STATE OF NEW JERSEY v. SAEED T. ELLIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3764-07T43764-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAEED T. ELLIS,

Defendant-Appellant.

___________________________________________________________

 

Submitted January 14, 2009 - Decided

Before Judges Axelrad and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-09-2103 and 06-12-2747.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following the denial of his two motions to suppress evidence, defendant Saeed Ellis pled guilty to count one of Monmouth County Indictment No. 06-09-2103, charging him with possession of CDS, N.J.S.A. 2C:35-10a(1), and count one of Indictment No. 06-12-2747, also charging him with possession of CDS, N.J.S.A. 2C:35-10a(1). Pursuant to the plea bargain reached with the State, defendant was sentenced to two consecutive five-year terms of imprisonment and appropriate penalties were imposed.

On appeal, defendant raises the following arguments:

POINT I

(Indictment 06-12-2747)

THE SEARCH OF [CO-DEFENDANT] HARRIS' CAR WAS UNLAWFUL AND THE EVIDENCE SEIZED SUBSEQUENT THERETO MUST BE SUPPRESSED BECAUSE DETECTIVE SEIDLE HAD NO BASIS TO SEIZE DEFENDANT OR ENTER THE CAR BASED ON AN OBSERVED OPEN CONTAINER VIOLATION.

POINT II

(Indictment 06-09-2103)

OFFICER PETILLO HAD NO PROBABLE CAUSE TO BELIEVE THE CIGARETTE PACK CONTAINED CONTRABAND AND, AS SUCH THE SEARCH OF THE CIGARETTE PACK WAS UNLAWFUL.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

As to Indictment No. 06-12-2747

Detective Philip T. Seidle of the Neptune Township police department was the State's sole witness at the evidentiary hearing on the motion to suppress. Seidle had been a police officer for fifteen years, a detective for three of those years, and had attended various schools and training related to narcotics investigations. He had been involved in approximately five hundred narcotics-related arrests during his career.

On May 12, 2006, at 3:19 p.m., Seidle was in the rear parking lot of the Crystal Inn Motel in Neptune, inventorying a truck that was already in police custody from "an arrest on another incident[.]" In spite of "a number of parking spots that [we]re open," a black Ford Explorer entered the lot and parked in the spot next to Seidle. He recognized defendant in the passenger seat and his girlfriend, Harris, who was driving. They looked "startled" upon seeing Seidle. The detective knew defendant, who had been the victim of an aggravated assault investigated by Seidle years earlier, knew of defendant's recent arrest for drug and gun charges, and was aware that defendant and Harris were under investigation regarding "narcotics sales that w[ere] taking place at the apartment building where" the couple resided.

Seidle saw Harris exit the Explorer and walk into the motel office. About a minute later, he saw her return toward the car with "what appear[ed] to be money clutched in her hand." Noting that there were few cars in the parking lot, and, thus, a likely number of vacancies at the motel, Seidle became suspicious that defendant and Harris were not there to rent a room and instead "might have been there to conduct a narcotics sale." As Seidle turned to defendant to inquire what was "going on," he noticed an open bottle of gin, with some liquid in it, in the center console of the Explorer.

Seidle told defendant that he was going to "issue a summons for the open container." Defendant protested, causing Seidle to become concerned for his own safety. Seidle ordered defendant out of the car because, as he explained to the court, "I didn't want to lean into the car and expose myself or have him hand [the bottle] to me or risk having him hand it to me and allow him to have a bottle that could be . . . used to strike me." After several requests, defendant exited the Explorer and a "fairly large amount of money" fell onto the ground. Seidle leaned into the car to seize the bottle of gin, and saw "right there in the console, right in front of the bottle . . . what appeared to be [] cocaine." He placed defendant under arrest.

Seidle then went to the driver's side of the Explorer and asked Harris to step out of the vehicle. She complied and reached back into the car to retrieve her purse. Although Seidle told her to "leave the purse[,]" Harris took it from the car and Seidle immediately seized it to "make sure that there [we]re no weapons in [it][.]" In the purse, he found more "cocaine, [] two bundles of heroin, [] a Ziploc bag that contained ecstasy, and several bags of marijuana."

Defendant testified that he and Harris had rented a room at the motel, leaving near noon so the room could be cleaned. They returned to the motel and parked in a spot immediately below the upstairs room they rented the night before. Two people, dressed in street clothes, were "going through" an SUV in the parking space next to them. Harris got out of the car to rent the room for another night. Defendant was inside the Explorer listening to music when Seidle, who he recognized as a police officer, asked him first to roll down the window and then opened the car door. Defendant claimed that Seidle pulled him out of the Explorer, and, by the time Harris returned from renting the room, defendant "was against the truck []." Seidle searched the Explorer and placed defendant under arrest. Defendant did not see anything that occurred between Seidle and Harris.

