April 16, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAWRENCE J. HOLZENTHALER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5777.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 20, 2007
Before Judges Axelrad and Gilroy.
On September 29, 2005, defendant Lawrence J. Holzenthaler was charged with the disorderly persons offense of possession of marijuana, N.J.S.A. 2C:35-10a(4); the disorderly persons offense of drug paraphernalia, N.J.S.A. 2C:36-2; operating a motor vehicle while under the influence of alcohol, N.J.S.A. 39:4-50(a) (DWI); careless driving, N.J.S.A. 39:4-97; possession of a controlled dangerous substance (CDS) in a motor vehicle, N.J.S.A. 39:4-49.1; and consumption of an alcoholic beverage while operating a motor vehicle, N.J.S.A. 39:4-51a.
On October 13, 2005, defendant moved to suppress evidence. After the municipal court reserved decision on the motion, defendant entered a conditional plea of guilty to the charge of DWI. On that conviction, the court suspended defendant's driving privileges for two years, directed defendant to serve forty-eight hours at an approved Intoxicated Driver Resource Center, and ordered him to serve thirty days' community service. All other appropriate fines and penalties were also imposed. Defendant received a conditional discharge on the two disorderly persons charges without a plea, N.J.S.A. 2C:36A-1, and was placed on one year's probation. The charge of possessing a CDS in a motor vehicle was held in abeyance, subject to defendant's successful completion of the conditional discharge program. The motor vehicle charges for consumption of an alcoholic beverage while operating a motor vehicle and careless driving were dismissed. On December 19, 2005, the municipal court denied defendant's motion to suppress and stayed the suspension of defendant's driving privileges pending appeal.
On appeal de novo to the Law Division, defendant renewed his motion to suppress evidence. On April 7, 2006, Judge Wertheimer issued a written opinion denying defendant's motion, determining that the arresting officer "had more than the requisite articulable and reasonable suspicion that defendant was driving while intoxicated" and that the search of defendant's motor vehicle fell within the automobile exception to the warrant requirement. A judgment of conviction on the two disorderly persons offenses and the DWI was entered on April 7, 2006, with the Law Division imposing the same fines and penalties as imposed in the municipal court. On April 28, 2006, an order was entered staying the suspension of defendant's driving privileges pending appeal.
On appeal, defendant argues that the Law Division erred in denying his motion to suppress because: 1) the seizure of the marijuana and drug paraphernalia resulted from a warrantless search and did not fall within any of the recognized exceptions to the warrant requirement; and 2) there was insufficient probable cause to arrest defendant for DWI. We disagree. The only testimony presented at the suppression hearing was from Patrolman Brian Lopez of the Cranford Township Police Department who testified as follows. At approximately 9:18 p.m. on September 29, 2005, while operating his police vehicle in a municipal parking lot, Lopez observed a vehicle, operated by defendant, rapidly accelerate out of a parking spot in reverse, nearly colliding with his police vehicle. After slamming on his brakes, defendant pulled back into the parking spot, exited the vehicle, and started to walk away from the area with his girlfriend. Lopez yelled to defendant and defendant's girlfriend to come over to his police car, and they complied. While standing in front of the police car headlights, Lopez questioned defendant concerning the operation of his motor vehicle. During the conversation, Lopez observed that defendant had "a very strong odor of an alcoholic beverage [coming] from his mouth when speaking;" defendant's eyes were "very bloodshot, very glassy;" his face had a "very red flushed color to it;" and throughout the investigation, "[defendant] slurred his words from time to time." Although the officer stated that defendant did not have any difficult in walking, he opined that "more or less, it was his demeanor that caused him to appear to be extremely intoxicated that evening."
As defendant returned to his motor vehicle to retrieve his driving credentials, the patrolman followed and observed a beer can on the front passenger side-door area and an opened beer bottle in the front-passenger area. Believing that it was not safe to leave defendant unescorted because of his "behavior and his level of intoxication," Lopez did not immediately retrieve the beer can and bottle from the motor vehicle but rather waited until his backup officer, Patrolman Stulpin, arrived at the scene. While defendant and his girlfriend were with Patrolman Stulpin, Lopez proceeded back to defendant's car and retrieved the beer can and bottle. As he was retrieving the containers, Lopez detected an odor of burnt marijuana inside the motor vehicle. Having detected the odor, Lopez proceeded to search the vehicle and discovered two bags of marijuana, as well as a glass pipe, inside the center console of the vehicle. Defendant was placed under arrest without any psychophysical tests being administered at the scene. At police headquarters, defendant submitted to an Alco-test that resulted in a blood alcohol concentration reading of .12%.
