On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-08-1892.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2010
Before Judges Wefing, Payne and Koblitz.
The opinion of the court was delivered by KOBLITZ, J.S.C. (temporarily assigned).
Defendant Thomas J. Shannon appeals from his conviction after a jury trial of third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10a(1) (count one of Monmouth County Indictment No. 06-08-1892). He was acquitted of second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(2) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count five); and second-degree possession of a weapon in the course of committing a drug offense, N.J.S.A. 2C:39-4.1c (count seven). The remaining counts: third-degree possession of CDS within 1000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7 (count three); second-degree possession of CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count six) were dismissed by the State. Defendant was sentenced to a term of three years in prison. Defendant argues on appeal that his motion to suppress the drugs found in the car he was driving should have been granted by the trial court because insufficient exigent circumstances were proven to justify a warrantless search. We are constrained to agree and reverse the conviction on those grounds.
On appeal defendant raises the following issues:
THE EVIDENCE SEIZED FROM DEFENDANT'S VEHICLE SHOULD HAVE BEEN SUPPRESSED BECAUSE THE WARRANTLESS SEARCH OF THAT VEHICLE DID NOT MEET THE REQUIREMENTS OF THE "AUTOMOBILE EXCEPTION"
POINT II THE EVIDENCE SEIZED FROM DEFENDANT'S VEHICLE SHOULD HAVE BEEN SUPPRESSED BECAUSE THE WARRANTLESS SEARCH OF THE VEHICLE WAS NOT A SEARCH INCIDENT TO DEFENDANT'S ARREST POINT III IT WAS ERROR TO DENY DEFENDANT'S MOTIONS TO DISMISS THE INDICTMENT AT THE CONCLUSION OF THE STATE'S CASE AND FOR A NEW TRIAL NOTWITHSTANDING THE VERDICT The Standards for the Motions The Evidence at Trial The Law on Possession of CDS The Law as Applied to this Case POINT IV DEFENDANT WAS DENIED HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE GROSS FAILURE OF THE STATE TO CONDUCT A COMPETENT INVESTIGATION, THE RESULTS OF WHICH COULD WELL HAVE VINDICATED APPELLANT POINT V DEFENDANT'S SENTENCE WAS EXCESSIVE Prior to jury selection, the trial court heard a motion to suppress. Only one witness, Asbury Park Police Officer Eddy Raisin, testified at the hearing. He testified to the following facts. He received two weeks of drug enforcement training and had six and one-half years of on-the-job experience. At about 8:25 p.m. on May 20, 2006, he and another police officer from the street crimes unit were driving on patrol in an unmarked patrol car. Defendant, driving a black Jeep Cherokee, sped through a red light at forty to fifty miles-per-hour in a twenty-five mile-per-hour zone and cut off the unmarked police car. The officers turned their car around to follow the Jeep as it pulled into a driveway. Defendant parked behind a Dodge Charger that was covered by a tarp. Defendant exited the car, looked side to side, then pulled up the tarp, opened and closed the door of the Dodge in the driveway, went into the house for five minutes, and then proceeded to get in the Jeep and drive away.
Not wanting to stop defendant in an unmarked car without a siren or overhead lights, Raisin then contacted an officer in a marked police car to stop defendant for the motor vehicle infractions.
Shortly after defendant left the driveway, he pulled over for two minutes and checked the hatchback area and the rear driver's seat area of his Jeep. Before he was stopped by police, defendant failed to stop at a stop sign and failed to use his turn signal. He was then pulled over by the marked police car driven by the officer Raisin had contacted. Another marked car containing a K-9 dog also stopped in front of the Jeep. Raisin testified that he was not suspicious of defendant's movements into and out of the car, but called for another police unit to stop defendant for motor vehicle infractions only.
One of the four officers at the scene approached the driver's side of the Jeep and then told Raisin that he smelled the odor of raw marijuana emanating from the car. Raisin went to the side of the Jeep and also detected the odor. Raisin, who knew defendant from prior social contact, testified that defendant was sweating, talking fast and appeared nervous. Raisin advised defendant of the motor vehicle infractions, and asked him to step out of the Jeep so the dog could enter it. Raisin explicitly testified that defendant was not under arrest at that time. After defendant exited the Jeep, Raisin patted him down, finding a wad of bills worth almost $4000, which he left in defendant's pocket until after defendant was arrested. Before entering the Jeep, the dog signaled the presence of narcotics. Raisin then searched inside the Jeep. He pulled the seat up and found two bags containing cocaine and crack cocaine, one sandwich bag containing marijuana, drug paraphernalia, including a scale, measuring cup and spoon, and a machete in a sheath. Defendant was then placed under arrest, handcuffed and placed in the back seat of a third marked police car that had also arrived at the scene. At that time a total of four police cars were at the scene; three marked and one unmarked. Raisin said normally a total of five police cars were on the road at one time in Asbury Park.
Raisin testified that defendant was stopped in a high-crime residential area, two blocks from defendant's home. Raisin said that he did not obtain a warrant because the stop was close to defendant's residence and the Jeep was registered to defendant's mother who might have come with another key to take the car. He did not recall any other people in the immediate area of the stop. ...