Opinion
A-2525-20
01-20-2023
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JUAN C. GARCIA-HERNANDEZ, d/b/a JUAN GARCIA-HERNANDEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief; Tiffany J. Barlow, on the brief). Raymond S. Santiago, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
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.
Submitted December 7, 2022.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 18-10-1285.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief; Tiffany J. Barlow, on the brief).
Raymond S. Santiago, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Haas and Gooden Brown Judges.
PER CURIAM
After the trial judge denied his motion to suppress evidence seized without a warrant, defendant Juan Garcia-Hernandez entered a negotiated guilty plea to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1), and was sentenced to six years of imprisonment, with a forty-two-month period of parole ineligibility in accordance with the Graves Act, N.J.S.A. 2C:43-6(c). Pursuant to Rule 3:5-7(d), defendant now appeals from the denial of his suppression motion. Based on our review of the record and the applicable legal principles, we affirm.
We glean these facts from the April 16, 2019 suppression hearing, during which the State presented the testimony of Detective Gabriel Carrasquillo, a thirteen-year veteran of the Asbury Park Police Department, the audio of the 9-1-1 call placed by Carrasquillo prior to defendant's arrest, and the video recording of the police interaction with defendant from the body worn camera (BWC) of responding Officer Jonathan DiOrio. Defendant presented the testimony of DiOrio as well as Officer William Whitley, Jr. and Lieutenant Kamil Warraich, both of whom also responded to the 9-1-1 call.
According to Carrasquillo, around 6:00 a.m. on July 26, 2018, while he was off duty and walking his dog, he observed an individual later identified as defendant standing "between two bushes" on residential property at the corner of Fifth Avenue and Bergh Street in Asbury Park. At the time, defendant was wearing "camouflage pants, a black jacket" with "[t]he hood portion . . . over his head," and a black "ski mask . . . over his face." Carrasquillo then observed defendant "squat[] down low next to the bush[es]" when someone came out of a nearby building. Finding defendant's behavior "[v]ery suspicious," Carrasquillo placed a 9-1-1 call, during which he described to the dispatcher defendant's conduct and physical appearance and requested "a marked patrol vehicle or unit" to investigate. Approximately two minutes later, DiOrio and Warraich responded together in a marked patrol car and in full uniform, followed shortly thereafter by Whitley.
At that point, Carrasquillo observed defendant exit "a fenced area" between two residences on Bergh Street "with the mask still on." When Carrasquillo ordered defendant to come forward and remove his mask, defendant complied. Once defendant removed his mask, Carrasquillo recognized him from a prior investigation in which defendant had been the target of a shooting. According to Carrasquillo, as defendant approached, he detected "a strong odor of [burnt] marijuana emanating from [defendant's] person." Carrasquillo questioned defendant about the odor while "rais[ing] up [defendant's] jacket to expose his waistband" and defendant admitted that he had been "smoking" in the fenced-in side yard where he had exited. Consistent with Carrasquillo's testimony, DiOrio testified that he "smelled [marijuana]" at the scene, and Warraich testified that defendant "had the odor of marijuana on him."
Now surrounded by four officers, defendant was asked to produce identification, which he provided to Whitley. Carrasquillo stated that while Whitley checked for outstanding warrants, DiOrio searched defendant's "back pants pockets" and "pull[ed] out [a] white charger cable" while Warraich "did a more . . . official pat down" of defendant "for weapons or any items that could hurt . . . an officer or someone else."
Carrasquillo testified that during the pat down, although defendant was ordered "[t]o keep his hands away from his waist" and "on top of his head," defendant repeatedly disregarded the command. When defendant "tr[ied] to move his hands away from his head," DiOrio grabbed defendant's arms and lifted them, at which point Carrasquillo observed "a bulge" in defendant's waistband. After Carrasquillo "point[ed] to the direction" of the bulge, Warraich advised defendant he was "under arrest," "unzipped [defendant's] hooded sweatshirt," "reached down" into defendant's waistband, and ultimately "retrieved a .38 [s]pecial revolver" with a "defaced" serial number. The gun "was loaded with three bullets."
After recovering the gun, the arresting officers brought defendant to the ground and secured him with handcuffs. A subsequent search failed to uncover marijuana or paraphernalia on defendant's person or in the area of defendant's arrest. Defendant was then transported to the Asbury Park Police Department where he was administered Miranda warnings, waived his rights, and provided Carrasquillo with a formal statement.
Miranda v. Arizona, 384 U.S. 436 (1966).
A Monmouth County Grand Jury subsequently returned a four-count indictment charging defendant with fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count one); fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1(a) (count two); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count three); and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count four).
Following oral argument on the motion, in a May 6, 2019 order, the judge denied defendant's motion to suppress the gun. In an accompanying written opinion, the judge credited the testimony of all four officers, finding their testimony largely consistent. In particular, the judge noted that Carrasquillo's testimony was "honest," "very straightforward," and "uncontroverted." Accordingly, the judge made factual findings consistent with Carrasquillo's testimony.
Defendant also moved to exclude his on-the-scene admission that he had smoked marijuana as well as his stationhouse statement. However, defendant's appeal only challenges the denial of his motion to suppress the gun. Nonetheless, we note briefly that the judge excluded defendant's on-the-scene statement after finding "[d]efendant was in custody and subject to interrogation before being issued Miranda warnings," but denied defendant's motion to exclude his stationhouse statement, finding it "was sufficiently attenuated from [d]efendant's on-the-scene questioning."
Applying the factual findings to the governing principles, first, the judge concluded "Carrasquillo conducted a lawful investigatory stop." The judge found that "Carrasquillo's first-hand observations, coupled with [d]efendant's suspicious behavior" provided Carrasquillo with "a reasonable and articulable suspicion to believe [d]efendant was engaging or about to engage in criminal activity." In support, the judge pointed to the fact that "[d]efendant's appearance was inappropriate for the weather," noting that Carrasquillo had observed defendant "[i]n the middle of summer . . . wearing a ski mask, a black jacket with the hood over his head, and camouflage pants." The judge also relied on Carrasquillo's observation of defendant "standing between bushes near a residence" and "crouch[ing] behind the bush when an individual exited a nearby residence."
Next, the judge found that Carrasquillo's reasonable suspicion ripened into "probable cause . . . during the investigatory stop." Relying on State v. Myers, 442 N.J.Super. 287, 303 (App. Div. 2015), the judge, determined that "the officers had probable cause to arrest [d]efendant the moment . . . Carrasquillo detected the odor of marijuana." Finally, the judge determined that because "the officers had probable cause to arrest [d]efendant the moment . . . Carrasquillo detected the odor of burnt marijuana emanating from [d]efendant's person," the search of defendant that uncovered the handgun was valid under the search incident to arrest exception to the warrant requirement.
In rejecting defendant's contention that the search was unlawful based on the timing of the search in relation to the arrest, the judge acknowledged that "the physical search of [d]efendant started before the officers formally announced [d]efendant was under arrest." However, the judge reasoned that under State v. O'Neal, 190 N.J. 601, 614-15 (2007), "the actual arrest need not precede the search." The judge explained:
[T]he search of [d]efendant was "substantially contemporaneous" with [d]efendant's arrest. The officers announced [d]efendant was under arrest within two minutes of confronting [him]. . . . It was only after . . . Carrasquillo detected the odor of burnt marijuana that he . . . observed a bulge near the waistband area in the front of [d]efendant's pants. Thus, the officers' right to arrest [d]efendant arose before the search took place.
On appeal, defendant raises the following point for our consideration:
POINT I
THE TRIAL COURT ERRONEOUSLY FOUND THAT THE WARRANTLESS SEARCH OF DEFENDANT'S PERSON WAS JUSTIFIED AS A SEARCH INCIDENT TO A LAWFUL ARREST[.]
A. Any Suspicion Of Marijuana That Officer Carrasquillo May Have Had Did Not Arise Before The Search Commenced. Rather, The Search Was Already Well Underway By The Time The Officer Made The Fleeting Inquiry Regarding Marijuana.
B. There Was No Credible Evidence In The Record To Support A Finding That The Officer Smelled An Odor Of Marijuana Sufficient To Establish Probable Cause For Arrest.
"Our standard of review on a motion to suppress is deferential -- we '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. Goldsmith, 251 N.J. 384, 398 (2022) (quoting State v. Ahmad, 246 N.J. 592, 609 (2021)). However, we owe no deference to "[a] trial court's interpretation of the law," and review "de novo" the "trial court's legal conclusions." State v. Lamb, 218 N.J. 300, 313 (2014).
The crux of defendant's arguments on appeal is that the judge's factual findings are not supported by the record. However, we are satisfied the judge's factual findings are amply supported by sufficient credible evidence in the record and therefore turn to our de novo review of the judge's legal conclusions. We begin our analysis by considering whether the warrantless search at issue was justified.
