On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-02-0127.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 13, 2010
Before Judges Rodriguez, Grall and C.L. Miniman.
Defendant Freddie Vince Williams appeals from his conviction, following a jury trial, for second-degree possession of marijuana with intent to distribute within 500 feet of public housing, contrary to N.J.S.A. 2C:35-7.1. He was sentenced to an extended-term sentence of seven years with a parole disqualifier of three and one-half years, to run consecutively to a prior sentence imposed in Middlesex County on June 1, 2009. Defendant also appeals his conviction for third-degree possession of marijuana with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1), and fourth-degree possession of marijuana, contrary to N.J.S.A. 2C:35-10a(3), which were merged for sentencing purposes with the public-housing offense. We now affirm.
The following facts are drawn from the testimony at the suppression hearing. On January 29, 2008, Franklin Township Police Officers Michael J. Opaleski and Rocco Marswillo were on patrol during the midnight shift in "area one," the northern part of Franklin bordering New Brunswick and Piscataway. Both officers were in uniform in a marked car; Opaleski was driving.
Opaleski had been assigned to Mercer County's Violent Crime and Street Narcotics Interdiction Task Force in Trenton for two years and had training in narcotics enforcement, including "in the detection of the odor of marijuana." Throughout his career, Opaleski had been involved in over 300 marijuana arrests.
At about 10:17 p.m., the officers began to check Naaman Williams Park for vagrants and criminal activity. The park is closed from sunset to sunrise. There had been prior incidents of criminal activity in the park and surrounding areas, including burglaries, drug transactions, prostitution, a shooting, and fights, as well as a homicide that occurred about fifteen months earlier at Mark Street and Matilda Avenue, which is at a corner of the park.
From Matilda Avenue, the officers observed a black Mazda pickup truck in Naaman Williams Park's parking lot that was driving through the lot at a slow rate of speed. They saw that one of the rear license plate bulbs was not operational. The truck exited the parking lot and made a left-hand turn onto Matilda Avenue. The officers followed the truck closely enough that their headlights permitted them to identify and enter the truck's license plate number into their Mobile Data Terminal (MDT). While awaiting the MDT results, Opaleski activated the overhead lights to perform a motor vehicle stop on Matilda Avenue due to the inoperable rear license plate bulb. The truck continued for approximately fifty yards down Matilda Avenue towards Hamilton Street and then turned right onto Mark Street. While pursuing the truck, the officers learned that the registered owner of the truck had suspended driving privileges. The officers observed one male in the car, but they did not know if the driver was the registered owner, "Freddie Williams." While the truck was being operated, the driver was moving around, reaching toward the front passenger floor or seat. When he turned onto Mark Street from Matilda Avenue, he parked on the left-hand side of the roadway.
Mark Street is a dead-end street. There are two houses on the left side and an abandoned garage on the right. Opaleski radioed dispatch and then exited his vehicle. He saw an individual approaching the truck and patrol car from the center of the road whom Marswillo engaged. Opaleski approached the driver's side of the truck when he noticed that "[t]he driver immediately exited the vehicle and . . . attempted to approach [him] or [his] patrol vehicle." Opaleski commanded the driver to return to his vehicle.
Marswillo was familiar with this area of Mark Street and knew defendant and his brother, Ricky Williams, the individual whom he engaged in the roadway. Marswillo had previously completed a theft report from their residence on Mark Street and "toward the end of December [2007,] several officers became involved in a physical altercation with the Williams brothers in that residence." Ricky asked Marswillo what they were doing and stated that defendant was there to take him to work. Marswillo said that they were conducting a motor vehicle stop and asked Ricky to return to his residence; Ricky complied. Marswillo watched the residence and provided cover for Opaleski.
