Opinion
DOCKET NO. A-1576-12T3
04-21-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES EDWARD PAGE, JR., a/k/a JAMES E. FUSSEL, JAMES PAGE and JAMES PAIGE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 11-04-1048 and 11-04-1061. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant James Edward Page, Jr., entered a guilty plea to charges following the denial of his motion to suppress evidence, reserving the right to appeal from the order denying suppression. See R. 3:5-7(d) (stating denials of motions to suppress may be reviewed on appeal notwithstanding entry of a guilty plea). On appeal, he challenges the denial of his motion as erroneous, and maintains the sentence imposed was excessive. More specifically, defendant argues:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.
A. THE STATE TROOPERS CONDUCTED AN UNLAWFUL "PRETEXT STOP."
B. TROOPER RYAN DID NOT HAVE PROBABLE CAUSE TO ARREST DEFENDANT.
C. THE SUBSEQUENT SEARCHES OF DEFENDANT AND SEIZURES OF THE HANDGUN AND COCAINE WERE UNLAWFUL.
POINT II
THE TRIAL COURT'S FINDINGS AT THE PRO FORMA TYPE OF SENTENCING HEARING THAT OCCURRED IN THIS CASE DID NOT SUPPORT THE IMPOSITION OF THE MAXIMUM 10 YEAR BASE CUSTODIAL TERM ON DEFENDANT'S PLEA TO BEING A CERTAIN PERSON NOT TO HAVE A WEAPON ON COUNT FOUR OF INDICTMENT NO. [11-04-]1048.
We have considered these arguments, in light of the record and applicable law. We affirm.
The facts are taken from the evidence presented during the suppression hearing. The arresting officers testified and the State introduced a DVD recording of the incident, captured by a video camera mounted in the police vehicle.
On February 10, 2011, at approximately 2:00 a.m., uniformed New Jersey State Troopers Patrick Ryan and William Jacobs, while driving a marked police vehicle, observed a driver repeatedly hitting his brakes for no apparent reason and forming a "figure eight" in the roadway by swerving between the center lane dividing line on the left and the fog line on the right-side of the roadway. After the vehicle exited the highway, the troopers initiated a motor vehicle stop.
Trooper Jacobs approached the driver's side and Trooper Ryan approached the passenger's side of the vehicle. Trooper Ryan instructed the driver to lower his window and present his credentials. Trooper Jacobs testified when the window was opened, he detected the odor of burnt marijuana. The driver admitted he did not have a driver's license.
The passenger, defendant, was not wearing a seat belt and Trooper Ryan requested he present his credentials. Defendant stated he did not have his identification. Trooper Ryan then instructed defendant to exit the vehicle to obtain his information out of the driver's earshot.
As defendant was writing down his name, Trooper Jacobs pointed to his nose and, using hand motions, signaled Trooper Ryan to arrest defendant. Trooper Ryan understood Trooper Jacobs had detected an odor of marijuana emanating from the vehicle. Both the driver and defendant were arrested.
Trooper Ryan walked defendant to the passenger's side of the police vehicle and asked if he had anything on him that could poke or stab him. Defendant advised he had a handgun in his front coat pocket. Trooper Ryan secured the loaded small caliber weapon in the trunk and placed defendant in the rear seat of the police car. The driver consented to a vehicle search, which was performed by Trooper Ryan. As Trooper Ryan approached the driver's side of the vehicle, he too smelled burnt marijuana. The search did not yield marijuana or drug paraphernalia.
Defendant was transferred to Bellmawr Police Station where he was searched. Trooper Ryan found a clear plastic bag containing several heat sealed bags of crack cocaine on defendant's person.
Defendant moved to suppress the cocaine and gun, arguing the police lacked a legal basis for the stop and for his arrest. Following an evidential hearing, the judge denied the motion. The judge stated although the video did not show "classic weaving," it did show the suspect vehicle applying its brakes. Further, the judge noted various obstructions, darkness, and the video's poor quality limited its evidential value, finding it did not "a hundred percent corroborate the State's version nor [did] it a hundred percent refute it."
