NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0172-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEE H. CALHOUN,
Defendant-Appellant. ________________________________
Submitted May 3, 2017 – Decided June 13, 2017
Before Judges Accurso and Lisa.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 13-05-1342 and 14-02-0372.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs).
Christopher S. Porrino, Attorney General, attorney for respondent (Sara M. Quigley, Deputy Attorney General, of counsel and on the brief).
PER CURIAM After his suppression motion was denied, defendant pled
guilty, pursuant to a plea agreement, to one count in Indictment
No. 13-05-1342, namely Count Five, first-degree possession with
intent to distribute a controlled dangerous substance, cocaine,
N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1). Defendant was
sentenced to ten years' imprisonment with a parole disqualifier
of twenty-eight months.1 Pursuant to the plea agreement, the six
remaining counts of the indictment were dismissed. The court also
imposed all mandatory assessments and penalties.
The sole issue before us in this appeal is whether the trial
court erred in denying defendant's motion to suppress evidence
seized as a result of a warrantless search incidental to a motor
vehicle stop. More particularly, defendant argues:
POINT I
NEITHER THE STOP NOR THE PATDOWN SEARCH WAS ADEQUATELY SUPPORTED. BECAUSE THE INTRUSION WAS ILLEGAL, THE RESULTS OF THE STOP AND SEARCH MUST BE SUPPRESSED. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. I, PAR. 7.
1 At the time of sentencing, defendant was also sentenced under Indictment No. 14-02-0372 for an unrelated drug offense, which was committed approximately two months after the offense that is the subject of this appeal. The two offenses were encompassed in the same plea agreement. Pursuant to the terms of that agreement, defendant was sentenced under Indictment No. 14-02-0372 to seven years' imprisonment, to be served concurrently with the sentence imposed on the offense that is the subject of this appeal.
2 A-0172-15T3 A. The Initial Stop Was Not Supported By the Requisite Particularized Suspicion.
B. The Pat-Down Search of the Defendant Was Likewise Insufficiently Supported.
We reject defendant's arguments and affirm.
At the suppression hearing, the State presented the testimony
of the two Toms River police officers involved in the motor vehicle
stop, Shawn Ruiz and Joshua Kuhlwein. The State also produced a
Toms River Police Department K-9 officer, Stephen Eubanks, whose
testimony is not germane to the arguments defendant raises in this
appeal. Defendant did not testify or present any witnesses. The
evidence established the following relevant facts.
On November 30, 2012, at approximately 9:45 p.m., Ruiz was
conducting a surveillance of a 7-Eleven store parking lot in Toms
River, in an area known for high drug activity, with particular
relationship to a nearby motel. In the previous eleven months,
Ruiz had conducted more than sixty investigations or drug related
arrests in that area. While conducting the surveillance, he
observed a vehicle pull into the parking lot and park. The driver
remained in the vehicle. As the vehicle was pulling in, Ruiz
observed that the driver's side and passenger side windows were
tinted.
A man approached the vehicle and entered the passenger side.
About ten seconds later, that individual exited the vehicle and
3 A-0172-15T3 walked toward the motel we previously referenced. The car then
backed out of the parking lot. As it did so, Ruiz confirmed his
previous observation that the windows were tinted. He followed
the vehicle and effected a motor vehicle stop. He called dispatch
and reported his location and anticipated the arrival of a back-
up officer.
While still alone at the scene, Ruiz approached the driver's
side of the vehicle. He further observed that the windows were
"heavily tinted." He made contact with the driver, later
identified as defendant, who remained in the car. He informed
defendant that he was stopped because of the tinted windows.
Defendant was very agitated in his demeanor, and his hands were
shaking as he handed Ruiz his driver's license.
During this interaction, Ruiz detected a strong odor of raw
marijuana emanating from inside defendant's vehicle. He also
observed multiple air fresheners placed inside the vents of the
vehicle, which, from his training and experience, Ruiz knew was a
common method used to mask the odor of illegal substances inside
a vehicle. Because of the smell of marijuana, Ruiz told defendant
of the observations he made in the 7-Eleven parking lot.
Kuhlwein arrived as the back-up officer, and he approached
the passenger side of defendant's car. Because of the heavy tint
of the front passenger side window, Ruiz requested that defendant
4 A-0172-15T3 lower that window to enable Kuhlwein to observe the conversation.
This measure was also taken for police safety. With the passenger
window lowered, Kuhlwein also detected the odor of marijuana
emanating from inside the vehicle.
