On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 11-046.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 12, 2012 -
Before Judges Sapp-Peterson and Haas.
We granted the State leave to appeal from the Law Division's June 22, 2012 order suppressing evidence of possible drug use by defendant Joshua Chafee. Having reviewed the record in light of the contentions advanced on appeal, we affirm.
According to the proofs presented by the State at the suppression hearing in municipal court, Mount Olive Township Police Officer Joseph Abrusci was on routine patrol on May 26, 2011. Officer Abrusci is certified as a "drug recognition expert."
At approximately 11:15 p.m., the officer parked his marked patrol car in front of a convenience store and went in to buy a soda. After making his purchase, he remained in the store where he talked to the night crew manager and watched the other customers "mulling around" the premises.
Through the window at the front of the store, Officer Abrusci observed defendant pull up and park his car. He observed nothing unusual about the way defendant was driving or in the manner in which defendant got out of his car and walked into the store.
Once defendant entered the store, however, Officer Abrusci testified defendant "saw me and he just kind of lost some color. He . . . had a very nervous appearance about him." The officer stated that "[w]hat jumped out at [him] was how red [defendant's] eyes were, that it was very obvious to me." Officer Abrusci also stated that defendant's eyes were "glassy." Based upon his observation of the condition of defendant's eyes, Officer Abrusci believed it likely that defendant had been smoking marijuana.
Defendant "quickly went to the back" of the store and "was mulling around in the back corner." Defendant spoke to a store employee "for a short period of time" and, "on a couple of occasions," Officer Abrusci saw him "peeking over the top of the shelf to see where I was." The officer began to leave the store and defendant came "around the corner of [the] aisle towards the register." Officer Abrusci looked back at the register and defendant "immediately just turned around and darted to" the part of the store where the coffee machines were located. Defendant then continued to look "over the top of the coffee pots to see where [the officer] was at."
Officer Abrusci testified he was initially "concerned that maybe [defendant] was looking at . . . either robbing the store or thinking, that based on what my observations are with his eyes, that he was under the influence and didn't want to have direct contact with me." In spite of his asserted suspicion that a robbery might be in the offing, however, the officer left the store after "a couple of minutes."
As he did so, Officer Abrusci heard defendant ask the cashier if the store sold tobacco because he "wanted to roll his own cigarettes." The cashier told defendant the store did not sell loose tobacco, but it did carry rolling papers. Officer Abrusci testified that defendant purchased rolling papers. He did not purchase any tobacco. The cashier did not ask defendant for proof of his age. Officer Abrusci stated that defendant did not slur his words and the officer made no observations from the way defendant was walking around the store that indicated he was under the influence of alcohol or drugs.
Officer Abrusci, who knew where defendant was parked from having observed him arrive, was in the parking lot as defendant came out of the store and walked to his car. There was nothing unusual in the way defendant was walking. Defendant got into his car, started it, and "had his hand on the gear shift, was getting ready to put it in reverse." At that point, the officer came to the window of the car and told defendant "I needed to see some I.D., wanted to speak with him." According to Officer Abrusci, defendant became "very defensive" and asked why he was being singled out from all the other ...