Assessing the testimonial evidence, the judge found the officers "perfectly truthful" and stated he "believe[d] the troopers['] testimony." Based on that evidence, the judge found the troopers had "ample reasonable suspicion to justify" the motor vehicle stop, which he concluded was lawful. He also held the odor of marijuana, even if faint, was sufficient to support the arrest of defendant and the driver. Therefore, he held the evidence admissible as the product of a search incident to a lawful arrest.
Thereafter, defendant entered into a negotiated plea agreement. He pled guilty to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count four of Indictment No. 11-04-1048), and third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count one of Indictment No. 11-04-1061). The State agreed to dismiss all other charges. For the weapons offense, the judge sentenced defendant to a ten-year term of imprisonment, subject to a five-year period of parole ineligibility, and imposed a concurrent four-year flat term on terroristic threats conviction. This appeal ensued.
The two unrelated indictments were addressed in a single plea agreement.
"Appellate courts reviewing a grant or denial of a motion to suppress 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. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). "An appellate court 'should give deference to those findings of the trial judge which 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.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). However, "[w]hen a question of law is at stake," appellate review is plenary. State v. Mann, 203 N.J. 328, 337 (2010).
Challenging the order denying his suppression motion, see State v. Greeley, 178 N.J. 38, 50-51 (2003) (holding motions to suppress evidence obtained from an allegedly unlawful search and seizure survive the entry of a guilty plea), defendant maintains the motor vehicle stop was invalid, making the denial of his suppression motion erroneous. Specifically, defendant argues since the judge found the DVD offered no support for a motor vehicle violation, police lacked reasonable suspicion to stop the car in the first instance. We disagree.
"It is well established that the investigative stop of an automobile by police constitutes a seizure," implicating the constitutional protections of the Fourth Amendment to the United States Constitution. 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)), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). This is so, "even though the purpose of the stop is limited and the resulting detention quite brief." Prouse, supra, 440 U.S. at 653, 99 S. Ct. at 1396, 59 L. Ed. 2d at 667.
Officers are permitted to detain an individual for a brief period if the stop 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." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). See also State v. Stovall, 170 N.J. 346, 361 (2002) ("[A] reviewing court must decide if the officer's observations, in view of the officer's experience and knowledge, taken together with rational inferences drawn from those facts, warrant a limited intrusion upon the individual's freedom." (citations and internal quotation marks omitted)). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986). The articulable suspicion standard prevents police detentions based on a "subjective hunch." Id. at 505.
Here, the troopers observed the vehicle's erratic path and the driver's application of the brakes for no apparent reason. The troopers stopped the car because of the motor vehicle violation, N.J.S.A. 39:4-88, and based on a belief the driver was intoxicated. Trooper Ryan testified the car "crossed over the line to the right." Trooper Jacobs testified the driver "kept hitting his brakes . . . . [and] kept hitting the fog line." He described the driver, stating "he float[ed] kind of, [didn't] go completely over but he touche[d] it and then he [came] back and touche[d] the lane divider of the right and center lane." That the video, because of its poor quality and various impediments, failed to corroborate the unrefuted testimony of Troopers Ryan and Jacobs would not undermine the facts cited to justify the vehicle stop. The troopers' testimony was found credible and provides the required particularized facts supporting a reasonable suspicion of a driving violation. Davis, supra, 104 N.J. at 504. See also State v. Kennedy, 247 N.J. Super. 21, 28 (App. Div. 1991) (upholding stop of automobile when a traffic violation occurs in police presence).
On the other hand, no facts support defendant's contention the stop was "a pretext." Based on the findings made by the trial judge, grounded on the testimonial evidence, we conclude the stop was constitutional.
Defendant next challenges the judge's finding of probable cause for his arrest. He suggests he was arrested before the odor of marijuana was detected. We disagree.
