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State v. Powell

July 27, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LIONEL POWELL, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-09-735-I/B.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 7, 2009

Before Judges Fisher and Grall.

In this appeal, we address defendant's contention that police unlawfully stopped his motor vehicle and thereafter unlawfully searched his person as well as his vehicle. Defendant argues that the judge erred in denying his motion to suppress the evidence then seized. We reverse insofar as the judge failed to suppress evidence seized from defendant's vehicle, but affirm insofar as the judge refused to suppress evidence seized from defendant's person.

Defendant was charged with third-degree possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(11), and fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3). Defendant thereafter moved to suppress evidence and an evidentiary hearing was conducted at which time the judge heard the testimony only of State Trooper Steven Swift, who conducted the stop of defendant's vehicle and, along with another officer, conducted the search that followed.

Following the hearing, the judge issued a very thorough written opinion. The judge explained why he found Trooper Swift to be credible:

Trooper Swift was able to describe the incident from memory and provided an internally consistent, detailed description of the facts leading to the motor vehicle stop and the events which unfolded during the stop. He made eye contact with the questioners. His answers were direct and responsive. He was not evasive. There was nothing about his body language, vocal inflection or demeanor to suggest he was not being truthful. Simply put, the [c]court finds that his testimony was candid and had the ring of truth.

As a result, the judge found that Trooper Swift was on routine patrol in Fairfield Township at approximately 8:00 p.m. on April 21, 2007, when he saw a black male driving a Cadillac Eldorado. He observed that the driver was alone, was not speeding and did not appear to be in violation of any motor vehicle laws. The trooper decided to run a random inquiry into the vehicle's status; he learned there was an outstanding warrant against the registered owner.

Based on this outstanding warrant, Trooper Swift activated his vehicle's overhead lights and siren and directed the vehicle to stop. Defendant's vehicle made a left turn into a residential driveway and stopped. Trooper Swift followed the vehicle into the driveway and parked behind, directing the driver to remain inside his vehicle. It turned out that defendant had pulled into the driveway of his home.

Trooper Swift was alone at the time; backup had not yet arrived when he approached the driver side window and asked the driver who he was and whose vehicle it was.*fn1 As he asked these questions, Trooper Swift smelled the odor of raw marijuana emanating from the passenger compartment. According to the judge, Trooper Swift then directed the driver to exit the vehicle and conducted a "probable cause search" of the driver's person, which revealed a clear plastic bag containing suspected marijuana in the driver's pants pocket. Trooper Swift arrested and handcuffed the driver and secured him in the rear of the troop car.

At this point defendant could not leave and did not pose any risk. He asked the driver his name and advised the driver of his Miranda*fn2 rights.

Another trooper arrived soon after defendant was arrested. The troopers did not ask for or receive consent to search the vehicle; they did not apply -- telephonically or otherwise --for a warrant to search the vehicle. Instead, they proceeded to search the passenger compartment where Trooper Swift found two more small bundles of marijuana in the center console. Believing the amounts of marijuana discovered, in the words of the judge, "were not consistent with the strength of the odor that he detected," Trooper Swift opened the trunk using a key obtained from defendant when he was searched. Upon opening the trunk, "the odor of raw marijuana increas[ed] greatly." Inside the trunk, the troopers found two large bricks of marijuana, weighing approximately one pound each, inside double plastic bags.

During the search, defendant's mother came out of the house. Trooper Swift told her what they were doing and directed her to return inside the house. She complied. At another point, several cars had pulled up to observe, but they ...


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