STATE OF NEW JERSEY v. KENNETH L. HAWES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2258-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH L. HAWES,

Defendant-Appellant.

_________________________________________

December 30, 2014

Submitted October 8, 2014 Decided

Before Judges Ashrafi and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-03-00129.

Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals his conviction and aggregate sentence of ten years of imprisonment with five years of parole ineligibility, entered upon his retraxit guilty plea to weapons offenses and controlled dangerous substances (CDS) offenses. Defendant asserts that the Law Division erred in imposing an aggregate sentence on all charges and in denying his earlier motion to suppress evidence and raises the following arguments on appeal

POINT I

THE TRIAL COURT ERRONEOUSLY DENIED MR. HAWES' MOTION TO SUPPRESS BECAUSE THE OPENING OF THE COIN PURSE AMOUNTED TO AN UNCONSTITUTIONAL SEARCH.

A. OFFICER MILLER WAS CONDUCTING A PROTECTIVE SEARCH, NOT A SEARCH INCIDENT TO ARREST, WHEN HE DISCOVERED THE COIN PURSE IN MR. HAWES' JACKET POCKET.

1. The officers lacked the authority to arrest Mr. Hawes for solicitation without a license.

2. The officers arrested

Mr. Hawes as a result of drugs discovered from the search, and lacked probable cause to make an arrest for a CDS offense prior to this search.

3. The officers lacked the requisite exigency to search

Mr. Hawes for evidence of a criminal offense under the exigent circumstances exception to the warrant requirement.

B. AS PART OF A PROTECTIVE SEARCH UNDER TERRY v. OHIO, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), OFFICER MILLER WAS NOT PERMITTED TO OPEN THE COIN PURSE.

C. BECAUSE THE POLICE WOULD NOT

HAVE ENTERED MR. HAWES' SUV BUT FOR THE SEARCH OF THE COIN PURSE, ALL EVIDENCE FOUND IN THE VEHICLE, AND ANY STATEMENTS MADE BY HAWES TO THE POLICE FOLLOWING HIS ARREST, SHOULD HAVE ALSO BEEN SUPPRESSED AS FRUIT OF THE POISONOUS TREE.

POINT II

ALTERNATIVELY, THE SEARCH OF THE SUV CENTER CONSOLE WAS UNCONSTITUTIONAL BECAUSE THERE WAS NO EXIGENCY TO JUSTIFY A WARRANTLESS SEARCH OF THE VEHICLE, AND THERE WAS NO THREAT TO OFFICER SAFETY OR THAT EVIDENCE WOULD BE DESTROYED BECAUSE MR. HAWES WAS ALREADY IN THE POLICE CAR AT THE TIME OF THE SEARCH.

A. EVEN IF THERE WAS PROBABLE CAUSE THAT EVIDENCE OF CRIMINALITY COULD BE FOUND IN THE CAR, THERE WAS NO EXIGENCY TO SUPPORT THE WARRANTLESS SEARCH.

B. BECAUSE MR. HAWES WAS HANDCUFFED AND PLACED IN THE OFFICERS' VEHICLE AT THE TIME OF THE SEARCH, THE SEARCH OF THE CONSOLE WAS NOT JUSTIFIED AS A SEARCH INCIDENT TO ARREST.

POINT III

THE TRIAL COURT ERRED BY FAILING TO IMPOSE INDIVIDUAL SENTENCES FOR EACH CONVICTION, BY FAILING TO CONSIDER A PROPER MITIGATING FACTOR, AND BY ACTING UNDER A MISCONCEPTION THAT IT COULD NOT IMPOSE A SENTENCE LESS THAN THAT RECOMMENDED BY THE PROSECUTOR.

