Opinion
DOCKET NO. A-1588-12T3
01-09-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WESTON A. SMITH, a/k/a WESDTON A. SMITH, POP SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-10-2345. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Weston A. Smith pleaded guilty to second-degree possession of heroin with intent to distribute after large amounts of heroin, marijuana, or cash were seized, without a warrant, from his person, the automobile in which he was a passenger, and another of the vehicle's occupants. Defendant appeals the denial of his motion to suppress that evidence. He also challenges, as excessive, his sentence to eight-and-one-half years imprisonment with fifty-one months of parole ineligibility, pursuant to the negotiated plea agreement. Upon our review, and in light of the record and applicable legal standards, we affirm.
I.
On the evening of August 5, 2008, Sergeant Sean Riggin of the Pleasantville Police Department responded to an anonymous tip of narcotics-related activity and proceeded to a residence known for drug dealing. Once there, he observed an unidentified male standing next to a black Toyota Camry counting money. The man handed something to defendant, who was sitting in the Toyota's front passenger seat. Shortly thereafter, the individuals became aware of the officer's presence and the man outside of the car turned and walked away rapidly. The Camry pulled forward, but stopped suddenly after the officer began following in his patrol car, forcing him to pass. As he passed, the officer observed three occupants, none of whom made eye contact with him, and the Camry's rear-seat passenger "moving something in the area near the [] pass[-]through" between the interior cabin and the trunk. The Camry began moving again, and the officer pulled over to allow it to pass. Following the Camry, the officer again observed the rear passenger attempting to operate the pass-through. Sergeant Riggin initiated a traffic stop when the vehicle failed to properly signal while turning. Although the Camry initially pulled to the curb, it proceeded forward for roughly 100 feet before coming to rest, all the while the rear passenger continued moving near the pass-through. As the officer approached the vehicle, a large crowd comprised mostly of juveniles gathered nearby. The windows of the vehicle were open and the officer smelled a strong odor of raw marijuana. He illuminated the interior cabin with his flashlight and saw the rear passenger awkwardly holding the pass-through closed with his shoulder and he had a large plastic bag protruding from his open pants zipper.
The officer called for backup and, when five more officers arrived, ordered the occupants out of the vehicle. Two other officers observed a large bulge in defendant's pants pocket, later determined to be $16,708. Defendant said it was his money and he was unemployed. Additionally, officers found 950 bags of heroin on the rear passenger's person. A K-9 unit was called and the dog indicated there were narcotics in the vehicle. The dog jumped through the open rear window and pulled a duffle bag from the pass-through. This caused the duffle to open, revealing several bags of marijuana. Defendant and the other occupants were arrested and the officer called for a tow-truck to come and impound the vehicle. At no point did the police attempt to obtain a search warrant.
Defendant was charged with: third-degree possession of heroin, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count two); second-degree possession of heroin with intent to distribute within 500 feet of a public housing facility, public park, or public building, N.J.S.A. 2C:35-7.1 (count three); fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3) (count four); second-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(10) (count five); second-degree possession of marijuana with intent to distribute within 500 feet of a public park or facility, N.J.S.A. 2C:35-7.1 (count six); and second-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5 (count seven).
Defendant moved to suppress the evidence seized as a result of the stop and warrantless search of the automobile and its occupants. After the trial court denied the motion, defendant pleaded guilty to count two, second-degree possession of heroin with intent to distribute. Pursuant to the negotiated plea agreement, the remaining charges were dismissed. The sentencing court accepted the State's recommendation and sentenced defendant to eight-and-one-half years imprisonment with fifty-one months of parole ineligibility. This appeal ensued.
II.
On appeal, defendant raises the following issues for our consideration:
POINT I
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE UNLAWFUL WARRANTLESS SEARCH AND SEIZURE OF THE DEFENDANT AND THE VEHICLE IN WHICH HE WAS AN OCCUPANT.
A. THE DETENTION WAS UNLAWFUL.
1. THE SCOPE OF THE DETENTION WAS UNDULY INTRUSIVE AND EXCEEDED THE PERMISSIBLE PARAMETERS AUTHORIZED BY THE LAW FOR THE PURPOSE OF ISSUING A MOTOR VEHICLE SUMMONS.
2. THE DETENTION OF THE DEFENDANT WAS UNLAWFUL.
a. THE DEFENDANT WAS ORDERED OUT OF THE CAR UNLAWFULLY WITHOUT A SHOWING THAT HE WAS INVOLVED IN ANY ILLEGAL ACTIVITY.
b. THE DEFENDANT WAS UNLAWFULLY DETAINED WITHOUT A SHOWING OF INDIVIDUALIZED REASONABLE SUSPICION.
B. THE SEARCH OF THE DEFENDANT FOR EVIDENCE OF NARCOTICS WAS UNSUPPORTED BY PROBABLE CAUSE.
C. THE WARRANTLESS SEARCH OF THE SEIZED VEHICLE WAS UNSUPPORTED BY EXIGENT CIRCUMSTANCES.
POINT II
THE DEFENDANT'S SENTENCE IS EXCESSIVE. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
When reviewing a motion to suppress, an appellate court "'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). "A trial court's findings should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Instead, the reviewing court "must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 336-37 (alteration in original) (quoting Johnson, supra, 42 N.J. at 161). Nevertheless, no deference is owed to the trial court's legal conclusions, which are subject to plenary review. State v. Gandhi, 201 N.J. 161, 176 (2010).
"'It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense.'" State v. Locurto, 157 N.J. 463, 470 (1999) (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). Here, the motion judge found the officer "observed [defendant's vehicle] turn onto South 3rd Street without [signaling]." This provided the necessary legal basis for the stop.
"[W]hen the reasonable inquiries by the officer related to the circumstances that justified the stop 'give rise to suspicions unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions.'" State v. Baum, 199 N.J. 407, 424 (2009) (second alteration in original) (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998)). Here, the judge found as the officer approached the vehicle, he "immediately smelled, according to his testimony which I accept as true, a strong order of raw marijuana." The officer observed an occupant of the vehicle "with his pants zipper open and a plastic bag protruding" therefrom. Further factual predicates justifying an investigatory stop identified by the judge included: the anonymous tip; the earlier exchange between an unknown male and the occupants of the vehicle; and the actions of the occupants prior to the stop.
"'New Jersey courts have recognized that the smell of marijuana itself constitutes probable cause that a criminal offense ha[s] been committed and that additional contraband might be present.'" State v. Walker, 213 N.J. 281, 290 (2013) (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 516-17 (2003)). As we have explained,
[u]nlike the smell of alcohol emanating from the passenger compartment of a stopped motor vehicle, or even on the breath of the driver, both of which might be lawful, using or possessing marijuana in a motor vehicle in New Jersey is a per se violation of the laws of this State. . . . Thus, the smell of burnt marijuana under the total circumstances created a heightened and reasonable suspicion that an offense was being committed.
[Ibid. (alteration in original) (quoting State v. Judge, 275 N.J. Super. 194, 202 (App. Div. 1994)).]
Having smelled the odor of raw marijuana and observed the rear passenger's pants zipper open with a plastic bag protruding therefrom, the officer clearly possessed not only the authority to conduct an investigative detention of the vehicle, but also probable cause to arrest defendant and the vehicle's other occupants.
Defendant additionally argues the trial judge erred by finding the warrantless search of the car was legally permissible. We disagree.
Under the New Jersey Constitution, there are three necessary elements to the automobile exception to the warrant requirement: "an unexpected stop, probable cause, and 'exigent circumstances . . . under which it is impracticable to obtain a warrant.'" State v. Minitee, 210 N.J. 307, 319-20 (2012) (alteration in original) (quoting State v. Pena-Flores, 198 N.J. 6, 28 (2009)). Here the stop was unexpected and probable cause existed.
In weighing whether exigent circumstances exist, we consider various factors, including
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 321 (quoting Pena-Flores, supra, 198 N.J. at 29).]
Here, in holding exigent circumstances were present, the judge found:
[T]he encounter took place at approximately [11:00] p.m. The location . . . was the New Hope housing complex. Immediately upon stopping the vehicle a large crowd [consisting] mostly of young juveniles approached and began asking questions, creating a substantial risk to all persons around there, including the officers. Furthermore, it was entirely possible that during the course of the investigation [] one of the juveniles or another person passing by could obtain possession of the CDS. The CDS was within plain view of the officers and would be able to be observed by anyone passing by . . . [S]ergeant Riggin . . . was there by himself and the three defendants, which caused him to call for back-up. The presence of a large group of people around the vehicle placed the officer in a serious safety risk and [risked] the safety of the evidence. Five officers responded for back-up . . . but they did not [outnumber] the defendants to such an extent that one or two could obtain a telephone warrant.
In sum, the factual findings of the motion judge support the determination that exigent circumstances relieved the police of the obligation to secure a warrant. Compare State v. Shannon, 419 N.J. Super. 235, 243 (App. Div.) (exigent circumstances under Pena-Flores lacking where vehicle stopped in a residential area, not late at night, defendant was alone in the presence of four officers, and no evidence "suggested that the police officers or potential evidence in the car were in danger"), certif. granted, 207 N.J. 188 (2011), appeal dismissed, 210 N.J. 225 (2012), with State v. Lewis, 411 N.J. Super. 483, 489-90 (App. Div. 2010) (finding exigent circumstances where a van stopped at night, in high crime and drug neighborhood, in view of others, and five or six people had congregated in the area).
Defendant also challenges his sentence. As his sentence was "imposed pursuant to a plea agreement[, it] "is presumed to be reasonable because [] defendant voluntarily '[waived] . . . his right to a trial in return for the reduction or dismissal of certain charges, recommendations as to sentence and the like.'" State v. Fuentes, 217 N.J. 57, 70-71 (2014) (third alteration in original) (quoting State v. Davis, 175 N.J. Super. 130, 140 (App. Div.), certif. denied, 85 N.J. 136 (1980)). Here, the trial judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court found no mitigating factors and sentenced defendant to an aggregate term of eight and one-half years, with fifty-one months parole ineligibility.
Defendant contends because the court only found offender-related aggravating factors and failed to engage in a "qualitative analysis" of those factors, the matter should be remanded for resentencing. We are convinced these arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2). We note, however, the record fully supports the aggravating factors found by the court. Defendant's record includes ten juvenile adjudications, as well as six convictions on indictable offenses, and three municipal court convictions as an adult.
We conclude the sentence imposed here is not manifestly excessive or unduly punitive, does not represent an abuse of the court's sentencing discretion, and does not shock the judicial conscience. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION