On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. 12-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2010
Before Judges Kestin and Newman.
Defendant Douglas Philpot appeals from his de novo conviction in the Law Division, on appeal from the Vineland Municipal Court, for the disorderly persons charge of possessing a small amount of marijuana in violation of N.J.S.A. 2C:35- 10a(4), and for obstruction of the administration of law in violation of N.J.S.A. 2C:29-1. By way of sentence, the court imposed fines, costs, penalty assessments, and fees totaling $1,478, payable at the rate of $25 per month. Finding a "hardship exemption" applicable, the suspension of defendant's driver's license imposed by the municipal court was "vacated" by the Law Division judge. We now reverse.
The relevant testimony before the municipal court disclosed the following. Defendant was approached by Vineland Police Captain Rudy Beu in a municipal parking lot because he appeared to be a "suspicious person." When Beu "asked him what he was doing in the municipal lot," defendant replied that he was "taking pictures of police cars." When Beu asked him why he was doing that, defendant, according to the Captain, replied: "pay back." When Beu asked for an explanation, defendant "became belligerent and started using obscenities." In the Captain's opinion, defendant "was attempting to provoke an altercation."
Officer Joseph Pagano, who had arrived in the meantime, took over the questioning, asking defendant for his name. Pagano testified that he intended "[t]o follow up with an investigation of why [defendant] was in the parking lot," and that he had no intent at the time to arrest defendant. Pagano stated that defendant responded to the question regarding his name: "I don't have to tell you shit," whereupon Pagano asked for his identification. He told defendant that "he needed to tell me his name or he would be in violation of 2C."
According to Pagano, defendant started to walk away, and Pagano advised him "that he was not free to leave at this time." Defendant's conduct had made Pagano "[s]uspicious that something was going on that shouldn't be going on." When Pagano said, again, that he "needed to see [defendant's] identification and he was not yet free to leave, that I was conducting an investigation," defendant responded, according to Pagano: "I don't have to tell you a fuckin' thing." Pagano testified that he then placed defendant under arrest and brought him to the report room of police headquarters.
Pagano described what took place next: "We empt[ied defendant's] pockets and tr[ied] to identify him." Pagano testified that Officer Smith, on duty in the report room, "advised [Pagano] that he had arrested [defendant] that night and signed complaints against him." The officers "removed a badge holder off of [defendant] that had a gold badge on it, bail bondsman badge of some type." Pagano testified that on close inspection after the "Velcro type holder" was opened "there was a piece of green like vegetation on it which the officers recognized as marijuana." A field test was conducted and the vegetation tested positive for marijuana. The substance "was sealed in a[n] evidence bag." A State Police lab test confirmed the substance to be marijuana.
Defendant, appearing pro se, testified. He stated that Officer Smith had given him a jaywalking ticket at 4:00 a.m. that morning "without a single car" in the vicinity, which defendant thought was a little ridiculous[,] so I decided to take matters into my own hands as far as collecting evidence against the Vineland police officers . . . turning without their signals and all stuff like that. I never entered any parking lot at all the entire time. All I had to do was sit on the . . . sidewalk right by the police station and I had more than 10 violations in the first 15, 20 minutes 'cause it was a shift change going on. Then I saw Smith was getting ready to leave I guess, was in his personal vehicle. He was getting ready to drive the wrong way up a one way street to cut off the light on his way home when his shift was over. And I was right there with . . video on my phone ready to take a picture of it because . . . it's undeniable proof and the charges have to stick . . . . So that was my intention of what I did. And I told Smith that I was going to be doing that . . . . And he immediately . . . put his vehicle in reverse and peeled wheels to the back of the parking lot. Sat there. Called inside and . . . told them that I was taking pictures of his personal vehicle or whatever. And that's when--
At this juncture, a hearsay objection was interposed, but the judge allowed the testimony after defendant said: "I'm testifying to what he told me himself, just like he told me he wasn't going to come to court and he hoped the charges were dismissed."
Defendant's continuing testimony essentially corroborated that of Beu and Pagano, adding that Beu said: "I'm gonna teach you to mess with my department." Defendant acknowledged having "let go with every . . . bad word that [he] ever heard in [his] entire life . . . because that was [his] only means of fighting back." However, he denied ever saying he was there for "payback." He also stated that, after police personnel had erased his cell phone pictures, he returned "to the police station to gather more evidence and [he] found more than 25 police cars with bad inspections of more than two years, numerous traffic violations and stuff like that." He recounted further police surveillance incidents.
Defendant's request for production of the evidence itself, the marijuana, was denied as "outside the time limit." The court also denied his application for dismissal of the charge on the basis that the arresting officer had not been produced. Defendant went on to describe the marijuana as a "speck . . . that's about half the size of a flea." The lab report quantified it as a "trace" amount.
In a written opinion of September 10, 2009, the Law Division judge, citing among other sources, State v. Pena, 178 N.J. 297, 304-05 (2004), recognized that the State had to prove beyond a reasonable doubt that defendant knew or should have been aware that the green vegetation found in the Velcro badge holder was marijuana and that the substance was there. The court acknowledged that defendant had "no burden to prove that he did not knowingly possess the marijuana." Indeed, the judge stated that "[d]efendant did not admit to possessing the marijuana" nor did the police find any other drugs, "pipes, packaging material[s], or other drug paraphernalia." Nor did the police "claim to smell an odor ...