August 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KAREEM SMITH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-04-0813.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2012
Before Judges Parrillo and Skillman.
Defendant was indicted for possession of cocaine, in violation of N.J.S.A. 2C:35-10(a)(1); possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b); and possession of a prohibited weapon or device, to wit, dum dum bullets, in violation of N.J.S.A. 2C:39-3. Defendant filed a motion to suppress the evidence against him, which the trial court denied.
Defendant then pled guilty to the charges. The trial court sentenced defendant to a five-year term of imprisonment, with three years of parole ineligibility, for possession of a handgun without a permit, and a concurrent three-year term for possession of cocaine. The court merged defendant's conviction for possession of a prohibited weapon or device into his conviction for possession of a handgun without a permit.
Defendant appeals from the denial of his motion to suppress. At the evidentiary hearing on defendant's motion, the following evidence was presented.
Around 2:41 a.m. on October 30, 2008, Officer Michael Lahey observed defendant driving the wrong way on a one-way street directly towards him. Lahey pulled his police car to the side of the street to avoid a head-on collision, did a U-turn, activated his emergency lights, and started to follow defendant. Lahey next observed defendant make an abrupt left turn without putting on his directional signal.
A short while later, defendant stopped his car and turned off his engine. Officer Lahey parked behind him and got out of his car. Lahey had difficulty seeing into defendant's car because the rear window and two back seat windows were tinted.
As Lahey approached defendant's vehicle, defendant disappeared from his view in the direction of the glove compartment. Defendant then turned the engine of his car back on. Lahey quickly returned to his car and threw it into reverse so that defendant could not back his car into the police car or driveway.
Defendant stopped his car again, and Lahey got out of the police car a second time, with his gun drawn and held behind his back. When Lahey reached defendant's car, defendant handed him his driving credentials through the open driver's side window. At this time, Lahey smelled a strong odor of burnt marijuana emanating from defendant's car and also observed what appeared to be marijuana seeds and vegetation spread around the interior of the car. Lahey handcuffed defendant and patted him down in the area of a large bulge in his pants pocket. This bulge turned out to be a large bundle of paper currency, consisting of more than 100 bills with a total value of $3367.
After removing the bundle of currency from defendant's pocket, Lahey determined that defendant had closed and re-locked the glove compartment after taking out his driving credentials. Concerned that defendant may have hidden a gun in the glove compartment of the car, which Lahey planned to impound, Lahey took the key out of the ignition, unlocked the glove compartment, and discovered that it contained cocaine. Lahey then told defendant he was under arrest.
A canine officer was called to the scene, and the canine responded positively to the presence of drugs in other locations in the car. The police then impounded the car and towed it to a municipal parking facility.
The police subsequently obtained a warrant authorizing a search of defendant's car. This search revealed a revolver hidden in the car, for which defendant did not have a permit. The revolver was loaded with five bullets, two of which were hollow-point bullets.
By a written opinion, the trial court denied defendant's motion to suppress. The court concluded that the stop of defendant's car was justified by Officer Lahey's observations of defendant's motor vehicle violations; that Officer Lahey's smell of a strong odor of burnt marijuana emanating from the interior of defendant's car gave Officer Lahey probable cause to believe defendant possessed marijuana and justified defendant's arrest and the patdown of the bulge in his pants pocket incident to that arrest; that Officer Lahey had probable cause to believe that the glove compartment of defendant's car contained a weapon and that he was confronted with exigent circumstances that justified unlocking and searching the glove compartment without first obtaining a warrant; that the use of a canine to sniff for the presence of other drugs in the car did not constitute a search; that the police entry into the car to move it from one location to another did not require a warrant; and that the search warrant pursuant to which the police discovered the handgun and hollow-nose bullets hidden in defendant's car was properly issued.
On appeal, defendant presents the following arguments:
THE TRIAL COURT ERRED IN FINDING THE SEARCH OF THE DEFENDANT OUTSIDE HIS VEHICLE WAS LAWFUL BECAUSE NO PROBABLE CAUSE EXISTED TO ARREST THE DEFENDANT.
POINT II: THE TRIAL COURT ERRED IN FINDING THAT EXIGENT CIRCUMSTANCES PERMITTED THE WARRANTLESS SEARCH OF THE VEHICLE AT THE SCENE.
POINT III: THE TRIAL COURT INCORRECTLY DETERMINED THE SECOND WARRANTLESS SEARCH OF THE VEHICLE AT THE IMPOUND LOT WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES.
POINT IV: THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE WAS IMPROPERLY DENIED BECAUSE THE INEVITABLE DISCOVERY DOCTRINE CANNOT BE INVOKED BECAUSE THE GOVERNMENT CANNOT SHOW THAT DISCOVERY OF THE EVIDENCE BY LAWFUL MEANS WAS INEVITABLE.
(A) Probable Cause Did Not Exist Without the Illegally Obtained Evidence to Issue a Search Warrant.
(B) The State Failed to Demonstrate by Clear and Convincing Evidence That it Would Have Sought a Search Warrant Without the Tainted Knowledge or Evidence.
(C) The Impermissible Search of the Defendant's Vehicle Was the Product of Flagrant Police Misconduct.
