March 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAMONTE C. SMITH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 04-12-0844.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 4, 2008
Before Judges Skillman and LeWinn.
A jury found defendant guilty of possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1), and defendant then pled guilty to possession of a knife by a convicted felon, in violation of N.J.S.A. 2C:39-7. The trial court sentenced defendant to a five-year term of imprisonment, with two years of parole ineligibility, for possession of cocaine and a concurrent twelve-month term for possession of a knife by a convicted felon.
On appeal, defendant presents the following arguments:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED SMITH'S SUPPRESSION MOTION AS THE SEARCH AND SEIZURE OF CONTRABAND WAS ILLEGAL. U.S CONST., AMENDS. IV, XIV; N.J. CONST., ART. I, PAR. 7. (Partially Raised Below).
II. SMITH'S GUILTY PLEA TO COUNT FOUR SHOULD BE VACATED FOR LACK OF AN ADEQUATE FACTUAL BASIS. (Not Raised Below).
III. SMITH'S SENTENCE IS MANIFESTLY EXCESSIVE. (Not Raised Below).
Defendant's arguments are clearly without merit. R. 2:11-3(e)(2). The only argument that warrants brief discussion is defendant's argument that the trial court erred in denying his motion to suppress.
At the hearing on that motion, Detective Shawn McKenna of the West Deptford Township Police Department testified that while driving a police car on September 3, 2004, he observed a taxicab with black smoke emitting from its tailpipe, an open, unsecured trunk that was flapping in the air with a bicycle hanging loose and a taillight that was out. Based on these motor vehicle violations, Detective McKenna stopped the taxicab. When he was asking the driver for his credentials, Detective McKenna smelled an odor of alcoholic beverages and a faint odor of burnt marijuana emanating from the interior of the taxicab. Consequently, he directed the driver to get out of the taxicab. Detective McKenna continued questioning the driver outside the taxicab but did not smell alcoholic beverages or burnt marijuana on his person. The driver told Detective McKenna that his passenger had seemed intoxicated when he picked him up.
McKenna then directed the passenger, who was defendant, to get out of the taxicab and asked him for his identification. At this point, McKenna smelled alcohol and a faint odor of burnt marijuana emanating from defendant's person. As defendant pulled out his wallet to produce identification, McKenna noticed that the wallet contained a pack of "E-Z Wider" cigarette rolling papers. McKenna then administered Miranda warnings and asked defendant whether he had anything on his person. Defendant responded that he had a knife in his front left pocket. McKenna then had defendant put his hands on the back of the vehicle and conducted a patdown of his front left pocket. This search revealed twenty-six bags of crack cocaine. A subsequent search of defendant's backpack revealed a utility knife, a razor blade utility knife and two lock blade knives.
Detective McKenna's detection of the smell of burnt marijuana on defendant's person and observation of cigarette rolling papers in his wallet gave him the "particularized and objective basis for suspecting" criminal activity required to justify an investigatory stop. State v. Thomas, 110 N.J. 673, 678 (1988) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed. 2d 621, 629 (1981)). Defendant's admission that he had a knife in his pocket gave Detective McKenna the "reason to believe he [was] dealing with an armed and dangerous individual" required to justify the patdown for weapons that revealed crack cocaine in defendant's pocket. Id. at 679 (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed. 2d 889, 909 (1968)).
We reject defendant's argument that his motion to suppress should have been granted because the State failed to establish that Detective McKenna was qualified to testify that the odor he detected emanating from defendant's body was burnt marijuana. Defendant failed to object to Detective McKenna's testimony on this basis, presumably because he was aware an experienced police officer would be familiar with the odor of burnt marijuana. See State v. Nishina, 175 N.J. 502, 517 (2003); State v. Vanderveer, 285 N.J. Super. 475, 478-79 (App. Div. 1995). Defendant's failure to object deprived the State of the opportunity to ask the foundational questions required to establish that familiarity and constituted a waiver of whatever objection defendant otherwise may have had.
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