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State v. Guerrier

July 28, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WARREN GUERRIER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-04-0320.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 6, 2008

Before Judges R. B. Coleman and Lyons.

Defendant Warren Guerrier appeals from an October 21, 2005 judgment of conviction entered following the trial court's acceptance of his March 2, 2005 guilty plea. In accordance with the plea agreement, the court imposed a four-year sentence with one year of parole ineligibility as a result of defendant's conviction on count two of Union County Indictment No. 04-04- 0320, charging third degree conspiracy to commit the crime of identity theft, N.J.S.A. 2C:5-2 and N.J.S.A. 2:21-7a(1). Count one, charging third degree possession of devices and materials to make false drivers' licenses or other documents issued by a governmental agency, N.J.S.A. 2C:21-2.16, was dismissed.*fn1

Prior to the date of the plea hearing, Guerrier had moved to suppress evidence seized from his car after a stop for traffic violations under the New Jersey motor vehicle code. The trial court denied Guerrier's motion, finding that the police had the right to stop the vehicle and probable cause to conduct the subsequent search of the interior of the car because the smell of marijuana emanated from the vehicle. Thereafter, Guerrier agreed to plead guilty to count two of the indictment, third degree conspiracy, in exchange for the dismissal of the charge in count one and the prosecutor's recommendation of four years of imprisonment with a one year period of parole ineligibility. At the plea hearing, the judge conducted a colloquy with Guerrier and ultimately accepted his guilty plea as having been knowingly and voluntarily entered. As noted, the judge sentenced Guerrier consistent with the plea agreement. Guerrier appealed, and we now affirm.

The facts relevant to this appeal are as follows. On September 12, 2003, at approximately 12:01 a.m., Officers James Stivale and Kevin O'Keefe of the Westfield Police Department pulled over a Honda wagon driven by Guerrier. The reasons for the stop were that the officers observed that the car had an unreadable expiration date on its Virginia license plate tag, in violation of N.J.S.A. 39:3-33, and the car's front side windows were unlawfully tinted, in violation of N.J.S.A. 39:3-75. The officers approached the vehicle and asked the driver, Guerrier, to provide his driving credentials. Guerrier could not produce them. At that time, Officer O'Keefe detected a strong odor of marijuana emanating from the vehicle. Officer O'Keefe then instructed Guerrier and his passenger, co-defendant Alexander Young, to exit the vehicle. Both men were advised of their Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966).

The officers searched the vehicle and discovered the following items: two empty zip-loc bags on the front passenger seat; one small zip-loc bag containing marijuana; three fraudulent New Jersey drivers' licenses each bearing a picture of Young; one Sony digital camera; pages of personal financial information belonging to others; one piece of a tobacco leaf; rolling paper; drivers' license blanks; and three false drivers' licenses. Guerrier and Young were placed under arrest. A police dashboard video camera recorded the stop and search.

The following information elicited during the hearing on the motion to suppress is relevant to this appeal. The trial judge watched the dashboard video and found that:

It is quite clear from that second viewing of [the video] that the officer who testified, Kevin O'Keefe, did advise his other officer and partner Stivali that he had detected from the car an odor of burnt marijuana. There was an exchange between the two officers during which Stivali tells O'Keefe that the passenger had told Stivali that he had, indeed, smoked marijuana, according to the passenger, before entering the car.

When Stivali tells O'Keefe that, O'Keefe replies that he [smelled] burned marijuana coming from the car, and I believe also on the defendant.

The judge concluded that the officers did smell marijuana in the vehicle, and there was an obvious need to protect the public from people driving under the influence of marijuana. Thus, the officers had a duty to inquire and investigate whether there was marijuana in the vehicle. The judge further concluded that the police were initially justified in stopping the car based upon the car's "very darkened tinted windows" and "the faulty nature of the sticker and license plate."

On appeal, Guerrier presents the following arguments for ...


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