(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued January 30, 2001 -- Decided July 10, 2001
VERNIERO, J., writing for a Unanimous Court.
On an evening in December 1995, Paul Palazzo drove Gino DeLuca to a food mart in Millstone
(Monmouth County). Wearing a blue ski mask and armed with a pistol, DeLuca entered the food mart and
demanded money from a worker. When the worker did not immediately comply, DeLuca struck his head repeatedly
with the pistol. The worker escaped, running out the front door of the store. DeLuca chased the worker, firing a
shot in his direction.
An attendant at a local gas station called the police, and Officer Steven Gonzalez of Hillsborough
Township responded. A passerby informed the officer that a man was on Hamilton Road attempting to flag down
passing cars. Officer Gonzalez did not find the man but he did see a set of footprints that led him and another
officer to DeLuca, who trying to hide by covering himself with snow. The officers arrested DeLuca, searched him,
and seized his pager.
After a brief stop at the police station where DeLuca complained of frostbite, the police had an ambulance
take DeLuca to St. Peter's Hospital. Officer Gonzalez rode with DeLuca and carried DeLuca's pager. A State
Police Detective, Robert Roseman, followed in a separate vehicle. On the way to the hospital, DeLuca's pager
registered the receipt of a page.
At the hospital, Gonzalez gave the pager to Roseman. The detective confirmed that the pager was
activated and that it had recently received a page. Roseman scrolled through the pager, retrieving three telephone
numbers as well as the times at which those numbers were received. The numbers later helped the State prove that
Palazzo was DeLuca's accomplice. Through DNA evidence, DeLuca was linked to a blue ski mask that was found
near the scene of the crime.
DeLuca and Palazzo were indicted for armed robbery and related weapons offenses. Prior to trial, DeLuca
moved to suppress the evidence obtained from the pager. At the suppression hearing, Detective Roseman testified
that he was familiar with the kind of pager seized from DeLuca. Roseman inferred that the numbers could lead to
DeLuca's accomplice. He also testified that he assumed that DeLuca's pager could hold only a finite number of
pages in its memory and that as a new page was received, the oldest page would be deleted.
The trial court denied the motion, holding that the seizure of the pager was valid as an incident to DeLuca's
arrest. Thereafter, a jury convicted DeLuca on all counts. He then pled guilty to an unrelated indictment and
received an aggregate prison term of twenty-five years with a parole ineligibility term of nine and one-half years.
DeLuca appealed, raising several arguments. In affirming the convictions and sentence, the Appellate
Division rejected the trial court's conclusion that the search of the pager was performed incident to DeLuca's arrest.
It went on, however, to conclude that the search was justified by exigent circumstances that faced the police on the
night of the robbery.
The Court granted DeLuca's petition for certification, primarily to address the issues related to the search
of the pager.
HELD: Under the facts and circumstances of this case, the warrantless search of defendant's pager was permissible
under the federal and State constitutions due to exigent circumstances.
1. Because the Court agrees that the search was valid due to exigent circumstances, it does not need to address
whether the retrieval of information by the police was also valid as incident to a lawful arrest. (p. 2)
2. The State does not dispute that the retrieval of data from the pager constituted a “search” under the federal and
State constitutions. Exigent circumstances may excuse the need for the police to obtain a warrant. “Exigent
circumstances” take on form and shape depending on the facts of any given case. Application of the doctrine of
exigent circumstances therefore demands a fact-sensitive, objective analysis that includes many factors. In this case
the factors would include the degree of urgency and the amount of time necessary to obtain a warrant; the
reasonable belief that evidence was about to be lost, destroyed, or removed from the scene; the seriousness of the
offenses involved; the possibility that the suspect was armed or dangerous; and the strength or weakness of the
underlying probable cause determination. (pp. 6-8)
3. Under the totality of the circumstances, the State sustained its burden of justifying the search as being objectively
reasonable. When the search occurred, DeLuca's accomplice was still at large. The police knew that a weapon had
been fired, so they had reason to assume that the accomplice was armed and dangerous. Moreover, the police
appropriately inferred that the pager had information that related to the robbery and that the information could be
lost if additional pages were received. (pp. 8-10)
As MODIFIED, the judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, LaVECCHIA, and
ZAZZALI join in JUSTICE VERNIERO's opinion.
