On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-02-00302.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Ostrer.
After the court denied his motion to suppress evidence seized from a warrantless search of the vehicle in which he was traveling, defendant Luis Munoz-Chairez entered a conditional guilty plea to first degree possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(10)(a).
Judge Liliana DeAvila-Silebi sentenced defendant in accord with his plea agreement to a term of fifteen years, with a five-year period of parole ineligibility. Defendant now appeals from the denial of his suppression motion. We affirm.
We discern ample support in the record for Judge DeAvilaSilebi's fact-findings. See State v. Elders, 192 N.J. 224, 243 (2007) (appellate court must uphold trial court's fact findings on motion to suppress "so long as those findings are supported by sufficient credible evidence in the record") (quotation and citation omitted).
The court principally relied on the testimony of the sole witness at the hearing, Ft. Lee Police Officer Ricky Mirkovic, who initiated the motor vehicle stop and led the subsequent investigation. The court also relied on the on-board video recordings played in court, and the officer's written report. Officer Mirkovic had been a patrol officer for over seven years, and briefly served in a specialized narcotics unit until it was disbanded. He had made hundreds of drug stops, including five to ten involving a large quantity, such as over a pound of marijuana.
While observing traffic from a stationary position on Bergen Boulevard at around 10:10 p.m. on December 3, 2009, Officer Mirkovic observed a maroon Pontiac drive by in the left lane at around sixty mph, in a forty-five mph zone. The car had heavily tinted windows. The car's brake lights were illuminated and the car coasted into the right lane, then swerved back into the left lane. The officer began to follow. He observed the car had Arizona license plates. As he approached, it quickly moved into the right lane again and slowed by ten mph. Based on his experience, the officer perceived this to be an effort by the driver to let the officer pass, but the officer continued to follow, he in the left lane and the Pontiac in the right.
The Pontiac accelerated to the speed limit, the officer kept pace, and then the Pontiac illuminated its brake lights for four seconds. The Pontiac proceeded to a ramp leading to the entrance to the lower level of the George Washington Bridge. The officer activated his overhead lights to initiate a stop. The Pontiac and the officer stopped in a small triangular area, just beyond an overpass, with traffic passing on both sides. Although the officer stopped the Pontiac because of careless driving, failure to keep right, and tinted windows, his suspicions were aroused by the other circumstances, including the driver's erratic operation of the vehicle, his apparent desire to have the officer pass, the tinted windows that obscured the car's interior, and the out-of-state plates. He described the area as a high crime area, used for the transportation of illegal contraband.
The officer approached the driver's side to speak to the driver, Enrique Avila, Jr., and to request his driving credentials. Avila's hand was trembling as he handed the documents to the officer. Defendant was seated in the front passenger seat.
The officer smelled and observed one air freshener hanging from the rear-view mirror, and three hanging from the left side of the steering wheel. This further aroused suspicions, because, based on his experience and training, multiple air fresheners were commonly used to mask the odor of illegal narcotics. The car was also strewn with food and food containers, indicating to the officer that Avila and defendant had taken a long trip. While traffic passed behind him, the officer asked Avila to exit the vehicle and walk to the rear of the Pontiac, where the officer could continue his questioning without the risk of getting sideswiped.
As evident from the video recording, the officer conducted his inquiry in a calm, conversational, and non-intimidating manner. He inquired about where Avila had come from and where he was going, who owned the Pontiac, how long they had traveled, and how many stops they made along the way. Avila said that defendant and he were on their way from Phoenix to Boston to visit Avila's grandmother and defendant's grandmother; the vehicle belonged to defendant's father; and they stopped twice on the two-day journey from Arizona. The officer was mindful that Phoenix, given its proximity to the Mexican border, was considered a "source city" for narcotics distribution.
The officer perceived Avila to be nervous; he avoided eye contact. During the officer's questioning, Avila repeatedly put his hands in his pockets, despite the officer's request that he not do so. Although it was early December, and Avila's hands might just have been cold, the officer expressed concern that Avila might be reaching for something. The officer patted Avila's pockets; felt a bulge; and detected Avila's ...