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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...