State v. Guerrero

• Decision Date: 08 May 1989
• Citation: 557 A.2d 713,232 N.J.Super. 507
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Juan GUERRERO, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 507

232 N.J.Super. 507

557 A.2d 713

STATE of New Jersey, Plaintiff-Appellant, v. Juan GUERRERO, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued April 11, 1989.

Decided May 8, 1989.

Laura A. Hook, Asst. Union County Prosecutor, for plaintiff-appellant (John H. Stamler, Union County Prosecutor atty.; Laura A. Hook, of counsel, and on the letter brief).

Julio Sanchez, Hillside, for defendant-respondent.

Before Judges MICHELS, LONG and KEEFE.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Pursuant to leave granted by this court, the State appeals from an order of the Law Division that granted a motion by defendant Juan Guerrero to suppress all evidence seized as a result of a search following the stop of a motor vehicle in which he was a passenger.

At approximately 3 p.m. on August 2, 1988, Detectives Cherry Stone-Tudela and James Krakowiecki and Officer Joseph Carratala, all of the Elizabeth Police Department, were in an unmarked vehicle conducting a surveillance of the downtown area near the Pioneer Homes housing projects, an area in which numerous drug arrests had been made previously. Detective Krakowiecki was a veteran officer with 16 years on the Elizabeth police force, one year of which had been spent with the Narcotics Division. Krakowiecki estimated that he had made more than 500 narcotics arrests. Detective Stone-Tudela was a nine-year veteran of the force, with one year spent with the Narcotics Division. She estimated that she had made more than 200 arrests for drug offenses in the Pioneer Homes projects area. Officer Carratala was a rookie officer.

The officers observed a white car that was driving along Magnolia Avenue stop at the curb in the center of the block. A young man who had been standing near a door to the Pioneer Homes projects approached the white car and exchanged a small packet for what appeared to the officers to be cash. The officers were approximately 175 feet from the transaction and were using binoculars.

The white car left the area. Detective Stone-Tudela testified that they declined to follow the white car because "[w]e had just established our position and what we usually do is wait for a few cars to do the same thing, before we'll pull one over. To establish what is going on." In addition, Detective Krakowiecki stated that the white car was facing in the opposite direction from the police car and that a pursuit of the white car would have involved a safety risk.

Approximately five minutes after the white car had left the area, a blue Chevrolet Blazer with two occupants stopped in front of the Pioneer Homes projects, facing in the same direction as the police car. The young man that had approached the white car also approached the Blazer and exchanged with defendant, who was the passenger in the vehicle, a small packet in return for what the officers believed to be cash. The Blazer then drove away.

The officers pursued the Blazer, which stopped at a liquor store several blocks from the transaction. Defendant entered the liquor store and returned to the vehicle shortly thereafter, at which time the Blazer again drove away. Approximately one-and-one-half blocks from the liquor store the officers stopped the Blazer. Detective Krakowiecki testified that, as the police car pulled along side the Blazer to stop it, the passenger in the Blazer leaned over as if he was reaching under the front seat. After stopping the Blazer, the officers ordered the suspects out of the vehicle. Officer Carratala remained with the suspects outside the Blazer while Detectives Stone-Tudela and Krakowiecki searched the vehicle. Defendant testified that the detectives searched the vehicle thoroughly, inspecting the glove compartment and looking through various books that defendant had in the car. No contraband was found in the vehicle.

Detective Krakowiecki left the Blazer while Stone-Tudela continued to search the vehicle. Krakowiecki then searched defendant, patting him down and checking the pockets of defendant's shorts. Additionally, Krakowiecki instructed defendant to unbutton his shorts, whereupon Krakowiecki glanced inside defendant's shorts, both in front and behind defendant. Defendant testified that, after the search proved fruitless, Krakowiecki "became very angry ... [and] started pacing back and forth." Krakowiecki then ordered defendant to remove his shoes, at which time a packet of marijuana was discovered in defendant's right shoe.

