Opinion
DOCKET NO. A-3075-14T4
05-25-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHELSEA R. BERGEN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the briefs). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 14-03-0441. Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the briefs). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A Monmouth County grand jury charged defendant Chelsea Bergen with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). After the trial judge denied her motion to suppress evidence, defendant pled guilty to the charge. In accordance with the negotiated plea, the judge sentenced defendant to two years of probation, concurrent to a probationary term she was serving in another county, and assessed appropriate fines and penalties. Defendant appeals from the judge's denial of her suppression motion. We affirm.
The suppression hearing revealed the following facts. At approximately 8:37 p.m. on October 13, 2013, Trooper Kimberly Karpinski was on patrol when she observed a car where the driver was not wearing a seat belt. Based upon this traffic violation, the trooper conducted a motor vehicle stop.
There were four passengers in the car. Defendant was in the back seat with another individual. Trooper Karpinski walked up to the passenger side of the car and spoke to the driver through the open window. The driver did not have a driver's license. The trooper asked the driver to get out of the car and he complied. The trooper "patted down" the driver because he was acting nervous and "reaching for his back side." The trooper did not find any weapons.
Trooper Karpinski then spoke to the passengers, including defendant. During that conversation, the trooper smelled "burnt marijuana" coming from the car. Based upon the odor of marijuana, the trooper arrested defendant and the other occupants of the car.
Trooper Karpinski searched each occupant incident to their arrest. In defendant's knee-high boots, the trooper found four "wax folds" of heroin and several hypodermic needles. After searching the driver, the trooper found "a dime bag" of marijuana. The trooper did not find any contraband after searching the remaining two passengers.
The driver subsequently consented to a search of the car. During the search, Trooper Karpinski found three "folds" of heroin in a cigarette box that was inside a purse on the back seat of the car. The trooper found five additional "folds" of heroin inside a different purse in the trunk of the car.
After oral argument, the judge denied defendant's motion to suppress the heroin. The judge found that Trooper Karpinski had probable cause to arrest the occupants of the car after she smelled burnt marijuana. Based upon this valid arrest, the judge ruled that the heroin was properly seized during the search incident to the arrest. This appeal followed.
On appeal, defendant argues that "[t]he court erred in denying [her] suppression motion because the trooper lacked authority to make a warrantless arrest of all four occupants of a car based solely on the smell of marijuana." We disagree.
When reviewing an order granting or denying a motion to suppress evidence, we accept the trial court's findings of fact that are supported by sufficient credible evidence in the record. State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). Deference should be afforded to a trial judge's findings when they are "substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964) (citations omitted). If the trial court's decision is based upon a legal conclusion, "we conduct a de novo, plenary review." State v. Rockford, 213 N.J. 424, 440 (2013) (citations omitted). "A trial court's interpretation of the law . . . and the consequences that flow from established facts are not entitled to any special deference." Gamble, supra, 218 N.J. at 425.
The Fourth Amendment to the United States Constitution and article I, paragraph 7 of the New Jersey Constitution guarantee the right "of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. The Fourth Amendment and article I, paragraph 7 of the New Jersey Constitution both "require[] the approval of an impartial judicial officer based on probable cause before most searches may be undertaken." State v. Patino, 83 N.J. 1, 7 (1980). Warrantless searches are presumed invalid. Gamble, supra, 218 N.J. at 425; State v. Cooke, 163 N.J. 657, 664 (2000). "Any warrantless search is prima facie invalid, and the invalidity may be overcome only if the search falls within one of the specific exceptions created by the United States Supreme Court." State v. Hill, 115 N.J. 169, 173 (1989) (citing Patino, supra, 83 N.J. at 7). The State carries the burden of proving the existence of an exception by a preponderance of the evidence. State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009).
Among the exceptions created by the United States Supreme Court is the "search incident to arrest" exception. Hill, supra, 115 N.J. at 173 (citing Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)). "Under the search incident to arrest exception, the legal seizure of the arrestee automatically justifies the warrantless search of his [or her] person and the area within his [or her] immediate grasp." State v. Pena-Flores, 198 N.J. 6, 19 (2008) (quoting Chimel, supra, 395 U.S. at 762-63, 89 S. Ct. at 2040, 23 L. Ed. 2d at 694). "The purpose of such a search is (1) to protect the arresting officer[s] from any potential danger and (2) to prevent the destruction or concealment of evidence." State v. Dangerfield, 171 N.J. 446, 461 (2002). "[T]he ensuing search is valid even if there is no particular reason to believe that it will reveal evidence, contraband, or weapons." Pena-Flores, supra, 198 N.J. at 19 (citing New York v. Belton, 453 U.S. 454, 461, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d, 464, 467 (1990)).
Defendant argues that the trooper was not permitted to rely upon the smell of burnt marijuana coming from the car as probable cause justifying her arrest. She also contends that the Legislature's enactment of the Compassionate Use Medical Marijuana Act (the Act), N.J.S.A. 24:61-1 to -16, which permits individuals to possess and use marijuana under very strictly-regulated circumstances, provides further support for her assertion that the smell of marijuana does not constitute probable cause that a marijuana offense has been committed.
However, we recently rejected these identical arguments in State v. Myers, 442 N.J. Super. 287 (App. Div. 2015). In Myers, the trooper arrested three occupants of a car after "detect[ing] the odor of burnt marijuana coming from" it. Id. at 291. During the search incident to that arrest, the trooper found a handgun and a bag of marijuana in the defendant's jacket pockets. Ibid.
Like defendant, the defendant in Myers argued that the smell of burnt marijuana in the car was insufficient to constitute probable cause to arrest him. Id. at 295. However, after reviewing a long line of New Jersey cases rejecting similar arguments, id. at 295-97, we held that "the smell of marijuana itself can suffice to furnish probable cause that a criminal offense has been committed[.]" Id. at 297. Thus, we concluded that the smell of marijuana in the defendant's car gave the trooper in Myers "the right to arrest [the] defendant for committing an apparent marijuana offense in [the trooper's] presence." Ibid.
In Myers, we also rejected the defendant's argument that, due to the passage of the Act, "the odor of marijuana can no longer serve as a basis for probable cause that a marijuana offense is being committed." Id. at 290. In doing so, we held "that absent evidence the person suspected of possessing or using marijuana has a registry identification card, detection of marijuana by the sense of smell, or by the other senses, provides probable cause to believe that the crime of unlawful possession of marijuana has been committed." Id. at 303.
We discern no basis for departing from Myers under the circumstances presented in this case. When she was speaking to the passengers, Trooper Karpinski detected the smell of burnt marijuana coming from the car. As in Myers, this gave the trooper probable cause to arrest the passengers. The trooper's search of defendant incident to that arrest was therefore proper under Pena-Flores, supra, 198 N.J. at 19. Defendant also did not present a valid registry identification card similar to the defendant in Myers, supra, 442 N.J. Super. at 303. Therefore, the trial judge correctly denied defendant's suppression motion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION