August 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TED BIEN AIME, A/K/A TED AIME, A/K/A TED BIEN, A/K/A TED BIENAIME, A/K/A TED NICHOLAS, A/K/A TED BIANAIME, A/K/A TED BIBN, A/K/A TED BIBNAIME, A/K/A THEODORE BIEN AIME, A/K/A TED BIEN'AIME, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-09-00800.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 16, 2011
Before Judges Waugh and Koblitz.
Defendant Ted Bien Aime appeals his conviction for second-degree possession of a handgun, N.J.S.A. 2C:39-5b, after a guilty plea to count two of Union County Indictment No. 08-09-00800. Pursuant to the negotiated plea, the State dismissed the remaining two counts of the indictment: fourth-degree possession of marijuana in a quantity of less than one ounce with intent to distribute, N.J.S.A. 2C:15-5a(1) and N.J.S.A. 2C:35-5b(12) (count one); and second-degree possession of a handgun during the commission of a drug offense, N.J.S.A. 2C:39-4.1a (count three). Defendant was sentenced to three years in prison with three years of parole ineligibility pursuant to the Graves Act. N.J.S.A. 2C:43-6c.
He argues on appeal that his motion to suppress the marijuana and handgun found in the car he was driving should have been granted by the trial court because insufficient exigent circumstances were proven to justify a warrantless search. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On March 29, 2008, Union Police Officers Walter Stinner and Daniel Roman were monitoring, from the center island, the heavy, "bumper-to-bumper" flow of traffic on Route 22 westbound at approximately 4:30 p.m. Stinner testified to the following facts. Route 22 is a four-lane highway with two lanes in each direction. Retail establishments are located on both sides of the highway, as well as on the center island. Both officers were wearing plain clothes and in an unmarked car. Their location near Liberty Travel was in a high-crime, commercial area where numerous burglaries, robberies and homicides have occurred. Stinner observed a white, two-door '95 Cadillac El Dorado traveling westbound approximately fifteen feet away from his location. Defendant was driving the Cadillac without a seatbelt, and two men were passengers. The Cadillac was moving at most five miles per hour due to the traffic. Stinner and Roman stopped the Cadillac on the left shoulder of the highway. Upon approaching the driver, Stinner smelled the odor of burnt marijuana. Officer Roman signaled to Stinner that he also smelled the marijuana. The officers called for assistance.
While waiting for the other officers to arrive, Stinner noticed teardrop tattoos under a passenger's eye, which Stinner believed indicated gang membership. When Stinner noticed the tattoos, his concerns for his safety increased. In conversation, the three occupants of the Cadillac identified themselves as members of the "Blood" gang. After defendant and the passengers confirmed that they were gang members, Stinner's safety concerns intensified. While the car was pulled over, bystanders were stopping to look. Defendant's car and the police cars on the shoulder of the highway also impeded the flow of traffic. After the three back-up officers arrived, the three men in the Cadillac were ordered to step out of the car. Two officers then searched the car, finding a loaded handgun under the front passenger seat in a leather purse and marijuana in seven small bags, as well as a scale inside a purple "velvet Crown Royal bag."*fn1
Officer Roman*fn2 testified to substantially the same facts as Stinner. Roman also testified that he and another officer searched the car and found a leather bag containing a loaded nine millimeter handgun and a purple Crown Royal bag containing defendant's wallet with his driver's license, marijuana and the scale, all under the seats. On cross-examination, Roman testified that due to the high volume of traffic and the location of the car on the shoulder of the road, "our safety was our issue and the safety around us." He testified that in the past, his fellow police officers had been hit by cars in slow-moving traffic on Route 22.
A life-long friend of defendant, Gary Desir, testified that he was across the street when defendant's Cadillac was pulled over onto the shoulder of Route 22 by the police. Desir testified to the following facts. One unmarked police car stopped defendant. After putting defendant in a patrol car, the officers recovered a purple bag from the trunk of defendant's car. Later a marked police car drove up. Desir crossed the street to inquire and was told to leave by an officer.
Defendant testified to the following facts. His wallet containing his driver's license was in his pocket when he was stopped, and he was wearing his seatbelt. He handed his credentials to the officer when stopped. The officer indicated his license was suspended. One of his passengers was smoking a "black and mild" cigar. No one smoked marijuana in his car. Two bags of marijuana were in a "sunglass" next to the visor and the purple bag was in the trunk together with the leather bag containing the gun. Four unmarked cars and one squad car ultimately arrived at the scene, containing five to eight officers.
The trial court found the two officers more credible than Desir or defendant, finding that the officers smelled the odor of burnt marijuana and they discovered a purple bag containing marijuana and leather bag containing a loaded gun under the seats of the Cadillac.
On appeal, defendant raises the following issues:
POINT I: THERE WERE NO EXIGENT CIRCUMSTANCES PREVENTING THE OFFICER FROM OBTAINING A SEARCH WARRANT PRIOR TO SEARCHING THE VEHICLE.
