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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...