STATE OF NEW JERSEY v. WAIL BAKRI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3106-04T53106-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WAIL BAKRI,

Defendant-Appellant.

____________________________________________________

 

Submitted November 28, 2005 - Decided

Before Judges A.A. Rodr guez and C.S. Fisher.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-08-00980.

Clifford E. Lazzaro & Associates, attorneys for appellant (Heather A. Fierro, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant was charged with third-degree possession of a controlled dangerous substance with the intent to distribute, in violation of N.J.S.A. 2C:35-5(b)(2), and second-degree possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2). Defendant's motion to suppress his inculpatory statements and other evidence was denied by Judge Edward J. Turnbach. He later entered a plea of guilty to the second-degree charge and was sentenced to a seven-year term of imprisonment.

Defendant appealed, raising the following arguments for our consideration:

I. THE TRIAL COURT ERRED BY RULING THAT THE SEARCH WAS JUSTIFIED AS A SEARCH INCIDENT TO A LAWFUL ARREST.

II. THE TRIAL COURT ERRED BY JUSTIFYING THE SCOPE OF THE SEARCH UNDER THE AUTOMOBILE EXCEPTION TO THE WARRANT CLAUSE.

III. THE TRIAL COURT ERRED BY FAILING TO SUPPRESS THE DEFENDANT'S INCULPATORY ORAL STATEMENTS.

We reject these arguments and affirm.

The evidence adduced at the suppression hearing indicated that, on April 11, 2003, Patrolman Campbell observed a red Ford Probe with temporary Florida license tags make an illegal left turn. The officer effectuated a motor vehicle stop and, in response to the officer's proper request, defendant provided a Florida driver's license. In ascertaining the status of defendant's driving privileges, the officer learned from the police computer that the Florida license was suspended and that there was an outstanding arrest warrant for defendant that emanated from the South Amboy Municipal Court regarding a New York license held by defendant. The officer returned to defendant's vehicle, placed defendant under arrest, pursuant to the South Amboy warrant of arrest, and advised him of his Miranda rights.

As defendant exited the vehicle, the officer detected the smell of burnt marijuana. When the officer told defendant of this, defendant conceded he had been smoking marijuana. Judge Turnbach explained this event and what followed in the following way:

[Defendant] said he had just smoked a small blunt in the car. So [the officer] not only had the Plain Smell exception but he had an admission from the defendant that he had been smoking marijuana in the car. And he had the right to search the interior of the car and compartments for further marijuana or CDS contraband. He had probable cause to do the search. And he did that.

And in the course of doing the search he first found a New York driver's license which, of course, was seized. And that was sticking out of a console compartment. He also observed on the front seat and some on the console seeds and various leaves of marijuana, giving him a further right to continue the search.

He picked up the cover of the console, peered inside and saw a white baggie with white pills therein. The white baggie, a photo of same being in evidence, and it's quite clear to the eye that you could see through the white baggie a large number of white pills which the officer had a right to seize under the Plain Smell case . . ., under the motor vehicle exception to the warrant requirement and he proceeded to do so.

Insofar as what took place thereafter, I find and conclude that the defendant was then questioned by Detective Cowit on the scene, after being given his Miranda warnings. And he was taken back to headquarters and further questioned after being given his Miranda warnings once again. There is in evidence . . . the statement of Miranda warnings given to the defendant and the defendant's signature [indicating] that he understands them and he waives his right to them.

. . . .

. . . I find that there was a knowing, intelligent waiver of the defendant's rights by the defendant, that there was absolutely no indication of any coercion or force, unlawful force in any way, shape or form in the case. So I will also rule that any statements made by the defendant during the course of the interview will be admissible in evidence at the trial.

We defer to Judge Turnbach's findings because they are adequately supported by the evidence, State v. Locurto, 157 N.J. 463, 474 (1999), and we affirm the order denying the motion to suppress substantially for the reasons set forth in Judge Turnbach's oral decision, adding only the following comments.

The officer's stop of defendant's vehicle was based upon a reasonable and articulable suspicion that a traffic offense -- an illegal left turn -- had been committed. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); State v. Carty, 170 N.J. 632, 639-40 (2002). Following this, it was quite appropriate for the officer to request defendant's driving credentials and to ascertain defendant's driving status. In consulting the police computer, the officer learned of the outstanding arrest warrant and the suspension of defendant's Florida driving privileges. Certainly, in light of the outstanding arrest warrant, the officer was not only justified but obligated to place defendant under arrest. State v. Jones, 143 N.J. 4, 14 (1995).

Upon returning to the defendant's vehicle in order to place defendant under arrest, the officer smelled burnt marijuana. This justified further inquiry and, after being advised of his Miranda rights, defendant admitted he had been smoking marijuana. This voluntary statement provided the officer with probable cause to believe that other violations of the law, besides the motor vehicle violations, had been committed. State v. Judge, 275 N.J. Super. 194, 196 (App. Div. 1994).

In looking within defendant's vehicle, the officer observed, in plain view, loose marijuana on the seats and a New York driver's license protruding from the center console. These observations further permitted the officer's look inside the console, which produced additional CDS. This examination into the interior of defendant's vehicle was justified by either the automobile exception to the warrant requirement or because it was incidental to a lawful arrest based upon the outstanding arrest warrant. See State v. Pierce, 136 N.J. 184, 210 (1994).

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-3106-04T5

December 7, 2005

7, 2005