April 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NDERIM AMETI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 07-025.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 16, 2009
Before Judges Lisa and Alvarez.
After his motions to suppress evidence were denied, defendant pled guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), and possession of fifty grams or less of marijuana, N.J.S.A. 2C:35-10a(4). On de novo review in the Law Division, see R. 3:23-8(a), Judge Harper again denied defendant's suppression motions. He found defendant guilty pursuant to his guilty plea and imposed the same sentence as the municipal court judge, namely: for DWI a $250 fine, $33 costs, $50 VCCB, $75 SNF assessment, $200 DWI surcharge, $100 DDE fund, twelve hours in the IDRC, and three-month loss of driving privileges; and for possession of marijuana, a $500 fine, $33 costs, $50 VCCB, $75 SNF assessment, $500 DEDR penalty, $50 lab fee, and a $50 DARE fee. Defendant argues on appeal:
I. THE STOP OF DEFENDANT'S VEHICLE WAS NOT JUSTIFIED BY THE COMMON-LAW RIGHT TO INQUIRE.
II. THE WARRANTLESS SEARCH OF DEFENDANT'S VEHICLE WAS NOT JUSTIFIED ON THE BASIS OF THE PLAIN SMELL DOCTRINE.
We reject these arguments and affirm.
On March 27, 2007 at about 12:25 a.m., Lincoln Park Police Officer John Cifelli was on patrol in a marked police car. He observed a vehicle parked near the rear entrance of a Shop Rite supermarket in an area used for deliveries, and not used by customers or employees. The Shop Rite was closed, as were all of the other stores in the area. The presence of the vehicle in that location at that hour aroused Cifelli's suspicion, and he drove toward it. As he approached it, the driver, later identified as defendant, who was alone in the car, drove out of the parking lot. In doing so, he drove past Cifelli in the opposite direction of travel.
Cifelli made a U-turn and followed the vehicle's path of travel. He temporarily lost sight of the vehicle, but again encountered it. Defendant was driving unusually slowly through a residential area. The speed limit was twenty-five miles per hour. According to defendant, he was driving about twenty miles per hour. Cifelli stopped defendant's vehicle. He had observed no traffic violations. He described his reason for the stop as follows: "I wanted to make sure the vehicle, um, wasn't up to any, anything, any illegal doings. Um, like I said, it was stopped in a closed business area, and then it was driving slowly through a residential area."
Immediately upon interacting with defendant, Cifelli observed that defendant's eyes were extremely glassy and his pupils were dilated. He fumbled with his credentials and was only able to produce a driver's license. While speaking with defendant, Cifelli detected an odor of burnt marijuana coming from inside the vehicle. He asked defendant what he was doing behind the Shop Rite, and defendant said he was only making a U-turn. That was inconsistent with Cifelli's observation of defendant parked in a stationary position behind the building. Cifelli asked defendant if he had been drinking or if there were any type of drugs in the vehicle. Defendant acknowledged drinking some wine, but denied having any drugs.
Cifelli asked defendant to step out of the vehicle, and he administered field sobriety tests. Defendant did not perform well. At some point during the encounter, another officer arrived. As that officer stood with defendant at the front of defendant's vehicle, Cifelli searched the vehicle and found a small quantity of marijuana in the center console of the front passenger compartment. Defendant was then placed under arrest for DWI and possession of marijuana.*fn1
Defendant moved for suppression of the evidence on two grounds. First, he alleged that the stop was unlawful. Second, he alleged that the warrantless search of his vehicle was unlawful. After conducting a full evidentiary hearing on each issue, the municipal judge rejected defendant's contentions and denied the suppression motions. Defendant entered a conditional plea of guilty and was sentenced in municipal court. He appealed the denial of the suppression motions to the Law Division.
Judge Harper reviewed the record made in the municipal court and heard oral argument from both counsel. He then issued a written decision on February 15, 2008. The judge made a new and independent decision, based upon the municipal court record, although giving due, but not controlling, deference to the municipal judge's opportunity to view the witnesses and evaluate their credibility. State v. Locurto, 157 N.J. 463, 472-74 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). Upon review by this court, we must determine whether the record contains sufficient credible evidence to support the findings of the Law Division judge. Johnson, supra, 42 N.J. at 162.
Judge Harper's factual findings were essentially as we have described them, which are supported by the record. Based upon those findings, relying on State v. Martinez, 260 N.J. Super. 75, 78 (App. Div. 1992), he concluded that the stop was justified under the common law right to inquire based upon a founded suspicion that criminal activity might be afoot.
On appeal, defendant relies principally on State v. Cryan, 320 N.J. Super. 325 (App. Div. 1999). In that case, at about 4:24 a.m., police stopped a car because it hesitated for about five seconds before proceeding through an intersection after the red light turned green. Id. at 327. The officer said there had been a number of burglaries in the area and police were under orders to stop all cars that "moved within . . . the Borough." Id. at 327-28. We found the stop unlawful under either the community caretaking function or the common law right of inquiry. Id. at 331-32. We find defendant's reliance on Cryan misplaced.
The lawfulness of a search must be based upon the totality of the circumstances. State v. Elders, 192 N.J. 224, 247 (2007). An investigatory stop will meet constitutional standards if based on specific and articulable facts which, taken together with rational inferences, give rise to a reasonable suspicion of criminal activity. Ibid. We agree with Judge Harper's conclusion that the facts here were sufficient to meet that test. Unlike the situation in Cryan, which involved an isolated and inconsequential circumstance of a brief hesitation before proceeding after the light changed, defendant's overall conduct here was sufficient to arouse a reasonable suspicion that criminal activity might be afoot. Also unlike Cryan, where the officer testified that pursuant to orders he pulled over every vehicle he saw during his shift, Cifelli stopped only defendant's vehicle for a particularized reason.
With respect to the search of his vehicle, defendant argues that the plain smell doctrine could not justify the search. We disagree. Judge Harper's finding that Cifelli detected the smell of marijuana emanating from the car as he spoke to defendant while seated in the car, and that Cifelli recognized the smell based upon his training and experience, is supported by the record. That fact established the requisite probable cause to justify a warrantless search of the interior of the vehicle. State v. Judge, 275 N.J. Super. 194, 201 (App. Div. 1994).