April 5, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JORELL R. ELSTON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 defendant was armed and dangerous required to justify the patdown search, which resulted in the discovery of a substantial amount of cash that the canine indicated also had the odor of narcotics.
On appeal, defendant argues that the police did not have the reasonable suspicion that he had engaged in or was engaged in a violation of the laws required to justify the stop of his car, that the canine sniff of the exterior of his car that resulted in a positive reaction for the presence of narcotics was unconstitutional because it was conducted while he was being detained without probable cause to believe he had committed an offense, and that the patdown search that resulted in the discovery of cash that the canine indicated also had the odor of narcotics also was unconstitutional because the police did not have reasonable suspicion he was armed and dangerous when they conducted that search. Defendant also argues that his sentence was excessive.
We conclude that the police had the reasonable suspicion defendant was engaged in or had engaged in violation of the law required to justify the stop of his car, that the canine sniff of the exterior of defendant's car was conducted during the brief period of defendant's detention required to complete that stop, and therefore, that the canine sniffing that resulted in a positive reaction for the presence of drugs in the car did not constitute a search. We have no need to consider whether the patdown search of defendant was valid because the positive reaction of the canine to the presence of drugs in the car was sufficient to provide the probable cause required for issuance of the warrant even if evidence of the canine's positive reaction for the presence of drugs on the cash seized from defendant in the patdown search was not considered. In view of defendant's lengthy criminal record, his argument that the sentence imposed upon him was excessive is clearly without merit. R. 2:11-3(e)(2).
"A police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002). This includes the power to conduct an investigatory stop of a person who a police officer observes commit an apparent motor vehicle violation. State v. Dickey, 152 N.J. 468, 479 (1998). The permissible length of the temporary detention of a driver who has been observed committing a motor vehicle violation depends on the totality of the circumstances. See id. at 479-82. If the police reasonably suspect that a person stopped for a motor vehicle violation may have committed another more serious offense, the police may broaden their investigation and detain the person for a longer period of time than would be reasonable for a motor vehicle violation only. See State v. Baum, 199 N.J. 407, 424-25 (2009); Dickey, supra, 152 N.J. at 479-80.
The observations by members of the Narcotics Strike Force of defendant's commission of multiple motor vehicle violations and the determination that the Georgia license plate of the car he was operating was "not on file" provided the reasonable suspicion of unlawful activity required to justify the stop of defendant's car and his temporary detention. Within approximately seven minutes of that stop and detention, Detective DeFazio had the canine under his direction conduct a sniffing examination of the exterior of defendant's car, which resulted in a positive reaction for the presence of narcotics in the car. This canine sniff examination of the exterior of the car did not constitute a search and therefore the State was not required to show probable cause to conduct this examination. Illinois v. Caballes, 543 U.S. 405, 408-10, 125 S. Ct. 834, 837-38, 160 L. Ed. 2d 842, 847-48 (2005). Furthermore, the detention of defendant for no more than seven minutes before this canine sniff examination of the exterior of the car was clearly reasonable, particularly since defendant had been stopped not only for motor vehicle violations but also because the Georgia license plate on the car he was driving was "not on file," which warranted defendant's detention for a reasonable period of time while the police investigated this suspicious circumstance. See Dickey, supra, 152 N.J. at 479-81. We therefore conclude that the stop of defendant's car and his temporary detention during which a police canine reacted positively for the presence of narcotics in his car did not violate defendant's rights under the Fourth Amendment or Article I, Paragraph 7 of the New Jersey Constitution.
While the canine was conducting a sniff examination of the exterior of defendant's car under the direction of Detective DeFazio, members of the task force were conducting a patdown search of defendant for weapons. Defendant argues that this search was invalid because one of the members of the task force, Investigator Scoppa, who knew the Murphy brothers, had determined he was not a Murphy brother, and in light of that information, the police did not have a reasonable basis for suspecting that he was armed and dangerous, which is required to justify a patdown search for weapons during an investigatory stop. See State v. Privott, 203 N.J. 16, 24-32 (2010). Defendant argues that even though Detective Hanson, who conducted the patdown search, did not hear Investigator Scoppa's statement that defendant was not a Murphy brother, Scoppa's knowledge of this fact should be imputed to all the police officers who conducted the investigatory stop.
We have no need to decide this issue because we conclude that the warrant, under which the search of defendant's car that revealed the marijuana upon which the charges against defendant were based, would have been valid even if the evidence revealed by the patdown search were disregarded. If a search warrant is issued on the basis of a supporting affidavit that sets forth information both lawfully obtained and unlawfully obtained, and the lawfully obtained information in and of itself constitutes probable cause which would have justified issuance of the warrant apart from the tainted information, the evidence taken in execution of the warrant was properly seized and thus is not subject to suppression. State v. Holland, 176 N.J. 344, 357-61 (2003); State v. Ortense, 174 N.J. Super. 453, 454-55 (App. Div. 1980). The primary evidence upon which the affidavit in support of the application for the warrant to search defendant's car was based was the positive canine reaction for the presence of narcotics inside defendant's car. Although this affidavit also stated that the canine had reacted positively to the presence of narcotics on the cash that was discovered in defendant's pocket during the patdown for weapons, we are satisfied that the lawfully obtained evidence of the canine's positive reaction for the presence of narcotics in the car would have been provided probable cause for the search even if the canine's positive reaction for narcotics on the cash found in defendant's pocket were disregarded. See State v. Cancel, 256 N.J. Super. 430, 435-37 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993).
Therefore, we uphold the validity of that warrant, without ruling upon the validity of the patdown search.
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