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State v. Birkenmeier

January 19, 2006

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
BRUCE BIRKENMEIER, DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court determines the propriety of a vehicle stop and the searches that followed.

In April 2002, a confidential informant who had previously provided information that led to two major drug and weapons seizures and two arrests, gave Detective Gary Friedhoff information about defendant Bruce Birkenmeier. The informant identified Birkenmeier by name, address, physical description, and the make, model and license number of his car. He said that Birkenmeier would be leaving his home at 4:30 p.m. with marijuana in a laundry tote bag to make a drug delivery. The police placed Birkenmeier's home under surveillance. They observed Birkenmeier leaving his home at 4:30 p.m., carrying a laundry tote bag, and driving away in a car matching the informant's description. The police stopped Birkenmeier's car in Long Branch. Detective Friedhoff observed a laundry tote bag on the front passenger's seat of the car and smelled a very strong odor of marijuana. A search of Birkenmeier's car uncovered what appeared to be, and later was confirmed as, about thirty-five pounds of marijuana. Birkenmeier also orally consented to a search of his home where Birkenmeier turned over an additional twenty pounds of marijuana to the police. Birkenmeier was indicted on various drug charges.

Birkenmeier moved to suppress the evidence but did not contest the validity of the initial stop of his car. He claimed that the warrantless search was unconstitutional because the police had sufficient time to obtain a warrant between the one and one-half hours that the informant relayed his tip to Friedhoff and the time he was stopped. The trial court denied the motion, holding that the informant's tip was not sufficiently corroborated until Birkenmeier drove away and, hence, there was no basis on which to seek a warrant. Birkenmeier pleaded guilty to second degree possession of marijuana with intent to distribute, preserving the denial of his motion to suppress for appellate review. The Appellate Division reversed the denial of the motion to suppress, holding that there having been no legitimate basis for the stop, the evidence seized as a result of the stop should have been suppressed.

This Court granted the State's petition for certification.

HELD: Under the circumstances presented, the confidential informant's information, once corroborated by the observations of the police, provided the reasonable and articulable suspicion required for an investigatory stop of Birkenmeier's car; once the car was stopped lawfully and the odor of marijuana detected by the police, probable cause and exigent circumstances existed so as to trigger the automobile exception to the warrant requirement and permit the lawful search of the passenger compartment; once the police lawfully discovered the marijuana in the passenger compartment, there was a sufficient basis to support the request for Birkenmeier's consent to a search of his home, which consent, by Birkenmeier's own admission, was freely and voluntarily given.

1. The confidential informant's tip, once corroborated by the observations made by the police, provided sufficient reasonable suspicion to detain and conduct an investigatory stop and, therefore, the initial stop of Birkenmeier's car was proper. (p. 13)

2. There is no doubt that Friedhoff's observation of the laundry tote bag on the front passenger's seat of Birkenmeier's car and the detection of a very strong odor of marijuana sufficed to provide the probable cause and exigent circumstances needed for the invocation of the automobile exception and the ensuing search of the passenger compartment of Birkenmeier's car. (p. 14)

3. The premise of Birkenmeier's last objection: that the search of his home was unlawful because the request for consent to search was not preceded by probable cause is incorrect. The existence of probable cause is not a condition precedent to a consent search. In State v. Carty, we held that in respect of non-custodial motor vehicle searches, consent searches following a lawful stop of a motor vehicle should not be deemed valid unless there is a reasonable and articulable suspicion to believe that the defendant has engaged in or is about to engage in criminal activity. For purposes of this analysis, we assume, without explicitly deciding, that the requirements of State v. Carty apply to a request to a party in custody for consent to search something other than a motor vehicle. By the time the police asked Birkenmeier for his consent to search, the police not only had a reasonable and articulable suspicion of wrongdoing, but that suspicion had blossomed into probable cause. (pp. 15-16)

4. Under the circumstances presented, the confidential informant's information, once corroborated by the observations of the police, provided the reasonable and articulable suspicion required for an investigatory stop of Birkenmeier's car. Once the car was stopped lawfully and the odor of marijuana detected by the police, probable cause and exigent circumstances existed so as to trigger the automobile exception to the warrant requirement and permit the lawful search of the passenger compartment. Once the police lawfully discovered the marijuana in the passenger compartment, there was a sufficient basis to support the request for Birkenmeier's consent to a search of his home, which consent, by Birkenmeier's own admission, was freely and voluntarily given. (p. 21)

The judgment of the Appellate Division is REVERSED and the case REMANDED to the trial court for further proceedings consistent with this opinion.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in JUSTICE RIVERA-SOTO's opinion

The opinion of the court was delivered by: Justice Rivera-soto

Argued October 11, 2005

This appeal requires that we determine, under the circumstances presented, the propriety of a vehicle stop and the searches that followed. Defendant Bruce Birkenmeier asserts that, given the quantum of information possessed by the police at the time, the police were required to obtain a search warrant before stopping and searching his car and thereafter securing consent to search his house. The State argues that there was no requirement that the police secure a prophylactic search warrant, that the police had reasonable suspicion to stop defendant's car and, once stopped, that there was probable cause to authorize the search of the car's contents and to justify the consent search of the defendant's home. Based exclusively on a stipulated record consisting of the police reports and the direct and cross-examination of the supervising investigating officer, the trial court denied defendant's motion to suppress because the corroborated information from a reliable confidential informant provided reasonable suspicion to stop defendant's car, and, once stopped, the odor of marijuana in the car provided both probable cause to search the passenger compartment of the car and proper justification for the consent search of defendant's home. The Appellate Division, however, reversed and remanded, holding that the confidential informant information was neither verified nor reliable and, hence, could not sustain the stop and subsequent search.