"Warrantless searches are permissible only if justified by one of the few specifically established and well-delineated exceptions to the warrant requirement." State v. Robinson, 228 N.J. 529, 544 (2017) (internal quotation marks omitted) (quoting State v. Witt, 223 N.J. 409, 422 (2015)). "It is the State's burden to prove that a warrantless search falls within one or more of those exceptions." Ibid.; see also State v. Chisum, 236 N.J. 530, 545 (2019) ("'[T]he State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure falls within one of the few well-delineated exceptions to the warrant requirement.'" (quoting State v. Mann, 203 N.J. 328, 337-38 (2010))). The exceptions to the warrant requirement relevant to the facts presented here are an investigatory stop and a search incident to arrest.
An investigatory stop, also referred to as an investigative detention, "'occurs during a police encounter when "an objectively reasonable person" would feel "that his or her right to move has been restricted."'" Chisum, 236 N.J. at 545 (quoting State v. Rosario, 229 N.J. 263, 272 (2017)). "Because an investigative detention is a temporary seizure that restricts a person's movement, it must be based on an officer's 'reasonable and particularized suspicion . . . that an individual has just engaged in, or was about to engage in, criminal activity.'" Ibid. (alteration in original) (quoting Rosario, 229 N.J. at 272). Thus, "[a]n investigative detention is permissible 'if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" Id. at 545-46 (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)). "Conversely, an investigative detention 'may not be based on arbitrary police practices, the officer's subjective good faith, or a mere hunch.'" Id. at 546 (quoting State v. Coles, 218 N.J. 322, 343 (2014)).
[I]n determining the lawfulness of an investigatory stop, a reviewing court must "evaluate the totality of circumstances surrounding the police-citizen encounter, balancing the State's interest in effective law
enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions." An investigative detention that is premised on less than reasonable and articulable suspicion is an "unlawful seizure," and evidence discovered during the course of an unconstitutional detention is subject to the exclusionary rule.
[Ibid. (alteration in original) (citations omitted) (first quoting State v. Privott, 203 N.J. 16, 25-26 (2010); and then quoting State v. Elders, 192 N.J. 224, 247 (2007)).]
"It is fundamental to a totality of the circumstances analysis of whether reasonable suspicion exists that courts may consider the experience and knowledge of law enforcement officers." State v. Stovall, 170 N.J. 346, 363 (2002).
The search incident to arrest exception "was limned for two specific purposes-the protection of the police and the preservation of evidence." State v. Eckel, 185 N.J. 523, 524 (2006). To that end, "the legal seizure of the arrestee automatically justifies the warrantless search of his person and the area within his immediate grasp." State v. Pena-Flores, 198 N.J. 6, 19 (2008) (citing Chimel v. California, 395 U.S. 752, 762-63 (1969)), overruled on other grounds by Witt, 223 N.J. at 450. "So long as there is probable cause to arrest, the ensuing search is valid even if there is no particular reason to believe that it will reveal evidence, contraband, or weapons." Ibid. (citing New York v. Belton, 453 U.S. 454, 461 (1981)).
When law enforcement has probable cause to arrest, it is not unlawful to search the individual prior to placing him or her under arrest. O'Neal, 190 N.J. at 614-15. "It is the 'right to arrest,' rather than the actual arrest that 'must preexist the search.'" Id. at 614 (quoting State v. Doyle, 42 N.J. 334, 342 (1964)). In O'Neal, our Supreme Court reasoned that "the proper inquiry for determining the constitutionality of a search and seizure is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable, without regard to his or her underlying motives or intent." Ibid. (quoting State v. Bruzzese, 94 N.J. 210, 219 (1983), abrogated in part by State v. Gonzales, 227 N.J. 77, 101 (2016)). "As long as the right to arrest pre-existed the search, and the 'arrest is valid independently of, and is not made to depend on, the search or its result,' the search will not be invalidated 'simply because in precise point of time the arrest does not precede the search.'" Id. at 614-15 (quoting Doyle, 42 N.J. at 343).
