STATE OF NEW JERSEY v. MICHAEL LEROY ORTIZ

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2291-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL LEROY ORTIZ, a/k/a

MICHAEL ORTIZ,

O.T. ORTIZ,

PHILLIP L. WARNER,

PHILLIP WARNER,

Defendant-Appellant.

___________________________

January 23, 2013

Submitted January 15, 2013 - Decided

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-05-1206.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Michael Leroy Ortiz appeals from his conviction for second-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(2), and from the sentence of ten years in prison with a forty-month parole bar.1 Defendant pled guilty after the court denied his motion to suppress evidence. For the reasons that follow, we uphold the denial of the suppression motion, and we affirm defendant's conviction and sentence.

I

The following evidence was introduced at the suppression hearing. Egg Harbor Police Officer Shawn Owen testified that on March 2, 2008 at 12:43 a.m., he was on a routine patrol in his police car. Officer Owens stopped the car defendant was driving, a Chevy Cavalier, after he performed a random computer look-up and learned that the woman who owned the car had a suspended driver's license. Due to the time of night and lighting conditions, he could not determine the gender or ethnicity of the occupants without stopping the car. Asked on cross-examination whether he could ascertain from a distance that the driver was a male with short hair, Officer Owen responded that he had previously "pulled over males that I thought were females before because of hair length and I've pulled over females I thought were males before [because] of hair length."

After stopping the Cavalier, Owen parked behind it, exited his patrol car, and approached the stopped car on the driver's side. The driver's side window was open, and on approaching the car, Owen smelled "the odor of burnt marijuana coming from inside the vehicle." He then looked into the vehicle and observed the driver's and passenger's hands to ascertain if they were holding any weapons. Owen testified that "the driver's hands were trembling and he would not look up to face me. So at that point I did have concern for my safety."

Defendant was unable to produce a driver's license or any other form of identification, or the vehicle's registration and insurance card. Defendant claimed the Cavalier belonged to his aunt but did not give her name. The front seat passenger was also unable to produce any identification. Officer Owen did not believe that the registered owner was in the car. He did believe, based on his observations, that "there was marijuana usage in the vehicle and that the driver was not a licensed driver." Following departmental protocol, he called for back-up to ensure his own safety. Once additional officers arrived, Officer Owen ordered defendant out of the car. Observing that defendant was still trembling and was trying to turn in his direction, Officer Owen directed defendant to put his hands on top of his head.

To ensure his safety, Officer Owen then patted defendant down for weapons. During the pat-down, he felt a large lumpy bag that felt like marijuana. Officer Owen testified that "nothing else feels like a large lump of marijuana." He removed the bag, threw it on the ground, and handcuffed defendant. While he was handcuffing defendant, a leather pouch fell out of defendant's right sleeve; the bag contained cocaine. Officer Owen then did a more complete search of defendant's person, incident to the arrest, and found a large sum of money in one of defendant's pockets. After searching defendant, the officer searched the car and found a small quantity of marijuana and a partially burned marijuana cigar on the driver's side floor.

In an oral opinion placed on the record February 6, 2009, Judge Bernard DeLury found Officer Owen's testimony "particularly credible." Relying on State v. Donis, 157 N.J. 44 (1998), the judge reasoned that the officer was permitted to conduct a computer check to determine whether the car's owner was licensed. The judge concluded that based on the license search the officer had a reasonable suspicion that the Cavalier was being driven by an unlicensed driver. The judge further found that "[u]pon approaching the vehicle and almost instantaneously upon approaching it, as he came into close view, he noted the faint odor of burnt marijuana emanating from the interior of the Cavalier."

The judge found that the video from the patrol car's on-board camera confirmed Owen's testimony that he could not tell the gender of the driver without approaching the car. Once Owen approached the car, he smelled the marijuana and had reason to suspect that criminal conduct was occurring in the car. The judge also found, based on the driver's nervous demeanor and lack of identification, that the officer had a genuine concern for his own safety and had reasonable grounds to perform a pat-down search of the driver for weapons. When he found the bag of marijuana during that search, the officer had probable cause to arrest defendant. The judge concluded that the leather bag of drugs was discovered during the search incident to the arrest. Consequently, the judge denied the motion to suppress all of that evidence.

