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State ex rel B.L.

Superior Court of New Jersey, Appellate Division

September 23, 2013

STATE OF NEW JERSEY IN THE INTEREST OF B.L., A Juvenile

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 9, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1521-12.

Joseph E. Krakora, Public Defender, attorney for appellant B.L. (Charles H. Landesman, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief and Joshua D. Detzky, law clerk on the brief).

Before Judges St. John and Leone.

PER CURIAM

Defendant B.L. appeals from his final adjudication of juvenile delinquency. He alleges that the judge erred by denying his motion to suppress and his motion for judgment of acquittal. We affirm.

I.

On December 5, 2011, Patrolman David Gilliland was conducting random license plate inquiries in Howell Township. He ascertained that a passing pickup had no valid registration. The officer pulled over the pickup, which was being driven by B.L., who was seventeen and one-half years old. The officer had B.L. step out of the pickup, and asked him about the expired registration. B.L. responded that he was the principal operator of the pickup, though his grandfather owned it.

The officer separately asked B.L. and his passenger, S.S., where they were coming from and where they were going. B.L. replied they had come from S.S.'s residence and that "he was taking [S.S.] back to his residence to hang out." However, S.S. answered that they were coming from a gas station and going to another friend's house in Marlboro Township.

While questioning S.S., the officer saw two packages of rolling papers on the bench seat between the passenger and the driver. The officer was aware that rolling papers are commonly used for smoking marijuana. When he asked S.S. what the rolling papers were for, S.S. responded that he was taking them to the friend in Marlboro, and that he believed the friend would use them to smoke marijuana. The officer asked S.S. and B.L. if they smoked marijuana. S.S. said he had smoked marijuana, but had recently quit. B.L. replied that he smoked marijuana, but did so infrequently.

The officer then asked B.L. for consent to search the pickup. The officer advised B.L. of his rights to refuse a search, be present during the search, and stop the search. B.L. said he understood, gave permission to search, and signed a form consenting to the search.

The officer looked underneath the passenger's side of the pickup's single bench seat and discovered a two-foot-tall purple marijuana smoking pipe emitting an odor of marijuana. Right next to this "bong, " the officer found a small bag containing marijuana. Another officer found in the driver's door panel a seven-inch silver dagger with a decorative blade. B.L. said the knife belonged to him, and gave no reason why he had it with him. The officers arrested B.L. and S.S. The entire stop lasted only fifteen minutes.

The juvenile complaint charged B.L. with fourth-degree possession of a weapon under circumstances not manifestly appropriate for lawful use. N.J.S.A. 2C:39-5d. The complaint also charged B.L. with two disorderly persons offenses: possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10a(4), and possession of drug paraphernalia with intent to use, N.J.S.A. 2C:36-2.

After hearing the testimony of the officers, the judge denied the motion to suppress. Based on the same evidence, the judge denied B.L.'s motion for judgment of acquittal, and adjudicated B.L. delinquent on all the charges. The judge placed B.L. on probation for less than five months, and assessed fines and costs. B.L. appeals, raising the following issues:

POINT I
B.L.'S MOTION TO SUPPRESS THE SEARCH OF THE RED PICKUP TRUCK OPERATED BY HIM SHOULD HAVE BEEN GRANTED.
A. PRIOR TO STOPPING B.L.'S PICKUP TRUCK, OFFICER GILLILAND DID NOT HAVE A REASONABLE AND ARTICULATE [sic] SUSPICION OF CRIMINAL WRONGDOING ON THE PART OF B.L.
B. THE CONSENT TO SEARCH FORM THAT WAS SIGNED BY B.L. WAS INVALID BECAUSE NO ATTEMPT WAS MADE TO CONTACT B.L.'S PARENT OR LEGAL GUARDIAN BEFORE THE SEARCH.
POINT II
B.L.'S MOTION TO DISMISS PURSUANT TO R. 3:18-1 AFTER THE STATE RESTED SHOULD HAVE BEEN GRANTED.
A. THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE KNIFE FOUND IN THE DOOR PANEL OF THE VEHICLE OPERATED BY B.L. WAS AN OBJECT THAT WAS INTENDED TO BE USED AS A WEAPON AS DEFINED BY N.J.S.A. 2C:39-5d.
B. THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT B.L. OBTAINED OR POSSESSED EITHER ACTUALLY OR CONSTRUCTIVELY LESS THAN 50 GRAMS OF MARIJUANA OR THAT HE POSSESSED OR USED DRUG PARAPHERNALIA.

II.

B.L. first asserts that the judge erred in denying the motion to suppress. In addressing this argument, we must hew to our standard of review:

[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record. Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy. To the extent that the trial court's determination rests upon a legal conclusion, we conduct a de novo, plenary review.

[State v. Rockford, 213 N.J. 424, 440 (2013) (citations and internal quotations marks omitted).]