The trial court found that "there was probable cause to suspect that a narcotics transaction [had] occurred" and, therefore, that the stop of the vehicle was justified. Moreover, the trial court found that the officers had a right to search the automobile and to conduct a limited search of the vehicle's occupants. Nonetheless, the trial court held that the officers had no right to conduct a full search of defendant at the scene and that the search was "unreasonable" and "too intrusive." The trial court thereupon granted defendant's motion and suppressed the evidence seized. We disagree and reverse.

There cannot be the slightest doubt on this record that there was probable cause to believe that defendant had committed or was committing a crime. Probable cause to arrest or search an individual generally is defined as a well grounded suspicion or belief on the part of the searching or arresting officer that a crime has been or is being committed. See, e.g., Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 413, 9 L.Ed.2d 441, 450 (1963); State v. Alston, 88 N.J. 211, 231, 440 A.2d 1311 (1981); State v. Bates, 202 N.J.Super. 416, 422-423, 495 A.2d 422 (App.Div.1985); United States v. Green, 670 F.2d 1148, 1152 (D.C.Cir.1981). Thus, the police were justified in stopping the vehicle and searching defendant.

Furthermore, the warrantless search fell within the purview of the exception to the warrant requirement that is founded upon the exigency of the circumstances. Such a search is justified where, as here, the search is supported by probable cause and is necessary to prevent the disappearance of the suspect or of evidence, and where the circumstances fail to permit the searching officer sufficient time to obtain a warrant. See State v. Valencia, 93 N.J. 126, 136, 459 A.2d 1149 (1983); State v. Sims 75 N.J. 337, 355, 382 A.2d 638 (1978); State v. Malik, 221 N.J.Super. 114, 118-119, 534 A.2d 27 (App.Div.1987).

Although the exception for exigent circumstances is to be "applied with caution," State v. Helton, 146 N.J.Super. 98, 100, 369 A.2d 10 (App.Div.1975), aff'd o.b., 72 N.J. 169, 369 A.2d 10 (1977), the situation that confronted Detectives Krakowiecki and Stone-Tudela and Officer Carratala on August 2, 1988, plainly fit the definition of exigent circumstances. The trial court found, and case law generally supports, that the officers had probable cause to believe that defendant had engaged in a narcotics transaction when the officers observed the car in which defendant was a passenger stop at the curb in the middle of a block in an area under surveillance for suspected narcotics activity, and saw defendant exchange money for a small object with a man who had engaged in a similar transaction five minutes earlier. See, e.g., United States v. White, 655 F.2d 1302 (D.C.Cir.1981); People v. McRay, 51 N.Y.2d 594, 435 N.Y.S.2d 679, 416 N.E.2d 1015 (1980); People v. Zarzuela, 141 A.D.2d 788, 529 N.Y.S.2d 864 (1988), app. den., 72 N.Y.2d 927, 532 N.Y.S.2d 861, 529 N.E.2d 191 (1988); People v. Luccioni, 120 A.D.2d 617, 502 N.Y.S.2d 228 (1986), app. den., 68 N.Y.2d 771, 506 N.Y.S.2d 1055, 498 N.E.2d 157 (1986). Cf. State in Interest of L.M., 229 N.J.Super. 88, 550 A.2d 1252 (App.Div.1988), certif. den., 114 N.J. 485, 555 A.2d 609 (1989); State v. Bell, 195 N.J.Super. 49, 477 A.2d 1272 (App.Div.1984); State v. Williams, 117 N.J.Super. 372, 285 A.2d 23 (App.Div.1971), aff'd o.b., 59 N.J. 535, 284 A.2d 531 (1971); P.L.R. v. State, 455 So.2d 363 (Fla.1984), cert. denied, 469 U.S. 1220, 105 S.Ct. 1206, 84 L.Ed.2d 349 (1985). But see United States v. Jenkins, 530 F.Supp. 8 (D.D.C.1981); People v. Colon, 128 Misc.2d 356, 490 N.Y.S.2d 100 (Sup.Ct.1985). Additionally, the officers certainly had no time in which to procure a warrant to search defendant because the evidence very well could have been consumed, hidden or sold by the time such a warrant was issued. In our view, the officers acted reasonably in stopping the vehicle and in conducting a thorough search of defendant. The reasonableness of the officers' actions is underscored by other decisions in this State in which "exigent...