STATE OF NEW JERSEY v. ISAAC E. JONES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5614-07T45614-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISAAC E. JONES,

Defendant-Appellant.

_______________________________________

 

Submitted April 12, 2010 - Decided

Before Judges Reisner, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 07-08-1432, 06-01-0113, and 06-02-0352, and Accusation No 07-09-1461.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Robyn B. Mitchell, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant pled guilty to various charges in three indictments 06-01-0113, 06-02-0352, 07-08-1432, and Accusation 07-09-1461. He was sentenced to an aggregate term of eight years of incarceration, with a three-year period of parole ineligibility. Defendant appeals from the judgments of conviction dated April 18, 2008, and challenges the denial of his motion to suppress evidence supporting the charges in Indictment No. 06-01-0113. Defendant also challenges the sentences imposed. For the reasons that follow, we affirm.

I.

The following facts and procedural history bear upon our consideration of defendant's challenge to the denial of his motion to suppress. In Indictment No. 06-01-0113, defendant was charged with fourth degree possession of a controlled dangerous substance (CDS), specifically marijuana, N.J.S.A. 2C:35-10(a)(3) (count one); third degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count two); third degree possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7 (count three); second degree possession of a CDS with intent to distribute in a public recreation zone, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7.1 (count four); and third degree resisting arrest, N.J.S.A. 2C:29-2(a) (count five). Defendant filed a motion to suppress the marijuana seized from the automobile he was driving before he was arrested. On November 28, 2006, the court conducted an evidentiary hearing on the motion.

Patrolman Steve Allaire (Allaire), of the Lakewood Township Police Department (LPD), testified that on August 14, 2005, he was assigned to the 3:00 p.m. to 11:00 p.m. shift in the patrol unit. Allaire said that he was familiar with the area of Lakewood where Martin Luther King Drive intersects with John Street. According to Allaire, this is a high-density residential area, with low income apartments. He said that it is a "documented high drug, high crime area." Allaire testified that concerned citizens had complained to the police about increased narcotics activity in the area.

At approximately 4:00 p.m., Allaire was patrolling the area in a marked police vehicle. He was in uniform. Allaire observed a large group of people in the area of the apartments "hanging out[.]" Allaire parked his car behind the apartments on John Street and conducted a foot patrol. Allaire stated that, based on his experience working in the area, he was aware that drug dealers use the playground in the rear of the apartment building to distribute CDS. Allaire saw a gray Buick back into a parking spot reserved for the handicapped. He also saw a group of approximately fifteen to twenty individuals standing to the side of the driver's side of the car.

As Allaire was walking to the rear of the vehicle, an unknown male yelled out, "[h]ow are you doing, [o]fficer[.]" Allaire said that the unknown male called out to him in an "excessively loud" voice. Allaire testified that "[n]o [t]respassing" signs were posted on the buildings in the area.

From the rear of the gray Buick, Allaire observed the driver turn his head back towards him and then make an "abrupt" motion to the passenger side of the car. Allaire said that it appeared that the driver was trying to hide something. The driver exited the car, which was still running. The driver closed the door of the car and started walking away from the officer towards John Street. Allaire described the man's actions as "very, very abrupt, very quick."

Allaire called to the man and asked him to come back. Allaire testified that he had approached the vehicle in order to determine whether the driver had a legitimate reason for parking in the handicapped space. Allaire identified defendant as the driver of the car. Allaire asked him for his license, registration and insurance card. According to Allaire, defendant began to argue with him. Defendant said that he was not "totally in the handicapped spot[.]" However, Allaire testified that the car was "taking up" the parking space for the handicapped.

Defendant handed the officer his documents and Allaire reviewed them. Allaire noticed that the driver's license was in defendant's name but the car was not registered to him. Allaire contacted the LPD headquarters to determine whether the car had been reported lost or stolen. A back-up officer, Patrolman Jason Peterson (Peterson), arrived on the scene. Allaire did not receive an immediate reply from headquarters to his inquiry regarding the car.

Allaire questioned defendant as to why he was at the apartment complex. According to Allaire, defendant gave him "many responses" but none could be verified. Defendant told Allaire that he was there to meet his girlfriend; however, defendant could not provide an exact address for his girlfriend. Defendant told Allaire he was not going to his girlfriend's apartment. Defendant stated that he was going to meet his girlfriend in the parking lot but could not provide Allaire with a time frame for the meeting.