Still, "[a] warrantless arrest may be made only where there is probable cause." State v. Sims, 75 N.J. 337, 353 (1978) (citing Wong Sun v. United States, 371 U.S. 471, 479 (1963)). "[A] police officer has probable cause to arrest a suspect when the officer possesses 'a well[-]grounded suspicion that a crime has been or is being committed.'" State v. Basil, 202 N.J. 570, 585 (2010) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)); see also State v. McKenna, 228 N.J.Super. 468, 474 (App. Div. 1988) ("Probable cause for an arrest exists when an officer has a well-founded suspicion or belief of guilt which may constitute something less than the proof needed to convict and something more than a raw, unsupported suspicion.").
Our Supreme Court has "often stated that the probable cause standard is not susceptible of precise definition." State v. Moore, 181 N.J. 40, 45 (2005) (citing State v. Wilson, 178 N.J. 7, 13 (2003)). Thus, "[i]n determining whether there was probable cause to make an arrest, a court must look to the totality of the circumstances and view those circumstances 'from the standpoint of an objectively reasonable police officer.'" Basil, 202 N.J. at 585 (citations omitted) (first citing Illinois v. Gates, 462 U.S. 213, 238 (1983); and then quoting Maryland v. Pringle, 540 U.S. 366, 371 (2003)).
Prior to the recent change in our law regarding the possession and use of cannabis, "New Jersey courts . . . 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) (internal quotation marks omitted) (quoting State v. Nishina, 175 N.J. 502, 515-16 (2003)); see also State v. Birkenmeier, 185 N.J. 552, 563 (2006); State v. Mandel, 455 N.J.Super. 109, 114-15 (App. Div. 2018); Myers, 442 N.J.Super. at 296. Accordingly, in Nishina, our Supreme Court reaffirmed the principle that, upon detecting the smell of marijuana, police are authorized "to conduct a warrantless search of the persons in the immediate area from where the smell [had] emanated." 175 N.J. at 516 (alteration in original) (quoting State v. Vanderveer, 285 N.J.Super. 475, 481 (App. Div. 1995)). More recently, in Myers, we recognized that the "smell of marijuana" gives an officer "the right to arrest [a] defendant for committing an apparent marijuana offense in [an officer's] presence." 442 N.J.Super. at 297. We explained that "[t]he 'in presence' requirement . . . is satisfied by [the officer's] use of his [or her] sense of smell in much the same manner as if he [or she] had used . . . sight or hearing or touch." Ibid. (second alteration in original) (internal quotation marks omitted) (quoting State v. Legette, 441 N.J. Super 1, 29 n.10 (App. Div. 2015)).
We note that under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, N.J.S.A. 24:6I-31 to -56, which became effective on February 22, 2021, an odor of marijuana cannot form the basis for conducting a warrantless search. N.J.S.A. 2C:35-10c(a). However, "[b]ecause that limitation is prospective, it has no bearing on this appeal." State v. Cambrelen, 473 N.J.Super. 70, 76 n.6 (App. Div. 2022).
Applying these principles, we agree with the judge that Carrasquillo had the requisite reasonable and articulable suspicion to conduct an investigatory stop of defendant. Carrasquillo's observations of defendant's clothing and conduct justified his suspicion that defendant was engaging in or about to engage in criminal activity. See United States v. Maguire, 359 F.3d 71, 77 (1st Cir. 2004) (finding that clothing "inappropriate for the weather" contributed to a reasonable and articulable suspicion). Indeed, Carrasquillo testified that, in part, defendant's attire raised his suspicions because in his experience, "[a] subject will use [a ski mask] . . . before committing a crime" in order to "conceal [his or her] identity."
Likewise, we agree with the judge's legal conclusion that the "officers' right to arrest [d]efendant" based on probable cause that a crime was committed "arose before the search took place," and, therefore, the warrantless search of defendant was a valid search incident to a lawful arrest. See O'Neal, 190 N.J. at 614-15. As the judge found, Carrasquillo's uncontroverted testimony that he detected "a strong odor of [burnt] marijuana emanating from [defendant's] person" provided probable cause for an arrest at the moment of the initial encounter. See Myers, 442 N.J.Super. at 297. The fact that the officers conducted a full-blown search of defendant's person, rather than a mere "pat[-]down for weapons" as Carrasquillo described in his testimony, and the fact that the police action immediately preceded defendant's formal arrest "do[] not alter" the validity of the search and ultimate seizure of the gun under the search incident to arrest exception to the warrant requirement. O'Neal 190 N.J. at 614; see also Rawlings v. Kentucky, 448 U.S. 98, 111 (1980) ("Where the formal arrest followed quickly on the heels of the challenged search . . ., we do not believe it particularly important that the search preceded the arrest rather than vice versa.").
Affirmed.