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State ex rel M.C.

February 23, 2010

STATE OF NEW JERSEY IN THE INTEREST OF M.C.


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FJ-21-603-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 15, 2009

Before Judges Carchman and Ashrafi.

Juvenile, M.C., appeals the Family Part's order denying his motion to suppress evidence of marijuana found in a warrantless search of the car he was driving. He also challenges as excessive the concurrent sentences imposed on two separate charges, possession of under fifty grams of marijuana, a disorderly persons offense, contrary to N.J.S.A. 2C:35-10a(4), and disorderly conduct, a petty disorderly persons offense, contrary to N.J.S.A. 2C:33-2a(1). We affirm.

The relevant facts were developed at a hearing on the juvenile's motion to suppress evidence. At about 4:20 p.m. on March 4, 2008, a Washington Township police officer stopped behind a Cadillac at a traffic light. The officer observed a front-seat passenger make a motion across his body that looked as if he was fastening his seatbelt. He also observed more than one air freshener hanging from the Cadillac's rear view mirror. After the light turned green, the officer followed the Cadillac for about three quarters of a mile and then activated his overhead lights to make a motor vehicle stop. The officer testified that the stop was based on violation of the seatbelt law, N.J.S.A. 39:3-76.2, and driving with an obstructed view, N.J.S.A. 39:3-74.

The officer approached the driver of the Cadillac, M.C., and requested credentials. M.C. produced a provisional driver's license and registration for the car but could not immediately produce an insurance card. The officer asked the passenger for identification, but the passenger had no license or other identification. From outside the car, the officer saw fragments of a cigar wrapper on the passenger's pants. The officer knew from his experience that a "blunt" for smoking marijuana is made by hollowing out a cigar and filling it with marijuana. When questioned, both M.C. and the passenger denied that they smoked cigars, and the officer did not smell any cigar smoke near the car.

Although the officer did not feel threatened by either occupant, he ordered the passenger out so that he could get identification information and write a summons for violation of the seatbelt law. The passenger stepped out and left the car door open. The officer patted down the passenger but found no wallet or other identification on his person. He then directed the passenger to remain outside at the rear of the Cadillac and approached the open passenger door to speak to M.C. On the passenger seat, the officer saw vegetative matter, which he recognized as "shake," marijuana residue. He also saw again fragments of a cigar wrapper. The officer reached into the car, gathered the vegetative matter, and put it in a fold of paper. He then radioed to his headquarters requesting the assistance of a K-9 unit, a drug detection dog and its handler.

Within ten minutes, the K-9 officer arrived with his dog, Noro. Another backup officer also arrived on the scene. The officers ordered M.C. out of the car, and directed both occupants to sit at the curb. By this point, they had learned from headquarters about an outstanding warrant for the passenger. They also observed a small group of young people watching the police activity at a driveway about five houses away from the motor vehicle stop. The officers recognized one of the young people in the driveway as a sixteen-year-old girl who they knew was a drug user. M.C. and the passenger had told the officers earlier that they were on their way to the girl's house.

The K-9 officer walked Noro around the Cadillac. Noro reacted to a scent near the open passenger side door. The officer released Noro, and the dog jumped into the car. Noro alerted to a scent in the front passenger side and then jumped into the back seat and again alerted to an object there. Looking into the car, the officers saw that Noro was indicating a sweatshirt left on the back seat. The dog then jumped back to the front seat and again alerted to a scent in that area. The K-9 officer took Noro out of the car and walked him around the car again. As he approached the open passenger door, Noro again jumped into the car and alerted to a scent. The K-9 officer then secured Noro in his vehicle.

Based on the dog's behavior, the officers conducted a search of the interior of the car. They found more "shake" on the driver's side "transmission hump." One of the officers opened the rear door and took the sweatshirt from the back seat.

Inside a pocket he found a small ziplock bag, which was later determined to contain 1.77 grams of marijuana. The officer asked the occupants of the car who owned the sweatshirt. M.C. said it was his.

The officers continued to search the interior of the car and found four empty cigar wrappers in a pouch behind the front seat. Both occupants were brought to the police station under arrest for possession of marijuana. On the way there, the passenger revealed that he had concealed marijuana inside his underwear, and he turned a blunt over to the police.

At the suppression hearing, counsel for M.C. argued that the police conduct violated M.C.'s rights against unreasonable search and seizure protected by the Fourth Amendment of the United States Constitution and by article 1, paragraph 7, of the New Jersey Constitution. Counsel argued that the initial stop of the car was not supported by reasonable and articulable suspicion of a motor vehicle violation, that the officer's order to the passenger to step out of the car was a violation of the occupants' rights, that the police had no right to search the interior of the car without a warrant, and that, if a warrantless search was permitted, the scope of the search was unreasonable because it extended beyond the areas that could be searched without a warrant.

Judge John J. Coyle, Jr., disagreed with the defense arguments and concluded that M.C.'s rights under the federal and State constitutions were not violated by any actions of the police officers. In his oral decision, the judge stated the following findings and conclusions:

First of all, I find that both of the officer's were forthright in their testimony and also credible. I find that the - that the officer stopped the car, . . . as a result of two things, the first thing really being a seatbelt. Saw the seatbelt was hanging from the B pillar, which is next to the right shoulder of the passenger, and then he noticed the passenger reach ...


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