A. THE COURT ERRED BY FAILING TO IMPOSE INDIVIDUAL SENTENCES ON EACH OF THE CONVICTIONS.

B. THE COURT ERRED BY FAILING TO CONSIDER MITIGATING FACTOR ELEVEN, WHICH IS AMPLY SUPPORTED BY THE RECORD.

C. BECAUSE THE COURT WAS UNDER THE MISCONCEPTION THAT IT COULD NOT EXERCISE ITS OWN DISCRETION IN SENTENCING MR. HAWES TO A LESSER TERM THAN THAT RECOMMENDED BY THE STATE, THE CASE SHOULD BE REMANDED FOR RESENTENCING.

We have considered these arguments in light of the facts and the applicable law, and we affirm the order of suppression but we vacate defendant's sentence and remand for resentencing.

I.

What follows are the facts presented at the suppression hearing. At approximately 4:00 p.m. on February 4, 2010, Franklin Township police officers Samuel Hernandez and Derrick Miller received a dispatch from police headquarters that an anonymous caller reported a black male was selling merchandise and "possibly narcotics" from an SUV in a parking lot at the corner of South Dover Avenue and Somerset Street. The officers at that time were patrolling in plain clothes in an unmarked vehicle as part of a unit assigned to investigate "quality of life issues, narcotics and weapons offenses."

When they arrived at the lot, they saw defendant selling merchandise at a table adjacent to a GMC Envoy SUV, which had its rear doors and rear hatch door open. On the table were sports jerseys, DVDs, CDs, hats and the like that were offered for sale. Officer Miller recognized defendant because other complaints had been made to police about defendant "distributing narcotics in the area." Also, the area itself was known to the officers as the site of various narcotics and weapons offenses within the municipality.

As they approached defendant, both officers immediately noticed a "strong pungent odor of raw marijuana . . . emanating from [defendant] and the vehicle." They identified themselves as police officers and began to ask defendant some questions.

During this process, defendant appeared nervous and tried to move away from the officers toward the rear of the GMC Envoy. Officer Hernandez then held defendant's left arm and directed him back to the officers. Throughout this period of time, the smell of raw marijuana did not dissipate, and defendant was not free to leave.

Moreover, people began to gather near the spot where the officers were speaking with defendant. The officers perceived that the crowd of between seven and ten people "didn't seem very happy that [they] were there" and Officer Hernandez called for a marked unit to come to the scene. Officer Miller then undertook a "pat-down" search of defendant out of concern for their safety under the circumstances.

During the pat-down, Officer Miller felt something inside defendant's left jacket pocket and pulled it out. It was a coin purse with a hard brass clasp running along the top of it. The officer opened the coin purse and discovered seven bags of marijuana inside. He then formally arrested defendant and placed him in handcuffs.

Both officers stated that at this point defendant asked "if it was possible for [them] to put all of his merchandise back into his vehicle." Officer Hernandez agreed to the request and took the merchandise from the table and put it into the rear cargo area of the GMC Envoy. The table itself did not fit into the rear cargo compartment, however, and so Officer Hernandez placed it onto the floor of the rear passenger area of defendant's vehicle. As he was doing this he saw the butt of a handgun inside the map pocket on the back of the front passenger seat. Officer Hernandez stated he did not pull the pocket back to see the weapon, but that the pocket itself "bulged" open due to papers and magazines inside with the "handgun sitting on top."

Officer Hernandez retrieved the weapon, which was loaded with a full magazine and a round in the firing chamber. He then put the weapon into the trunk of the unmarked police vehicle and returned to conduct a "sweep of the [GMC Envoy] to make sure there were no other weapons" inside. He explained he went into the vehicle again to look for other weapons for "[his] safety and everyone else's safety[,]" and added he was concerned about the "crowd that had gathered outside[.]"

While undertaking this sweep of the Envoy, Officer Hernandez found seventy additional baggies of marijuana in the center console.

Defendant also testified at the suppression hearing and presented testimony from four witnesses. He stated that he never asked the police to place anything into his vehicle, and that the officers simply began a search of the vehicle without his consent. Furthermore, he stated that the weapon was buried deep within the map pocket, and was not in plain view.