B.L. does not dispute that Officer Gilliland properly checked and stopped the pickup for an expired registration. See State v. Donis, 157 N.J. 44, 54-59 (1998). During the stop, "[t]he officer may also ask 'routine' questions of the vehicle's occupants, such as where they are going and coming from, and for what purpose." State v. Baum, 393 N.J.Super. 275, 286-87 (App. Div. 2007), aff'd as modified, 199 N.J. 407, 424 (2009). That question was particularly pertinent here, as the officer testified that the juveniles would not have been allowed to drive away in the unregistered vehicle in any event. Once B.L. and S.S. "advanced conflicting versions of their travels, " and the officer simultaneously saw the rolling papers in plain view, "the circumstances 'g[a]ve rise to suspicions unrelated to the traffic offense, [so the] officer may broaden [the] inquiry and satisfy those suspicions.'" See id. at 287 (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998) (citation omitted)); see also State v. Nishina, 175 N.J. 502, 518 (2003) (officer could reasonably believe rolling papers were drug paraphernalia).

B.L. argues that the officer lacked probable cause to search the pickup. However, probable cause was unnecessary if the officer properly obtained consent to search. See State v. Domicz, 188 N.J. 285, 305 (2006).

B.L. next challenges the consent to search on two grounds. First, B.L. argues that the officer lacked reasonable suspicion prior to requesting consent to search. "[I]n order for a consent to search a motor vehicle and its occupants to be valid, law enforcement personnel must have a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent to search a lawfully stopped motor vehicle." State v. Carty, 170 N.J. 632, 635 (2002).

The judge found that the officer had reasonable suspicion based on the conflicting stories of B.L. and S.S., the presence on the seat of rolling papers commonly used to smoke marijuana, the admission by B.L. and S.S. that they had smoked marijuana, and S.S.'s statement that they were taking the rolling papers to a friend who would use them to smoke marijuana. We agree these facts gave rise to reasonable suspicion. See, e.g., Baum, supra, 393 N.J.Super. at 290.

Second, B.L. argues on appeal that the consent to search was invalid because the officer did not attempt to contact B.L.'s parent or guardian before conducting the search. However, no such argument was made at the suppression hearing. B.L. does not claim that the argument was raised in his suppression motion. Rule 3:5-7(f) (formerly R.R. 3:2A-6) provides that "[i]f a timely motion [to suppress] is not made in accordance with this rule, the defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained."

We have long held that "a strict approach should be taken to the requirements of R.R. 3:2A-6(a) and that the issue of illegal search and seizure raised for the first time on appeal did not warrant application of the plain error rule." State v. Morse, 106 N.J.Super. 1, 4 (App. Div. 1968), aff'd, 54 N.J. 32, 34 (1969); see State v. Cox, 114 N.J.Super. 556, 560 (App. Div.) ("R. 3:5-7 is strictly adhered to."), certif. denied, 58 N.J. 93 (1971). An obvious purpose of this rule is to ensure that the factual record for and against suppression is developed at a suppression hearing. Here, no testimony was developed about why the officer did or did not contact B.L.'s parents prior to the request to search, or about any impact on B.L.'s response.[1] Although B.L. did file a motion to suppress, his failure to raise this issue in the suppression motion or hearing violates the purpose of Rule 3:5-7.

Even if we could consider this argument, it is meritless. B.L. relies on State v. Presha, 163 N.J. 304 (2000), but that case addressed interrogation "in a custodial setting" where Miranda[2] warnings are required. Id. at 307, 310, 312, 315-17. The Supreme Court has rejected the "application of Presha to a non-custodial context." State ex rel. J.D.H., 171 N.J. 475, 480 (2002). Presha's requirements, including that "'law enforcement officers must use their best efforts to locate [a parent or legal guardian] before beginning the interrogation, '" are only "triggered when a juvenile is in police custody facing an interrogation." Id. at 481 (quoting Presha, supra, 163 N.J. at 308).

Here, B.L. was not in police custody when he gave consent to search. "Roadside questioning of a motorist detained pursuant to a traffic stop does not constitute 'custodial interrogation' that must be preceded by Miranda warnings." Baum, supra, 393 N.J.Super. at 291. Because "the type of pressure inherent in a custodial interrogation, the focus of [the Court's] concern in Presha, did not exist in the noncustodial setting here, " Presha is inapplicable. See J.D.H., supra, 171 N.J. at 481.

The judge found that the officer advised B.L. of his rights regarding the request to search, that B.L. reviewed those rights as they appear on the form, that B.L. understood those rights, and that B.L. voluntarily consented to the search. The judge found no evidence of coercion. Particularly as B.L. was almost eighteen years old at the time of the search, we uphold the judge's findings.

III.

B.L. next offers two arguments why the judge erred in denying his motion for judgment of acquittal under Rule 3:18-1. In addressing those arguments, "[w]e apply the same standards used by the trial court in its determination of defendant's motion for a judgment of acquittal." State v. Tindell, 417 N.J.Super. 530, 549 (App. Div. 2011). We must determine "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967).

