STATE OF NEW JERSEY v. BRYANT NEAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-03893-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRYANT NEAL,

Defendant-Appellant.

____________________________

November 12, 2014

Submitted September 3, 2014 - Decided

Before Judges Messano and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-04-0387.

Law Offices of Thomas R. Ashley, attorneys for appellant (Thomas R. Ashley and Thomas Mirigliano, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Bryant Neal appeals from the Law Division's March 8, 2013 final judgment of conviction, which the court entered after defendant pled guilty to one count of third-degree possession of a controlled dangerous substance (CDS) (cocaine) with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3). At the time defendant entered his guilty plea, he specifically reserved his right to appeal the court's denial of his motion to suppress evidence. In exchange for his plea, the State agreed to the dismissal of the other two counts in the indictment, which charged defendant with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), and third-degree possession with intent to distribute a CDS (heroin), within one thousand feet of school property, N.J.S.A. 2C:35-7. The State further agreed to recommend the court sentence defendant to a term of seven years imprisonment with a three-year period of parole ineligibility. The court later sentenced defendant in accordance with that recommendation.1

Defendant pled guilty after the court denied defendant's motion to suppress evidence seized from him on December 31, 2010, while he was attending to his disabled vehicle. Before entering the order and issuing its oral decision on January 22, 2013, the court conducted an evidentiary hearing at which the State presented the testimony of Linden Police Sergeant Christopher Guenther. Defendant did not testify or produce any witnesses. On appeal, defendant challenges the court's order and argues

POINT ONE

THE TRIAL JUDGE COMMITTED AN ERROR OF LAW WHEN IT RULED THAT THE POLICE HAD PROBABLE CAUSE TO ARREST THE APPELLANT BASED UPON AN ODOR OF MARIJUANA EMANATING FROM HIS PERSON WHICH JUSTIFIED A SEARCH INCIDENT TO LAWFUL ARREST.

A. The Trial Court's Finding of Fact That The Police Smelled Marijuana Emanating From The Person Of The Appellant Was In Error.

B. The Trial Court's Finding That Evidence Found On Appellant's person during a warrantless search was admissible as evidence seized during a search incident to lawful arrest was in error because the smell of marijuana is not probable cause to arrest.

In opposition, the State argues that "the motion court properly found that the police had probable cause to arrest and search defendant based upon the odor of marijuana emanating from defendant." We have considered these arguments in light of the record and we affirm.

The facts found by the court after the evidentiary hearing established that on December 31, 2010, at 10:30 a.m., Guenther and his partner came upon defendant whose disabled vehicle was pulled over on the side of the road. After about thirty minutes from their initial encounter, Guenther got physically close to defendant and believed he smelled marijuana emanating from him. He then questioned defendant as to whether he had marijuana to which defendant responded he did not, he did not smoke marijuana and the officer could check him. Defendant then put his hands above his head. Guenther patted defendant down and immediately felt something in defendant's pocket that felt like several rocky substances. He pulled a plastic bag containing cocaine out of defendant's pocket along with "multiple folds of money with different denominations." After the contraband was discovered, defendant was placed under arrest.

Based on that testimony, the Law Division judge concluded that Guenther's search of defendant was not a "pat-down" to protect the police but, rather related to discovering contraband he believed was on defendant's person. The judge found that there was probable cause to arrest defendant and that the search was justified as a search incident to defendant's arrest.

We begin our review recognizing our scope varies depends upon whether the issue raised on appeal concerns findings of fact or conclusions of law. As to the former, we must uphold the factual findings and credibility determinations of the trial judge if they are supported by "sufficient, credible evidence," State v. Yohnnson, 204 N.J. 43, 62 (2010), and "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case." State v. Johnson, 42 N.J. 146, 161 (1964). Still, if the trial court's findings are so clearly mistaken or unwarranted "that the interests of justice demand intervention and correction," then we may review the record "as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Id. at 162. We owe no deference, however, to the trial court's legal conclusion which we review de novo. State v. Elders, 192 N.J. 224, 252 (2007).

