                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4781-16T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

LAMAR S. ORTIZ,

     Defendant-Appellant.
_____________________________

                   Submitted May 29, 2018 – Decided May 6, 2019

                   Before Judges O'Connor and Vernoia.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 15-09-2208.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Brian P. Keenan, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Robert D. Laurino, Acting Essex County Prosecutor,
                   attorney for respondent (Lucille M. Rosano, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   of counsel and on the brief).

         The opinion of the court was delivered by
O'CONNOR, J.A.D.

      Following the denial of his motion to suppress evidence of a handgun,

defendant Lamar S. Ortiz pled guilty to second-degree unlawful possession of

a handgun, N.J.S.A. 2C:39-5(b)(1), and fourth-degree possession of dum-dum

bullets, N.J.S.A. 2C:39-3(f)(1). In accordance with the parties' plea

agreement, the court sentenced defendant to an aggregate seven-year term of

imprisonment. Defendant Lamar S. Ortiz appeals from the order denying his

motion to suppress. We reverse and remand for further proceedings.

                                       I

      The salient evidence adduced during the suppression hearing was as

follows. The State's sole witness, Detective Thomas Delmauro, testified that

on May 10, 2015, the Newark Police Department received an anonymous tip

that an African-American male in his mid-twenties was carrying a firearm in

the area of Hunterdon Street in Newark. The caller said the man had

dreadlocks, was wearing a white T-shirt, was driving a white Ford Expedition

with New Jersey license plates that bore a specific number, and that the vehicle

was on Hunterdon Street near Avon Avenue.

      Around noon that day, Delmauro drove to that area in an unmarked

vehicle, parked, and commenced his surveillance. Two other detectives,

                                       2
                                                                        A-4781-16T1
Laurie and Santiago, were dispatched at the same time in a separate unmarked

police vehicle. When Delmauro arrived, he found the Expedition described by

the caller parked on Hunterdon Street. Delmauro parked across the street from

the Expedition, and the other two officers parked one block away on Avon

Avenue, which ran perpendicular to Hunterdon Street. Laurie and Santiago

were the designated "take-down unit."

      Within several minutes, Delmauro saw a person fitting the description

provided by the caller on Hunterdon Street. That person was later identified as

defendant. Delmauro repositioned his car, parking directly in front of the

Expedition. Defendant subsequently got into the driver's seat of the

Expedition.

      Looking through the rear-view window of the surveillance car and into

the windshield of the Expedition, Delmauro observed defendant handling a

handgun that was black and khaki in color. He also saw defendant reach

toward what Delmauro assumed was the glove compartment. Defendant then

leaned back into the driver's seat, where he remained until Ahmad Manns, a

man later identified as defendant's cousin, got into the Expedition and sat in

the front passenger's seat.




                                        3
                                                                        A-4781-16T1
      Delmauro called the other detectives and advised that defendant had put

a gun in the glove compartment of the Expedition, and Delmauro would let

them know when defendant drove off. Defendant then made a K-turn on

Hunterdon Street and headed toward Avon Avenue.

      Delmauro followed the Expedition and called the other detectives to

advise that defendant was headed toward them and to stop defendant's vehicle.

Delmauro parked his car and walked to the spot where the other two detectives

were conducting the stop. By then, defendant and Manns were standing at the

rear of the Expedition; one detective was standing next to defendant and the

other next to Manns.

      The passenger door to the Expedition was open, so Delmauro reached in

and opened the glove compartment, where he saw the gun he had previously

observed defendant handling, along with the registration and insurance card

for the Expedition. However, Delmauro testified he went into the glove

compartment to look for the gun and not for the registration and insurance

card. In fact, Delmauro commented defendant was not stopped because of a

motor vehicle violation but to investigate whether there was a gun in the car.

      Delmauro was questioned about but unable to provide any conclusive

testimony concerning whether defendant and Manns were handcuffed before

                                       4
                                                                       A-4781-16T1
Delmauro opened the glove compartment. When asked on direct examination

what he did when he saw the gun in the glove compartment, Delmauro

testified:

             I notified [the other detectives] that, you know, the
             gun is in the glovebox, but I'm not sure, I think they
             had him in handcuffs already. I think they had him in
             handcuffs before I was walking up because I told them
             that, you know, I already saw the gun in the glovebox.
             So for their safety they might have handcuffed him
             already, but I can't tell you for sure if they had him
             handcuffed before or after . . . .