Defendant's other witnesses included his brother-in-law who worked in the barber shop adjacent to the lot and saw the police putting defendant's merchandise into the Envoy; his sister-in-law who saw defendant being handcuffed and the police gathering his merchandise and placing it into defendant's vehicle; one of defendant's customers who had purchased a shirt and then saw the police arrive and subsequently watched as "they began placing his stuff into the vehicle" and "moving other stuff around;" and a family friend who gave similar testimony.

The motion judge found the testimony of the officers to be "forthright, responsive, consistent, credible and, therefore, worthy of belief." By contrast, the motion judge found defendant's testimony to be "implausible" and cited various inconsistencies therein, including defendant's testimony that he had asked his family to take the merchandise from the table a claim not supported by any of his witnesses.

The judge denied defendant's motion to suppress evidence.

II.

Following his arrest, a Somerset County grand jury returned an indictment charging defendant with third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count one); second-degree possession of marijuana with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count two); second-degree possession of a firearm while in the course of committing a crime under N.J.S.A. 2C:35-5, N.J.S.A. 2C:39-4.1(a) (count three); and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count four). A second indictment was also returned charging defendant with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).

After defendant's motion to suppress evidence was denied, defendant entered a retraxit plea of guilty to both indictments pursuant to a plea bargain in which the State agreed to recommend that defendant's sentence would not exceed ten years of imprisonment subject to five years of parole ineligibility.

On December 4, 2010, defendant was sentenced on both indictments to an aggregate of ten years of imprisonment with five years of parole ineligibility. The judge expressly made the sentences on each indictment run concurrently, but did not separately impose sentences on each charge.

This appeal followed.

III.

We turn first to defendant's challenge to the motion judge's order denying suppression. Our review of a trial court's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, provided they are supported by sufficient credible evidence in the record. State v. Diaz-Bridges, 208 N.J. 544, 565 (2012); State v. Elders, 192 N.J. 224, 243 (2007). Additionally, we afford deference to a trial judge's findings "which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Davila, 203 N.J. 97, 109-10 (2010). We do not, however, defer to a trial judge's interpretation of the law, and we review legal issues de novo. See State v. Gandhi, 201 N.J. 161, 176 (2010).

Defendant argues that the officers, on the basis of their own testimony, were conducting a "protective pat-down" search pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), when Officer Miller discovered the coin purse in defendant's pocket. Defendant adds that Officer Miller exceeded the scope of a valid protective search when he opened the coin purse, and that the marijuana therein should have been suppressed, id., together with anything the officers discovered thereafter because it was the "fruit" of the initial unlawful search. Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417-18, 9 L. Ed. 2d 441, 454-56 (1963). We disagree.

Here, because no warrant was sought for the search and arrest of defendant, the State bears the burden of showing that the warrantless seizure "'falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. O'Neal, 190 N.J. 601, 611 (2007) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)); State v. Citarella, 154 N.J. 272, 278 (1998). "The State has the burden of proof to demonstrate by a preponderance of the evidence that the warrantless seizure was valid." Ibid. (citing State v. Pineiro, 181 N.J. 13, 20 (2004)).

One exception to the warrant requirement authorizes the warrantless search of persons incident to their lawful arrest. See Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969); State v. Dangerfield, 171 N.J. 446, 461 (2002). Such police conduct is lawful if the police had probable cause to arrest prior to the search.

When a police officer has probable cause to arrest prior to a search, it is not unlawful to search the individual prior to the arrest. O'Neal, supra, 190 N.J. 601, 614. "It is 'the right to arrest,' rather than the actual arrest that 'must pre-exist the search.'" Ibid.; see also State v. Doyle, 42 N.J. 334, 342 (1964). The O'Neal Court reasoned that "'the proper inquiry for determining the constitutionality of a search-and-seizure is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable, without regard to his or her underlying motives or intent.'" O'Neal, supra, 190 N.J. at 614 (quoting State v. Bruzzese, 94 N.J. 210, 219 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). Thus, the Court held that since the officers objectively had the probable cause necessary to arrest the defendant prior to the search, it was not unlawful to search the defendant before placing him under arrest. Id. at 615.

