NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2013
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment Nos. 10-06-0702 and 10-06-0713.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Reema Sethi Kareer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Nugent and Haas.
Following the denial of his motion to suppress the shotgun seized by police from his pickup truck, defendant Scott A. Goble pleaded guilty to the first count of a Morris County indictment charging him with third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39-5(c)(1), and to the sole count of a separate Morris County indictment charging him with possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10(a)(1). The court sentenced defendant to a five-year prison term with three years of parole ineligibility on the weapons offense, and to a concurrent five-year prison term on the CDS offense. Defendant appeals from the judgments of conviction, contending the trial court wrongfully denied his motion to suppress the shotgun. We affirm.
The parties developed the following facts at the suppression hearing. At approximately 2:11 p.m. on January 18, 2010, Washington Township Police Officer Philip Seabeck was patrolling on Route 46 when he saw an approaching pickup truck make a left-hand turn. Defendant was driving the truck and another person sat in the passenger seat. Although Seabeck observed no traffic violations or other unlawful activity, he ran the pickup's license plate and learned that Florida authorities had issued a "no bail warrant" for the truck's registered owner. After alerting both dispatch and another patrolman, Officer Hade, Seabeck turned his patrol car around and looked for the pickup, which he soon spotted in a motel parking lot. Defendant was standing alongside the passenger side of the truck holding keys and a water bottle, but Seabeck did not see the passenger.
Seabeck parked and approached the pickup. Hade arrived shortly thereafter. In response to Seabeck's questions, defendant produced his credentials and the credentials for the vehicle. When Seabeck explained that he had run the pickup license plate and a no bail warrant came back, defendant asked if it had been issued in Florida. Seabeck responded that "dispatch was looking into the warrant at this time."
When Seabeck asked about the passenger, defendant explained that the passenger's name was John Anderson or Ackerson; he was unsure of the last name. Defendant further explained that the passenger, an old friend from high school, lived at the motel and had gone into his apartment. Intending to question defendant further, Seabeck read defendant his Miranda rights and defendant acknowledged he understood them.
Seabeck next asked defendant about his eyes, which the officer observed to be "pinpointed." During the ensuing conversation, defendant said that he had a bad heroin addiction, then gave inconsistent statements about how long he had been "clean." First he said ten months, then he said he had used heroin approximately two weeks ago, and then he said he had used heroin approximately two days ago. He pulled up his sleeves and displayed his forearms, which had several needle sticks and track marks. Seabeck did not remember if defendant pulled up his sleeves voluntarily, but did remember that one of the "needle sticks" was "very fresh" and appeared to have dried blood around it.
When Seabeck questioned defendant about that particular needle mark, defendant admitted he had used heroin the previous night, between 7:00 and 8:00 p.m. At that time, Seabeck "suspected that there may have been contraband possibly in the vehicle." He also suspected defendant might be under the influence of the narcotics. Patrolman Hade contacted Corporal Bigham, a drug recognition expert, and requested that Bigham come to the parking lot and conduct field sobriety tests. Defendant was placed in the rear of the patrol car pending Bigham's arrival.
Bigham arrived, had defendant perform field sobriety tests, and determined that defendant was not under the influence of drugs and his ability to drive was not impaired. Despite Bigham's conclusions, and still suspecting that the pickup contained possible contraband, Seabeck called for a K-9 dog. Officer Seabeck explained why he called for the K-9:
Q. Okay. What specifically was going on in your mind that led you to request the K-9 Unit to arrive at the scene for a search of the vehicle?
A. I had a nervous individual that knew he had a warrant so -- which led me to believe that if he knew about it and he's been stopped before, he shouldn't really be nervous. I advised him that was the initial reason for the stop. He walked around his truck. He had the pinpoint of pupils. He was inconsistent with his stories of who his passenger was, where he was, and also his admission to using heroin all the way from a year ago changing the story up all the way until last night. I still suspected there could have been contraband in the vehicle.
Q. Was it also -- was the fact that there were fresh needle sticks and track marks, were those also factors[?]
[DEFENSE COUNSEL]: Objection; leading.
THE COURT: Sustained.
Q. Was there anything else that was in your mind -- or that you thought about in your mind at the time that might have led you to request a K-9 Unit to respond to search the vehicle?
A. Well, he had showed me evidence of use and he advised me that he had a bad heroin addiction with the -- with the evidence --the totality of the circumstances and with the presence of the needle ...