NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

In a four-count indictment (No. 06-07-0707), defendant Antuan J. Daniels was charged with third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count two); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a firearm in the course of committing a controlled dangerous substance offense, N.J.S.A. 2C:39-4.1(a) (count four).1 A separate indictment (No. 06-07-0710) charged defendant with second-degree possession of weapons (two handguns) by a prohibited person, N.J.S.A. 2C:39-7.

Following the denial of his motion to suppress, defendant entered a guilty plea to second-degree possession of cocaine with intent to distribute. In return for the guilty plea, the State agreed to dismiss the remaining three counts and the separate indictment. Consistent with the State's recommendation, the court imposed a custodial term of five years, with two-and-one-half years of parole ineligibility, concurrent with a sentence defendant was then serving. Defendant appeals from the order denying his motion to suppress the cocaine seized from the trunk of his vehicle. For the reasons that follow, we reverse.

At approximately 2:00 a.m. on April 30, 2006, Officer Robert Henderson (Henderson) of the Plainfield Police Department responded to a report of a shooting at a club in a high-crime area on Saint Mary's Avenue in Plainfield, New Jersey. Shortly thereafter, he received a radio transmission "that a silver or gray Dodge Charger was leaving the area at a high rate of speed." While on his way to the crime scene, Henderson observed a vehicle matching this description being driven by defendant. Marcellous Goines (Goines) was a passenger in the vehicle.

Henderson "turned on [his] overheads," and defendant's vehicle stopped in a "really well lit" municipal parking lot. Two more policemen, Officers Collina and Lordi, "pulled in right behind [Henderson]." A fourth, Officer Edwin Maldonado (Maldonado), arrived "a couple seconds" to "a minute" later. When questioned by Henderson, defendant stated that he and Goines were coming from Saint Mary's Avenue and indicated that they "heard the shots and got out of there."

Defendant and Goines were then asked to step out of the vehicle and were "patted . . . down for weapons." At that point, Maldonado "illuminated the inside [of the car] and saw two guns on the rear passenger floor." Both men were placed under arrest and handcuffed. Henderson notified central communications and called for a tow truck. The police then searched the rest of the vehicle and discovered "a quantity of drugs" in the trunk. At the time of the search, one suspect had been taken to police headquarters, and the other was secured in Henderson's squad car.

Henderson and Maldonado were the only witnesses to testify at the suppression hearing held on April 13, 2007. Henderson explained that the radio advisory was the "sole reason" he stopped the vehicle and that neither defendant nor Goines did anything to "arouse additional suspicions." With regard to the search of the trunk, Henderson explained:

Following the hearing, the court denied defendant's motion to suppress. In a letter opinion, the court found that "the stop of defendant's vehicle was proper" and "exigent circumstances existed to search the vehicle." The court concluded that the "two semi-automatic guns on the rear floor passenger side of the vehicle," which were in plain view, provided probable cause for "a search of the passenger compartment and trunk."

On appeal, defendant raises the following arguments:

We first address defendant's challenge to the stop. It is well-established that the Constitutions of the United States and New Jersey protect citizens from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "[T]he investigative stop of an automobile by police constitutes a seizure that implicates these constitutional protections." State v. Amelio, 197 N.J. 207, 211 (2008) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979); State v. Locurto, 157 N.J. 463, 470 (1999)). "A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed." State v. Carty, 170 N.J. 632, 639-40 (2002) (citing Prouse, supra, 440 U.S. at 663, 99 S. Ct. at 1401, 59 L. Ed. 2d at 673; Locurto, supra, 157 N.J. at 470); see also Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968).

"Reasonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest." State v. Stovall, 170 N.J. 346, 356 (2002) (citing State v. Citarella, 154 N.J. 272, 279 (1998); State v. Arthur, 149 N.J. 1, 8 (1997)). Nevertheless, "reasonable suspicion" requires more than just "`inarticulate hunches'" or "subjective good faith." Arthur, supra, 149 N.J. at 8 (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Instead, "the officer `must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'" Ibid. (alteration in original) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Because this inquiry is "highly fact sensitive," its application is not "`readily, or even usefully, reduced to a neat set of legal rules.'" State v. Nishina, 175 N.J. 502, 511 (2003) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989)).

We agree with the trial court that the police stop was proper. Defendant's car matched the description of a car leaving the scene of a shooting, and Hernandez saw defendant as he drove away from that very area.2 Furthermore, the encounter occurred shortly after Henderson received the radio alert. These facts are sufficient to establish a "reasonable suspicion" justifying an investigatory stop.3

However, defendant's argument concerning the search of the trunk warrants closer inspection. We first conclude that the intrusion was not justified under the search incident to arrest exception. The New Jersey Supreme Court has made it clear that "[o]nce the occupant of a vehicle has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception is inapplicable." State v. Eckel, 185 N.J. 523, 541 (2006). However, where a vehicle occupant has been arrested but not removed, the court must determine "on a case-by-case basis whether he or she was in a position to compromise police safety or to carry out the destruction of evidence, thus justifying resort to the search incident to arrest exception." Ibid.