POINT II: IF EXIGENT CIRCUMSTANCES DID EXIST THEY WERE CREATED SOLELY BY THE ACTIONS OF THE OFFICERS.
POINT III: THE REASON PROVIDED FOR THE SEARCH, NAMELY THE SMELL OF BURNT MARIJUANA WAS PRE-TEXTUAL AND CONTRIVED BY THE OFFICERS TO JUSTIFY A WARRANTLESS SEARCH.
POINT IV: THE RULING UPHOLDING THE SEARCH IS AGAINST THE WEIGHT OF THE EVIDENCE.
In Point I of his brief, defendant argues that the police should have obtained a telephonic warrant pursuant to State v. Pena-Flores, 198 N.J. 6 (2009), and State v. Shannon, 419 N.J. Super. 235 (App. Div.), certif. granted, ___ N.J. ___ (2011).
The trial court found that "Officers Stinner and Roman were the more credible, believable witnesses." The trial court expressed concerns with Desir's testimony due to his "almost righteous indignation that his friend's vehicle was being stopped and ransacked as he called it[,]" as well as inconsistencies in his description of the events when compared to other witness testimony. With regard to defendant's testimony, the trial court found that "while he was quite candid," his testimony was less credible due to his prior convictions explaining that "people who have prior convictions are less likely to tell the truth and honor the oath requiring truthfulness than individuals who have never been previously convicted before."
We accept the credibility findings of the trial court. "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Robinson, 200 N.J. 1, 15 (2009) (internal quotation marks and citation omitted). "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999).
However, "'a trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" State v. Ugrovics, 410 N.J. Super. 482, 487-88 (App. Div. 2009) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend.
IV. Our New Jersey Constitution provides similar protections. N.J. Const. art. I, ¶ 7. "Warrantless searches are presumed to be unreasonable and, therefore, are prohibited unless a recognized exception to the warrant requirement applies. Hence, it is the government's burden 'to prove the exceptional nature of the circumstances that exempts it from the warrant requirement.'" Shannon, supra, 419 N.J. Super. at 241 (quoting State v. Ravotto, 169 N.J. 227, 236 (2001)) (internal citation omitted).
We recently had occasion to consider a similar argument regarding the need for obtaining a telephonic warrant after a motor vehicle stop in Shannon, supra. We noted that whether exigent circumstances were present justifying a warrantless search "must be determined on a case-by-case basis." Id. at 242. In making such a determination, a court should consider the following factors: the time of day; the location of the stop; the unfolding of the events establishing probable cause, the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk. [Ibid. (quoting Pena-Flores, supra, 198 N.J. at 29)].
In Shannon, supra, we held that the police reasonably could have obtained a telephonic warrant before searching the defendant's car after unexpectedly stopping it due to motor vehicle infractions where the stop occurred in a residential neighborhood at approximately 8:25 p.m., and "four police officers were initially present at the scene with [the] defendant, who was alone." Id. at 243.
We distinguished the facts in Shannon from those in PenaFlores, supra, where the Supreme Court found exigent circumstances justifying a warrantless search of the defendant's car after the police stopped it unexpectedly due to motor vehicle infractions. Id. at 242. We explained that in PenaFlores, supra, "the stop took place late at night on a heavily traveled road, and the vehicle's windows were darkly tinted so the police could not look through them for weapons or contraband. Also, in that case only two police officers were available to guard the two occupants of the car." Ibid.
Here, the police stopped defendant's car on a heavily traveled highway in a high-crime area where the car could not safely be parked on the shoulder for an extended period of time. Other officers had been hit by cars on the same road under similar conditions. The two officers confirmed that the three occupants of the car were gang members. Although the officers frisked the occupants before searching the car, the occupants were not arrested or handcuffed during the search. People were stopping to look at what was going on. These circumstances furnish an exigency not present in Shannon, supra, and both the location of the stop and ratio of police officers to occupants are more similar to those in Pena-Flores. Thus, the search of the car without seeking a telephonic warrant was justified.
In Point II of his brief, defendant argues that any exigency that existed was caused by the police. Defendant argues that the police should have directed defendant to pull into a nearby parking lot where traffic would not be impeded. This novel argument is unsupported by any legal authority. The police did not stop the car knowing they would search it. Only when they approached the car and smelled burnt marijuana did the police have cause to search the car.
In Point III of his brief, defendant argues that the smell of burnt marijuana without proof of the existence of burnt marijuana is insufficient probable cause to search defendant's car. However, the smell of burnt marijuana constitutes probable cause. State v. Nishina, 175 N.J. 502, 517 (2003). Even an odor of burnt marijuana that is not strong is sufficient. State v. Judge, 275 N.J. Super. 194, 203 (App. Div. 1994). IV
Finally, defendant argues in Point IV of his brief that the denial of his motion to suppress the evidence was against the weight of the evidence. As discussed, we accept the credibility findings and facts as determined by the trial court. Those findings support the denial of defendant's motion for the reasons discussed above.