STATE OF NEW JERSEY v. MONTAE D. MCLAUGHLIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2707-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MONTAE D. MCLAUGHLIN,

Defendant-Appellant.

________________________________________________________________

May 4, 2011

Submitted April 5, 2011 - Decided

Before Judges Carchman and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 09-03-0193.

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

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Kathleen E. Dohn, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following an unsuccessful motion to suppress, defendant Montae McLaughlin entered a plea of guilty to one count of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The judge sentenced defendant to a five-year term of imprisonment with a one-year period of parole ineligibility together with statutory fines and penalties and forfeiture of the weapon. Defendant appeals from the denial of the motion to suppress, and we affirm.

These are the facts adduced at the motion to suppress. At approximately 1:00 p.m. on December 9, 2008, Officer James Howard of the Willingboro Police Department observed a Silver Dodge Stratus on Van Skyver Parkway being operated with no illuminated license plate light. Howard approached the vehicle and saw the driver and two passengers. Apparently, Officer Howard had become aware of the vehicle as it earlier performed a "dip out" or maneuver to avoid the police vehicle.

Since Officer Howard was alone, upon stopping the vehicle, he ordered the driver to exit. When the door opened, the officer smelled the odor of burnt marijuana coming from the vehicle, an odor of alcohol and marijuana on the driver's person, and the scent of Black & Milds, which are used to smoke marijuana. When asked about the presence of Black & Milds, the driver answered in the affirmative. In the interim, a backup officer had arrived on the scene and concerned with the officers' safety, the officer conducted a pat-down search of the driver.

In addition to his patrol duties, Officer Howard served as a canine Patrolman, and his dog was present at the scene. The officer made a decision to run the dog around the vehicle to determine if the dog detected the presence of any drugs. As a matter of practice, Officer Howard did not use the dog with occupants inside the vehicle so, consistent with that practice, the officer asked the passengers to exit the vehicle. They did so and, again, with his previously expressed concern for the officers' safety, the passengers were patted down as they exited from the vehicle.

As Sergeant Bucs1 conducted the pat-down of defendant, he found a weapon. Defendant was then placed under arrest, as were the driver and other passenger.2 After the discovery of the weapon, Officer Howard put the dog directly inside the vehicle rather than walking around the vehicle as originally intended. No additional contraband was discovered.

Defendant moved to suppress the gun. At argument, defendant conceded that the original motor vehicle stop, as well as the pat-down, were proper. Defendant focused his argument on the propriety of ordering a passenger, out of the vehicle.

As to this narrow issue, the judge concluded:

Based on that -- those observations -- I would note also that the driver, at that time, was unable to identify himself or present any kind of credentials associated with the -- with the motor vehicle.

Almost as soon as the driver was out of the car, Mr. -- Mr. Vaughn [the driver] was patted down because of safety concerns; the number of persons in the vehicle, the -- the time of day.

Because of what he had smelled, Officer Howard decided that he was going to use a -- a dog that he had in his vehicle to -- to sniff for the presence of CDS.

Having made that decision, and consistent with his practice, he directed that the other two occupants, the two passengers, get out of the car.

Once they got out of the car, they were -- they were patted down, according to his testimony, for the officer's safety, among -- well, sig -- significantly for the purposes of this motion, a -- a weapon, a handgun, was found on the defendant here, Montae McLaughlin, and resulting in the charge that resulted in his indictment.

Now, as I -- as I said during the colloquy with -- with [counsel], and as [counsel] argues, this is all about -- this is all about reasonableness. The stop was reasonable. It was lawful for some very minor violation, but a violation none the less. And [counsel] does not argue that there was anything wrong with the stop.

Once the stop had been made and the officer detected either the odor of marijuana or the odor of Black and Mild or them in combination, he was justified, based on his experience and his training, knowing that the Black and Mild cigars are used as a -- essentially a paraphernalia for -- for illegal drug use, he was justified in deciding to have his dog make further inquiry.

It was not unreasonable for him to direct the occupants of the car to get out if he was going to be using his -- his dog on the car.

Now, it's true that the officer said he intended to do a walk around, and that he never did a walk around. He put the dog right in the car and his testimony is inconsistent, therefore, on that point. I don't -- I don't see that it's -- it's material to the -- to the issues before me, which is -- which is reasonableness.

Once the -- so I find, that asking the occupants out of the -- the other occupants out of the car was reasonable. And once they were out of the car, there were three officers on the scene. One was attending to his dog. It was late at night. The circumstances of the operation of the vehicle, at least, were suspicious.

A -- a Terry3 pat down was certainly eminently reasonable.

The State also argues that the search of the occupants was -- was permitted because of the officer's detection of actual marijuana, that is his senses went beyond just the Black and Mild.

He did testify to that and -- and I find no reason to -- to discredit his testimony, so there's a -- a separate -- an independent basis for -- for the search.

But, overall, my -- my sense of it was that the search was being conducted for protective purposes, and that was entirely reasonable.

The -- the search of Mr. McLaughlin resulted in the discovery of the weapon.

The -- for all those reasons, the motion is denied.

On appeal, defendant argues that the judge erred in denying the motion to suppress because "the police lacked a reasonable and articulable suspicion that defendant was engaged in criminality or was armed and dangerous." We have reviewed the record and conclude that defendant's arguments are without merit. We affirm substantially for the reasons set forth in Judge Morley's oral opinion of July 27, 2009.

Both defendant and the State agree that our consideration of the issue on appeal is governed by the Court's decision in State v. Smith, 134 N.J. 599 (1994) and its progeny. See e.g., State v. Mai, 202 N.J. 12 (2010). The general rule enunciated in Smith is that to justify an order requiring a passenger to exit a car stopped for a traffic violation, the officer need not point to specific facts that the occupants are "armed and dangerous." Rather, the officer need identify only specific and articulable facts that, in the totality of the circumstances, "would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car." Smith, supra, 134 N.J.at 618.

We reject defendant's interpretation of Smith. No issue is raised as to the initial stop. When the vehicle was stopped, the officer smelled the odor of burnt marijuana coming from the vehicle and also observed the odor of alcohol on the driver. In addition, the officer identified the odor of Black & Milds, also indicating possible marijuana use. The driver was unable to produce credentials and finally, the officer was using a canine to search the vehicle and determined that no one should be in the vehicle during that search. The pat-down of passengers upon exiting the vehicle was consistent with securing the safety of the officers at the scene.

"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J.224, 243 (2007) (citations and internal quotation marks omitted). "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' or because 'the trial court decided all evidence or inference conflicts in favor of one side.'" State v. Mann, 203 N.J.328, 336 (2010) (quoting State v. Johnson, 42 N.J.146, 162 (1964)).

We conclude that Judge Morley's factual findings were supported by credible evidence and his legal conclusions were sound as well.

Finally, we note that while defendant has raised the issues of the propriety of the pat-down search, that issue was conceded in the Law Division. At the time of the hearing, defendant agreed that the pat-down was "reasonable," and defendant's "entire argument hinges [on] the reason why they got out of the car." We generally will not consider issues not presented to the trial judge, State v. Arthur, 184 N.J.307, 327 (2005), but even considering the issue, we conclude that it is without merit. Given the totality of the circumstances that we have described, including the lateness of the hour, the brief pat-down for security purposes was appropriate.

Affirmed.

1 Sergeant Bucs's first name does not appear in the record.

2 The police determined that both were wanted on outstanding warrants.

3 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).