On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-05-0918.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 11, 2012 -
Before Judges Espinosa and Koblitz.
Defendant appeals from the denial of his motion to suppress evidence and from his sentence.
Officers O'Neill and Lasko of the Monmouth County Sheriff's Office Fugitive Warrant Section had a warrant for defendant's arrest and went to his apartment on February 12, 2010 to arrest him. As they approached the entrance to the apartment, O'Neill was able to see the interior of the apartment and observed defendant, along with "multiple subjects" inside.
O'Neill testified at the suppression hearing that the steps leading to the door were "completely covered in ice." He knocked on the door. Defendant answered the door and stepped onto the threshold. He was wearing a sweatshirt and pants. O'Neill stepped into the house and immediately placed defendant in handcuffs. O'Neill could see into the kitchen area, where he observed four people and two baggies of a green leafy substance on the table. O'Neill testified that, based on his training and experience, he believed the green leafy substance to be marijuana and also stated he smelled the burnt odor of marijuana.
Lasko came into the apartment behind O'Neill. He checked the area behind them and advised O'Neill that he observed contraband in one of the bedrooms. O'Neill went to the bedroom, where he saw boxes of plastic storage bags, a black digital scale marked ZX-600, among other items. The face of a drawer was hanging off, allowing O'Neill to see a plastic baggie containing a green vegetative substance. O'Neill testified that the amount seized from the drawer was less than fifty grams of marijuana. In addition, O'Neill observed a gray Sentry safe with a numbered keypad.
O'Neill asked defendant for his consent to search the house. Defendant stated they "could search the room but not the safe." O'Neill called the Keyport police to assist. An officer arrived with a dog to sniff the inside of the house. The dog "alerted" to the safe. The officers obtained a search warrant for the safe the next day. A quantity of marijuana in excess of fifty grams was seized from the safe.
Defendant was indicted for fourth-degree unlawful possession of marijuana, N.J.S.A. 2C:35-10(a)(3) (count one), and third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C: 35-5(b)(11) (count two). After his motion to suppress the marijuana seized from his apartment was denied, he pled guilty to count two pursuant to a plea agreement. He was sentenced to two years probation.
In this appeal, defendant raises the following issues for our consideration:
THE WARRANTLESS SEARCH OF DEFENDANT'S APARTMENT DEPRIVED DEFENDANT OF HIS ...