As the troopers approached the vehicle, defendant was not wearing his seat belt, a motor vehicle offense. See N.J.S.A. 39:3-76.2f. Trooper Ryan asked defendant for identification, which he could not produce. The trooper then asked him to step out of the car and write down his information. At that point Trooper Jacobs signaled his detection of the smell of marijuana and to arrest defendant.
Because its possession is unlawful, the mere smell of marijuana provides probable cause that "a criminal offense ha[s] been committed and that additional contraband might be present." State v. Nishina, 175 N.J. 502, 515-16 (2003) (alteration in original). Furthermore, the smell of burnt marijuana emanating from a vehicle leads to the reasonable inference that the drug was recently smoked and that contraband is present in the automobile. State v. Judge, 275 N.J. Super. 194, 201 (App. Div. 1994). Therefore, once smelling marijuana emanating from the vehicle, the troopers had probable cause to arrest the driver as well as defendant. While being pat down, defendant admitted he possessed a handgun. The loaded weapon was found during the search incident to his lawful arrest, making it admissible. See State v. Pena-Flores, 198 N.J. 6, 19 (2009).
Unlike the facts in State v. Bacome, ___ N.J. Super. ___ (2015), no evidence suggests the seat belt violation for which Trooper Ryan ordered defendant from the vehicle was a "ruse" for an otherwise unlawful stop, or the "linchpin for all that followed . . . ." Id. at 22 n.11, 23. In Bacome, this court held ordering a passenger out of a vehicle was impermissible despite that he was not wearing a seat belt, explaining "'an officer must be able to point to specific and articulable facts that would warrant heightened caution to justify ordering the occupants to step out of a vehicle detained for a traffic violation.'" Id. at 11 (quoting State v. Smith, 134 N.J. 599, 18 (1994)). In a dissenting opinion, Judge Nugent disagreed, reasoning, "Smith did not involve culpable conduct on the part of a passenger[,]" and the liberty interest of a passenger who has committed a seat belt violation "is no different from that of a driver who has committed a traffic violation . . . ." Id. at 27, 28 (Nugent, J., dissenting) (explaining Smith held "'[o]rdering a passenger to leave the vehicle is distinguishable from ordering the driver to get out of the vehicle because the passenger has not engaged in the culpable conduct that resulted in the vehicle's stop.'" (quoting Smith, supra, 134 N.J. at 615)). We need not consider application of this authority to the facts at hand because defendant's arrest was based on his culpable conduct as the odor of marijuana was noted as soon as the driver lowered his window. Defendant was not ordered from the car merely because of a seat belt violation.
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Defendant also challenges the sentence imposed as excessive. During sentencing, the judge found aggravating factors three ("[t]he risk that the defendant will commit another offense"), six ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"), and nine ("[t]he need for deterring the defendant and others from violating the law") were applicable. N.J.S.A. 2C:44-1(a)(3), (6), (9). He found no applicable mitigating factors. Thus, the aggravating factors substantially outweighed the non-existent mitigating factors. The judge provided a statement of reasons supporting his determination, noting he considered the nature of the negotiated plea agreement, the nature of the offense, the pre-sentence report, defendant's criminal history, and whether the agreement was appropriate based on the facts and circumstances. Accordingly, the judge accepted the agreement's recommended sentence, which he imposed.
When a trial court follows the sentencing guidelines, we will not second-guess the decision, as we do "'not sit to substitute [our] judgment for that of the trial court.'" State v. Jabbour, 118 N.J. 1, 5-6 (1990) (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). Unless the sentencing court was "clearly mistaken[,]" State v. Jarbath, 114 N.J. 394, 401 (1989), or a sentence otherwise "shocks the judicial conscience[,]" State v. Roth, 95 N.J. 334, 365 (1984), an appellate court is bound to affirm. See O'Donnell, supra, 117 N.J. at 215-16; State v. Evers, 175 N.J. 355, 387-87 (2003). While a sentence within the statutory guidelines may strike one as harsh, that is not a basis for error by the trial court. Evers, supra, 175 N.J. at 401. Applying this standard, we identify no basis to disturb the sentence imposed, which 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 O'Donnell, supra, 117 N.J. at 215-16.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION