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 

NOT FOR PUBLICATION WITHOUT THE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.
A-4781-16T1

2

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, 
A-4781-16T1

3

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.
A-4781-16T1

4

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 
A-4781-16T1

5

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.

. . . .
A-4781-16T1

6

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.
A-4781-16T1

7

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 
A-4781-16T1

8

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 
A-4781-16T1

9

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.
A-4781-16T1

10

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 
A-4781-16T1

11

"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 
A-4781-16T1

12

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.
A-4781-16T1

13

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 
A-4781-16T1

14

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.
A-4781-16T1

15

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
A-4781-16T1

16

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.
A-4781-16T1

17

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 
A-4781-16T1

18

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.
A-4781-16T1

19

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.
A-4781-16T1

20

Reversed and remanded for further proceedings in conformity with this 

opinion. We do not retain jurisdiction.