Opaleski in the meantime approached the driver's side of the truck to ask for defendant's driver's license, registration, and insurance card. The driver's window was halfway down. Opaleski "detected an extremely pungent odor of raw marijuana emitting from the interior of the vehicle." Defendant provided his documents, and Opaleski explained the reason for the motor vehicle stop. As he spoke to defendant, Opaleski found him to be "polite" and "cooperative," but noticed that he was "extremely nervous," was not making good eye contact, and was "constantly looking towards the passenger side of the vehicle." Opaleski asked defendant to exit the vehicle and stand at the rear of the truck. He then searched defendant's person for contraband or weapons. By then, Patrol Officer Jonathan Tuchmatulin had arrived on the scene and was standing with Opaleski while Marswillo was standing in the middle of the street on the right side of the truck.
In one of defendant's pockets, Opaleski located a mediumsized black bag containing "numerous smaller Ziploc bags," which he knew were used for packaging and selling narcotics. Opaleski also located other items, including CDs, a Game Boy, cell phones, cell phone accessories, money, varied paperwork, and a toothbrush. Opaleski returned all the items to defendant's pocket as they did not pose any danger to the officers.
Tuchmatulin then stayed with defendant at the rear of the truck while
Opaleski searched its interior, beginning with the driver's side, but
finding nothing there. He then searched the passenger side where he
discovered "a large black plastic bag which contained a large Ziploc
bag, which contained a . . . greenish brown vegetative substance which
[he] believed to be suspected . . . raw marijuana." Opaleski estimated
the weight to be "between a quarter to half a pound."*fn1
Opaleski then advised defendant that he was under arrest,
handcuffed him, searched him again, and placed him in the back seat of
the patrol car. Opaleski continued to search the vehicle and also
found two Rubbermaid containers with glass vials inside. The
containers also held other Ziploc bags and "unknown liquids," which
were later identified as fragrant body oils.
Shortly after defendant's arrest, Opaleski requested that a supervisor, Sergeant Borlan, respond to the scene due to the quantity of narcotics. Detectives Lacewell, Gilmurray, and Kenneth Schwarz, as well as Borlan, subsequently arrived there.
At the police station, Marswillo and Tuchmatulin took an inventory of defendant's property. Among the items inventoried were cell phone accessories, CDs, a Game Boy, rolls of tape, and $2,475.16 in cash. Defendant was charged with, and subsequently indicted on, three drug charges. He was also charged with other offenses, including three motor vehicle violations.
At the September 16, 2008, suppression hearing at which defendant testified, defense counsel argued that exigent circumstances did not exist to conduct a warrantless search of defendant's vehicle and the marijuana was not in plain view. Counsel also noted that there was no probable cause for the warrantless search of his person. The prosecutor argued that, subsequent to a valid motor vehicle stop, the officers detected the odor of marijuana; as such, the search of defendant's person was proper. The drug paraphernalia found on defendant "increased the probable cause that already existed . . . to search the vehicle." It was a "quick-moving situation with only a few officers on the scene."
The motion judge denied defendant's application, finding Opaleski and Marswillo's testimony to be credible and that of defendant to be "basically non-responsive, [not ]forthright, implausible, and therefore not worthy of belief." He found that the motor vehicle stop was justified and the warrantless search of defendant fell within the search-incident-to-arrest exception to the warrant requirement. Citing State v. Nishina, 175 N.J. 502 (2003), and State v. Vanderveer, 285 N.J. Super. 475, 481 (App. Div. 1995), he found that the strong odor of marijuana emerging from defendant's truck "established probable cause sufficient to justify the search of defendant as a search incident to [a] lawful arrest." The presence of drug paraphernalia on defendant's person "further established probable cause that the vehicle contained contraband." Citing State v. Dunlap, 185 N.J. 543, 551 (2006), and State v. Cooke, 163 N.J. 657, 672 (2000), the judge found that probable cause and exigent circumstances were . . . present to justify the warrantless search of the vehicle under the automobile exception to the warrant requirement. [Defendant's] truck was stopped in a residential area known for its drug activity and violence.
During the stop the truck was located outside of a residence with a history involving violence towards police officer[s] by both [defendant] and his brother, [Ricky].
[Ricky] attempted to approach the vehicle during the stop but complied with [Marswillo's] request that he return to the residence. There were only three officers ...