First, B.L. attacks his conviction under N.J.S.A. 2C:39-5d, arguing that the State did not prove beyond a reasonable doubt that the dagger was a weapon. To the contrary, "daggers" are specifically included in the definition of a "weapon." N.J.S.A. 2C:39-1r(3); see N.J.S.A. 2C:39-3e.

Defendant argues that the State had to prove that the dagger was intended to be used as a weapon. We disagree. "[I]f the implement is a weapon, the question of whether defendant intends to use it lawfully or unlawfully is immaterial." State v. Riley, 306 N.J.Super. 141, 150 (App. Div. 1997); accord State ex rel. G.C., 179 N.J. 475, 482 (2004) ("Section 2C:39-5d does not require proof of such explicit intent."). Rather, N.J.S.A. 2C:39-5d addresses "'the situation in which someone who has not yet formed an intent to use an object as a weapon possesses it under circumstances in which it is likely to be so used, '" namely "'circumstances not manifestly appropriate for such lawful uses as those objects may have.'" State v. Blaine, 221 N.J.Super. 66, 69-70 (App. Div. 1987) (quoting State v. Lee, 96 N.J. 156, 161 (1984)). B.L.'s assertion that Blaine and Riley require proof of intent is incorrect. See State v. Brown, 325 N.J.Super. 447, 458-59 (App. Div. 1999) (distinguishing Riley and Blaine as involving pocket knives, and reading Riley as simply applying the "circumstances not manifestly appropriate for such lawful uses as those objects may have" standard), certif. denied, 163 N.J. 76 (2000).

The "'surrounding circumstances -- such as the size, shape and condition of the knife, the nature of its concealment, the time, place and actions of the carrier when found in his possession'" can "indicate that possession of a knife may be 'not manifestly appropriate' for its lawful use." Lee, supra, 96 N.J. at 162 (quoting State v. Green, 62 N.J. 547, 560 (1973)). Here, after examining the seven-inch dagger with a decorative blade, the judge found that the dagger was not an everyday knife that people would keep handy in their pocket or vehicle. Further, the judge found that

it's not the type of an item that there would be any lawful purpose for other than possibly as a collector's item. But you don't keep collector's items in the door panel of a motor vehicle.

We agree there was sufficient evidence that B.L. had possessed the dagger "under circumstances not manifestly appropriate for such lawful uses as it may have." N.J.S.A. 2C:39-5d. Indeed, as the judge noted, B.L. possessed the dagger in the cab with the illegal drugs and drug paraphernalia. See Lee, supra, 96 N.J. at 161 ("A steak knife is appropriate at the dinner table, but sinister when concealed in a car with a BB gun."); Brown, supra, 325 N.J.Super. at 458 ("While a pocketknife belongs in one's pocket, a kitchen knife belongs at home, " and its presence in the defendant's pocket "during the commission of a crime" satisfies N.J.S.A. 2C:39-5d).

Second, B.L. asserts that the State did not prove beyond a reasonable doubt that he possessed the marijuana or the marijuana smoking pipe. It is well established that

an object may be actually or constructively possessed. A person actually possesses an object when he has physical or manual control of it. A person constructively possesses an object when, although he lacks "physical or manual control, " the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time.

[State v. Spivey, 179 N.J. 229, 236-37 (2004) (quoting State v. Schmidt, 110 N.J. 258, 270 (1988); other citations omitted).]

Thus, we ruled in State v. Scott, 398 N.J.Super. 142 (App. Div. 2006), aff'd o.b., 193 N.J. 227 (2008), that a passenger was in constructive possession of a bag of drugs, even though it was in front of the driver's seat, observing that it was "in an area readily accessible" to the passenger. Id. at 151. In State v. Bellamy, 260 N.J.Super. 449 (App. Div. 1992), certif. denied, 133 N.J. 436 (1993), we ruled that a passenger was in constructive possession of a bag of drugs even though it was "in the arm rest compartment located on the driver's side door, " noting it was "only an arm's length away" from the passenger. Id. at 451, 458. Here, B.L. was the driver and the primary operator of the pickup, and was thus more likely to have knowledge, dominion, and control over its contents. See State v. Maristany, 133 N.J. 299, 307-08 (1993) ("As the driver, Green had immediate possession of and control over the vehicle, " so "Green's status as driver would undoubtedly have been sufficient basis on which to sustain a jury's determination that Green had constructively possessed the drugs [in a bag in the trunk], absent any proof that the bag belonged to defendant.").

The judge emphasized that B.L. was the primary operator of the pickup, and that he had to know about the presence and the purpose of the two-foot tall purple marijuana smoking pipe in the pickup's cab.[3] The judge found that those facts, combined with the rolling papers on the seat next to B.L. and marijuana in the same place as the marijuana pipe, supported a reasonable inference that B.L. had constructive possession of the marijuana and marijuana smoking pipe. We agree, and find the evidence sufficient to support his convictions under N.J.S.A. 2C:35-10a(4) and N.J.S.A. 2C:36-2. Affirmed.


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