On cross examination, defendant admitted that he was "high" throughout the entire incident, having smoked marijuana earlier in the afternoon with his brother. He also admitted that there was an open container of "Seagram's" liquor in the Explorer when he and Harris returned to the motel parking lot. However, defendant contended that Seidle did not see the bottle until "he pulled [him] up out of the car," and there was nothing else in the console.

The judge found Seidle's testimony credible and concluded

Based upon the facts with which [] Seidle was armed, he knew [] defendant's history, he knew that he was under investigation for distribution of CDS, the fact that he was startled, the fact that the driver entered the motel briefly and emerged with a large roll of money in her hand, I find that the detective had a reasonable and articulable suspicion that defendant had been or were engaged in illegal drug activity. And I find that he was justified in conducting a rather minimal intrusive investigative stop of a vehicle to corroborate his suspicions.

The judge further concluded that Seidle "was justified in asking defendant to exit the vehicle so that he may seize the bottle located in the center console[,]" pursuant to the plain view exception to the warrant requirement. Seidle's discovery of the cocaine in the console was similarly justified under the plain view exception. Lastly, the Judge concluded that having found the cocaine in the console, Seidle had probable cause to place both defendant and Harris under arrest, and that his subsequent search of the purse was justified as a search incident to that arrest. He denied defendant's motion.

Defendant argues that Seidle's decision to "order defendant out of the car was pretextual[,]" because the seizure of the liquor bottle was unnecessary "in order to write a citation for the open container infraction[.]" As a result, the plain view exception to the warrant requirement did not apply. Since the seizure of the cocaine from the console was not justified, all that subsequently followed was similarly impermissible. The State counters by arguing that Seidle "was permitted to order defendant from his vehicle after observing a motor vehicle violation[.]" Thereafter, he was justified in seizing the cocaine pursuant to the plain view exception to the warrant requirement.

The judge thoroughly analyzed the relevant caselaw and concluded Seidle's initial actions in approaching defendant as he sat in the Explorer were justified as a brief investigatory stop.

An investigatory stop is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced.

[State v. Rodriguez, 172 N.J. 117, 127 (2002) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).]

See also State v. Nishina, 175 N.J. 502, 511 (2003); State v. Stovall, 170 N.J. 346, 356 (2002). However, we need not pass on the propriety of the judge's conclusion in this regard because we affirm the decision for different reasons. El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 169 (App. Div. 2005).

By approaching defendant's parked car and asking him what was "going on," Seidle was conducting no more than a "field inquiry." "A field inquiry 'is a limited form of police investigation that, except for impermissible reasons such as race, may be conducted without grounds for suspicion.'" Nishina, supra, 175 N.J. at 510 (quoting Rodriguez, supra, 172 N.J. at 126) (internal quotations omitted). From the vantage point next to defendant's car, Seidle was able to see the open container of liquor in plain view.

We have already said, "the presence of an open alcohol container in an operated vehicle is itself prohibited, rendering the item contraband . . . [that] the police would have the right to seize." State v. Irelan, 375 N.J. Super. 100, 117 (App. Div. 2005). Thus, Seidle would have been permitted to seize the open bottle of liquor in the Explorer's console, whether he ordered defendant out of the vehicle or not. Upon retrieving the bottle from the console, Seidle saw the cocaine and his seizure of it fully complied with the plain view exception to the warrant requirement. See State v. Johnson, 171 N.J. 192, 211-12 (2002); see also State v. Bruzzese, 94 N.J. 210, 236-3 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).

Finally, the motion Judge correctly found that the search of Harris' purse, which produced the balance of the seized narcotics, was a valid incident to a lawful arrest. State v. Oyenusi, 387 N.J. Super. 146, 153-56 (App.Div. 2006), certif. denied, 189 N.J. 426 (2007). The Judge properly denied defendant's motion to suppress on Indictment 06-12-2747.

As to Indictment No. 06-09-2103

The State's sole witness at the evidentiary hearing on defendant's motion to suppress was police officer Jason Petillo of the Neptune Township police department. He had been employed as a patrol officer for more than ten years, had attended a narcotics training course, and had made more than one hundred narcotics-related arrests.

On April 7, 2006, Petillo was on routine patrol in a marked police vehicle at approximately 8:46 p.m. when he "observed a gentleman on a bicycle . . . standing next to a white Chevy Malibu." As he drove past at a distance of approximately ten yards and at a speed of approximately twenty miles per hour, Petillo "detected an odor of burnt marijuana." Petillo realized that no one else was in the vicinity, so he made a U-turn and stopped his car next to the Malibu. Petillo "turned on [his] alley light for safety to illuminate them, and informed them that [he] was going to conduct a narcotic interdiction based on the plain smell of marijuana in the area." He saw defendant in the driver's seat and "another individual seated in the vehicle."

