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State ex rel M.C.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 over and put the seatbelt. . . . I feel that that would be probable cause to stop the vehicle.

Then after he stopped the vehicle . . . he noticed a cigar wrapper on the left side of the leg of the - of the passenger. . . . The officer testified that he had training as far as people taking cigars, and then taking the tobacco out and putting marijuana into the cigars.

What happened in this case was the passenger was then asked to exit the vehicle. I find that the officer had a right to ask him to exit the vehicle. I further find that the officer had a right to do a pat-down search to see if he could find any kind of identification, because there was a reason for that - he wanted to issue a ticket and he wanted to make sure - he indicated that these juveniles were not known to him, he didn't know them, and he wanted to make sure he had the proper name and address. So I - I feel that the officer, in doing that, in asking him to exit the vehicle and patting down the passenger, was not unreasonable. . . .

Now when the passenger exited the vehicle the officer, who's had specific training, says that he looked on the floor and he saw shake, and he said that's basically these pieces of marijuana. . . .

[I]t's the marijuana residue in the bottom of the bag and it ended up on the floor. . . .

Now it all pivots - really this whole case, as far as I'm concerned - on whether or not the officer had in plain view saw this shake and then went through with the further search. And the Court finds that the officer did not put the driver under arrest. . . . But, in any event, that's not the - legal hook, so to speak, that the prosecutor is hanging his hat on. . . . The prosecutor is hanging his hat on the fact that once the passenger stepped out there was in plain view the shake, and then since that was in plain view the officers had a right to search the interior of the car. And before actually they did that, before they searched the interior of the car, called for the K-9 dog, the K-9 dog came, K-9 dog reacted to the illegal substances, the K-9 dog then went in the back seat and reacted to a hooded sweatshirt, which was later on determined to belong to the defendant, and there was apparently marijuana in that - in that sweatshirt.

I find that there are exigent circumstances. This is a vehicle. They would have had to impound the vehicle. There was only - there's only three men on the - working at that time on that shift.

It's obviously a small town here in Warren County. I think there were, because of the vehicle, exigent circumstances that existed, which allowed them to search just the interior of the passenger compartment. They did not go into the trunk. If they went into the trunk, counsel, I would have had issue with that. They didn't. They only searched the interior passenger compartment.

Both driver and passenger had under their control not only where they were sitting, could have reached into the back seat and grabbed their - the sweatshirt. So for those reasons I - I find that the search is reasonable, and the defense's motion is denied.

After the court's ruling, M.C. entered into a plea agreement with the State and pleaded guilty to possession of under fifty grams of marijuana and disorderly conduct. The court sentenced M.C. to concurrent sentences on each charge of one year of probation, thirty days' detention with all but five days suspended, fifteen hours of community service, substance abuse evaluation and treatment, and monetary fees and penalties as required by applicable statutes.

On appeal, M.C. raises the following arguments:

POINT I

THE POLICE HAD NO BASIS TO STOP THE CADILLAC, TO ORDER M.C. FROM THE VEHICLE OR TO SEARCH THE VEHICLE'S REAR SEAT AREA AND ITS CONTENTS, REQUIRING THE SUPPRESSION OF THE MARIJUANA AND DRUG PARAPHERNALIA DISCOVERED AND SEIZED IN THIS MATTER.

POINT II

THE TRIAL COURT'S SENTENCING DISPOSITION WAS EXCESSIVE AND CONTRARY TO THE REHABILITATIVE FOCUS OF THE NEW JERSEY CODE OF JUVENILE JUSTICE.

"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record. . . . [A] trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)). Applying this standard of review, we find no basis to disturb Judge Coyle's findings and conclusions. We affirm denial of M.C.'s suppression motion for the reasons stated by Judge Coyle, adding the following comments.

The Fourth Amendment of the United States Constitution and article 1, paragraph 7 of the New Jersey Constitution guarantee our right not to be subjected to unreasonable search and seizure by governmental authorities. State v. Pena-Flores, 198 N.J. 6, 18 (2009). "Warrantless searches are presumptively unreasonable and thus are prohibited unless they fall within a recognized exception to the warrant requirement." Ibid. (citing State v. Wilson, 178 N.J. 7, 12 (2003)). Among these exceptions are the plain view and the automobile exceptions to the warrant requirement. Ibid.; State v. Hill, 115 N.J. 169, 173-74 (1989). "[O]n a motion to suppress evidence resulting from a warrantless search, the State has the burden of proving the validity of the search." State v. Maryland, 167 N.J. 471, 489 (2001).

In this case, the police did not have a warrant to search the Cadillac and the sweatshirt found in the back seat. Three distinguishable intrusions into the interior of the car occurred resulting in warrantless search and seizure.

The first was when the officer initially reached into the car and seized marijuana residue from the front seat after the passenger stepped out. That warrantless seizure of evidence was permitted by the plain view exception to the warrant requirement. The plain view doctrine permits the police to seize evidence without a warrant where the officer is "lawfully . . . in the viewing area," the evidence is discovered "inadvertently," and it is "'immediately apparent' to the officer that items in plain view [are] evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002) (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S.Ct. 2022, 2037-39, 29 L.Ed. 2d 564, 582-84 (1971); State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed. 2d 692 (1984)).

Here, the police officer, standing outside the car, first observed and identified the "shake" in plain view from a location where he was permitted to be. The observation of the "shake" was inadvertent upon the officer making a motor vehicle stop and seeking documentation from the driver and passenger. The officer legally ordered the passenger out of the car because he had violated a motor vehicle law by failing to wear a seatbelt and he had no identification. The officer needed identification information to issue a summons. Under these circumstances, the police could seize and secure the "shake" as evidence of possession of contraband without first obtaining a warrant. See ibid.

The second search of the interior occurred when the dog Noro jumped into the car. Our cases have held that an open-air sniff by a drug-detection dog does not intrude upon the privacy rights of a defendant and does not require a warrant provided that the police have reasonable and articulable suspicion of criminal activity. State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006), rev'd on other grounds, 192 N.J. 224 (2007); State v. Cancel, 256 N.J. Super. 430, 435-37 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993); see Illinois v. Caballes, 543 U.S. 405, 408-09, 125 S.Ct. 834, 838, 160 L.Ed. 2d 842, 847 (2005); United States v. Place, 462 U.S. 696, 707, 102 S.Ct. 2637, 2644-45, 77 L.Ed. 2d 110, 121 (1983). But open-air sniff does not mean that the dog can enter the passenger compartment of a vehicle. The dog's entry may, in fact, be more intrusive and violative of the rights of an owner or driver of a car than entry by police officers. The K-9 officer in this case testified that he warned M.C. about the possibility of Noro damaging the car by scratching and biting, the dog's manner of alerting to the scent of illegal drugs.

Before the police allow a dog to enter the interior of a car, they must meet the same requirements that would allow the police themselves to enter and search. If they have no warrant, the police need either knowing and voluntary consent, or probable cause and exigent circumstances to conduct a motor vehicle search. See Pena-Flores, supra, 198 N.J. at 28; State v. Dunlap, 185 N.J. 543, 549 (2006); State v. Cooke, 163 N.J. 657 (2000). In this case, the officer saw marijuana residue and cigar wrappers in the passenger area, and the dog alerted outside the vehicle, next to the open passenger side door, before the officers had the dog enter the vehicle to search. We agree with Judge Coyle's conclusion that the police had probable cause to believe that the interior of the car contained evidence of criminal offenses. See State v. Smith, 306 N.J. Super. 370, 381 (App. Div. 1997); State v. Letman, 235 N.J. Super. 337, 342-43 (App. Div. 1989).

The third intrusion occurred when the police officers searched the interior themselves and found more cigar wrappers and a ziplock bag containing marijuana. By that point, the dog's alerting to scents in the interior of the car added to the evidence supporting probable cause to search the interior and seize and search the sweatshirt.

With respect to the sweatshirt, our cases have not distinguished between searching the passenger compartment of the car and searching items or containers found there. See State v. Guerra, 93 N.J. 146, 150-51 (1983); State v. Lewis, ___ N.J. Super. ___ (App. Div. 2010) (slip op. at 12-13); State v. Paturzzio, 292 N.J. Super. 542, 549-50 (App. Div. 1996); see also California v. Acevedo, 500 U.S. 565, 570, 111 S.Ct. 1982, 1986, 114 L.Ed. 2d 619, 628 (1991); United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 2172, 72 L.Ed. 2d 572, 593 (1982). In this case, the dog's alerting to the sweatshirt provided probable cause to search its pockets.

In sum, we find no error in the trial judge's conclusion that the police had probable cause to conduct a search of the interior of the car and objects found there in which evidence or contraband could be concealed.

The closest issue arising out of the facts is whether the evidence showed exigent circumstances to conduct the motor vehicle search without a warrant. The automobile exception under New Jersey law differs from the federal exception in that "(1) . . . the stop ha[s] to be unforeseen and spontaneous and (2) . . . exigency must be assessed based on the particular facts and circumstances of the case, and does not automatically flow from the mobility of the vehicle." Pena-Flores, supra, 198 N.J. at 22; accord Cooke, supra, 163 N.J. at 666-71; State v. Colvin, 123 N.J. 428, 429-30, 434-35, 437 (1991); State v. Alston, 88 N.J. 211, 233-34 (1981); State v. Martin, 87 N.J. 561, 569-70 (1981). "[T]he dispositive question is whether 'the circumstances . . . make it impracticable to obtain a warrant when the police have probable cause to search the car.'" PenaFlores, supra, 198 N.J. at 23 (quoting Colvin, supra, 163 N.J. at 437). "[T]he focus [is] on police safety and preservation of evidence." Id. at 11.

Legitimate considerations . . . include, for example, the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk. [Id. at 29.]

In this case, the time of day was late afternoon in early March, still in daylight, and the location was apparently a safe residential neighborhood. However, other young people were in the area observing the police activity, and at least one of them was familiar with the occupants of the car. The officers could reasonably conclude that the car would not be secure without leaving at least one officer to guard it. Because the police became aware of an open warrant for the passenger, at least one of the officers was needed to transport him to headquarters and process the warrant. See Lewis, supra, (slip op. at 11).

Additionally, the prosecutor argued that several hours would have been required to obtain a warrant, which would have extended into late evening darkness. All three officers on duty in the Warren County municipality were at the scene but their services were required for other police duties during the time that it would take to obtain a warrant. Under all these circumstances, we see no error in the trial judge's conclusion that exigent circumstances justified a warrantless search.

M.C. also appeals his sentence as excessive. We review M.C.'s sentence under the abuse of discretion standard. See State v. Gardner, 113 N.J. 510, 516 (1989); State ex rel. S.B., 333 N.J. Super. 236, 246 (App. Div. 2000). A trial court's sentencing decision will not be disturbed unless "(1) the trial court failed to follow the sentencing guidelines, (2) the aggravating and mitigating factors found by the trial court are not supported by the record, or (3) application of the guidelines renders a specific sentence clearly unreasonable." State v. Carey, 168 N.J. 413, 430 (2001). See also State v. Bieniek, ___ N.J. ___ (2010) (slip op. at 8) (limited scope of appellate review of sentence).

M.C. was sentenced to concurrent sentences of one year probation, thirty days' detention with all but five days suspended, fifteen hours of community service, substance abuse evaluation and treatment, and monetary fees and penalties as required by applicable statutes.

Judge Coyle found the following aggravating factors under N.J.S.A. 2A:4A-44a(1):

(c) The character and attitude of the juvenile indicate that the juvenile is likely to commit another delinquent or criminal act;

(d) The juvenile's prior record and the seriousness of any acts for which the juvenile has been adjudicated delinquent;

(g) The need for deterring the juvenile and others from violating the law;

(k) The impact of the offense on the community; and

(l) The threat to the safety of the public or any individual posed by the child.

The court did not find any mitigating factors.

M.C.'s juvenile arrest record included improper behavior, possession of CDS, violation of probation, fictitious reports, conspiracy, burglary, and shoplifting. Based on M.C.'s juvenile record and his current offenses, the court did not err in finding aggravating factors (c), (d), (g), (k), and (l). See Bieniek, supra, (slip op. at 8) (appellate court may not substitute its assessment of aggravating and mitigating factors for that of the sentencing judge).

The one-year probationary period does not exceed the three year maximum permitted by statute. See N.J.S.A. 2A:4A-43b(3). The thirty days' detention is substantially less than the six month maximum permitted for a disorderly persons offense under N.J.S.A. 2A:4A-44d(1)(g). Because M.C. had been adjudicated delinquent in "repetitive disorderly persons [or higher] offenses," he was subject to a period of detention as part of his sentence. N.J.S.A. 2A:4A-43c(3)(a).

With respect to the charge of disorderly conduct, a juvenile may not be sentenced to detention for a petty disorderly persons offense. State in the Interest of A.R., 246 N.J. Super. 241, 243-44 (App. Div. 1991); see N.J.S.A. 2A:4A- 44d(1). Therefore, the sentence of incarceration could not apply to M.C.'s adjudication for disorderly conduct. Because the sentences were concurrent and no additional time of detention was added for the charge of disorderly conduct, we need not disturb the overall sentence.

Affirmed.

20100223

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