The question before us, therefore, is whether the police had probable cause to arrest defendant at the time of the pat-down search, irrespective of the officer's subjective intent in undertaking that search and opening the coin purse. We hold that regardless of whether there was a full-blown search of defendant's person or a mere "pat-down," and irrespective of whether such police action preceded defendant's arrest, objectively there existed sufficient probable cause to believe defendant committed a crime, and therefore to arrest defendant, prior to the discovery of drugs on his person.

"Probable cause for an arrest exists when an officer has a well-founded suspicion or belief of guilt which may constitute something less than proof needed to convict and something more than a raw, unsupported suspicion." State v. McKenna, 228 N.J. Super. 468, 474 (App. Div. 1988) (citing State v. Bates, 202 N.J. Super. 416(App. Div. 1985); State v. Davis, 50 N.J. 16 (1967), cert. denied, 389 U.S. 1054, 88 S. Ct. 805, 19 L. Ed. 2d 852 (1968); and State v. Burnett, 42 N.J. 377 (1964)). It is not a rigid concept; rather, it is "flexible [and] nontechnical." State v. Novembrino, 105 N.J. 95, 120 (1987) (quoting State v. Kasabucki, 52 N.J. 110, 116 (1968)). A court determines the existence of probable cause by applying a "common-sense, practical standard." Ibid. It exists if the facts and circumstances known to a police officer warrant a prudent man in believing that an offense has been committed. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879, 1890 (1949); State v. Esteves, 93 N.J. 498, 505 (1983).

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.'" State v. Nishina, 175 N.J. 502, 515-16 (2003) (quoting State v. Vanderveer, 285 N.J. Super. 475, 479 (App. Div. 1995) (alteration in original)); see State v. Judge, 275 N.J. Super. 194, 201 (App. Div. 1994); State v. Sarto, 195 N.J. Super. 565, 574 (App. Div. 1984); State v. Gaines, 147 N.J. Super. 84, 96-97 (App. Div. 1975), aff'd, 72 N.J. 346 (1977).

Under the search incident to arrest exception, the legal seizure of the arrestee automatically justifies the warrantless search of his person and the area within his immediate grasp. The arrest must precede the search. So long as there is probable cause to arrest, the ensuing search is valid even if there is no particular reason to believe that it will reveal evidence, contraband, or weapons. The justification for the search of an arrestee is to preclude him from accessing a weapon or destroying evidence.

. . . .

As is obvious, the search incident to arrest exception is focused on the arrestee himself and on eliminating his potential to endanger the police or destroy evidence.

[State v. Pena-Flores, 198 N.J. 6, 19-20 (2009) (internal citations omitted)].

Here, the officer did not make any attempt to search or detain defendant until after he got close enough to defendant to smell "the strong pungent odor of raw marijuana" emanating from him. The officers were in a public area at the time, and a crowd had gathered at the scene. The odor of marijuana emanating from defendant did not dissipate as the officers spoke with him while standing outside his vehicle, which also smelled strongly of raw marijuana. Both officers were experienced in making arrests for CDS offenses, and Officer Miller testified about his training in the recognition of the distinctive odor of raw marijuana.1 Consequently, the arrest of defendant, and the subsequent search of his person, were objectively reasonable and not unlawful. See O'Neal, supra, 190 N.J. at 614.2

Defendant further argues that the search of his vehicle for "weapons" was not supported by any exigency and thus was unlawful. Again, we disagree.

There is no serious question that, accepting the motion judge's finding that defendant invited the officers to place his merchandise and table into the Envoy, Officer Hernandez's discovery of a loaded handgun in the map pocket while sliding defendant's table into the rear passenger compartment fell within the plain view exception to the warrant requirement. See State v. Mann, 203 N.J. 328, 340-41 (2010). We therefore examine the officer's actions in re-entering defendant's vehicle after he had secured the weapon inside the police vehicle.

