On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-02-0108.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sapp-Peterson.
Five days before the Court decided State v. Pena-Flores, 198 N.J. 6 (2009), the motion judge denied defendant's motion to suppress evidence seized from the trunk of the motor vehicle she was driving based upon the plain view and exigent circumstances exceptions to the warrant requirement. In light of Pena-Flores, defendant sought reconsideration, limited solely to the arresting officer's stop and initial entry into the vehicle. The motion judge concluded that defendant's reliance upon PenaFlores to support relief on this limited issue was misplaced and that under Pena-Flores, the requisite probable cause and exigent circumstances justified the warrantless seizure of the drugs and contraband from defendant's vehicle. We affirm.
The facts presented at the suppression hearing, which the motion judge credited, were as follows: Bernards Township Police Officer Michael Sweeney observed defendant make a U-turn against a red light on Martinsville Road after exiting a nearby Exxon gas station and proceed towards the entrance ramp to Route 78. Officer Sweeney pulled the vehicle over and approached the passenger side of defendant's vehicle, where another occupant, a Hispanic male, was seated. Officer Kazinsky, operating another patrol vehicle, pulled up to the area of the stop as Officer Sweeney approached defendant's car. Once Officer Sweeney arrived at the vehicle, he illuminated his flashlight through the windows and observed what he believed to be, based upon his training and experience, "loose pieces of marijuana and loose pieces of tobacco" on the floorboards.
Officer Sweeney requested defendant's driver's license, registration, and insurance identification card. Officer Sweeney testified that defendant "didn't have a certified card license[,] I could say, an identification card, but [defendant] provided [him] with a paper, almost photocopy[-]like ID." The passenger, Vladimir Reynoso, presented a non-governmental identification card from Maryland. Officer Sweeney directed defendant to exit her vehicle. She complied and went to the rear of the vehicle, while Reynoso remained in the passenger seat.
Defendant provided her name and date of birth to Officer Sweeney. She could not remember her Social Security number. She told the officer she was returning from Manhattan, en route to Maryland, and that she and Reynoso, whom she had known for about three years, were in a dating relationship. She did not, however, know Reynoso's last name. Defendant did not make eye contact with Officer Sweeney during this encounter and appeared nervous. Reynoso denied that the two were dating.
After learning that defendant's driver's license had been revoked, Officer Sweeney separately secured defendant and Reynoso in different patrol cars. Once the third officer arrived, Officer Sweeney entered the vehicle and conducted a search, during which he found numerous loose pieces of marijuana, loose tobacco, and cotton balls. He searched the rear of the vehicle and detected a strong odor of raw marijuana coming from the trunk area. Officer Sweeney next sought consent from defendant to search the vehicle, which she refused. Patrolman Dockery, the senior officer present, requested assistance from a canine dog. Upon the dog's arrival, it alerted to the presence of marijuana in the vehicle. Officer Sweeney once again requested defendant's consent to search the vehicle, and defendant again refused consent. The officer then advised defendant that her vehicle would be seized and that a search warrant would be sought.
Defendant and Reynoso were placed under arrest and transported to police headquarters at approximately 3:30 a.m. A search warrant was sought from the emergent judge, who advised the officers that they were not "allowed to her house until [seven] a.m." The officers drove to the judge's residence and waited for her to consider their search warrant application, which she granted.
Defendant testified that she stopped at the Exxon gas station for approximately twenty-eight to thirty minutes and saw the police vehicle when she first pulled into the gas station. When she exited the gas station, she proceeded to the far left turning lane of the two left-hand turning lanes. She stopped for the red light and, when it turned green, she made a U-turn. Shortly thereafter, Officer Sweeney pulled her over and told her that she ran the red light. She told the officer that the light had been green.
In seeking suppression of the evidence, defendant argued that the initial stop was not based upon any motor vehicle violation but instead motivated by the officer's desire to stop a vehicle with out-of-state license plates. Defendant urged the court to consider that within seconds after she left the gas station, Officer Sweeney's vehicle exited the gas station and another patrol car pulled up, suggesting that Officer Sweeney had already called for backup in advance. Defendant also pointed to inconsistencies between Officer Sweeney's report and his testimony, most notably the absence of any reference to defendant crossing a double yellow line in his report, yet testifying about this violation after acknowledging there were neither signs prohibiting U-turns at the location where defendant made the turn nor signs indicating "Left Turn Only."
In denying the motion, the court first found the testimony of the officers "forthright, responsive, credible, and therefore worthy of belief." The court next concluded that Officer Sweeney stopped defendant's vehicle based upon the officer's "observation that . . . defendant had committed an illegal U- turn[,]" which in turn justified the initial stop of defendant's vehicle. The court then concluded that Officer Sweeney "immediately became aware of circumstances tending to provide evidence of illegal activity unrelated to the motor vehicle violation[,]" namely, the loose marijuana the officer observed as he illuminated his flashlight into the vehicle upon approaching it. The court reasoned that based upon "the presence of marijuana . . . the conflicting stories from . . . defendant and Mr. Reynoso, and defendant's nervous and evasive behavior in response to questioning," which the court found appropriate, "Officer Sweeney had probable cause to search the passenger compartment of defendant's vehicle." Thereafter, the court found that while in the course of searching the passenger compartment, Officer Sweeney detected a strong odor of raw marijuana emanating from the trunk area of defendant's vehicle. The court then reasoned:
The investigation into the motor vehicle violation was continually expanded by the observation of marijuana in defendant's vehicle, defendant's and Mr. Reynoso's conflicting and evasive responses to questioning, the odor of raw marijuana detected in the vehicle, and the ...