NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2983-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICKY JEAN,
Defendant-Appellant. _______________________
Submitted April 2, 2025 – Decided May 6, 2025
Before Judges DeAlmeida and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 21-02-0084.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Kevin S. Finckenauer, Assistant Deputy Public Defender, of counsel and on the briefs).
Matthew J. Platkin, Attorney General, attorney for respondent (David M. Galemba, Deputy Attorney General, of counsel and on the brief).
PER CURIAM Defendant Ricky Jean appeals from the May 15, 2023 judgment of
conviction (JOC) entered by the Law Division after a jury convicted him of
unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5(b)(1).
Defendant argues: (1) the trial court erred when, in its March 3, 2022 order, it
denied his motion to suppress the evidence obtained during a motor vehicle stop
because the officer lacked reasonable articulable suspicion to stop the vehicle;
and (2) the prohibition on eighteen-year olds receiving a handgun carry permit
established in N.J.S.A. 2C:58-4 and N.J.S.A. 2C:58-3 violates the Second
Amendment and, as a result, N.J.S.A. 2C:39-5(b)(1) is unconstitutional as
applied to him. We affirm.
I.
At 1:00 a.m. on July 21, 2020, Hamilton Township police officer Matthew
Mayhew was on patrol when a minivan without a front license plate drove past
him in the opposite lane. After the vehicle passed, Mayhew checked the rear
license plate, which he determined was a New Jersey plate. Mayhew made a U-
turn and stopped the vehicle on suspicion of a violation of N.J.S.A. 39:3-33,
which requires the display of license plates on the front and the back of a vehicle
when the New Jersey Motor Vehicle Commission (MVC) has issued two license
plates to the owner of the vehicle upon registration. Two other officers who
A-2983-22 2 were patrolling in the area arrived seconds later. The stop was recorded by the
body-worn cameras of two of the officers.
Mayhew walked up to the driver's side and observed three occupants in
the vehicle: the driver, Terion Louis; the front-seat passenger, Jamier Davis;
and the backseat passenger, defendant, who was then eighteen years old. While
speaking with Louis, Mayhew smelled the odor of raw and burnt marijuana.1
Mayhew ordered Louis to step out and walk to the back of the vehicle. Louis
admitted he smoked marijuana at his house before getting into the vehicle, but
denied smoking it in the vehicle. Mayhew searched Louis and found rolling
papers but no contraband. 2
Mayhew then approached the rear door on the driver's side of the vehicle,
where defendant was seated. Upon opening the door, Mayhew noticed the odor
of burnt marijuana grew stronger. He asked defendant to step out and walk to
the back of the vehicle. Defendant acted nervous and asked if he was going to
1 The stop occurred prior to the February 22, 2021 effective date of the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), N.J.S.A. 24:6I-31 to -56. Prior to the enactment of CREAMMA, "the smell of marijuana itself constitute[d] probable cause 'that a criminal offense had been committed and that additional contraband might be present'" in a vehicle. State v. Mandel, 455 N.J. Super. 109, 114-15 (App. Div. 2018) (citing State v. Walker, 213 N.J. 281, 290 (2013) (second alteration in original)). 2 The spelling of the surnames of the officer and Louis vary in the record. A-2983-22 3 be searched. Mayhew advised defendant he was searching for the marijuana he
smelled, and defendant denied having any contraband. Defendant tensed up his
arms as if to prevent Mayhew and his partner from putting defendant's arms
down by his side. When defendant leaned against the vehicle, Mayhew heard
the sound of metal hitting metal. Based on his training and experience, Mayhew
suspected the sound was a firearm in defendant's clothing bumping into the side
of the vehicle.
Mayhew reached into defendant's pants and felt the butt of a handgun in
defendant's underwear. Mayhew pulled a .22-caliber semiautomatic pistol from
defendant's waistband. The gun contained a magazine loaded with thirty -two
rounds of ammunition. Mayhew placed defendant under arrest.
Prior to transporting defendant to police headquarters, an officer searched
him and found a pill suspected to be ecstasy in defendant's front pants pocket.
The pill later tested positive for methamphetamine. A search of the van
uncovered "bits and pieces" of marijuana scattered throughout the vehicle.
A grand jury indicted defendant, charging him with: (1) second-degree
unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)(1);
third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-
A-2983-22 4 10(a)(1); and fourth-degree possession of a large-capacity magazine, N.J.S.A.
2C:39-3(j).3
Defendant moved to suppress the evidence obtained during the traffic
stop. In a February 2, 2022 letter brief filed in support of the motion, defendant
noted that after enactment of CREAMMA, the Attorney General adopted
guidelines stating that the odor of marijuana alone no longer constitutes
reasonable articulable suspicion to stop a person under the age of twenty-one or
probable cause to search the person's personal property or vehicle. Defendant's
brief set forth three arguments:
[(1)] While the officers may have had reason to stop the van for motor vehicle infractions, that suspicion did not extend to the defendant, Ricky Jean. [Defendant] was not operating the vehicle nor was he the owner; he was simply a passenger. Even if the officers were concerned about [the] odor of marijuana and the possibility of a driver being under the influence, the search only covered the driver of the van.;
[(2)] [T]he [S]tate argues the motor vehicle exception to the warrant requirement [applies] "because they [sic] smelled the distinct odor of marijuana emanating from the vehicle." This argument fails in light of the Attorney General Guidelines which state that the odor alone "no longer constitutes reasonable articulable suspicion to initiate a stop of an individual under the age of [twenty-one], nor does it provide probable cause
3 A charge of fourth-degree obstruction, N.J.S.A. 2C:29-1(a), was later dismissed. A-2983-22 5 to search the person.["] Id. Thus, the officers had no reasonable suspicion nor probable cause to remove [Defendant] from the car and search him.; and
[(3)] Post[-]stop behavior cannot be used to justify an initial seizure. See State v. Rosario, 299 N.J. 263 (N.J. 2017). The initial seizure must be warranted and that is not the case here. Moreover, the [S]tate never addressed the issue of decriminalization of marijuana or the Attorney General Guidelines. The guidelines specifically deny reasonable articulable suspicion and probable cause based on the odor of marijuana. Thus, the court cannot consider any actions taken after the stop.
The February 2, 2022 letter brief does not contain any argument that Mayhew
lacked reasonable articulable suspicion to believe the operator of the van
violated N.J.S.A. 39:3-33 by not having a license plate affixed to the front of
the van.
On February 18, 2022, defendant submitted a supplemental letter brief in
support of the motion "to address the alleged reasonable and articulable
suspicion and the erroneous probable cause the officer[s] claimed to have to
search Ricky Jean." The letter brief argued Mayhew lacked probable cause to
remove Jean from the vehicle to search him for contraband based on the officer's
detection of the odor of marijuana. Defendant argued, "[e]ven if we were to
assume the police had a reasonable and articulable suspicion to stop the van, and
give the driver a ticket for a [motor] vehicle infraction, the evidence they found
A-2983-22 6 does not support their claim for what they perceived to be their probable cause"
to remove defendant from the vehicle and search him. Defendant urged the court
to conclude the officers used the odor of marijuana as a subterfuge to search the
vehicle and its occupants. The February 18, 2022 letter brief does not contain
any argument that Mayhew lacked reasonable articulable suspicion that the
operator of the van violated N.J.S.A. 39:3-33 by not having a license plate
affixed to the front of the van.
After submission of defendant's letter briefs, the court held a hearing at
which Mayhew testified and the recordings from the officers' body-worn
cameras were admitted as evidence. Mayhew testified he stopped the van
because he believed the operator's failure to have a license plate attached to the
front was a violation of N.J.S.A. 39:3-33. The officer then described his
interaction with Louis and defendant as detailed above. During cross-
examination of Mayhew, defendant's counsel asked no questions concerning the
text of N.J.S.A. 39:3-33, Mayhew's knowledge of the statute, his understanding
of MVC license plate issuance practices, or the basis for his suspicion that it was
unlawful for the van in which defendant was a passenger to have only one license
plate attached to the rear.
A-2983-22 7 In the argument at the close of the hearing, defendant's counsel addressed
only "post[-]stop behavior." She argued, "I think it's important that we talk
about anything that happened past Terion [Louis] being stopped, questioned
about the marijuana. I believe, Your Honor, and I submit to the [c]ourt, that the
stop should have stopped there." Counsel added that once the officer discovered
Louis was not in possession of marijuana, "[h]e could have just impounded the
car and brought it back, and the remaining individuals would have just been
released." Instead, counsel argued, Mayhew "target[ed] Ricky Jean and used
the smell of raw and burnt marijuana as pretext to pull him out of the car and
search him . . . ." Defendant's counsel did not discuss N.J.S.A. 39:3-33 or argue
Mayhew lacked reasonable articulable suspicion to stop the van for a violation
of that statute.
On March 3, 2022, the trial court issued a written decision denying
defendant's motion to suppress. With respect to the vehicle stop, the court
found:
Pursuant to N.J.S.A. 39:3-33, "the owner of an automobile which is driven on the public highways of this State shall display . . . an identification mark or marks to be furnished by the division, provided, that if two marks are issued they shall be displayed on the
A-2983-22 8 front and rear of the vehicle."4 In other words, motor vehicles registered in New Jersey require license plates on both the front and rear of the vehicle and the absence of either license plate constitutes a motor vehicle infraction under N.J.S.A. 39:3-33 and justifies, at the very least, a brief motor vehicle stop. With respect to the instant motion, it is uncontested that the vehicle driven by Mr. Louis lacked a front license plate and that this gave rise to the "reasonable and articulable suspicion" necessary to stop the minivan.
The court found that the stop was valid and Mayhew "was in a lawful
vantage by virtue of the stop" when he smelled the odor of raw and burnt
marijuana during his questioning of Louis and when he opened the rear door
near where defendant was seated. Thus, the court concluded the officer had
probable cause to suspect defendant had engaged in criminal activity and could
have had contraband on his person or in the vehicle. As a result, the court found
Mayhew's removal of defendant from the van and subsequent search of
defendant were lawful. A March 3, 2022 order memorialized the trial court's
decision.
4 Effective July 1, 2023, N.J.S.A. 39:3-33 was amended to replace "an identification mark or marks" with "a registration plate or plates" and "if two marks are issued" with "if two registration plates are issued." L. 2023, c. 49, § 1. The parties do not dispute that in the version of N.J.S.A. 39:3-33 in effect at the time of the stop, license plates were included in the meaning of "identification mark or marks" and "if two marks are issued." In addition, the 2023 amendment substituted "commission," referring to the MVC, for "division," which was a reference to the Division of Motor Vehicles. Ibid. A-2983-22 9 A jury subsequently found defendant guilty of unlawful possession of a
weapon without a permit, N.J.S.A. 2C:39-5(b)(1), and not guilty of the
remaining charges. The court sentenced defendant to a six-year term of
imprisonment with a forty-two-month period of parole ineligibility. A May 15,
2023 JOC memorialized defendant's convictions and sentence.
This appeal followed. Defendant raises the following arguments.
POINT I
THE STATE FAILED TO PRESENT SUFFICIENT PROOFS AT THE SUPPRESSION HEARING OF A SUSPECTED VIOLATION OF N.J.S.A. 39:3-33 BECAUSE THE FAILURE TO DISPLAY A FRONT LICENSE PLATE IS NOT INHERENTLY UNLAWFUL. ACCORDINGLY, ALL EVIDENCE OBTAINED WAS THE FRUIT OF AN UNLAWFUL CAR STOP AND MUST BE SUPPRESSED.
POINT II
BECAUSE NEW JERSEY'S LAW CATEGORICALLY PROHIBITING [EIGHTEEN]- YEAR-OLDS FROM APPLYING FOR PERMITS TO CARRY HANDGUNS VIOLATES THE SECOND AND FOURTEENTH AMENDMENTS, [DEFENDANT] CANNOT BE PROSECUTED FOR FAILING TO COMPLY WITH THAT PERMITTING PROCESS.
A-2983-22 10 II.
A. Motion to Suppress.
Our scope of review of the motion court's suppression order is well
established. We must defer to the motion court's factual findings from the
suppression hearing, so long as they are supported by sufficient credible
evidence in the record. State v. Nelson, 237 N.J. 540, 551 (2019) (quoting In
Interest of J.A., 233 N.J. 432, 445 (2018)). Our review of the judge's factual
findings is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999)
(citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). By contrast, the trial
court's interpretation of the law and the legal "consequences that flow from
established facts" are reviewed de novo. State v. Gamble, 218 N.J. 412, 425
(2014).
The applicable law is clear. In general, under the Fourth Amendment of
the United States Constitution and under Article I, paragraph 7 of the New Jersey
Constitution, a warrantless search is presumed invalid and "permissible only if
'justified by one of the few specifically established and well-delineated
exceptions' to the warrant requirement." State v. Witt, 223 N.J. 409, 422 (2015)
(quoting State v. Frankel, 179 N.J. 586, 598 (2004)). That is, a defendant has a
constitutional right to be free from indiscriminate searches and seizures by
A-2983-22 11 police without a warrant, unless one of the recognized exceptions to the warrant
requirement applies. Ibid.
Further, a traffic stop is lawful when based on a reasonable and articulable
suspicion that a traffic or other offense has been committed, and the State has
the burden to prove by a preponderance of the evidence that such suspicion was
present. State v. Amelio, 197 N.J. 207, 211 (2008); see also Delaware v. Prouse,
440 U.S. 648, 663 (1979); State v. Bernokeits, 423 N.J. Super. 365, 370 (App.
Div. 2011) ("A motor vehicular violation, no matter how minor, justifies a stop
without any reasonable suspicion that the motorist has committed a crime or
other unlawful act.").
To determine whether reasonable articulable suspicion existed, a court
must consider the totality of the circumstances, viewing the "whole picture"
rather than taking each fact in isolation. Nelson, 237 N.J. at 554-55 (quoting
State v. Stovall, 170 N.J. 346, 361 (2002)). This analysis may also consider
police officers' "background and training," including their ability to "make
inferences from and deductions about the cumulative information available to
them that 'might well elude an untrained person.'" Id. at 555 (internal quotation
marks omitted) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)).
A-2983-22 12 Moreover, "[c]onstitutional precedent requires only reasonableness on the
part of the police, not legal perfection. Therefore, the State need prove only that
the police lawfully stopped the car, not that it could convict the driver of the
motor-vehicle offense." State v. Williamson, 138 N.J. 302, 304 (1994); see also
State v. Sutherland, 231 N.J. 429, 439 (2018). However, if the conduct that
caused the officer to effectuate the stop is not actually an offense, the stop is
unconstitutional. State v. Carter, 247 N.J. 488, 531 (2021).
Defendant's challenge to the trial court order denying his motion to
suppress relies on the provision of N.J.S.A. 39:3-33 stating that a license plate
must be affixed to both the front and the back of a vehicle "if two marks are
issued . . . ." As defendant correctly argues, there is no overarching statutory
requirement that all cars registered in New Jersey have an affixed front license
plate. New Jersey registered vehicles are only required to display a front license
plate when MVC issued two license plates upon registration of the vehicle.
Defendant argues the State failed to establish Mayhew had reasonable
suspicion of a motor vehicle violation before he stopped the van because :
Nowhere at the hearing did the State present any evidence or testimony suggesting the officer had any objectively reasonable belief that the car he stopped was the kind that is required to have two license plates. The officer did not question the driver about whether the car was issued two plates, did not testify at the
A-2983-22 13 hearing that the car was the kind that would typically be issued two plates, nor did he testify generally about what vehicles require two license plates.
The State argues we should decline to consider this argument because
defendant failed to raise it in the trial court. We agree. "Generally, an appellate
court will not consider issues, even constitutional ones, which were not raised
below." State v. Galicia, 210 N.J. 364, 383 (2012); see also State v. Robinson,
200 N.J. 1, 19 (2009) (explaining that appellate courts refrain from addressing
issues not developed in the trial court). Restraint from appellate review is
appropriate here.
In his initial brief in support of his motion to suppress, defendant raised
three arguments, each of which concern the post-stop actions of Mayhew.
Defendant's prehearing brief conceded that "[w]hile the officers may have had
reason to stop the van for motor vehicle infractions, that suspicion did not extend
to the defendant . . . ." In a supplemental pre-hearing brief, defendant again did
not argue Mayhew lacked reasonable articulable suspicion to stop the van for a
violation of N.J.S.A. 39:3-33. At the hearing on the motion, defendant's counsel
asked no questions concerning the text of N.J.S.A. 39:3-33, Mayhew's
knowledge of the statute, his understanding of MVC license plate issuance
practices, or the basis for his suspicion that it was unlawful for the van to have
A-2983-22 14 only one license plate attached in the rear. In the post-hearing argument, defense
counsel addressed only the post-stop conduct of the officers and did not argue
Mayhew lacked reasonable articulable suspicion to stop the van.
Defendant's failure to challenge the motor vehicle stop is highlighted in
the trial court's decision on the suppression motion. The court found that "it is
uncontested that the vehicle . . . lacked a front license plate and that this gave
rise to the 'reasonable and articulable suspicion' necessary to stop the minivan."
Defendant did not file a motion for reconsideration challenging the court's
finding that the issue was uncontested.
Defendant's failure to challenge the basis for the stop generally, or the
application of N.J.S.A. 39:3-33 specifically, "denied the State the opportunity
to confront the claim head-on; it denied the trial court the opportunity to evaluate
the claim in an informed and deliberate manner; and it denied any reviewing
court the benefit of a robust record within which the claim could be considered."
Robinson, 200 N.J. at 21. The absence of testimony in the record from Mayhew
explaining the basis for his belief that the operator of the van was in violation
of N.J.S.A. 39:3-33 is the direct result of defendant's failure to raise that issue
in his motion to suppress.
A-2983-22 15 We disagree with defendant's argument that the State was obligated to
produce proof establishing Mayhew's reasonable articulable suspicion for
stopping the van, even though defendant did not challenge the stop. The "mere
filing of a motion to suppress under Rule 3:5-7(a)" does not "require[] the State
'to justify every aspect of the warrantless search,' including the initial stop,
which [defendant] did not challenge at the suppression hearing." Witt, 223 N.J.
at 418. As the Court explained in Witt:
We reject defendant's contention that the State must disprove issues not raised by the defense at a suppression hearing. Defendant's approach would compel the State to cover areas not in dispute from fear that an abbreviated record will leave it vulnerable if the defense raises issues for the first time on appeal. Requiring the State to disprove shadow issues will needlessly lengthen suppression hearings and result in an enormous waste of judicial resources.
[Ibid.]
B. Second Amendment.
We also do not consider defendant's Second Amendment argument, which
he concedes he did not raise in the trial court. We do so because defendant's
failure to raise the argument deprived the State and the trial court of the
opportunity to develop the record necessary for disposition of the claim and
A-2983-22 16 thereby rendered the appellate record inadequate to properly address it. See
Robinson, 200 N.J. at 21.
The record does not permit us to determine whether defendant has
standing to challenge the constitutionality of the handgun carry permit statutes
and N.J.S.A. 2C:39-5(b)(1), as it is applied to him. While defendant conceded
for the first time on appeal that he never applied for a handgun carry permit, the
record contains no evidence that had he applied he would have satisfied the
statutory criteria for a permit other than the age requirement. See State v. Wade,
476 N.J. Super. 490, 503-08 (App. Div.), app. den., 255 N.J. 492 (2023). In
addition, the record contains no evidence with respect to the nation's historical
tradition of firearm regulation for persons eighteen years old, an essential
element of the legal analysis of whether the State firearm regulation challenged
by defendant violates the Second Amendment. See N.Y. State Rifle & Pistol
Ass'n, Inc. v. Bruen, 597 U.S. 1, 24 (2022).
Affirmed.
A-2983-22 17