Henderson's testimony establishes that by the time the vehicle was searched, both defendant and Goines had been placed under arrest, handcuffed, and either removed from the scene or secured within a squad car. Therefore, there are no grounds to support a search incident to arrest. See ibid.

The State further asserts that the intrusion into the trunk was justified under the "automobile exception." Under this doctrine, "the warrantless search of an automobile in New Jersey is permissible where (1) the stop was 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." State v. Pena-Flores, 198 N.J. 6, 28 (2009) (citing State v. Cooke, 163 N.J. 657, 667-68 (2000); State v. Alston, 88 N.J. 211, 230-34 (1981)).

The purposes of the automobile exception are "police safety and the preservation of evidence." Id. at 20. There are two primary rationales that distinguish vehicular searches: "(1) the ready mobility of the vehicle and the inherent potential for loss or destruction of evidence before a warrant is obtained; and (2) the decreased expectation of privacy in motor vehicles, which are subject to extensive government regulation." Ibid.

A determination of exigent circumstances turns largely on "whether `the circumstances . . . make it impracticable to obtain a warrant when the police have probable cause to search the car.'" Id. at 23 (emphasis and footnote omitted) (quoting State v. Colvin, 123 N.J. 428, 437 (1991)). However, like probable cause, exigency is a fact-sensitive issue to be determined in light of the totality of the circumstances. Id. at 28-29 (citing State v. Dunlap, 185 N.J. 543, 551 (2006); Cooke, supra, 163 N.J. at 675).

As the Court has indicated, "[l]egitimate considerations [regarding exigency] are as varied as the possible scenarios surrounding an automobile stop." Id. at 29. Nevertheless, in State v. Pena-Flores, supra, 198 N.J. at 29, the Court provided a non-exhaustive list of factors to be considered:

Applying these factors to the present case, we find that no exigency existed to justify the warrantless search of the vehicle's trunk. Henderson testified that the stop occurred in a well-lit parking lot, and neither he nor Maldonado indicated the presence of any additional civilians. Moreover, the officers at the scene outnumbered defendant and Goines two-to-one, and according to Henderson, the suspects did nothing to "arouse additional suspicions." Finally, defendant and Goines had already been placed under arrest and handcuffed when the trunk was searched, and once the guns in the backseat were seized, all foreseeable threats to the police had been eliminated. Thus, as in Pena-Flores, "[t]he vehicle could have been impounded or one officer could have remained with it while a warrant was sought by telephone or in person. There was simply no urgent, immediate need for the officers to conduct a full search of the automobile." Id. at 32 (citing Dunlap, supra, 185 N.J. at 550).

The facts of this case are similar to those of State v. Minitee, 415 N.J.Super. 475 (App. Div. 2010). There, officers pursued a car from the scene of an armed robbery to a dead end street, where they apprehended its two occupants. Id. at 478-80. The police took the vehicle into custody, towed it, and performed a warrantless search that uncovered several pieces of incriminating evidence. Id. at 480. This court found the search was not permissible because "whatever exigent circumstances may have existed with respect to the [vehicle] dissipated" after its occupants had been arrested. Id. at 485. Therefore, "there was no danger that the evidence would be lost, compromised, or destroyed." Ibid. As in Minitee, the officers here had no grounds to fear for their safety or the security of any evidence in the vehicle.

In addition, we note that the facts of this case are distinguishable from State v. Lewis, 411 N.J.Super. 483 (App. Div. 2010), where exigent circumstances did justify a warrantless search under the automobile exception. Id. at 490. That finding, however, was based on three critical facts, none of which are present here: (1) the suspect vehicle was stopped "at a location where it could be readily observed by persons in the neighborhood," including the occupants' known confederates; (2) there were as many suspects as officers present at the time of the search; and (3) the search took place before the suspects had been arrested. Id. at 489-90. Under those circumstances, there was a significant risk that any evidence contained in the car could be moved or destroyed before the police had time to obtain a warrant.

The facts before us render Lewis's holding inapposite. Henderson stopped defendant's vehicle in a parking lot with no one else present; Henderson was assisted at all times by three other officers; and both defendant and Goines had already been arrested and secured when the trunk was searched.

In view of the foregoing, the record does not support the trial court's finding of exigency. Accordingly, the April 16, 2007 order denying defendant's motion to suppress is reversed, and the matter is remanded to the Law Division for further proceedings consistent with this opinion.

Reversed and remanded.