked on the wrong side of the street. When Opaleski approached the truck's driver's side, he detected "an extremely pungent odor of raw marijuana emerging from the interior of the vehicle." Opaleski had been trained to detect the odor of raw marijuana and had made over 300 arrests for marijuana possession or distribution. This training, the smell he detected, and the totality of the circumstances, State v. Moore, 181 N.J. 40, 46 (2004), established probable cause to believe that defendant possessed illegal narcotics. Nishina, supra, 175 N.J, at 515-16; State v. Judge, 275 N.J. Super. 194, 201-02 (App. Div. 1994). The warrantless search of defendant's person was justified by exigency because the contraband may have disappeared before a warrant to search his person was procured. Nishina, supra, 175 N.J, at 517. It is of no moment that the search occurred prior to the arrest. State v. O'Neal, 190 N.J. 601, 614 (2007).
We now consider the search of the truck. Defendant argues that the search was not justified under the automobile exception to the warrant requirement or "on [an] objectively reasonable belief that [the] occupant of [the] vehicle is dangerous and may gain access to weapons," citing State v. Pierce, 136 N.J. 184, 205 (1994). We begin with the automobile exception.
"It is well-established that the automobile exception depends on the satisfaction of two requirements: the existence of probable cause and exigent circumstances, and that the determination regarding those elements must be made on a case-by-case basis." Dunlap, supra, 185 N.J, at 549. The first of these two requirements has been satisfied. See State v. Pena-Flores, 198 N.J. 6, 30 (2009) (finding that "[t]he overwhelming smell of ["raw"] marijuana emanating from the automobile [during a traffic stop] gave the officer probable cause to believe that it contained contraband"); State v. Guerra, 93 N.J. 146, 148 (1983) (holding that there was probable cause to justify a warrantless search of a car, including the trunk and packages found within, after the police "detect[ed] a strong odor of raw unburned marijuana emanating" from within the car during a lawful traffic stop); Vanderveer, supra, 285 N.J. Super, at 479 (noting that "[t]he odor of marijuana is very distinctive"); Judge, supra, 275 N.J. Super, at 202 (finding that "using or possessing marijuana in a motor vehicle in New Jersey is a per se violation of the laws of this State" and that "the smell of burnt marijuana under the total circumstances created a heightened and reasonable suspicion that an offense was being committed" sufficient to establish probable cause); State v. Sarto, 195 N.J. Super. 565, 574 (App. Div. 1984) (finding that "the strong odor of unburned marijuana gave police probable cause to search [a] trunk for evidence of contraband").
The issue then becomes whether the judge erred in concluding that the search of the vehicle was justified by exigent circumstances. We begin with the proposition that "[e]ven where a defendant is not under arrest or where an arrested defendant has been secured, there may be justification to search a vehicle under the automobile exception." Pena-Flores, supra, 198 N.J. at 20. Thus, the search of the truck could precede defendant's arrest so long as exigent circumstances existed.
Exigency is the "unforeseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile." Cooke, supra, 163 N.J, at 672 (internal quotation marks omitted). The Court concluded that "the term 'exigent circumstances' is, by design, inexact. It is incapable of precise definition because, by its nature, the term takes on form and shape depending on the facts of any given case." Id. at 676. It emphasized that "exigency in the constitutional context amounts to 'circumstances that make it impracticable to obtain a warrant when the police have probable cause to search the car.'" Ibid, (quoting State v. Colvin, 123 N.J. 428, 437 (1991)). Additionally, "exigent circumstances 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." Id. at 672 (internal quotation marks omitted).
In reversing the suppression of evidence, the Court outlined numerous factors that supported a finding of exigency. Id. at 661, 672-676. It may be found "if the unanticipated circumstances that give rise to probable cause occur swiftly." Id. at 672. Other relevant factors include the loss of any element of surprise, a vehicle containing drugs, third parties who are aware of the presence of drugs and could remove or destroy evidence, and the need for police to guard a vehicle while waiting for a warrant. Id. at 675. No one factor is determinative; "[r]ather, it is the combination of factors . . . that justify the warrantless search." Ibid.
Defendant relies on Dunlap, supra, 185 N.J, at 546, 549, in arguing that the automobile exception did not apply to the search of his truck. In Dunlap, the Court affirmed a finding of the lack of exigent circumstances to justify a warrantless search of a vehicle. Id. at 550-51. The vehicle was parked on a residential street at night; was not located in an area known for drug trafficking; at least ten officers were present; and there was no indication that any third parties had knowledge of the car's location or the defendant's arrest. Id. at 550. Also, the defendant was the focus of an ongoing drug investigation; the police expected him to drive to a third party's home after "obtain[ing] telephonic authorization for a consensual telephone interception," during which the defendant stated he would arrive shortly. Id. at 544-45. The Court concluded:
Here, the unique facts, particularly the presence of ten officers, fully justified the Appellate Division's conclusion that exigency was absent. Different facts, such as a roadside stop effectuated by only one or two officers, would likely have changed the calculus. Police safety and the preservation of evidence remain the preeminent determinants of exigency.[Id. at 551.]
Finally, we had noted that "it is not without significance that the investigators here had time to call the prosecutor's office at about 10:00 pm and obtain verbal authorization for the con- sensual recording of defendant's conversation with [the third party]." Id. at 550 (internal quotation marks omitted).
The facts in Dunlap are clearly distinguishable from those now before us. The circumstances here were entirely unexpected and occurred swiftly. The vehicle contained drugs. Defendant's brother, who lived right in the vicinity of the parked truck, was aware that defendant had been stopped by the police and may have been aware of the drugs in the vehicle. The location of the truck was in a high-crime area, despite the fact that it was parked on a residential street at night. It was close to the park and a short distance from the location of the homicide at the corner of Matilda Avenue and Mark Street. Further, there were only three police officers present. Thus, Dunlap does not support the conclusion that the judge erred in applying search-and-seizure law to the facts as he found them to be.
Pena-Flores, which was decided after the search at issue here, does not require a different result. In Pena-Flores, the Court reaffirmed its "longstanding precedent" requiring both probable cause and exigent circumstances for a warrantless automobile search. Id. at 11. It noted that past cases established the requirement that "the stop and search of the vehicle cannot be pre-planned—it must be unforeseen and spontaneous." Id. at 21 (citing State v. Alston, 88 N.J. 211, 233-34 (1981)). Additionally, "exigency above and beyond the mere mobility of the vehicle is required." Id. at 24. Noting that its ruling was "nothing more than a reaffirmation of over three decades of prior jurisprudence," id. at 29 n.6, the Court delineated additional factors supporting a finding of exigency:
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.
[Id. at 29.]
The Court also stated that it was going to amend Rule 3:5-3(b) to clarify that telephonic warrants may be obtained without proving exigency. Id. at 35. In part, this would "obviate the need for difficult exigency assessments." Id. at 36. However, the Court noted "that the enhanced availability of electronic and telephonic warrants is not intended to supplant the traditional exceptions to the warrant requirement. We continue to recognize the right of officers to search a motor vehicle without a warrant where probable cause and exigent circumstances coexist." Ibid.
Here, the motion judge cited factors parallel to those in Cooke, supra, 163 N.J, at 675, and Pena-Flores, supra, 198 N.J. at 29. The search took place in an area known for drug activity and violence; defendant's brother attempted to approach the vehicle, was present nearby, and knew of defendant's detention; defendant and his brother had a history of violence towards the police at the brother's residence and the motor vehicle stop occurred outside that residence; only three officers were present at the time of the search; and it would be impracticable to guard the vehicle during the procurement of a warrant.
Because Opaleski had probable cause to believe the truck contained marijuana, he was authorized to search the interior of the truck, including containers in which marijuana could be found. See California v. Acevedo, 500 U.S. 565, 570, 111 S. Ct. 1982, 1986, 114 L. Ed. 2d 619, 628 (1991); State v. Esteves, 93 N.J. 498, 508, 508 n.3 (1983). Thus, we find no merit to the issues raised in defendant's second point on appeal—the search of the black bag was proper. Because the automobile exception, as the motion judge found, permitted the search not only of the truck but also the black bag, we need not consider defendant's argument that the warrantless search of his truck was not incident to a lawful arrest.
V.
We briefly consider the issues raised in Points III and VII(A) relating to the municipal court charges. The scope of our appellate jurisdiction is limited to the orders specified in the Notice of Appeal. Here, the only order from which appeal was taken was the June 23, 2009 conviction, not any order which may have been entered remanding the municipal court charges. Thus, we do not comment on the merits of defendant's arguments pertaining to a speedy trial, double jeopardy, due process, and his Sixth Amendment right to a jury trial. Those issues could have been raised on appeal from any conviction in municipal court of the remanded charges and may still be raised if those charges have yet to be determined.
VI.
After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that defendant's remaining arguments, which were not raised below, "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). Those arguments are found in defendant's Point IV respecting prosecutorial misconduct, Point V respecting a claimed Brady violation, Point VI respecting the expert testimony of Walsh, and Point VII(B) respecting the trial judge's rejection of a mitigating factor claimed at sentencing. None of these alleged errors rises to the level of plain error that was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971) (finding that the possibility of producing an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached").
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION