STATE OF NEW JERSEY v. SALEH ABDUL-HAQQ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0716-06T50716-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SALEH ABDUL-HAQQ,

Defendant-Appellant.

________________________________________________________________

 

Argued October 29, 2007 - Decided

Before Judges S.L. Reisner, Gilroy and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Appeal No. 82-05.

Timothy S. Farrow argued the cause for appellant (Gold and Laine, P.A., attorneys; Mr. Farrow, of counsel and on the brief).

Alexis R. Agre, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Agre, of counsel and on the brief).

PER CURIAM

Defendant Saleh Abdul-Haqq appeals from his conviction in a trial de novo on charges of possession of marijuana under fifty grams, N.J.S.A. 2C:35-10(a)(4), and possession of a controlled dangerous substance (CDS) in a motor vehicle, N.J.S.A. 39:4-49.1. The Law Division sentenced defendant to a two-year term of probation. On the charge of CDS in a motor vehicle, the judge also imposed a $200 fine, $6 surcharge, $33 in court costs, and a mandatory two-year suspension of defendant's driving privileges. On the possession of marijuana conviction, the judge imposed a $1000 fine, $6 surcharge, $33 in court costs, a $500 DEDR penalty, a $50 lab fee, a $50 VCCB penalty, a $75 SNSF assessment, a $50 DARE assessment, and a consecutive one-year suspension of driving privileges. The payment of all fines and penalties, as well as the driver's license suspension, were stayed pending appeal.

In the municipal court, defendant stipulated that the substance found in his vehicle was marijuana and that the marijuana had been maintained in a proper chain of custody. He did not, however, stipulate that the marijuana belonged to him, as opposed to his brother, who had recently driven the car.

On appeal, defendant argues that the Law Division wrongly: (1) denied his motion to suppress; (2) failed to make sufficient findings of fact on the issue of possession, as required in a trial de novo; and (3) imposed an excessive sentence. We reject defendant's contentions concerning the first claim, but agree with the second claim, that the Law Division failed to fully articulate its reasons for finding defendant guilty. We accordingly affirm the denial of the motion to suppress, vacate the conviction, and remand to the Law Division for findings of fact on whether the State approved its case beyond a reasonable doubt.

I.

On February 28, 2005 at 8:45 p.m., Evesham Township police officer Jason Siitonen was on patrol in the area of Route 73 and Baker Boulevard. He parked across the street from a gas station because "[w]e had intelligence that there [were] possible CDS transactions coming from the gas station, from . . . one of the attendants there." While positioned across the street, Siitonen saw a car operated by James Rushing enter the gas station parking lot. From "previous intelligence," Siitonen knew that Rushing "was involved in the use and distribution of CDS in and around [Evesham Township]." Rushing pulled in near the service bays, even though no automotive repair technicians were on duty at the time. While Siitonen was observing Rushing's vehicle, a small car with a Maryland license plate pulled alongside Rushing's car. At that point, a male gas attendant "picked up" Rushing and the two left the gas station in the gas attendant's car. The car with the Maryland license plate followed Rushing and the attendant onto Route 73, but police lost sight of them. Officer Siitonen and Officer Anthony Padulese, who was in another car, then returned to their original observation point across the street from the gas station.

Shortly after Siitonen and Padulese returned to their observation point, they observed a Volkswagen Jetta operated by defendant pull in front of the convenience store adjacent to the gas pumps. The passenger of the Jetta, Darrel Mitchell, briefly went into the convenience store. When he came out, the Jetta drove to a residence on Roberts Lane, the home of Ryan Townsend, "who also through intelligence [was] known to be involved in the use and distribution of CDS" in the area. The Jetta arrived at Townsend's house before the officers arrived. When the officers arrived, they saw someone in the passenger's seat. Shortly thereafter, a male exited Townsend's house, but because of the darkness, police could not see who it was.

When the Jetta pulled out of the driveway, Siitonen and Padulese each resumed following it. By cell phone, Padulese notified Siitonen that defendant's Jetta had run a red light; however, Siitonen was unable to apprehend defendant due to the traffic on Route 73. After five minutes of searching unsuccessfully for defendant's vehicle, Siitonen observed defendant's vehicle pull into the Marlton Meadows apartment complex. Siitonen had a clear view of the Jetta from the time defendant pulled into the Marlton Meadows complex until he pulled out of the parking lot and turned onto the roadway. It was then that Siitonen activated his overhead lights and effected a motor vehicle stop for running the red light on Route 73.