SUPREME COURT OF NEW JERSEY
A-
82 September Term 1999
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GINO A. DeLUCA,
Defendant-Appellant.
Argued January 30, 2001 -- Decided July 10, 2001
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
325 N.J. Super. 376 (1999).
Philip V. Lago, Designated Counsel, argued
the cause for appellant (Peter A. Garcia,
Acting Public Defender, attorney).
Michael J. Williams, Deputy Attorney
General, argued the cause for respondent
(John J. Farmer, Jr., Attorney General of
New Jersey, attorney).
Gino A. DeLuca submitted a supplemental
brief pro se.
The opinion of the Court was delivered by
VERNIERO, J.
The principal issue in this appeal is whether exigent
circumstances or some other exception to the warrant requirement
justified the warrantless search of defendant's electronic pager
device. The trial court concluded that the police had been
justified in retrieving the information from the pager as a
search incident to defendant's lawful arrest. The Appellate
Division disagreed, finding that the search of the pager was not
reasonably contemporaneous with the arrest. State v. DeLuca,
325 N.J. Super. 376, 388 (App. Div. 1999). The panel, however,
sustained the search on an alternative basis proffered by the
State. Given the possibility that the information stored in
defendant's pager could have been erased easily or deleted by
additional incoming calls, the court concluded that the
warrantless search was valid on the ground of exigent
circumstances. Id. at 389-92.
We agree with the Appellate Division in respect of exigent
circumstances. In view of that conclusion, we need not address
whether the retrieval of information by the police also was valid
as an incident to a lawful arrest. With that modification, we
affirm the judgment of the Appellate Division.
An attendant at the gas station called the police, and Officer Steven Gonzalez of Hillsborough Township responded. A passerby informed the officer that a man was on Hamilton Road attempting to flag down passing cars. The officer investigated but did not see the man. He did see, however, a set of footprints that led him and another officer to defendant, who was trying to hide by covering himself in snow. The officers arrested defendant, searched him, and seized his pager.
After a brief stop at police headquarters during which defendant complained of frostbite, the police called for an ambulance to take defendant to St. Peter's Hospital. Officer Gonzalez rode to the hospital with defendant and carried the pager as State Police Detective Robert Roseman followed in a separate vehicle. On the way to the hospital defendant's pager sounded its tone or vibrated, indicating that it had received a page.
At the hospital Officer Gonzalez gave the pager to Detective Roseman. The detective noticed that the pager was activated and that it had recently received a page. He “scrolled” through the pager, retrieving three telephone numbers as well as the times at which those numbers were received. The telephone numbers obtained from the pager helped the State later prove that Palazzo was defendant's accomplice. Through the use of DNA analysis, the police successfully linked defendant to a blue ski mask found near the scene of the crime.
Defendant was indicted with Palazzo in August 1996 for conspiracy to commit armed robbery (N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1), armed robbery (N.J.S.A. 2C:15-1), possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4(a)), and unlawful possession of a firearm (N.J.S.A. 2C:39-5(b)). (The third and fourth counts against Palazzo were subsequently dismissed.) Prior to trial, defendant moved to suppress the evidence obtained from the pager on the ground that it was the fruit of a warrantless search in violation of his constitutional rights. At the suppression hearing, Detective Roseman testified that he was familiar with the kind of pager seized from defendant. The detective had inferred from the numbers on the pager (two of which had the suffix “911") that they could have led the police to the driver of the getaway car. That person, Palazzo, had been at large at the time of the search. Detective Roseman also testified that on the night of the incident he had assumed that defendant's pager could store only a finite number of pages in its electronic memory, and that once that capacity was reached, the pager would automatically delete the oldest message each time it received a new one.
The trial court denied defendant's motion, holding that the warrantless search of the pager was permissible because it occurred as an incident to the arrest. Thereafter, a jury convicted defendant on all counts. Defendant then pleaded guilty to unrelated counts of robbery and terroristic threats. In May 1998, the trial court sentenced defendant to an aggregate term of twenty-five years imprisonment with a nine and one-half year period of parole ineligibility.
Defendant appealed on several grounds, including that his motion to suppress had been erroneously denied. The Appellate Division rejected that argument. The Appellate Division focused its opinion on the denial of the suppression motion. The court agreed that the police properly obtained the information from the pager, but rejected the trial court's reasoning that the search was performed incident to the arrest. DeLuca, supra, 325 N.J. Super. at 388-89. Instead, the panel concluded that the search was justified by the exigent circumstances facing the police on the night of the robbery. Id. at 389-92.