Defendant then said that he was "actually" there to meet a friend. Defendant pointed to a man in the parking lot near John Street but he could not provide Allaire with the man's name. Allaire placed defendant under arrest for trespassing. He asked defendant to put his hands behind his back. Allaire and Peterson attempted to handcuff defendant but he began to resist and started to pull away.

According to Allaire, defendant was "flailing his arms about[,]" but the officers were able to hold defendant. One of the officers sprayed defendant with mace and handcuffed him. They placed defendant in the rear seat of Peterson's patrol vehicle. Allaire then made his way over to defendant's vehicle, which was still running. Allaire said that the group of persons was still in the area. Allaire entered the car to secure the vehicle. Allaire testified that he was going to move the car out of the handicapped parking space, turn off the engine and lock the doors.

Allaire began to enter the vehicle and, as he was doing so, Allaire smelled the odor of burnt marijuana. He observed a shirt on the passenger seat. When Allaire moved the shirt, a black plastic bag with green vegetation fell out. Allaire suspected the vegetation was marijuana. He also observed a small black purse wedged between the two seats. The purse contained more suspected marijuana and clear plastic baggies which Allaire said were used for packaging CDS. Allaire secured all of the evidence for transportation back to headquarters and testing. Tests revealed that the suspected CDS was sixty-two grams of marijuana.

Defendant testified that on the date in question he went to the apartment complex to visit a friend, Tracy Powell (Powell). Defendant said that he works as a barber and Powell asked him to come to her apartment to cut her son's hair. He stated he was not parked in a parking space for the handicapped. Defendant further testified that, while he was waiting for Powell, he distributed his personal business cards to persons in the area who he knew. Defendant asserted that, at some point, a police officer approached him. Defendant was standing outside of his car, which was still running.

The officer told defendant that he was parked in a handicapped parking spot. Defendant replied that he did not believe it was a handicapped spot but if the officer thought it was, he would move the car. Defendant further testified that, as he was trying to produce his license, registration and insurance card, the officer "went hysterical." Defendant stated that he heard the dispatcher say that there were no outstanding warrants and the driver's license was valid.

According to defendant, the officer told him to lift his shirt so that he could determine if he was armed. Defendant informed the officer that he was not in possession of any weapons. The officer asked him what he was doing there, and defendant said that he was visiting a girlfriend. Defendant stated that the officer did not ask for her name or where she lived. The officer told defendant he was lying.

According to defendant, the officer instructed him to put his hands on the trunk of the car. Defendant stated that persons in the area asked the officer why he was bothering defendant because they knew him. The officer told defendant to put his hands behind his back. Another officer stepped up and sprayed defendant with mace. Defendant insisted that, up until the time he was sprayed with mace, he had not acted angrily or in an agitated manner.

On cross examination, defendant testified that he was in the parking lot about twenty minutes before he was approached by the officer. He stated that he called Powell to tell her he was there and sat in the car waiting for her to come down to meet him. In response to questions by the court, defendant stated that he placed a call to Powell and left a message on her answering machine. Defendant said that he exited his car to get the tools needed for the haircut but the officer stopped him from doing so. He conceded, however, that Powell had not called him and he did not know whether she was at home.

Powell also testified. She stated that, on August 14, 2005, defendant was supposed to come to her house at around 2:00 p.m. to cut her son's hair but defendant never showed up. On cross examination, Powell stated that she had not seen defendant for seven years but ran into defendant within the week before the incident when he was at the apartments visiting some friends. Powell asked defendant to do her a favor and come over to cut her son's hair. Powell said that defendant did not call her on August 14th. Powell stated that defendant did not leave a message on any of her phones.

The court rendered a decision from the bench on December 6, 2006. The court found that defendant's testimony was not credible. The court determined that, under the circumstances, Allaire had probable cause to arrest defendant. The court further determined that Allaire had performed his duty as a community caretaker when he entered the car to secure it. The court stated that the vehicle represented a danger to the community "because it remained movable and accessible to any passerby."

The court additionally found that a warrantless search of the vehicle was permissible under the circumstances. The court noted that Allaire was in the vehicle lawfully when he smelled the burnt marijuana. Allaire then had probable cause to believe that a crime had been committed and there was contraband in the vehicle. The court stated, "[t]he officer had no obligation to wait and arrange for security of the vehicle and secure a warrant, as both probable cause and exigency existed." The court denied defendant's motion to suppress. The court entered an order dated December 6, 2006, memorializing its decision.

