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State v. Holmes

December 17, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHARLES EDWARD HOLMES, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 04-03-0115 & S2003-315-2120.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 24, 2007

Before Judges Cuff, Lihotz and Simonelli.

Following a bench trial, defendant was convicted of third degree possession with intent to distribute a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35- 5a(1) and 2C:35-5b(2) (Count 1); third degree possession of CDS (cocaine), contrary to N.J.S.A. 2C:35-10a(1) (Count 2); third degree possession with intent to distribute CDS (methamphetamine), contrary to N.J.S.A. 2C:35-5a and 2C:35-5b(3) (Count 3); third degree possession of CDS (methamphetamine), contrary to N.J.S.A. 2C:35-10a(1) (Count 4); third degree possession with intent to distribute CDS (psilocin mushrooms), contrary to N.J.S.A. 2C:35-5a and 2C:35-5b(13) (Count 5); third degree possession of CDS (psilocin mushrooms), contrary to N.J.S.A. 2C:35-10a(1) (Count 6); third degree possession with intent to distribute CDS (marijuana), contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(11) (Count 7); fourth degree possession of CDS (marijuana), contrary to N.J.S.A. 2C:35-10a(3) (Count 8); and the disorderly persons charge of possession of drug paraphernalia. At sentencing, the judge granted the State's motion for imposition of a mandatory extended term and sentenced defendant to an extended term of five years imprisonment with a three-year period of parole ineligibility on Count 1. The judge also imposed concurrent three-year terms of imprisonment on Counts 2, 3, 4, 5, 6 and 7; a concurrent eighteen-month prison term on Count 8, and time-served on the disorderly persons possession of paraphernalia offense. The aggregate term is five years imprisonment with a three-year parole ineligibility term.

The appropriate fees, fines, penalty and license suspension were also imposed.

In the late evening hours of November 11, 2003, Officer Frank Pagano and canine officer Ali were riding westbound in a patrol car on Route 22 in Pohatcong Township. Pagano had worked with Ali for almost three of his eight-year tenure on the police force. Pagano received special training in CDS violations laws, including twenty weeks of canine training, which taught him how to handle and train narcotics canines and identify their behaviors to signal the presence of narcotics. Ali, a Shepherd Malawah, was trained for narcotics detection, particularly in identifying "[ha]sh, marijuana, crack, co[caine], heroin, meth[amphetamine] and ecstasy."

At 11:54 p.m., Pagano noticed a silver Honda Accord with Pennsylvania license plates, traveling four or five car lengths in front of his vehicle. The officer observed that the license plate lights did not work and the reflectors were not the proper color. Pagano activated the overhead lights on his patrol car and stopped the Honda in the parking lot of Sammy's, an ice cream establishment.

Pagano exited his vehicle carrying a flashlight and approached the Honda on the driver's side. He noticed two occupants in the vehicle as he reached the car. Through the open window, the officer asked defendant, the driver, for his license, registration and proof of insurance. Pagano advised defendant why he had been stopped. Defendant replied that he was aware of the change in the reflectors and would replace them with the original reflectors.

As Pagano was speaking to defendant, Pagano noticed with the aid of his flashlight, "marijuana residue*fn1 or [a] small amount of marijuana" by the driver's feet on the floor of the vehicle. The officer saw more marijuana residue in the map compartment on the driver's side door and a black film container with a plastic bag tucked under the lid with white powder around it.

Defendant produced a Pennsylvania driver's license, registration and an insurance card. Pagano learned that defendant's license was suspended, but the registration and insurance card were valid and registered to defendant's mother.

Pagano requested backup assistance and asked defendant to exit his vehicle and walk behind it. Defendant complied. The passenger, co-defendant Kelly Warrelmann, remained in the vehicle. While standing behind defendant's vehicle, Pagano asked defendant if he owned the marijuana observed in the vehicle. Defendant replied, "I don't know," but admitted to possession of "a little weed inside [his] pocket." As defendant reached into his pocket, the officer stopped him, reached into defendant's pocket and retrieved a clear plastic bag containing what the officer suspected to be marijuana. The officer handcuffed defendant and placed him under arrest. No other drugs or drug paraphernalia were found on defendant's person, but $153 in cash was discovered in his right pants pocket. The denominations of the $153 consisted of one $100 bill, two $20 bills, one $5 bill and eight $1 bills.

The officer placed defendant in the patrol car of Lieutenant McBride who, along with Officer Robb, had arrived in separate vehicles. Pagano returned to defendant's vehicle and asked co-defendant Warrelmann to exit the car and stand in front of it. She complied.

Pagano walked to his patrol car and returned to defendant's Honda with Ali who, on the officer's command, began sniffing the exterior of the car. When Ali reached the driver's side door, the dog indicated the presence of narcotics. The location was consistent with Pagano's observation of the marijuana residue and black film container. Ali finished searching the exterior of the automobile and then entered the car through the driver's side door.

Inside the automobile, Ali indicated the presence of narcotics in the map compartment on the driver's side door. Ali then searched the center console between the front seats and a black duffel bag/backpack located on the floor behind the console in the backseat. The dog indicated the presence of more narcotics. Pagano then placed Ali in the patrol car and returned to defendant's vehicle to search the areas indicated by Ali.

In the map compartment on the driver's side door, Pagano found a film container holding sixteen individual, clear plastic bags of what appeared to be crack cocaine. In the black duffel bag/backpack, Pagano found fifteen bags of suspected marijuana, two bags of mushrooms, one bag containing seven pills, another bag containing ten more pills, one bag containing a large rock of suspected crack cocaine and two empty plastic bags. Pagano also seized the marijuana residue from the floor of the driver's side and the map compartment on the driver's side door. The officer placed the seized items in bags, secured them, and prepared them for transportation to headquarters for processing.

Pagano then placed Warrelmann under arrest. She did not appear to be under the influence of CDS and a search of her person yielded no narcotics or drug paraphernalia. Warrelmann was placed into the second responding officer's vehicle.

Defendant's car was impounded, defendant and Warrelman were transported to the police station, and Pagano and his canine colleague ...


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