An officer is permitted to conduct a vehicle search when an arrestee is within reaching distance of the vehicle, or when it is reasonable to believe the vehicle contains evidence of the offense of the arrest. Arizona v. Gant, 556 U.S., 332, 346, 129 S. Ct. 1710, 1720, 173 L. Ed. 2d 485, 498 (2009). The permissible scope of this search includes any area of the vehicle in which evidence of the offense might be found. Gant, supra, 556 U.S. at 347, 129 S. Ct. at 1721, 173 L. Ed. 2d at 498 (citing U.S. v. Ross, 456 U.S. 798, 820-821, 102 S. Ct. 2157, 2170-2171, 72 L. Ed. 2d 572, 591 (1968)). New Jersey has recognized that due to the inherent mobility of vehicles, where a weapon is found in a car, a search of the passenger compartment of the vehicle is additionally justified by exigent circumstances. State v. Alston, 88 N.J. 211, 233-34 (1981) ("[E]xigent circumstances do not dissipate simply because the particular occupants of the vehicle may have been removed from the car, arrested, or otherwise restricted in their freedom of movement. . . . the car is readily movable until such time as it is seized, removed from the scene and securely impounded by the police. Until then it is potentially accessible to third persons who might move or damage it or remove or destroy evidence contained in it.").

Thus, when a weapon is lawfully discovered in plain view in a vehicle, State v. Johnson, 171 N.J. 192 (2002), the observing officer is permitted not only to seize that weapon, but to conduct a search of the passenger compartment of the vehicle for further weapons, including containers within the passenger compartment in which a weapon could reasonably be found. Alston, supra, at 233; see also Ross, supra, 456 U.S. at 798, 102 S. Ct. at 2170-71, 72 L. Ed. 2d at 591.

As noted earlier, at the time of defendant's arrest and the discovery of a loaded handgun in his open Envoy, the officers were being watched by an unfriendly crowd of approximately ten people in a public parking lot located within an area they knew to be the scene of weapons and narcotics offenses. These circumstances justified Officer Hernandez's decision to re-enter the vehicle which, it must be recalled, smelled strongly of raw marijuana and his subsequent discovery of additional marijuana in the center console.

Accordingly, we affirm the order of the Law Division denying defendant's motion to suppress evidence.

IV.

Finally, we address defendant's challenge to the procedure employed by the judge at sentencing. The judge failed to impose individual sentences for each offense, but rather aggregated the sentences on each count into a single sentence. In doing so, the sentencing judge erred. See State v. Rodriquez, 97 N.J. 263, 372-73 (1984) (noting New Jersey's policy against "general aggregate sentencing for multiple convictions.").

Also, our examination of the record suggests the judge made no finding or determination on whether the sentences should have been concurrent or consecutive, and may have believed he was bound to sentence defendant in accordance with the State's maximum recommended sentence. The State concedes on appeal that defendant must be re-sentenced.

Accordingly, we vacate defendant's sentence and remand to the Law Division for re-sentencing. At the time of such re-sentencing, the court shall consider defendant's sentence anew. State v. Randolph, 210 N.J. 330, 354 (2012).

Affirmed in part, and reversed and remanded in part. We do not retain jurisdiction.

1 There is no argument on appeal that the officers could not have smelled the odor of raw marijuana emanating from defendant or his vehicle at the time of his arrest.

2 These circumstances are considerably different than where police seek to make a warrantless arrest of a defendant in his own home. "'[T]he exigencies of the situation'" must make a warrantless home arrest "'imperative.'" State v. Walker, 213 N.J. 281, 291 (2013) (quoting State v. Bolte, 115 N.J. 579, 584 (1989)). Also, on this record, we are not persuaded by defendant's argument that while the "strong pungent odor of raw marijuana" detected by the officers might have justified a reasonable suspicion that defendant had committed a disorderly persons offense under N.J.S.A. 2C:35-10(a)(4), more was needed to justify his arrest.