      On cross-examination, defense counsel questioned Delmauro as follows:

                  Q. And before the search took place were the
             two occupants handcuffed?

             A. I don't recall if they were handcuffed at that point.

                   Q. Where do you think -- where were they?

             A. They were in the rear of the vehicle.

                   ....

                   Q. And -- but you didn't see whether or not they
             were handcuffed?

             A. I don't recall if they were handcuffed. I don't
             believe they were until I opened the glovebox, but I
             don't recall for sure.

                   ....



                                        5
                                                                        A-4781-16T1
                  Q. Who was with [defendant and Manns] when
            they were in the rear?

            A. I believe Det. Laurie was with the driver, Mr.
            Ortiz[,] and I believe Det. Santiago was standing with
            Mr. Manns.

Defendant was ultimately arrested for possession of a weapon. Manns was not

arrested because, while at the scene of the stop, defendant admitted he was the

owner of the subject handgun.

      Defendant testified as follows. He confirmed he was in his mid-twenties

and, at the time in question, was wearing, among other things, a white T-shirt,

and eventually entered an Expedition that fit the anonymous caller's

description. However, he stated he and his cousin got into the Expedition

simultaneously. Defendant admitted he owned the subject gun, an olive and

black Glock 30, and did not have a license to carry or purchase a firearm.

      Defendant testified he put the subject gun into the Expedition the night

before and never removed it. He stated that, as he was being pulled over by

the police, he grabbed the registration and insurance card from the glove

compartment so that he would be ready to present such documents to the

police. However, because the gun was still in it, he locked the glove

compartment.



                                       6
                                                                        A-4781-16T1
      Defendant claimed two officers approached his car and one instructed

him to take the keys out of the car. Defendant placed the keys, his license, the

registration, and the insurance card in his hand, which he extended out of the

driver's side window. An officer grabbed what was in defendant's hand,

opened the driver's side door, and pulled him out of the car. At the same time,

another officer pulled Manns out of the passenger door. Defendant claims

both he and Manns were taken to the rear of the Expedition and handcuffed.

      According to defendant, Delmauro searched the Expedition for three to

five minutes. Defendant heard Delmauro pulling on the glove compartment

and another officer handed him the keys to the Expedition. Delmauro then

opened and retrieved the gun from the glove compartment, and advised

defendant and Manns they were pulled over and handcuffed because of the

presence of the gun in the vehicle. Defendant testified he never gave the

police permission to search the car.

      Manns testified that when he and defendant were pulled over, they were

instructed to turn off the car, put their hands up, and "have" the keys out of the

window. He and defendant complied and the officers took the keys. An

officer then asked for the "paperwork," and defendant gave the officer the

"registration, insurance and all that." Manns claimed defendant never "reached

                                        7
                                                                         A-4781-16T1
at any time to the glove compartment" before they were pulled over. Manns

stated that just before defendant handed the documents to the officer, the

documents were "just sitting on the middle because he just reached down and

just grabbed [them]."

      Manns testified the officer then asked them to step out of the car. They

both got out and were taken to the rear of the Expedition, where they were

handcuffed. The police told them they had been pulled over because they

received a tip defendant had a gun in his car. An officer then searched the

Expedition, looking under the seats and behind the front seats. One of the

officers tried to open the glove compartment but discovered it was locked.

After that officer got the keys from another officer, he was able to open the

glove compartment and found a gun. Defendant told the police the gun was

his; Manns was never arrested or charged with any crime.

      The trial court did not make a finding about whether defendant and

Manns were handcuffed or otherwise sufficiently secured to preclude them

from gaining access to the gun when it was in the glove compartment. The

court merely stated:

            [O]bviously if they're not secured[,] there would be
            some issue with regard to safety and the exigency
            circumstances apply because, obviously, they're
            entitled to make themselves reasonably safe . . . if
                                        8
                                                                        A-4781-16T1
            there's been a gun identified[.] . . . I found . . . the
            officer[] credible when it came to the observations
            with regard to the gun. So, he knows there's a gun in
            the car, he's entitled to know where it is to prevent
            him from getting shot by it.

                  As I said, the issue I have was . . . whether
            [defendant and Manns] were, in fact, secured at the
            back outside the vehicle [and] whether, in fact, they
            had handcuffs on or not[.] . . . [I]n fact, there was an
            issue with regard to whether they were or were not
            handcuffed at the time.

The court resolved the motion as follows.

      Acknowledging it a "minor" point, the court found defendant was not

credible when he claimed he removed the registration and insurance card from

the glove compartment just before the stop, but found Delmauro's testimony on

this point credible. The court noted Manns's testimony concerning when

defendant removed the registration and insurance card from the glove

compartment inconsistent with defendant's. On the basis that defendant's

testimony on this particular point was inconsistent with Delmauro's and

Manns's, and because there were "exigent circumstances," the court denied

defendant's motion to suppress.




                                        9
                                                                       A-4781-16T1
                                         II

      On appeal, defendant asserts the following argument for our

consideration:

             POINT I: BECAUSE THERE WAS NO EXIGENCY,
             THE WARRANTLESS SEARCH OF ORTIZ'S
             VEHICLE WAS ILLEGAL, AND THE EVIDENCE
             FOUND MUST BE SUPPRESSED.

      In reviewing a motion to suppress evidence, this court must defer to the

trial court's fact findings underlying its decision, "so long as those findings are

supported by sufficient credible evidence in the record." State v. Robinson,

200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We

defer to the credibility determinations of the trial court, particularly its review

of competing factual testimony, because these factual determinations "are

substantially influenced by [the trial court's] opportunity to hear and see the

witnesses and to have the 'feel' of the case, which a reviewing court cannot

enjoy." Elders, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161

(1964)). We reverse only when the determination is "so clearly mistaken 'that

the interests of justice demand intervention and correction.'" Ibid. (quoting

Johnson, 42 N.J. at 162).

      However, we need not defer to any legal conclusions reached from the

established facts. State v. Brown, 118 N.J. 595, 604 (1990) (holding that if
                                         10
                                                                           A-4781-16T1
"the trial court acts under a misconception of the applicable law," we need not

defer to its ruling). The trial court's application of the law is subject to plenary

review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.

2004).

      "The Fourth Amendment to the United States Constitution, and Article I,

paragraph 7 of the New Jersey Constitution require that police officers obtain a

warrant before searching a person's property, unless the search 'falls within one

of the recognized exceptions to the warrant requirement.'" State v. Cassidy,

179 N.J. 150, 159-60 (2004) (quoting State v. DeLuca, 168 N.J. 626, 631

(2001)); see also State v. Pena-Flores, 198 N.J. 6, 18 (2009). A warrantless

search is presumed invalid, which places the burden on the State to prove that

a search "falls within one of the few well-delineated exceptions to the warrant

requirement." State v. Pineiro, 181 N.J. 13, 19-20 (2004) (quoting State v.

Maryland, 167 N.J. 471, 482 (2001)).

      Because the subject incident occurred in May 2015, before the Supreme

Court issued its decision in State v. Witt, 223 N.J. 409 (2015), in September

2015, there is no dispute the holding in Pena-Flores controls and governs our




                                        11
                                                                          A-4781-16T1
review.1 198 N.J. at 28. In Pena-Flores, the Court held the warrantless search

of an automobile in New Jersey was permissible only

              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.

              [Ibid. (citations omitted).]

Here, the first two factors are not in dispute. The issue is whether exigent

circumstances existed to justify the warrantless search of defendant's car.

        In Pena-Flores, the Court held circumstances were deemed exigent if it

was "impracticable to obtain a warrant when the police have probable cause to

search the car." Id. at 23 (quoting State v. Colvin, 123 N.J. 428, 437 (1991)).

"[O]fficer safety and the preservation of evidence is the fundamental

inquiry[,]" id. at 29, because until the vehicle is seized by the police and

removed from the scene, "it is potentially accessible to third persons who

might move or damage it or remove or destroy evidence contained in it," State

v. Alston, 88 N.J. 211, 234 (1981).




1
    Pena-Flores was prospectively overruled in Witt, 223 N.J. at 449.
                                       12
                                                                          A-4781-16T1
      Exigency must be determined on a case-by-case basis and "[n]o one

factor is dispositive; courts must consider the totality of the circumstances."

Pena-Flores, 198 N.J. at 29. Although "[t]here is no magic formula – it is

merely the compendium of facts that make it impracticable to secure a

warrant[,]" ibid., the Court in Pena-Flores identified a non-exhaustive list of

factors a court must consider when determining the existence of exigent

circumstances. These factors 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.

            [Id. at 29-30.]

      Here, although the trial court stated exigent circumstances existed, it did

not identify what they were. We note it is undisputed that, when Delmauro

opened the glove compartment, defendant and Manns were at the back of the

vehicle and each was being guarded by a detective. Defendant and Manns

testified they were handcuffed when at the back of the vehicle; Delmauro was

                                        13
                                                                         A-4781-16T1
unable to remember with any certainty whether or not they were handcuffed

when he opened the glove compartment.

      The court did not make a finding whether defendant was credible when

he claimed he and Manns were handcuffed at the back of defendant's vehicle

while Delmauro entered the glove compartment. We are aware the court did

not find defendant credible when he testified he removed the registration and

insurance card from the glove compartment before the motor vehicle stop .

However, the court did not state whether it found defendant's testimony on

such point - which even the court characterized as minor - undermined

defendant's credibility on other matters about which he testified. In addition,

Manns testified he and defendant were handcuffed when Delmauro opened the

glove compartment. The court did not make a finding about Manns's

credibility on this particular assertion.

      The court's failure to make these critical credibility findings compels

that we remand this matter for the trial court to make the necessary findings

about the witnesses' credibility on material issues, explicitly address the

factors in Pena-Flores on the issue of exigent circumstances, and make express

findings on whether a warrant was required before defendant's car was

searched.

                                            14
                                                                         A-4781-16T1
      We also considered whether the protective sweep exception applies in

this matter. That exception authorizes the police to perform a warrantless

protective sweep of the passenger compartment of a vehicle when the totality

of circumstances support a reasonable suspicion that a driver or passenger is

dangerous and may gain immediate access to weapons. State v. Gamble, 218

N.J. at 431-32. The burden is on the State to present specific and articulable

facts that, considered with the rational inferences from those facts, support the

application of this exception. Ibid.

            The protective sweep exception in the automobile
            setting does not turn solely on the potential presence
            of a weapon in a vehicle. Instead, it addresses the
            imminent danger to police when a driver or passenger
            will be permitted access to a vehicle that may contain
            a weapon or may be in a position to evade or
            overpower the officers at the scene.

            [Robinson, 228 N.J. at 548.]

      In Robinson, the Court found the protective sweep exception did not

apply under the following facts. Late one evening in April 2012, a police

officer on patrol noticed a car on the roadway that was being driven

"unsafe[ly]." Id. at 536. The patrol officer activated his lights and conducted

a motor vehicle stop. Ibid. The patrol officer obtained identifying information

from the driver and his three passengers. Ibid. The dispatch officer

                                       15
                                                                        A-4781-16T1
subsequently informed the patrol officer that the driver had an outstanding

warrant for a drug offense and was known to carry weapons. Id. at 536-37. In

addition, one of the passengers had an outstanding traffic warrant. Ibid. The

patrol officer called for backup and four officers arrived. Id. at 537-38.

      The two occupants who had warrants were removed from the car,

arrested and handcuffed; no weapons were found in their possession. Id. at

537-38. After they stepped out of the car, the officers frisked the other two

occupants, who did not possess any weapons. They were detained, but not

handcuffed, on the roadside and monitored by the officers. Id. at 538. There

was no evidence any of the four occupants of the car reached for a weapon or

any other object in the car, and none resisted the officers' directions. Id. at

537-38.

      One of the officers conducted a sweep of the interior of the car to check

for weapons. Id. at 538. After searching the front driver and passenger areas,

the officer picked-up a purse that was lying on the front passenger seat. Ibid.

Feeling what he suspected was a handgun, the officer opened and discovered a

handgun in the purse. Id. at 538-39. The police decided to seek a search

warrant, and arranged to have the vehicle towed and impounded. Id. at 539.




                                        16
                                                                         A-4781-16T1
      The Court determined the protective sweep exception did not permit the

police to search the car without a warrant. Id. at 549. The Court

acknowledged that, given the dispatcher's report, one could have had

reasonable suspicion a weapon might be inside the vehicle, and the fact

weapons were not found on the occupants when frisked did not remove the

need for concern. Id. at 548 (citing Gamble, 218 N.J. at 432-33). However,

the Court found the officers' "swift and coordinated action eliminated the risk

that any of the four occupants would gain immediate access to the weapon [in

the purse on the front seat]." Id. at 535. Specifically, the Court noted:

            Because [the officer who stopped the vehicle]
            summoned four backup officers, the officers
            outnumbered the occupants of the vehicle. The
            officers arrested, frisked, handcuffed, and took into
            custody the two individuals with outstanding warrants
            . . . . They directed [the other two occupants], who
            were cooperative, to an area away from the vehicle
            and carefully monitored them. The officers thus
            assumed and maintained control of the vehicle and the
            scene. In light of that prudent police work, none of
            the four occupants was given an opportunity to return
            to the car. None was in a position to gain access to
            any weapon – the handgun in the vehicle, or the
            officers' service weapons – as might have happened
            had [the initial patrol officer] attempted to conduct the
            traffic stop alone, or with a single partner. In short,
            the record did not reveal specific and articulable facts
            that, at the time of [the] search of the vehicle, would
            reasonably warrant the conclusion that any of the

                                       17
                                                                        A-4781-16T1
             vehicle's four occupants was potentially capable of
             gaining "immediate control of weapons."

             Accordingly, we conclude that the search of the car
             was not within the protective sweep exception to the
             warrant requirement.

             [Robinson, 228 N.J. at 549 (citation omitted).]

      The Court's decision in Robinson underscores that, when determining

whether the protective sweep exception applies, there must be specific and

articulable facts that, at the time of the search of a vehicle, a person is capable

of gaining immediate control of a weapon or weapons in the vehicle. A trial

court must carefully consider the actual risk that exists. Whether that risk is

present includes but is not limited to a consideration of the ratio of police

officers to passengers; the ability of the police to keep passengers from

entering a vehicle; and the passengers' or passenger's willingness to cooperate

with the police .

      Here, the trial court did not have the benefit of the Robinson opinion,

decided approximately nine months after the trial court's ruling. Therefore, we

conclude the proper course of action is, in addition to remanding this matter

for the reasons previously stated, remand this matter for the trial court to

reconsider its ruling in light of the decision in Robinson.



                                        18
                                                                          A-4781-16T1
      In the event the search of the glove compartment is found to be illegal

under either one of the exceptions discussed, the trial court must also consider

whether the doctrine of inevitable discovery applies. See State v. Sugar (Sugar

II), 100 N.J. 214, 237 (1984). To reap the benefit of such doctrine, the State

will have to show by clear and convincing evidence that:

             (1) proper, normal and specific investigatory
             procedures would have been pursued in order to
             complete the investigation of the case; (2) under all of
             the surrounding relevant circumstances the pursuit of
             those procedures would have inevitably resulted in the
             discovery of the evidence; and (3) the discovery of the
             evidence through the use of such procedures would
             have occurred wholly independently of the discovery
             of such evidence by unlawful means.

             [Id. at 238.]

      Finally, the State contends the "driving documents" exception applies.

Under such exception, "a traffic violation may justify a search for things

relating to that stop." State v. Keaton, 222 N.J. 438, 448 (citing State v.

Boykins, 50 N.J. 73, 77 (1967)). Here, however, Delmauro admitted defendant

was not stopped because of a traffic violation. Moreover, Delmauro conceded

he went into the glove compartment in search of the handgun, not in search of

the registration and insurance card. Therefore, the documents exception does

not apply.

                                       19
                                                                         A-4781-16T1
      Reversed and remanded for further proceedings in conformity with this

opinion. We do not retain jurisdiction.




                                      20
                                                                    A-4781-16T1