Defendant also asserted that the trial court had committed numerous errors and that he had received ineffective assistance of counsel. We affirm the Appellate Division's rejection of those claims substantially for the reasons expressed in the opinion below. Id. at 392-94. We granted defendant's petition for certification, 163 N.J. 79 (2000), primarily to address the issues related to the search of the pager.
Once a court determines that a warrantless search has occurred, its inquiry shifts to whether the search fits within a valid exception to the warrant requirement. Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S. Ct. 1727, 1731, 18 L. Ed.2d 930, 935 (1967); State v. Lund, 119 N.J. 35, 37-38 (1990). In that regard, the burden is on the State to prove that its search was permissible. Vale v. Louisiana, 399 U.S. 30, 34, 90 S. Ct. 1969, 1972, 26 L. Ed.2d 409, 413 (1970); State v. Henry, 133 N.J. 104, 110, cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed.2d 436 (1993).
Exigent circumstances may excuse the need for the police to obtain a warrant. State v. Lewis, 116 N.J. 477, 483 (1989) (citing Vale, supra, 399 U.S. at 34-35, 90 S. Ct. at 1971-72, 26 L. Ed. 2d at 413-14). Generally stated, circumstances are exigent when they “preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both.” State v. Smith, 129 N.J. Super. 430, 435 (App. Div.), certif. denied, 66 N.J. 327 (1974). We have noted in other contexts 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.” Cooke, supra, 163 N.J. at 676. Consequently, the application of the doctrine of exigent circumstances demands a fact-sensitive, objective analysis. State v. Bruzzese, 94 N.J. 210, 219 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed.2d 695 (1984).
In determining whether exigency exists in a given instance, courts consider many factors. In this case, the pertinent factors would include the degree of urgency and the amount of time necessary to obtain a warrant; the reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene; the severity or seriousness of the offense involved; the possibility that a suspect was armed or dangerous; and the strength or weakness of the underlying probable cause determination. DeLuca, supra, 325 N.J. Super. at 391 (citing State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990)). See generally Cooke, supra, 163 N.J. at 667 (outlining numerous cases in which exigency was present); State v. Hutchins, 116 N.J. 457, 463-68 (1989) (same).
Other courts have reasoned similarly and held that the warrantless retrieval of telephone numbers from a pager display is constitutionally permissible. In United States v. Romero- Garcia, 991 F. Supp. 1223 (D. Or. 1997), aff'd, 168 F.3d 502 (9th Cir. 1999), the district court denied the defendant's motion to suppress evidence retrieved from his pager. In that case, the police discovered the defendant's pager on his person about two hours after his arrest “as part of a significant, multi-defendant cocaine distribution conspiracy investigation.” Id. at 1224, 1225. The court found that the police search of the numbers on the pager was permissible because the police reasonably believed that the information could be lost if other numbers interceded, if the pager was turned off, or if the batteries ran out. Id. at 1225. See also Bullock, supra, 277 Cal. Rptr. at 65 (validating warrantless search of pager under exigent-circumstances exception to obtain “the electronic information before it became stale or was obliterated by successive incoming messages”).
Lastly, “[w]e emphasize that there is a constitutional preference for a warrant, issued by a neutral judicial officer, supported by probable cause.” Cooke, supra, 163 N.J. at 670. However, when the police act reasonably in the face of genuine exigency, their warrantless conduct is sustainable as part of the balancing of interests that constitutes the bulk of our search- and-seizure jurisprudence. Stated differently, the core inquiry in this setting is whether the police conduct was objectively reasonable under the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 421, 136 L. Ed.2d 347, 354 (1996); State v. Stelzner, 257 N.J. Super. 219, 229 (App. Div.), certif. denied, 130 N.J. 396 (1992). For the reasons already noted, the conduct here satisfies that test.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, LaVECCHIA, and ZAZZALI join in JUSTICE VERNIERO's opinion.
NO. A-82 SEPTEMBER TERM 1999
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GINO A. DeLUCA,
Defendant-Appellant.
DECIDED July 10, 2001
Chief Justice Poritz PRESIDING
OPINION BY Justice Verniero
CONCURRING OPINION BY
DISSENTING OPINION BY