On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-05-1206.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 15, 2013
Before Judges Reisner and Hoffman.
Defendant Michael Leroy Ortiz appeals from his conviction for second-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(2), and from the sentence of ten years in prison with a forty-month parole bar.*fn1 Defendant pled guilty after the court denied his motion to suppress evidence. For the reasons that follow, we uphold the denial of the suppression motion, and we affirm defendant's conviction and sentence.
The following evidence was introduced at the suppression hearing. Egg Harbor Police Officer Shawn Owen testified that on March 2, 2008 at 12:43 a.m., he was on a routine patrol in his police car. Officer Owens stopped the car defendant was driving, a Chevy Cavalier, after he performed a random computer look-up and learned that the woman who owned the car had a suspended driver's license. Due to the time of night and lighting conditions, he could not determine the gender or ethnicity of the occupants without stopping the car. Asked on cross-examination whether he could ascertain from a distance that the driver was a male with short hair, Officer Owen responded that he had previously "pulled over males that I thought were females before because of hair length and I've pulled over females I thought were males before [because] of hair length."
After stopping the Cavalier, Owen parked behind it, exited his patrol car, and approached the stopped car on the driver's side. The driver's side window was open, and on approaching the car, Owen smelled "the odor of burnt marijuana coming from inside the vehicle." He then looked into the vehicle and observed the driver's and passenger's hands to ascertain if they were holding any weapons. Owen testified that "the driver's hands were trembling and he would not look up to face me. So at that point I did have concern for my safety."
Defendant was unable to produce a driver's license or any other form of identification, or the vehicle's registration and insurance card. Defendant claimed the Cavalier belonged to his aunt but did not give her name. The front seat passenger was also unable to produce any identification. Officer Owen did not believe that the registered owner was in the car. He did believe, based on his observations, that "there was marijuana usage in the vehicle and that the driver was not a licensed driver." Following departmental protocol, he called for back-up to ensure his own safety. Once additional officers arrived, Officer Owen ordered defendant out of the car. Observing that defendant was still trembling and was trying to turn in his direction, Officer Owen directed defendant to put his hands on top of his head.
To ensure his safety, Officer Owen then patted defendant down for weapons. During the pat-down, he felt a large lumpy bag that felt like marijuana. Officer Owen testified that "nothing else feels like a large lump of marijuana." He removed the bag, threw it on the ground, and handcuffed defendant. While he was handcuffing defendant, a leather pouch fell out of defendant's right sleeve; the bag contained cocaine. Officer Owen then did a more complete search of defendant's person, incident to the arrest, and found a large sum of money in one of defendant's pockets. After searching defendant, the officer searched the car and found a small quantity of marijuana and a partially burned marijuana cigar on the driver's side floor.
In an oral opinion placed on the record February 6, 2009, Judge Bernard DeLury found Officer Owen's testimony "particularly credible." Relying on State v. Donis, 157 N.J. 44 (1998), the judge reasoned that the officer was permitted to conduct a computer check to determine whether the car's owner was licensed. The judge concluded that based on the license search the officer had a reasonable suspicion that the Cavalier was being driven by an unlicensed driver. The judge further found that "[u]pon approaching the vehicle and almost instantaneously upon approaching it, as he came into close view, he noted the faint odor of burnt marijuana emanating from the interior of the Cavalier."
The judge found that the video from the patrol car's on-board camera confirmed Owen's testimony that he could not tell the gender of the driver without approaching the car. Once Owen approached the car, he smelled the marijuana and had reason to suspect that criminal conduct was occurring in the car. The judge also found, based on the driver's nervous demeanor and lack of identification, that the officer had a genuine concern for his own safety and had reasonable grounds to perform a pat-down search of the driver for weapons. When he found the bag of marijuana during that search, the officer had probable cause to arrest defendant. The judge concluded that the leather bag of drugs was discovered during the search incident to the arrest. Consequently, the judge denied the motion to suppress all of that evidence.
However, the judge suppressed the evidence found inside the car, reasoning that once defendant was under arrest and several officers had arrived on the scene, there were no exigent circumstances justifying a warrantless search of ...