On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 09-03-0193.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Messano.
Following an unsuccessful motion to suppress, defendant Montae McLaughlin entered a plea of guilty to one count of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(b). The judge sentenced defendant to a five-year term of imprisonment with a one-year period of parole ineligibility together with statutory fines and penalties and forfeiture of the weapon. Defendant appeals from the denial of the motion to suppress, and we affirm.
These are the facts adduced at the motion to suppress. At approximately 1:00 p.m. on December 9, 2008, Officer James Howard of the Willingboro Police Department observed a Silver Dodge Stratus on Van Skyver Parkway being operated with no illuminated license plate light. Howard approached the vehicle and saw the driver and two passengers. Apparently, Officer Howard had become aware of the vehicle as it earlier performed a "dip out" or maneuver to avoid the police vehicle.
Since Officer Howard was alone, upon stopping the vehicle, he ordered the driver to exit. When the door opened, the officer smelled the odor of burnt marijuana coming from the vehicle, an odor of alcohol and marijuana on the driver's person, and the scent of Black & Milds, which are used to smoke marijuana. When asked about the presence of Black & Milds, the driver answered in the affirmative. In the interim, a backup officer had arrived on the scene and concerned with the officers' safety, the officer conducted a pat-down search of the driver.
In addition to his patrol duties, Officer Howard served as a canine Patrolman, and his dog was present at the scene. The officer made a decision to run the dog around the vehicle to determine if the dog detected the presence of any drugs. As a matter of practice, Officer Howard did not use the dog with occupants inside the vehicle so, consistent with that practice, the officer asked the passengers to exit the vehicle. They did so and, again, with his previously expressed concern for the officers' safety, the passengers were patted down as they exited from the vehicle.
As Sergeant Bucs*fn1 conducted the pat-down of defendant, he found a weapon. Defendant was then placed under arrest, as were the driver and other passenger.*fn2 After the discovery of the weapon, Officer Howard put the dog directly inside the vehicle rather than walking around the vehicle as originally intended. No additional contraband was discovered.
Defendant moved to suppress the gun. At argument, defendant conceded that the original motor vehicle stop, as well as the pat-down, were proper. Defendant focused his argument on the propriety of ordering a passenger, out of the vehicle.
As to this narrow issue, the judge concluded:
Based on that -- those observations -- I would note also that the driver, at that time, was unable to identify himself or present any kind of credentials associated with the -- with the motor vehicle.
Almost as soon as the driver was out of the car, Mr. -- Mr. Vaughn [the driver] was patted down because of safety concerns; the number of persons in the vehicle, the -- the time of day.
Because of what he had smelled, Officer Howard decided that he was going to use a --a dog that he had in his vehicle to -- ...