We hold that, under the circumstances presented, the information presented by the confidential informant, once corroborated by the observations of the police, provided reasonable suspicion to stop defendant's car. We also hold that, once the car was stopped lawfully and the odor of marijuana detected by the police, there was probable cause and exigent circumstances to search the passenger compartment of defendant's car. Finally, we hold that, once the police lawfully discovered the marijuana in the passenger compartment, there was reasonable suspicion to support the request for defendant's consent to search his home, a consent that was freely and voluntarily given. We, therefore, reverse the judgment of the Appellate Division.

I.

A.

In early April 2002, Narcotics Detective Gary Friedhoff of the Monmouth County Prosecutor's Office met with a confidential informant. This informant previously had provided information to Friedhoff that led to the seizure of a large quantity of cocaine and weapons and a resulting arrest, and the separate seizure of a substantial amount of marijuana also with a resulting arrest. The informant provided the name, address and physical description of defendant, together with the make, model and license tag number of defendant's automobile. The informant explained that defendant was "involved in a large scale narcotic operation to include the distribution of marijuana" and that defendant "sells large quantities of marijuana from his residence and makes frequent trips into Long Branch to distribute his product."

At approximately 3:00 p.m. on April 5, 2002, the informant telephoned Friedhoff and informed him that defendant would be making a large marijuana delivery that afternoon. Specifically, the informant advised Friedhoff that defendant "would be leaving his residence at approximately 4:30 p.m. and would be delivering approximately 30 pounds of marijuana" and that defendant "utilizes a laundry tote bag to transport the marijuana." Based on that information, Friedhoff contacted both fellow members of the Narcotics Strike Force of the Monmouth County Prosecutor's Office as well as detectives of the Long Branch Police Department to organize a surveillance of defendant's residence. Friedhoff requested that all responding police personnel meet him at a prearranged location in Deal, some six blocks from defendant's residence.

On his way to the prearranged location, Friedhoff drove past defendant's home and observed a car matching the description given to him by the informant parked at defendant's residence. Once at the prearranged location, Friedhoff assigned separate responsibilities to each officer present. At 3:30 p.m., the police officers proceeded to their respective assigned locations and placed defendant's residence under surveillance.

Precisely as earlier described by the informant, at 4:30 p.m. defendant was observed "leaving his residence with a large laundry tote bag and plac[ing] the bag on the passenger side of the vehicle [earlier identified by the informant and corroborated by Friedhoff]." Defendant entered the vehicle and, also as described by the informant, headed into Long Branch. Along the way, unmarked police cars bracketed defendant's car, with Friedhoff driving the lead car, followed by defendant who was followed by Detective DiGiovanni, also of the Monmouth County Prosecutor's Office Narcotics Strike Force. Once on Woodgate Bridge in Long Branch, Friedhoff stopped his car, causing defendant to stop and DiGiovanni, who also stopped, activated his emergency lights. The two detectives, Friedhoff and DiGiovanni, approached defendant and removed him from his car. Friedhoff "observed a large laundry type tote on the passenger side and smelled a very strong odor of marijuana."

Friedhoff secured the laundry bag from defendant's car and, upon inspection, discovered three white plastic bags, each containing an undisclosed number of "zip lock" bags that in turn contained what appeared to be, and later was confirmed as, approximately thirty-five pounds of marijuana. Based on that discovery, defendant was placed under arrest, and was advised that he was the subject of a narcotics investigation. Defendant elected to cooperate with the investigation and stated that he possessed an additional approximately twenty pounds of marijuana back at his residence. Although defendant ultimately was unwilling to sign a written consent to search form, it is undisputed that defendant at least twice granted oral consent for the search of his home.

In the company of the other officers, defendant led Friedhoff back to defendant's home and into a second floor spare bedroom. Once there, defendant opened a closet and handed a black duffel bag to Friedhoff which contained approximately eleven more "zip lock" bags totaling approximately twenty pounds of marijuana. The officers also seized a scale. Friedhoff then transported defendant to the Long Branch Police Headquarters.

B.

In September 2002, the Monmouth County Grand Jury returned a three-count indictment charging defendant with fourth-degree possession of a controlled dangerous substance (marijuana), in violation of N.J.S.A. 2C:35-10a(3); first-degree possession of a controlled dangerous substance (marijuana) with intent to distribute, in violation of N.J.S.A. 2C:35-5b(10)(a); and second-degree possession of a controlled dangerous substance (marijuana) with intent to distribute while on or within 500 feet of a public housing facility, a public park, or a public building, in violation of N.J.S.A. 2C:35-7.1. In November 2002, defendant moved to suppress the approximately thirty-five pounds of marijuana ...


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