After the court denied his motion to suppress evidence
seized from a warrantless search of the vehicle in which he was traveling, defendant Luis Munoz-Chairez entered a conditionalguilty plea to first degree possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(10)(a).November 2, 2012
Judge Liliana DeAvila-Silebi sentenced defendant in accord with his plea agreement to a term of fifteen years, with a five-year period of parole ineligibility. Defendant now appeals from the denial of his suppression motion. We affirm.
We discern ample support in the record for Judge DeAvilaSilebi’s fact-findings. See State v. Elders, 192 N.J. 224, 243 (2007) (appellate court must uphold trial court’s fact findings on motion to suppress “so long as those findings are supported by sufficient credible evidence in the record”) (quotation and citation omitted).
The court principally relied on the testimony of the sole
witness at the hearing, Ft. Lee Police Officer Ricky Mirkovic, who initiated the motor vehicle stop and led the subsequent investigation. The court also relied on the on-board video recordings played in court, and the officer’s written report. Officer Mirkovic had been a patrol officer for over seven years, and briefly served in a specialized narcotics unit until it was disbanded. He had made hundreds of drug stops, including five
to ten involving a large quantity, such as over a pound of
While observing traffic from a stationary position on
Bergen Boulevard at around 10:10 p.m. on December 3, 2009, Officer Mirkovic observed a maroon Pontiac drive by in the left lane at around sixty mph, in a forty-five mph zone. The car had heavily tinted windows. The car’s brake lights were illuminated and the car coasted into the right lane, then swerved back into the left lane. The officer began to follow. He observed the car had Arizona license plates. As he approached, it quickly moved into the right lane again and slowed by ten mph. Based on his experience, the officer perceived this to be an effort by
the driver to let the officer pass, but the officer continued to follow, he in the left lane and the Pontiac in the right.
The Pontiac accelerated to the speed limit, the officer
kept pace, and then the Pontiac illuminated its brake lights for four seconds. The Pontiac proceeded to a ramp leading to the entrance to the lower level of the George Washington Bridge. The officer activated his overhead lights to initiate a stop. The Pontiac and the officer stopped in a small triangular area, just beyond an overpass, with traffic passing on both sides.
Although the officer stopped the Pontiac because of careless driving, failure to keep right, and tinted windows, his suspicions were aroused by the other circumstances, including the driver’s erratic operation of the vehicle, his apparent desire to have the officer pass, the tinted windows that obscured the car’s interior, and the out-of-state plates. He described the area as a high crime area, used for thetransportation of illegal contraband.
The officer approached the driver’s side to speak to the
driver, Enrique Avila, Jr., and to request his driving
credentials. Avila’s hand was trembling as he handed the
documents to the officer. Defendant was seated in the front passenger seat. The officer smelled and observed one air freshener hanging from the rear-view mirror, and three hanging from the left side of the steering wheel. This further aroused suspicions, because, based on his experience and training, multiple air fresheners were commonly used to mask the odor of illegal
narcotics. The car was also strewn with food and food
containers, indicating to the officer that Avila and defendant had taken a long trip. While traffic passed behind him, the officer asked Avila to exit the vehicle and walk to the rear of the Pontiac, where the officer could continue his questioning without the risk of getting sideswiped. As evident from the video recording, the officer conducted his inquiry in a calm, conversational, and non-intimidating manner. He inquired about where Avila had come from and where he was going, who owned the Pontiac, how long they had traveled,
and how many stops they made along the way. Avila said that Defendant and he were on their way from Phoenix to Boston to visit Avila’s grandmother and defendant’s grandmother; the vehicle belonged to defendant’s father; and they stopped twice
on the two-day journey from Arizona. The officer was mindful that Phoenix, given its proximity to the Mexican border, was considered a “source city” for narcotics distribution.
The officer perceived Avila to be nervous; he avoided eye
contact. During the officer’s questioning, Avila repeatedly put his hands in his pockets, despite the officer’s request that he not do so. Although it was early December, and Avila’s hands might just have been cold, the officer expressed concern that Avila might be reaching for something. The officer patted Avila’s pockets; felt a bulge; and detected Avila’s wallet.
Avila said he had only $2, which the officer found to be odd, if Avila had been traveling cross-country.
A back up officer, Marc Miskovitz1 arrived, about three
minutes after the stop began. He remained with Avila while Officer Mirkovic approached defendant, who was still seated in the vehicle. Defendant was talking on the cell phone. Officer Mirkovic asked defendant to terminate the conversation. The officer observed four more cell phones in the vehicle. He Sometimes in the transcript, Officer Miskovitz is referred to as Martin, not Marc. testified that, based on his training and experience, drug traffickers commonly possess and use multiple cell phones. The officer then continued his questioning of defendant in front of the Pontiac. Defendant said they had stopped twice on
the way from Phoenix, in Albuquerque and in Illinois. A
discrepancy between Avila’s and defendant’s accounts became apparent. Defendant stated they were traveling to visit Avila’s dying aunt or grandmother, not defendant’s. He was carrying $70. The officer patted defendant down and discovered no weapons or contraband.
Officer Mirkovic returned to his vehicle, radioed his
supervisor and obtained authorization to seek consent to search. He also called for a K-9 officer, to conduct an exterior test in the event Avila denied consent. By this time, fourteen minutes had elapsed since the stop began. The officer then returned to Avila to continue his
inquiries. When asked where he and defendant had stopped on their way from Arizona, Avila said they stopped in Albuquerque and Indianapolis. Officer Mirkovic asked Avila whether there was anything in the Pontiac that Avila should not have in his
possession. Avila first said that all they had was their
clothing. He began breathing more heavily and repeatedly looked at the trunk of the car, which led the officer to believe it contained contraband. When asked, Avila denied there was anything illegal in the trunk, and said the officer could check.
The officer confirmed Avila’s answer, but then asked Avila if he had marijuana in the vehicle. Avila then said he did. The officer asked how much, and Avila said, “maybe like seventy”pounds. Avila and defendant were then placed under arrest, twentytwo minutes after the stop began. Shortly before the arrest, a third officer had arrived with a K-9 dog, which indicated that
there were drugs in the trunk. The officers then unlocked the trunk, searched it, and seized several large, bundles of what appeared to be marijuana.
Officer Mirkovic testified that delaying the search while
he obtained a warrant would have posed a significant
inconvenience to the traveling public. The officer stated that had he decided to wait for a search warrant, he would have “secure[d] the scene” which most likely would have entailed shutting down the ramp from Route One north to Interstate 95,
and would have caused a heavy backup of traffic. He also
The State does not argue the search was justified on the basis of consent, presumably because the officer did not apprise defendant of his right to refuse. See State v. Johnson, 68 N.J. 349, 354 (1975) (requiring proof that a defendant knew he had the right to refuse consent to search, in order to establish that consent was voluntary).
explained that defendant, who was conversing with someone on his cell phone, may have alerted a cohort of his predicament and advised them to come to the scene. Traffickers of such large quantities of narcotics are often accompanied by “lead or trail vehicles that know of the location due to the amount that it costs.” He also stated that weapons are sometimes involved in cases involving a large quantity of narcotics. The officers
outnumbered the defendants three-to-two after the K-9 officer arrived. Judge DeAvila-Silebi denied the motion in an extensive written opinion. Defendant conceded the initial stop was justified by the motor vehicle violations and other suspicious circumstances. The court found that facts and circumstances discovered after the initial stop justified continued investigation by the officer. The officer had probable cause to believe the vehicle contained drugs, particularly once Avila admitted the car contained seventy pounds of marijuana.Applying the principles set forth in State v. Pena-Flores, 198 N.J. 6 (2009), the judge found exigent circumstances relieved
the officers of the need to first secure a search warrant.
Defendant argues on appeal:
The Trial Court erred when it denied Appellant’s Motion to Suppress, as the search of the vehicle and the seizure of the drugs was [sic] not supported by exigent circumstances sufficient to invoke the Automobile Exception to the warrant requirement.
We affirm, substantially for the reasons set forth in Judge
DeAvila-Silebi’s written opinion. Defendant does not challenge the initial motor vehicle stop. Rather, he complains the police engaged in a lengthy roadside interrogation in an attempt to establish a basis to support a warrantless search. He also challenges the officer’s decision to proceed, without a warrant,
to search the trunk and seize the marijuana that Avila admitted was there. He argues the officers either should have awaited a warrant on the scene, or impounded the vehicle and then awaited a warrant. We disagree.
We reject defendant’s argument that the officer unlawfully extended the detention. “If during the course of the stop or as a result of the reasonable inquiries initiated by the officer, the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions.” State v. Dickey, 152 N.J. 468, 479- 80 (1998) (quotations and citations omitted). That is what happened here.
The circumstances of the initial stop included not just the moving motor vehicle violations themselves, but also the tinted windows, the out-of-state plates, the driver’s apparent evasiveness, and the route through a high crime area. In short, the officer had grounds to suspect more was afoot than a simple traffic violation, although the traffic violation supplied the reasonable and articulable suspicion for the initial stop.