At Ruiz's request, defendant exited the vehicle. Defendant
continued to act in an agitated manner, constantly placing his
left hand near his left pocket and on several occasions placing
his hand in that pocket. He was postured in a manner which, as
Ruiz described it, "to be somewhat . . . bladed away from me in
such a stance where I thought that [defendant] may possibly run
away from me or charge at me." Kuhlwein made similar observations.
Ruiz asked defendant if he had anything dangerous or illegal
on him, to which defendant answered in the negative. For purposes
of officer safety, Ruiz conducted a pat down of defendant to search
for weapons. He "immediately felt a hard object which [he]
recognized to be possibly a knife." He removed the object, which
was a folding knife. He then directed defendant to sit in the
back seat of his patrol car. The two officers then spoke with
each other confirming that they each smelled the odor of marijuana,
and it was determined that they should request a consent to search
the vehicle.
Ruiz asked defendant for his consent, which he refused. After
further discussion, defendant continued to withhold his consent
5 A-0172-15T3 to search. Ruiz then placed him under arrest, handcuffed him, and
conducted a full search of his person incident to the arrest. He
recovered more than $2000 in currency from his pockets.
The officers then had defendant's vehicle towed to the Toms
River Police Department, and Ruiz transported defendant to the
police department as well. The K-9 officer we previously
mentioned, Eubanks, utilized a drug-sniffing dog to conduct a dog
sniff of the outside of the vehicle. The dog indicated positively.
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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-0172-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEE H. CALHOUN,
Defendant-Appellant. ________________________________
Submitted May 3, 2017 – Decided June 13, 2017
Before Judges Accurso and Lisa.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 13-05-1342 and 14-02-0372.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs).
Christopher S. Porrino, Attorney General, attorney for respondent (Sara M. Quigley, Deputy Attorney General, of counsel and on the brief).
PER CURIAM After his suppression motion was denied, defendant pled
guilty, pursuant to a plea agreement, to one count in Indictment
No. 13-05-1342, namely Count Five, first-degree possession with
intent to distribute a controlled dangerous substance, cocaine,
N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1). Defendant was
sentenced to ten years' imprisonment with a parole disqualifier
of twenty-eight months.1 Pursuant to the plea agreement, the six
remaining counts of the indictment were dismissed. The court also
imposed all mandatory assessments and penalties.
The sole issue before us in this appeal is whether the trial
court erred in denying defendant's motion to suppress evidence
seized as a result of a warrantless search incidental to a motor
vehicle stop. More particularly, defendant argues:
POINT I
NEITHER THE STOP NOR THE PATDOWN SEARCH WAS ADEQUATELY SUPPORTED. BECAUSE THE INTRUSION WAS ILLEGAL, THE RESULTS OF THE STOP AND SEARCH MUST BE SUPPRESSED. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. I, PAR. 7.
1 At the time of sentencing, defendant was also sentenced under Indictment No. 14-02-0372 for an unrelated drug offense, which was committed approximately two months after the offense that is the subject of this appeal. The two offenses were encompassed in the same plea agreement. Pursuant to the terms of that agreement, defendant was sentenced under Indictment No. 14-02-0372 to seven years' imprisonment, to be served concurrently with the sentence imposed on the offense that is the subject of this appeal.
2 A-0172-15T3 A. The Initial Stop Was Not Supported By the Requisite Particularized Suspicion.
B. The Pat-Down Search of the Defendant Was Likewise Insufficiently Supported.
We reject defendant's arguments and affirm.
At the suppression hearing, the State presented the testimony
of the two Toms River police officers involved in the motor vehicle
stop, Shawn Ruiz and Joshua Kuhlwein. The State also produced a
Toms River Police Department K-9 officer, Stephen Eubanks, whose
testimony is not germane to the arguments defendant raises in this
appeal. Defendant did not testify or present any witnesses. The
evidence established the following relevant facts.
On November 30, 2012, at approximately 9:45 p.m., Ruiz was
conducting a surveillance of a 7-Eleven store parking lot in Toms
River, in an area known for high drug activity, with particular
relationship to a nearby motel. In the previous eleven months,
Ruiz had conducted more than sixty investigations or drug related
arrests in that area. While conducting the surveillance, he
observed a vehicle pull into the parking lot and park. The driver
remained in the vehicle. As the vehicle was pulling in, Ruiz
observed that the driver's side and passenger side windows were
tinted.
A man approached the vehicle and entered the passenger side.
About ten seconds later, that individual exited the vehicle and
3 A-0172-15T3 walked toward the motel we previously referenced. The car then
backed out of the parking lot. As it did so, Ruiz confirmed his
previous observation that the windows were tinted. He followed
the vehicle and effected a motor vehicle stop. He called dispatch
and reported his location and anticipated the arrival of a back-
up officer.
While still alone at the scene, Ruiz approached the driver's
side of the vehicle. He further observed that the windows were
"heavily tinted." He made contact with the driver, later
identified as defendant, who remained in the car. He informed
defendant that he was stopped because of the tinted windows.
Defendant was very agitated in his demeanor, and his hands were
shaking as he handed Ruiz his driver's license.
During this interaction, Ruiz detected a strong odor of raw
marijuana emanating from inside defendant's vehicle. He also
observed multiple air fresheners placed inside the vents of the
vehicle, which, from his training and experience, Ruiz knew was a
common method used to mask the odor of illegal substances inside
a vehicle. Because of the smell of marijuana, Ruiz told defendant
of the observations he made in the 7-Eleven parking lot.
Kuhlwein arrived as the back-up officer, and he approached
the passenger side of defendant's car. Because of the heavy tint
of the front passenger side window, Ruiz requested that defendant
4 A-0172-15T3 lower that window to enable Kuhlwein to observe the conversation.
This measure was also taken for police safety. With the passenger
window lowered, Kuhlwein also detected the odor of marijuana
emanating from inside the vehicle.
At Ruiz's request, defendant exited the vehicle. Defendant
continued to act in an agitated manner, constantly placing his
left hand near his left pocket and on several occasions placing
his hand in that pocket. He was postured in a manner which, as
Ruiz described it, "to be somewhat . . . bladed away from me in
such a stance where I thought that [defendant] may possibly run
away from me or charge at me." Kuhlwein made similar observations.
Ruiz asked defendant if he had anything dangerous or illegal
on him, to which defendant answered in the negative. For purposes
of officer safety, Ruiz conducted a pat down of defendant to search
for weapons. He "immediately felt a hard object which [he]
recognized to be possibly a knife." He removed the object, which
was a folding knife. He then directed defendant to sit in the
back seat of his patrol car. The two officers then spoke with
each other confirming that they each smelled the odor of marijuana,
and it was determined that they should request a consent to search
the vehicle.
Ruiz asked defendant for his consent, which he refused. After
further discussion, defendant continued to withhold his consent
5 A-0172-15T3 to search. Ruiz then placed him under arrest, handcuffed him, and
conducted a full search of his person incident to the arrest. He
recovered more than $2000 in currency from his pockets.
The officers then had defendant's vehicle towed to the Toms
River Police Department, and Ruiz transported defendant to the
police department as well. The K-9 officer we previously
mentioned, Eubanks, utilized a drug-sniffing dog to conduct a dog
sniff of the outside of the vehicle. The dog indicated positively.
Ruiz prepared an application for a search warrant, which was
issued. A subsequent search of the vehicle revealed the presence
of cocaine, marijuana, oxycodone, and drug distribution
paraphernalia.
After the conclusion of the hearing, the attorneys submitted
supplemental briefs. Judge James M. Blaney then issued a written
decision on August 15, 2014. Based upon the testimony he heard
and his observation of the witnesses, he made factual findings
consistent with the recitation of facts which we have set forth.
He found that the initial motor vehicle stop was justified based
on Ruiz's reasonable belief that a motor vehicle violation occurred
based on the tinted windows. Because of the smell of marijuana
coming from inside defendant's vehicle, the judge further found
that the officers were justified in extending the investigation
beyond the original purpose of the stop. He further found the pat
6 A-0172-15T3 search of defendant permissible because the events and
circumstances leading up to it provided a sufficient basis for a
protective search. In his remaining findings, which are not
related to this appeal, the judge concluded that the search of
defendant's person and vehicle were valid, and he accordingly
denied the suppression motion.
Our review of a trial court's decision on a suppression motion
is circumscribed. We must defer to the trial court's factual
findings as long as those findings are supported by sufficient
credible evidence in the record. State v. Elders, 192 N.J. 224,
243 (2007). A reviewing court should especially "give deference
to those findings of the trial judge which are substantially
influenced by his opportunity to hear and see the witnesses and
to have the 'feel' of the case, which a reviewing court cannot
enjoy." Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). Those findings should only be disregarded when they are
clearly mistaken. State v. Hubbard, 222 N.J. 249, 262 (2015)
(citing Johnson, supra, 42 N.J. at 162). "A trial court's findings
should not be disturbed simply because an appellate court 'might
have reached a different conclusion were it the trial tribunal.'"
State v. Handy, 206 N.J. 39, 44-45 (2011) (quoting Johnson, supra,
42 N.J. at 162).
7 A-0172-15T3 From our review of the suppression motion record, we are
satisfied that Judge Blaney's factual findings are amply supported
by sufficient credible evidence. Those findings were based on his
assessment of the demeanor of the witnesses as they testified and
his feel of the case. Accordingly, we defer to those factual
findings.
In his first argument, defendant contends that the initial
stop was not supported by the requisite particularized suspicion.
Like Judge Blaney, we reject this argument. Fundamentally,
investigatory stops of motor vehicles by police officers are
justified if based upon a reasonable articulable suspicion that a
motor vehicle violation has occurred. Delaware v. Prouse, 440
U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979).
The stop in this case was based upon Ruiz's belief that defendant
violated N.J.S.A. 39:3-74, which provides in relevant part:
No person shall drive any motor vehicle with any sign, poster, sticker or other non- transparent material upon the front windshield, wings, deflectors, side shields, corner lights adjoining windshield or front side windows of such vehicle other than a certificate or other article required to be so displayed by statute or by regulations of the commissioner.
No person shall drive any vehicle so constructed, equipped or loaded as to unduly interfere with the driver's vision to the front and to the sides.
8 A-0172-15T3 We have interpreted this provision to prohibit windows that
are so darkly tinted as to interfere with a driver's vision. State
v. Cohen, 347 N.J. Super. 375, 380 (App. Div. 2002). Judge Blaney
credited Ruiz's testimony that the windows of defendant's car were
heavily tinted. Ruiz testified that while conducting his
surveillance of the 7-Eleven parking lot, he could not see inside
of the car. At the site of the stop, when Kuhlwein arrived, it
was necessary to lower the passenger side window in order to enable
him to see inside the car.
Thus, the record supports the conclusion that a reasonable
articulable suspicion existed that defendant violated N.J.S.A.
39:3-74. Whether defendant was actually guilty of violating this
statute is not dispositive. State v. Williamson, 138 N.J. 302,
304 (1994).
We next address defendant's second argument, that the pat
down search was insufficiently supported by a reasonable belief
that defendant was armed and dangerous. To determine whether the
officers possessed such a reasonable suspicion, we must evaluate
the totality of the circumstances.
From the initial interaction with Ruiz, defendant acted in
an agitated manner. This, standing alone, is not of great
significance because many motorists stopped by a police officer
might act in such a manner. However, the smell of raw marijuana
9 A-0172-15T3 not only gives rise to a reasonable suspicion of criminal conduct,
but provides the basis for probable cause of such conduct. State
v. Judge, 275 N.J. Super. 194, 202-03 (App. Div. 1994). Ruiz was
also possessed of the knowledge of his observations in the 7-
Eleven parking lot. Based upon his training and experience and
the character of the neighborhood, he suspected that a drug
transaction occurred when an individual entered the car, only to
leave after ten seconds and then proceed toward the motel which
was known for drug activity. Finally, defendant exhibited
potentially aggressive behavior after he got out of his car,
including the movements of his left hand into and out of his left
pocket.
A police officer is permitted to conduct a limited search of
an individual's outer clothing if he reasonably believes the
individual is armed and dangerous and might pose a danger to
himself or others. Terry v. Ohio, 342 U.S. 1, 30, 88 S. Ct. 1868,
1884-85, 20 L. Ed. 2d 889, 911 (1968). We agree with Judge
Blaney's conclusion that this standard was very well supported by
the record, thus justifying a protective pat search of defendant.
Affirmed.
10 A-0172-15T3