Petillo informed them "that they did not have the right to leave at this time[.]" Defendant told Petillo that "they were smoking weed, but there was none left[.]" Defendant's "eyes were noticeably bloodshot . . . and he was groggy. The passenger was l[]ying back in his seat . . . either sleeping or . . . disinterested with what was going on." Defendant was cooperative, but his speech was slow and "maybe even slurred." Petillo radioed headquarters for back-up and informed defendant he would be searching the Malibu, ordering him to exit the car. Defendant told Petillo that he did not have a valid driver's license.

The passenger in the Malibu "was found to have an active warrant for his address (sic) out of Asbury Park." He, too, was ordered out of the vehicle. As Petillo opened the passenger door, he noticed a "Newport pack of cigarettes with plastic wrapping protruding from it . . . on the . . . front passenger floor mat." Based upon his training, Petillo believed this cigarette pack contained narcotics because he knew that "individuals commonly transport narcotics in cigarette packs . . . [a]nd the plastic that was protruding from the pack of cigarettes was not . . . cellophane[.]" Petillo placed the passenger under arrest based upon the outstanding warrant and retrieved the cigarette pack which "contained plastic bags of rock cocaine as well as powder cocaine." Defendant was also placed under arrest for possession of these drugs.

The judge found Petillo credible and adopted his version of the facts. He found that

[B]ased upon these observations and based upon the officer's training and experience, [he] had a reasonable suspicion to believe defendant[] had recently smoked marijuana, and that there was additional contraband inside the vehicle.

The judge further determined that since probable cause existed to arrest defendant's passenger based upon the open arrest warrant, Petillo acted properly in removing him from the vehicle. Analyzing what followed under the "automobile exception" to the warrant requirement, the judge noted that the State must demonstrate "both probable cause and exigent circumstances," citing State v. Cooke, 163 N.J. 657, 667 (2000). Noting defendant was not challenging the exigency of the circumstances, the judge determined that there was probable cause based upon all of the circumstances known to Petillo. He denied defendant's motion.

Before us, defendant argues that the warrantless search of defendant's vehicle was not justified under any of "[t]hree possible exceptions to the warrant requirement[,]" i.e., a search incident to arrest, the automobile exception, or the plain view exception. We disagree. Because we believe the plain view exception applies, we need not consider the balance of defendant's arguments. See Johnson, supra, 171 N.J. at 206.

Having smelled the odor of burnt marijuana, Petillo clearly had the authority to not only conduct an investigative detention of defendant's vehicle, but he also possessed probable cause to arrest defendant and the other occupants of the vehicle. "New Jersey courts have recognized that the smell of marijuana itself constitutes probable cause 'that a criminal offense ha[s] been committed and that additional contraband might be present.'" Nishina, supra, 175 N.J. at 515-16 (quoting State v. Vanderveer, 285 N.J. Super. 475, 479 (App. Div. 1995)); see also State v. Judge, 275 N.J. Super. 194, 201 (App. Div. 1994).

Furthermore, having determined that the passenger in the car had an active arrest warrant, Petillo was entirely justified in ordering him out of the car and placing him under arrest. In doing so, Petillo observed the cigarette pack on the floor of the vehicle. Defendant contends, however, that under these circumstances, the plain view exception to the warrant requirement does not apply because Petillo did not have probable cause to believe the cigarette pack was contraband.

The State must satisfy a three prong test for the plain view exception to be applicable.

The plain view doctrine requires the police officer to lawfully be in the viewing area. The officer must discover the evidence inadvertently, meaning that he did not know in advance where evidence was located nor intend beforehand to seize it. The third element . . . is that it had to be immediately apparent to the officer that items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.

[Johnson, supra, 171 N.J. at 206-07 (internal citations and quotations omitted).]

The third prong requires the judge "to determine whether probable cause existed to associate the . . . object that was in plain view with criminal activity before seizing the object[.]" Id. at 213. "[W]hen 'determining whether the officer has probable cause to associate the item with criminal activity, the court looks to what the police officer reasonably knew at the time of the seizure.'" Ibid. (quoting Bruzzese, supra, 94 N.J. at 237).

Here, Petillo smelled burnt marijuana emanating from the vehicle even before he approached it. Defendant confirmed that he had been smoking marijuana in the car, but claimed that he no longer possessed any. Defendant did not have a valid driver's license, and his passenger was the subject of an active arrest warrant. Petillo knew from training and experience that cigarette packs are frequently used to carry drugs, and that this particular pack had some plastic protruding from it that was not cellophane packaging. Under all these circumstances, Petillo had sufficient probable cause to seize the cigarette pack from the floor of the vehicle.

Therefore, the judge properly denied defendant's motion to suppress evidence under Indictment No. 06-09-2301.

Affirmed.

Melissa Harris was charged in all three counts of the indictment with the same crimes as defendant.

(continued)

(continued)

14

A-3764-07T4

March 30, 2009