On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-12-1552.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Miniman and Waugh.
Defendant Raymonte S. Love appeals his conviction for first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1), and third-degree possession of a CDS, contrary to N.J.S.A. 2C:35-10(a)(1), as well as the resulting sentence of twelve years of incarceration, with a four-year period of parole ineligibility.*fn1 We affirm.
We glean the following facts and procedural history from the record, including the transcripts of the suppression hearing, trial, and sentencing.
On June 7, 2006, at approximately 1:00 a.m., Police Officer Joseph Abrusci observed and clocked a vehicle speeding on Interstate Route 80 in Mount Olive Township. He testified that Victoria Klebon, the driver, had a fixed stare straight ahead while driving. As he pursued the vehicle, he observed the rear-seat passenger on the driver's side acting nervously and the front-seat passenger, Love, bending forward and reaching down to the area between his seat and the passenger door.
When the vehicle came to a stop, Abrusci approached the passenger side. He saw a brown paper bag on the rear seat, another paper bag on the floor in the rear, and a third paper bag between the front passenger door and the front passenger seat where Love was sitting. Abrusci checked the bags in the backseat area because the backseat passenger had moved his hands off his lap when Abrusci was approaching. He wanted to make sure there were no weapons or anything else that could present a problem. Abrusci then asked Klebon for her credentials.
When Klebon handed her credentials to him, her hands were shaking. Abrusci asked Klebon to step out of the car so he could question her further. They walked to the rear of her car. At that point, another Mount Olive police officer arrived on the scene.
Abrusci questioned Klebon about her itinerary that night. She explained that she had driven from Scranton, Pennsylvania into New York City to visit a friend the previous day and that they were all returning to Scranton. Abrusci understood her to mean that she, Love, and the third passenger had left Scranton together on the previous day. The other officer remained with Klebon while Abrusci returned to the vehicle.
Abrusci began speaking with the backseat passenger and asked him for identification. He produced a New York driver's license. When Abrusci asked the backseat passenger what he had been doing that day, the passenger's only response was that he was "chillin." As he spoke with the backseat passenger, Abrusci detected a slight odor of burnt marijuana and the odor of alcoholic beverages in the car.
Abrusci then spoke with Love and asked about the paper bag between his seat and the door. Love denied knowing anything about it. Abrusci requested that Love get out and walk to the front of the car, where he asked Love what he and the others had been doing. Love responded that they had picked up the third passenger in New York. Abrusci placed Love in his patrol car, without handcuffs, and told Love that he was not under arrest. Abrusci explained that Love was placed in the patrol car while he checked a little further into what was going on.
After Abrusci took Love out of the car, but before he attempted to obtain consent to search the vehicle, he inspected the contents of the brown paper bag between the front passenger seat and the car door and discovered that it contained "cigar innards," which he testified, based on his experience and training regarding illegal drugs, indicated that the insides had been removed from a cigar so that the wrapper could be used to smoke marijuana.
Abrusci placed the third passenger in the patrol car with Love and then sought Klebon's consent to search the car. He did so because he believed there were drugs in the car, based on the nervous behavior of the passengers, the redness of their eyes, the odor of the burnt marijuana, the cigar innards, and the inconsistent stories about the occupants' activities. When Klebon agreed to the search, Abrusci obtained a consent-to-search form from his car and went over the form with Klebon. The consent form itself refers to the right to refuse a consent to search and recites that the police officer has explained that right to the person signing the form.
After Klebon signed the form, Abrusci thoroughly searched the front and back interior of the car, as well as the trunk. He found three bags of cocaine, each weighing three and one-half ounces, in the trunk.
Love was indicted in December of 2006 for first-degree possession with intent to distribute, count one, and third-degree possession, count two. His motion to suppress the evidence seized at the time of the motor vehicle stop was denied in ...