POINT V: DEFENDANT'S SENTENCE MUST BE VACATED.*fn1
We reject the arguments defendant presents under Points I and III of his brief substantially for the reasons set forth in the trial court's written decision. Those points lack sufficient merit to warrant any additional discussion. R. 2:11-3(e)(2). We only note that even if defendant was not under arrest when Officer Lahey conducted the patdown of his pants pocket, that patdown also would have been justifiable as part of a Terry*fn2 stop because Officer Lahey reasonably believed that the hard bulge in defendant's pocket, which turned out to be a substantial amount of currency, could be a weapon, see State v. Privott, 203 N.J. 16, 25-26 (2010), and that the police officers' observations of the interior of defendant's car when they moved it from one location to another essentially duplicated the observations Officer Lahey had made at the time of his initial stop and subsequent arrest of defendant, in particular, his smell of burnt marijuana and observation of what appeared to be remnants of marijuana throughout the car.
We also conclude that the warrant for the search of defendant's car that revealed the handgun and hollow-nose bullets was properly issued. Moreover, even if the warrantless search of defendant's glove compartment was not justifiable, we conclude that the cocaine discovered in that search inevitably would have been discovered in the course of the search pursuant to the warrant. Therefore, there is no need for us to determine the validity of the search of the glove compartment.
We first consider the validity of the search warrant pursuant to which the police discovered the revolver and hollow-nose bullets hidden in defendant's car. Defendant argues that the warrant was invalid because it was issued on the basis of an affidavit that relied upon unlawfully obtained evidence, in particular, the cocaine that had been found in the glove compartment.
However, if an affidavit submitted in support of an application for a search warrant contains lawfully obtained information which establishes the probable cause required for a search, evidence obtained pursuant to the warrant will not be suppressed on the ground that the affidavit also contains unlawfully obtained information. United States v. Karo, 468 U.S. 705, 719-21, 104 S. Ct. 3296, 3305-06, 82 L. Ed. 2d 530, 544-45 (1984); State v. Holland, 176 N.J. 344, 359-61 (2003); State v. Chaney, 318 N.J. Super. 217, 221-25 (App. Div. 1999). To sustain the validity of a warrant based on an application containing unlawfully obtained information, the State also must demonstrate, by clear and convincing evidence, that the police would have sought the warrant even if they had not previously acquired the unlawfully obtained information and that the acquisition of that information did not involve flagrant police misconduct. Holland, supra, 176 N.J. at 361.
In this case, the affidavit in support of the application for the search warrant contained substantial evidence, apart from the discovery of cocaine in the glove compartment, to support a reasonable belief that defendant's car contained drugs. This evidence included Officer Lahey's smelling of a very pungent odor of burnt marijuana emanating from the car, defendant's possession of a substantial amount of paper currency, defendant's lengthy criminal record, and a police canine giving indications of the presence of a scent unique to narcotics in several locations in the car, including the glove compartment. Moreover, the trial court credited Lieutenant Shaffery's testimony that he would have sought a search warrant based solely on the strong odor of marijuana emanating from the car and the presence of what appeared to be remnants of marijuana vegetation in the car. This credibility finding is entitled to deference. State v. Locurto, 157 N.J. 463, 470-71 (1999). Finally, there was no flagrant police misconduct in this case; even if Officer Lahey's observations did not provide probable cause to believe the glove compartment contained a gun or establish exigent circumstances, defendant's furtive movement toward the glove compartment when Officer Lahey approached the car, the strong odor of burnt marijuana emanating from the car, the fact that it was the middle of the night, and defendant's possession of a substantial amount of currency characteristic of drug dealers, gave rise to an understandable concern on the part of Officer Lahey that there might be a gun in the glove compartment that a tow truck operator or other person could gain possession of before a warrant was obtained. Therefore, we conclude that the search warrant was valid.
We next consider the impact under the inevitable discovery doctrine upon defendant's motion to suppress evidence of the cocaine found in the glove compartment of his car of our holding that the search warrant was valid. In order to invoke the inevitable discovery doctrine, the State must show, by clear and convincing evidence, that:
(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independent of the discovery of such evidence by unlawful means. [State v. Sugar, 100 N.J. 214, 238 (1985).]
This doctrine may apply where evidence that was seized unlawfully inevitably would have been seized under the authority of a subsequently issued search warrant. State v. Dauplias, 282 N.J. Super. 471, 480-81 (App. Div. 1995), certif. denied, 196 N.J. 462 (2008).
We are satisfied that under the tests set forth in Sugar, the cocaine found in defendant's glove compartment inevitably would have been discovered in the course of execution of the warrant for the search of the car even if Officer Lahey had not previously discovered the cocaine in a warrantless search. For the reasons set forth in section I of this opinion, we believe that "proper, normal and specific investigatory procedures would have been pursued to complete the investigation of [this] case" even if cocaine had not been found in the glove compartment, Sugar, supra, 100 N.J. at 235, that is, that the police would have applied for, obtained and executed a warrant to search the car. Since the cocaine would still have been in the glove compartment of defendant's car at the time of such a search, "the pursuit of these procedures would have inevitably have resulted in discovery of the [cocaine]." Ibid. And because the search warrant would have been obtained even if the police had not previously found cocaine in the glove compartment, "the discovery of the [cocaine] through the use of such procedures would have occurred wholly independently of the discovery of such evidence by [alleged] unlawful means." Ibid. Therefore, we uphold the denial of the motion to suppress evidence of the cocaine based on the inevitable discovery doctrine.