Defendant thereafter filed a motion for reconsideration. Defendant argued that the evidence should have been suppressed because the search of the car ultimately was the result of an unlawful stop. Defendant maintained that the officer did not have a reasonable basis to believe that defendant committed a motor vehicle violation because the parking space was not properly marked as reserved for the handicapped.

The court considered the motion on February 2, 2007. The court rejected defendant's argument, finding that the officer had an objectively reasonable basis for believing that the parking spot was reserved for the handicapped. The court entered an order dated February 2, 2007, denying the motion.

On September 5, 2007, defendant pled guilty to third degree possession of a CDS with intent to distribute within 1,000 feet of school property and second degree possession of a CDS with intent to distribute in a public recreation zone, as charged respectively in counts three and four of Indictment 06-01-0113. On the same date, defendant also pled guilty to charges in Indictment 06-02-0352, Indictment 07-08-1432 and Accusation 07-09-1461. Defendant was sentenced on April 18, 2008, and a judgment of conviction was entered on that date. This appeal followed.

On appeal, defendant raises the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR SUPPRESSION OF EVIDENCE

POINT II

THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR RECONSIDERATION OF THE MOTION TO SUPPRESS EVIDENCE

POINT III

THE SENTENCE WAS EXCESSIVE; IT SHOULD BE REDUCED

II.

We turn first to defendant's contention that the court erred by denying his suppression motion. Defendant argues that the warrantless search of the vehicle violated his rights under the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution. Defendant contends that the police did not have sufficient cause to stop and question him, and the police did not have probable cause to arrest him. Defendant additionally contends that a warrantless search of the car was not permitted on the basis of exigent circumstances. We find no merit in these arguments.

We note initially, that the trial court's decision to deny defendant's motion to suppress was based in large part upon the court's findings of fact, which were made following the suppression hearing at which Allaire, defendant and Powell testified. As we have explained, the court accepted Allaire's version of the events and expressly found that defendant's testimony was not credible.

The trial court's findings of fact are binding upon us because they are based "'on sufficient credible evidence present in the record.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Therefore, we must determine whether, in light of those findings, the trial court correctly determined that the search of the vehicle was lawful.

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution preclude the police from undertaking a warrantless search or seizure unless the search or seizure falls within one of the few exceptions to the warrant requirement. State v. Rodriguez, 172 N.J. 117, 125 (2002) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). A police officer may undertake such an investigative stop of an individual without a warrant if the officer acts "based on 'specific and articulable facts which, taken together with the rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." Id. at 126 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)).

"The '[r]easonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest.'" Id. at 127 (quoting State v. Stovall, 170 N.J. 346, 356 (2002) (alteration in original)). Our Supreme Court has explained that:

[a]n 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. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.

[Ibid. (quoting State v. Davis, 104 N.J. 490, 504 (1986) (alterations in original)).]

Here, Officer Allaire had a reasonable and articulable suspicion that defendant violated N.J.S.A. 39:4-138, which provides that an operator of a motor vehicle may not park the vehicle in a space "appropriately marked" for the vehicles of persons who are physically handicapped, unless the vehicle is authorized to be parked in that space and a handicapped person is either the driver or passenger in the vehicle. The trial court found that the space in question was "appropriately marked" as one designated for handicapped parking. According to Allaire, defendant parked a vehicle in the space and it appeared that he was not authorized to do so. We are satisfied that, under the circumstances, Allaire lawfully made an investigatory stop to determine whether defendant was lawfully parked in that space.

In addition, defendant's actions prior to and during the stop, as well as his responses to Allaire's inquiries, provided the officer with probable cause to believe that he was trespassing. Probable cause

is a well-grounded suspicion that a crime has been or is being committed. Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed.

[State v. O'Neal, 190 N.J. 601, 612 (2007)(quoting State v. Moore, 181 N.J. 40, 45-46 (2004) (alterations in original)).]

When determining whether probable cause exists, a court must consider the totality of the circumstances. Ibid. (citing Moore, supra, 181 N.J. at 46).