Appeals from the Municipal Court to the Law Division are de novo. R. 3:23-8. The "function [of the trial judge] is to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). The trial judge must make his or her "own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). The trial judge's function differs from this court's function. "His [or hers] is not the appellate function governed by the substantial evidence rule[,] but rather an independent fact-finding function . . ." Ibid.
Our scope of review is a limited one. "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958). "The test is 'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J. 599, 615 (1997) (quoting Johnson, supra, 42 N.J. at 162) (alteration in original). It is only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . should [we] appraise the record as if [we are] deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162 (internal citations omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We have considered defendant's contentions raised in light of the record and the applicable law, and we are convinced they are of insufficient merit to warrant full discussion in a written opinion, R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Wertheimer in his written opinion of April 7, 2006. Nevertheless, we add the following.
Defendant contends that the seizure of the marijuana and drug paraphernalia resulted from a warrantless search and did not fall within any of the recognized exceptions to the warrant requirement. We disagree. The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect individuals against unreasonable search and seizures. State v. Johnson, 171 N.J. 192, 205 (2002). "[O]ur constitutional jurisprudence expresses a preference that [police officers] secure warrants issued by neutral and detached magistrates before executing a search . . . ." State v. Frankel, 179 N.J. 586, 597-98, cert. denied, 543 U.S. 876, 125 S.Ct. 108, 160 L.Ed. 2d 128 (2004). A warrantless search is presumed to be unlawful unless it falls within one of the recognized exceptions to the warrant requirement. State v. DiLoreto, 180 N.J. 264, 275-77 (2004). "Those exceptions are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary." Frankel, supra, 179 N.J. at 598.
One exception to the warrant requirement is the automobile exception which "applies only in cases in which probable cause and exigent circumstances are evident, making it impracticable for the police to obtain a warrant." State v. Cooke, 163 N.J. 657, 671 (2000). Here, defendant does not challenge the officers' seizure of the beer can and bottle, only the search that followed, leading to the discovery of the marijuana and the drug paraphernalia. We are satisfied that probable cause and exigent circumstances existed for the warrantless search. Once Patrolman Lopez detected the odor of burnt marijuana emanating from inside the motor vehicle, probable cause existed to search for the contraband. State v. Judge, 275 N.J. Super. 194, 201 (App. Div. 1994).
We are also satisfied that the circumstances surrounding the incident support the finding of exigent circumstances. Exigent circumstances may exist if "unanticipated circumstances that give rise to probable cause occurs swiftly." Cooke, supra, 163 N.J. at 672. They may also exist if an element of surprise has been lost, a vehicle contains contraband, a confederate is waiting to move the evidence, or where the police would otherwise had needed to call in reinforcements to guard the motor vehicle in order to obtain a search warrant. State v. Colvin, 123 N.J. 428, 434-35 (1991). Here, Patrolman Lopez had probable cause to believe that defendant had marijuana in his motor vehicle. The element of surprise had been lost, and the car likely contained contraband drugs. There existed a need to search the vehicle swiftly because someone else, including defendant's girlfriend, could have removed either the car or the drugs. See Cooke, supra, 163 N.J. at 674-75. The police were not required to post a guard for the car while applying for a warrant to search the vehicle at the scene. We are satisfied that the search met the automobile exception. State v. Irelan, 375 N.J. Super. 100, 115-20 (App. Div. 2005).
We are also satisfied that Patrolman Lopez had probable cause to arrest defendant for DWI after observing his erratic driving in the parking lot and defendant's physical manifestations at the scene. There is no legal requirement that defendant be administered psychophysical tests before the arrest.
Affirmed; and the stay of the suspension of defendant's driving privileges is vacated.
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