On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-03-0728.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2011
Before Judges Parrillo and Skillman.
Defendant was indicted for possession of marijuana, in violation of N.J.S.A. 2C:35-10(a)(3), and possession of marijuana with the intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11). Defendant filed a motion to suppress the evidence upon which the indictment was based, which the trial court denied. Defendant then entered into a plea bargain under which he agreed to plead guilty to the charge of possession of marijuana with the intent to distribute and the State agreed to recommend a sentence of four years imprisonment, with eighteen months of parole ineligibility. The trial court accepted the plea and sentenced defendant in accordance with the plea bargain.
On appeal, defendant argues that the trial court erred in denying his motion to suppress. Defendant also argues that the sentence imposed upon him was manifestly excessive. We reject both arguments and affirm defendant's conviction and sentence.
The search that revealed the evidence upon which defendant's indictment was based occurred on the evening of January 12, 2007. The Narcotics Strike Force Unit of the Atlantic County Prosecutor's Office received information from a confidential informant that Tracy and Louis Murphy would be driving to the Brandywine Apartments in Somers Point to package or prepare cocaine in apartment twelve or thirteen in Building E. The Murphys, who are brothers, were known drug dealers, who the police believed to be armed and dangerous. Therefore, members of the strike force set up surveillance at the Brandywine Apartments in an undercover police vehicle.
Around 9:50 p.m., two cars pulled up to the apartments, one a Dodge Charger being operated by defendant and the other an SUV being driven by a woman. Both cars had out-of-state license plates. Defendant started to get out of his car, but then quickly got back into the car and drove away. The members of the strike force were unable to determine at that point whether defendant was one of the Murphy brothers.
The strike force members followed defendant out of the apartment parking lot. As they were following defendant, the officers called in the Georgia license plate number of the car defendant was driving and determined that it was "not on file." Consequently, the officers suspected that the license plate was fictitious. The officers also observed defendant drive erratically, in violation of multiple motor vehicle laws.
The officers called the Egg Harbor Township Police Department and requested their officers to intercept defendant in a marked police car. Believing that defendant might be one of the Murphy brothers, the strike force members advised the Egg Harbor police that the driver could be armed and dangerous.
One of the officers who responded to this call was Officer John DeFazio of the Egg Harbor Police Department canine unit.
DeFazio arrived at the scene of the stop immediately after other officers in another vehicle had intercepted defendant's car. A couple of minutes later, DeFazio, at the direction of members of the strike force, had his canine conduct a narcotics sniff of the exterior of defendant's car. The canine reacted positively to the presence of narcotics in the car. DeFazio testified that this positive reaction occurred at most seven minutes after the strike force called the Egg Harbor police to intercept defendant's car. Based on the canine's indication of the presence of narcotics in the car, the police applied for a warrant to search the car, which revealed the marijuana upon which defendant's indictment was based.
After the Egg Harbor police officers intercepted defendant's car, strike force members participated with them in directing defendant to get out of the car, handcuffing him, checking the car for other occupants (there were none), and patting down defendant for weapons. This patdown search did not reveal any weapons, but the police did discover a substantial amount of cash in defendant's possession. During this time, a strike force member, Investigator James Scoppa, who knew the Murphy brothers, said to the task force member who conducted the patdown search, Detective Scott Hanson, that defendant was not one of the Murphy brothers, but Hanson testified that he did not hear this comment. Hanson also testified that the canine sniff test of the car was being conducted around the same time he was conducting the patdown search.
The trial court concluded that the police officer's observations of defendant's erratic operation of the car and the information they received that the license plate was "not on file" provided sufficient justification for the stop of the car. The court found that the canine's sniffing of the exterior of defendant's car was conducted within seven minutes of that stop and concluded that this sniffing, which resulted in a positive reaction by the canine, did not constitute a search. The court further found that this positive reaction was sufficient to establish probable cause for issuance of the warrant to search defendant's car, which resulted in discovery of marijuana. The court also concluded that Detective Hanson had the reasonable suspicion ...