The record shows that Allaire learned from his review of defendant's documents that defendant did not reside in the apartment complex. Defendant's license had a South Toms River address and the car he was driving was registered to a woman with an address in South Toms River. The Lakewood police had received complaints of illegal drug activity in the vicinity of the apartment complex and no trespassing signs were posted on the buildings. In addition, defendant failed to provide Allaire with a credible explanation for being in the area. We are convinced that, based on the totality of circumstances, the officer had probable cause to believe that defendant was trespassing upon the property, in violation of N.J.S.A. 2C:18-3(b)(3).

Allaire's subsequent entry into the car also was lawful. Allaire testified that defendant had exited the car but left the engine running. The vehicle was accessible to persons who had gathered in the area. Allaire entered the car to close the windows, move it from the handicapped space, turn off the engine and lock the doors. As the trial court correctly found, the officer's actions were a proper exercise of the police's community caretaking function which involves actions by the police to protect the public safety and welfare. State v. Diloreto, 180 N.J. 264, 276 (2004).

The record also supports the court's finding that the search of the vehicle fell within the automobile exception to the warrant requirement, which allows the police to search a vehicle without a warrant when "(1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." State v. Pena-Flores, 198 N.J. 6, 28 (2009). The court must consider all of the relevant facts and circumstances to determine whether an exigency existed. Id. at 26. The factors to be considered are:

the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.

[Id. at 29.]

In this matter, Allaire's entry into the car was spontaneous and unexpected. When he detected the odor of burnt marijuana in the car, Allaire had probable cause to believe a crime had been committed and the car contained contraband. Furthermore, it was impractical for the officers to obtain a warrant before searching the car. The car was in a high-crime area, known to the police as a place where illicit drug activity occurs. Only two officers were on the scene. About fifteen or twenty persons had congregated near the car. When Allaire approached the car, someone called out in a loud voice and identified Allaire as a police officer. Allaire could reasonably assume that someone in the vicinity might know that there was marijuana in the car. We are satisfied that, under the circumstances, Allaire lawfully searched the vehicle to determine if it contained contraband and to secure the evidence.

Defendant argues, however, that the trial court erred by denying his motion for reconsideration. Defendant contends that the handicapped parking spot at issue was not marked in accordance with the requirements of the administrative code. However, to justify the officer's investigative stop, the State need not establish that defendant actually committed a motor vehicle offense. State v. Williamson, 138 N.J. 302, 304 (1994). Rather, the State had to establish that the officer had a reasonable suspicion that defendant had committed a motor vehicle offense. Ibid. The trial court correctly determined that the State met its burden in this case.

Accordingly, we conclude that the trial court did not err by denying defendant's motion to suppress and his motion for reconsideration.

III.

We turn to defendant's contention that his sentence is excessive.

In addition to pleading guilty to counts three and four under Indictment No. 06-01-0113, defendant pled guilty to third degree distribution of a CDS, specifically cocaine, within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a)(1), as charged in count five of Indictment No. 06-02-0352. He also pled guilty to fourth degree criminal trespass, N.J.S.A. 2C:18-3(a), as charged in count eleven of Indictment No. 07-08-1432. In addition, defendant pled guilty to third degree receiving stolen property, N.J.S.A. 2C:20-7 and N.J.S.A. 2C:2-6, as charged in the sole count in Accusation No. 07-9-1461.

At sentencing, the court found aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court found no mitigating factors and determined that the aggravating factors substantially outweighed the mitigating factors.

On count four of Indictment No. 06-01-0113, the court sentenced defendant to eight years, with a three year period of parole ineligibility. On count three of that indictment, the court sentenced defendant to a concurrent five year term, with a two year period of parole ineligibility. In addition, on Indictment No. 06-02-0352, defendant was sentenced to a concurrent five years, with a two-year period of parole ineligibility. On Indictment No. 07-08-1432, defendant was sentenced to a concurrent eighteen months. Furthermore, on Accusation No. 07-09-1461, defendant was sentenced to a concurrent five-year term.

Defendant argues that the sentences imposed on Indictment No. 06-01-0113 are excessive. He contends that the court should have found the non-statutory factor of remorse. He also contends that the court should have found mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment of defendant would entail excessive hardship to himself or his dependents). Defendant additionally argues that, despite his guilty plea to distribution of CDS, there was no evidence that defendant actually distributed the CDS to anyone.

We have carefully considered these arguments and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We are satisfied that defendant's sentences are not manifestly excessive or unduly punitive, were not an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

 

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A-5614-07T4

May 6, 2010