On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-04-0638.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Yannotti.
Defendant pled guilty to unlawful possession of an assault firearm, contrary to N.J.S.A. 2C:39-5(f), and was sentenced to five years of probation. Defendant appeals from the judgment of conviction dated February 4, 2010. We affirm.
Defendant was charged with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts two and three); fourth-degree unlawful possession of a weapon (steak knife), N.J.S.A. 2C:39-5(d) (count four); second-degree possession of a weapon (steak knife) while engaged in distribution of CDS, N.J.S.A. 2C:35-4.1 (counts five and seven); and third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f) (count six).
Defendant filed a motion to suppress the evidence obtained in the search of his automobile. At the suppression hearing, Officer Constance Crea (Crea) of the Piscataway Police Department testified that on the evening of November 17, 2007, she and Patrolman Thomas Abode (Abode) were on patrol duty in Piscataway, looking for persons who might be driving while intoxicated (DWI). They were in patrol uniforms and were riding in a marked patrol vehicle.
At around 12:43 a.m., Crea and Abode were traveling southbound on a four-lane road with two lanes going north and two lanes going south. Crea and Abode were in the right lane. In his rearview mirror, Abode observed a vehicle, which was also traveling southbound in the left lane, with one headlight out. As the vehicle approached, Crea saw that the driver was not wearing a seat belt. Crea and Abode turned on the overhead lights of the patrol car. They stopped the vehicle. One person was in the car. Crea identified defendant as the driver. Crea approached the car. The window on the passenger side was rolled down.
Crea testified that she "immediately smelled the odor of burnt marijuana coming from the interior of the vehicle." When Crea asked defendant for his driver's license, vehicle registration and insurance card, she observed a plastic cup in the center console which contained a liquid beverage. Crea asked defendant whether he had consumed any alcoholic beverages. He said he had one drink. Crea asked defendant what was in the container in the center console, and defendant replied that it was the remainder of a cocktail he was going to finish when he got home.
Crea said that defendant's eyes were watery and red. She also detected the odor of alcohol emanating from his breath. Based on her training and experience, Crea believed that defendant was under the influence of alcohol and/or narcotics. Crea asked defendant to exit the vehicle so that she could administer standardized field sobriety tests. Crea asked defendant whether he had consumed marijuana and he replied that he had not. Defendant told her that he had been smoking a "black and mild" cigar, which Crea interpreted as an admission that he had been smoking marijuana. Crea said that, based on her training experience, "black and mild" cigars are used as drug paraphernalia. They are hollowed out, filled with marijuana and then smoked.
Crea asked defendant if he was in possession of any marijuana. He said that he was and it was in his pocket. Crea went into his pocket and retrieved three, small, clear ziplock bags containing green vegetation, which was later determined to be marijuana. Crea then asked defendant if he would consent to a search of the trunk of the vehicle. Defendant refused to consent.
Crea administered three field sobriety tests. Defendant failed all three. Crea arrested defendant for driving while intoxicated and for unlawful possession of marijuana. Defendant was placed in the rear of the patrol vehicle. Crea then returned to defendant's car to retrieve the open container of alcohol.
While retrieving the container, Crea observed six clear individually-wrapped bags containing a white substance, which was later determined to be cocaine. The officers thereafter obtained a search warrant for the vehicle. The search yielded an assault rifle, which was found in the trunk. At police headquarters, defendant recorded a blood alcohol level of .09 on the Alcotest.
The trial court found that the initial traffic stop was justified by the motor vehicle violations, specifically driving with an inoperable headlight and without a fastened seat belt. The court additionally found that Crea had probable cause to arrest defendant because she had reasonable grounds to believe that he had been driving while under the influence of alcohol and/or drugs.
The court further found that the officers seized the marijuana from defendant's pocket following a valid search incident to his arrest, and the cocaine was lawfully seized under the plain view exception to the warrant requirement. In addition, the court determined that the assault rifle was admissible ...