However, the judge suppressed the evidence found inside the car, reasoning that once defendant was under arrest and several officers had arrived on the scene, there were no exigent circumstances justifying a warrantless search of the car. The State has not cross-appealed from that ruling.

II

On this appeal the defendant raises the following issues:

POINT I

THE EVIDENCE RECOVERED FROM DEFENDANT AND FROM THE CAR MUST BE SUPPRESSED BECAUSE THE POLICE DID NOT HAVE REASONABLE ARTICULABLE SUSPICION TO STOP THE CAR.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A TEN-YEAR TERM BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

In his pro se supplemental brief, defendant raises these issues:

POINT I

THE DEFENDANT ASSERTS THAT THE MOTION JUDGE'S LEGAL DETERMINATIONS CONSTITUTE PLAIN ERROR.

A. Standards of review for denial of motion to suppress.

B. The court failed to properly identify the issues to be determined within this case.

C. The continuation of the investigatory stop was illegal.

D. Judge DeLury's determination that Officer Owen's request for the driver's license was justified in spite of the officer's ill-founded original suspicion constitutes plain error.

POINT II

THE CONTINUED DETENTION OF THE VEHICLE WAS BEYOND THE SCOPE OF THE INITIAL PURPOSE OF THE STOP AND THE REQUEST FOR THE DEFENDANT'S LICENSE AND REGISTRATION VIOLATED THE DEFENDANT'S FOURTH AMENDMENT CONSTITUTIONAL RIGHTS.

POINT III

DEFENDANT ASSERTS THAT JUDGE DELURY'S FACTUAL FINDINGS CONSTITUTE CLEARLY ERRONEOUS ERROR.

A. Judge DeLury made a clearly erroneous error in his factual determination of Officer Owen's testimony by finding the officer made a simultaneous observation of smelling burnt marijuana and seeing that the driver was not the female owner.

B. Officer Owen presented false testimony at the defendant's motion hearing which had the potential of producing an unjust result. (Not Raised Below).

C. Officer Owen's credibility should be rejected under the inherently incredible doctrine.

POINT IV

DEFENDANT ASSERTS THAT THE INITIAL STOP OF THE VEHICLE WHICH HE WAS DRIVING WAS PRETEXTUAL.

POINT V

OFFICER OWEN'S USE OF THE MDT WAS BASED ON IMPER[M]ISSIBLE MOTIVES.

Our review of Judge DeLury's decision on the suppression motion is limited. We are bound by his factual findings so long as they are supported by sufficient credible evidence. State v. Elders, 192 N.J. 224, 243 (2007). We owe special deference to his evaluation of witness credibility. See State v. Locurto, 157 N.J. 463, 474 (1999). Having reviewed the record, we find no basis to disturb Judge DeLury's factual findings, and those findings determine the outcome of this appeal.

Defendant argues that Officer Owen did not have a reasonable articulable suspicion to justify stopping the car. Relying on State v. Parks, 288 N.J. Super. 407 (App. Div. 1996), he contends that since the officer knew the owner was female, and could see that the driver was male, he had no basis to stop the car. The State responds that because it was late at night, the officer could not tell the gender of the driver without approaching the car, and when he approached the car he immediately smelled marijuana. The judge credited the officer's testimony on that point. The State argues that those facts were sufficient to justify the stop. We agree and affirm, substantially for the reasons stated in Judge DeLury's opinion. See Donis, supra, 157 N.J. at 58; State v. Pitcher, 379 N.J. Super. 308, 314-15 (App. Div. 2005).

We likewise find no merit in defendant's challenge to his sentence. Defendant concedes that a period of parole ineligibility was required because he was eligible for an extended term as a second-time drug offender. However, he argues that the ten-year term was excessive. We cannot agree. In light of his twenty-seven prior arrests and his eighteen prior convictions, we find no abuse of discretion or other error in the sentence. See State v. Bieniek, 200 N.J.601, 608 (2010). Defendant's arguments on this point do not warrant further discussion. See R. 2:11-3(e)(2).

Affirmed.

1 Defendant also pled guilty to an unrelated charge, not the subject of this appeal, for which he received a concurrent term.