In near-identical language, both the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey State Constitution guarantee "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and provide that "no [w]arrants shall issue, but upon probable cause." U.S. Const. amend. IV; N.J. Const. art. I, 7. Accordingly, "[o]ur constitutional jurisprudence expresses a clear preference for government officials to obtain a warrant issued by a neutral and detached judicial officer before executing a search." State v. Edmonds, 211 N.J. 117, 129 (2012) (citing State v. Frankel, 179 N.J. 586, 597-98, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004)). "[S]earches and seizures conducted without warrants issued upon probable cause are presumptively unreasonable and therefore invalid." Elders, supra, 192 N.J. at 246 (citing State v. Pineiro, 181 N.J. 13, 19 (2004)).

In this case, 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 Pineiro, supra, 181 N.J. at 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.

Probable cause to arrest is "something less than [the] proof needed to convict and something more than a raw, unsupported suspicion." State v. Davis, 50 N.J. 16, 23 (1967), cert. denied, 389 U.S. 1054, 88 S. Ct. 805, 19 L. Ed. 2d 852 (1968). Probable cause exists when the totality of the facts and circumstances presented to the arresting officer would support "a [person] of reasonable caution in the belief that an offense has been or is being committed." State v. Sims, 75 N.J. 337, 354 (1978) (quoting Draper v. United States, 358 U.S. 307, 313, 79 S. Ct. 329, 333, 3 L. Ed. 2d 327, 332 (1959)).

The "'principal component of the probable cause standard [for search and arrest] 'is a well-grounded suspicion that a crime has been or is being committed. ''" State v. Harris, 384 N.J. Super. 29, 47 (App. Div.) (quoting State v. Moore, 181 N.J. 40, 45 (2004)), certif. denied, 188 N.J. 357 (2006); see also State v. Daniels, 393 N.J. Super. 476, 486 (App. Div. 2007) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)).

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. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.

[O'Neal, supra, 190 N.J. at 612 (quoting Moore, supra, 181 N.J. 40, 45-46) (alterations in original) (citations and internal quotation marks omitted).]

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)). The smell of marijuana gives rise to probable cause "'to conduct a warrantless search of the persons in the immediate area from where the smell [had] emanated.'" Id. at 516 (quoting Vanderveer, supra, 285 N.J. Super. at 481 (alteration in original)).

Contrary to defendant's argument here, the immediate and obvious presence of marijuana created "'[e]xigent circumstances . . . to justify a warrantless search'" of defendant's person. Ibid. (quoting Vanderveer, supra, 285 N.J. Super. at 481 (alteration in original)). "Similar to probable cause, 'the term 'exigent circumstances' is, by design, inexact. It is incapable of precise definition because, by its nature, the term takes on form and shape depending on the facts of any given case.'" Ibid. (quoting State v. Cooke, 163 N.J. 657, 676 (2000)). We have observed, for example, "'[e]xigent circumstances may exist if the unanticipated circumstances that give rise to probable cause occur swiftly.'" Ibid. (quoting Cooke, supra 163 N.J. at 672). The Supreme Court has specifically recognized the existence of exigent circumstances when an officer is confronted with a defendant on the street who emanates an odor of marijuana. See Nishina, supra, 172 N.J. at 517; see also State v. Guerrero, 232 N.J. Super. 507, 512 (App. Div. 1989) ("the officers certainly had no time in which to procure a warrant to search defendant because the evidence very well could have been consumed, hidden or sold by the time such a warrant was issued."). Those 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. 584, 560 (1989)).

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)].

Turning to the issues raised on appeal, the primary question is whether there was a sufficient factual basis for a reasonable and articulable suspicion of criminal activity to justify Guenther's search of defendant. The officer did not make any attempt to search or detain defendant until after he got close enough to defendant to smell marijuana emanating from him. The odor of marijuana established probable cause to arrest defendant and the subsequent search was required to ensure that any evidence connected with defendant's possession of a controlled substance was not destroyed. A warrant was not required.

Affirmed.

1 Defendant was extended term eligible and therefore was sentenced in the second-degree range pursuant to N.J.S.A. 2C:43-6(f).