On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-02-0479A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and J. N. Harris.
Defendant Wesley Smith appeals from an order entered by the Law Division denying his motion to suppress evidence, together with the denial of his subsequent informal application to withdraw his guilty plea at sentencing. We affirm.
After unsuccessfully seeking the suppression of certain evidence, defendant entered a conditional plea of guilty to second-degree possession of a firearm while committing a drug crime, N.J.S.A. 2C:39-4.1(a) and third-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1).
The plea agreement provided for other related charges to be dismissed. Notwithstanding having provided a factual basis to support his plea, defendant later requested permission to withdraw the guilty plea, which was denied by the sentencing judge. Defendant was thereafter sentenced in accordance with the plea agreement to an aggregate term of six years' imprisonment, with two years of parole ineligibility, and monetary penalties as required by statute.
The charges against defendant arose from his apprehension by police--along with a co-defendant, John Broomhead--while they were seated in Broomhead's grey Dodge Intrepid, improperly parked against the flow of traffic on Adams Avenue in Pleasantville. According to her testimony from the evidentiary hearing, Sergeant Allison Carmen of the Pleasantville Police Department observed the vehicle while she was on a routine street patrol. As she pulled her police car alongside Broomhead's car, she observed defendant and Broomhead "slumped down in the front compartment of the vehicle." When Sergeant Carmen approached the vehicle and asked Broomhead, located in the driver's seat, to lower his window and produce his driving credentials, she "detected a strong odor of raw marijuana emitting from . . . the front compartment of the vehicle." Looking down to the floor of the vehicle, the officer plainly "could see a large, clear plastic freezer bag. Inside the bag was a green vegetation, which [Sergeant Carmen] suspected to be marijuana."
An ensuing search of Broomhead's vehicle yielded a cache of drugs, amounting to one pound of marijuana. The occupants of the vehicle were immediately arrested and removed from the scene. A search of defendant incident to his arrest revealed about $1,400 on his person. On appeal, defendant does not seriously challenge the warrantless search of Broomhead's vehicle, the warrantless search of his person, or the seizure of either the marijuana or the cash. Instead, he is aggrieved about what happened next.
As part of the police investigation being conducted by detectives not on the scene at Adams Avenue, it was learned that a red Ford Explorer--parked directly behind Broomhead's vehicle --was owned by defendant. Drug-detecting canines were brought to Adams Avenue where they sniffed around the Explorer and then positively reacted to the presence of controlled dangerous substances inside the vehicle. Meanwhile, Broomhead was giving a brief tape-recorded statement while under oath at police headquarters to Detective Charles Michael Oglesby, Sr. of the Pleasantville Police Department. While the Explorer was being detained and monitored by police, Detective Steven V. Sample executed an affidavit in support of a request for a search warrant to permit the inspection of the Explorer. The affidavit recited many relevant facts, but of critical importance to this appeal is its inclusion of the following statement of Detective Sample, who allegedly received information from someone-- presumably Detective Oglesby--about Broomhead's version of events:
When Broomhead arrived, [defendant] was already there sitting in his red Ford Explorer. [Defendant] got out of the vehicle and got into Broomhead's car, lifted up his shirt and pulled out the bag of marijuana from his waistband. [Defendant] advised [Broomhead] that he had more in his truck after paying him $1,400. The truck being the red Ford Explorer that was parked behind the Gray Dodge Intrepid at the time of the stop.
The tape-recorded statement of Broomhead differed from Sample's affidavit in that the recording did not contain a recitation of where defendant was coming from before he entered Broomhead's Intrepid, and also did not mention that defendant had another supply of marijuana in the Explorer. Detective Sample's affidavit did not bring up the existence of Broomhead's tape-recorded statement, did not refer to Detective Oglesby by name, and was silent about a supposedly contradictory written statement taken from Broomhead at police headquarters under Oglesby's supervision.
A search warrant for the Explorer was ultimately issued in reliance upon Detective Sample's affidavit. A search of that vehicle revealed cocaine, cash, and a firearm. Additional marijuana was not recovered from the vehicle.
Defendant moved to suppress the evidence recovered from his Explorer. First, he argued that the search warrant affidavit was contaminated by false and misleading information supplied by Detective Oglesby regarding where defendant was coming from before he entered Broomhead's vehicle. Second, defendant contended that the reaction of the supposed drug-detecting dogs was unreliable and constituted incompetent evidence because there was no proof that these canines were, in fact, trained drug-detection animals. Lastly, he contended that a de facto unconstitutional seizure of the Explorer took place more than six hours before the search warrant was obtained, rendering the prolonged detention of the vehicle unreasonable, independently warranting the suppression of evidence seized during the subsequent actual search.
The Law Division judge held an evidentiary hearing on defendant's suppression motion. Two witnesses testified:
Sergeant Carmen and Aja Canty, defendant's girlfriend. After assuming that there were inconsistencies between aspects of Detective Sample's affidavit and some of the additional information that the police actually collected, the court disregarded all of the suspect information, without the benefit of even hearing from Detective Oglesby, the supposed source of the inconsistencies. Rather, the court canvassed the affidavit, reading it as if the allegedly offending material was omitted. The judge concluded that the reconfigured affidavit provided the following summary:
So what we have left then is the fact of the pound of marijuana being recovered from the Broomhead vehicle. We have an admission from Broomhead that he had just purchased the marijuana from the defendant. We have corroboration of that in that there was $1,400 recovered from the defendant. We have information that parked right behind the Broomhead vehicle is the defendant's vehicle. And, of course, then we have the dogs being called on the scene and them giving an indication that there were narcotics in the vehicle.
Based upon this core factual scenario, the judge concluded that there was ample probable cause for the ...