When Siitonen asked defendant for his driver's license and registration, defendant was unable to produce his license. Siitonen then asked defendant where he was coming from that evening. Defendant responded that he had dropped something off for his sister at the Marlton Meadows apartments; however, Siitonen, who had an unobstructed view, did not see anyone exit defendant's vehicle while it was parked at the apartment.

Siitonen then focused his attention on Mitchell. Mitchell was "very vague in his answers," and stated that he "didn't know where [he and defendant] were or where they were going."

At that point, Siitonen contacted Corporal Mitchell Friel, the Department's K-9 handler, who shortly arrived with his K-9 partner, Justice. Justice was specifically trained in narcotics detection at a training academy in New Castle, Delaware, and he and Friel had undergone repeated training and re-certification. Friel walked Justice around the Jetta, and when the dog approached the driver's side door, he began to scratch at the door jamb. Friel explained the significance of the dog's reaction. He stated that when the dog "hits on the door jamb, we don't always think that narcotics are present there. For the dog to hit on the narcotics present inside a vehicle, it has to be somewhere that air can escape from." He explained that "[t]he most common places . . . are door jambs, cracked windows, any type of area where air can be released from inside the vehicle to the outside of the vehicle. So, it's very common for my K-9 to hit on door jambs in areas where air can be released." He commented that "[s]ince I've been a K-9 handler, I don't think I've ever found narcotics inside the door . . . like, stashed in the door. Usually, it's a scent pulling from the car and escaping wherever air could escape from." After the K-9 "showed a positive indication for narcotics" at the driver's side door jamb, Friel notified defendant of the dog's observations, and asked defendant if any drugs were inside the car. Defendant answered no. Based upon the dog's positive reaction to the door jamb, Friel allowed the K-9 to enter defendant's vehicle. The dog began to frantically scratch in the center console area near the ashtray. Friel returned the dog to his patrol vehicle and instructed Siitonen to search inside the vehicle. In the open ashtray, Siitonen found four burnt marijuana cigarettes.

Siitonen placed defendant under arrest, and positioned him in the back of his patrol car. By this time, defendant's mother had arrived on the scene to take possession of the vehicle. Siitonen transported defendant to police headquarters, where he was booked on the charges we have described.

At the conclusion of the testimony, the municipal court judge watched the videotapes of the motor vehicle stop. The Law Division judge also reviewed one of the videotapes and found that it "corroborates the testimony of the officers involved . . . in this stop."

After considering all of the evidence, the municipal court judge commented that she found the officers' testimony to be credible. She denied defendant's motion to suppress, and provided a detailed statement of her reasons for doing so. She found that the motor vehicle stop was proper because police saw defendant fail to stop for a red light. She further determined that: the decision to have the K-9 sniff around the outside of the vehicle was based upon reasonable and articulable suspicion, and was proper under the totality of the circumstances; the K-9's positive reaction to the door jamb justified the K-9's search of the interior of the vehicle; and the dog's reaction to the center console and ashtray area justified the ensuing police search of the car's interior. After considering all of the evidence, the judge denied the motion to suppress, and found defendant guilty of all the charges other than the improper maintenance of lamps, N.J.S.A. 39:3-66.

In the trial de novo in the Law Division, the judge found that the stop of defendant's vehicle was proper based upon police observation that defendant had run a red light. The judge further held that the following facts provided articulable and reasonable suspicion for conducting the K-9 sniff of the exterior of the vehicle: defendant's contact with Townsend, who was known to be involved in narcotics activity; the passenger's vague and unresponsive answers; and defendant's false explanation about having dropped something off for his sister at the Marlton Meadows Apartments. The judge determined that the K-9's positive reaction to the exterior of the vehicle provided probable cause to search the interior. For that reason, the judge denied the motion to suppress.

As to the sentence, the Law Division judge explained that he believed the sentence imposed by the municipal court should be "sustain[ed]," and explained that the "broad discretion" afforded to the municipal court in sentencing a defendant should not be disturbed absent an abuse of that discretion. Finding no abuse of discretion, the judge imposed the same sentence that the municipal court judge had imposed.

II.

We begin by addressing the validity of the stop of defendant's vehicle. Defendant argues that the stop of his motor vehicle on the night in question was illegal because the ticket for failure to obey a traffic signal "was nothing more than a pretext for an otherwise illegal search." We disagree. "It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997). Here, Padulese observed defendant's failure to stop at a red light on Route 73. Padulese simultaneously reported his observation of that violation to Siitonen via cell phone. Although the citation for running the red light was not issued until defendant was transported to police headquarters, the municipal court judge concluded that the testimony of Siitonen and Padulese concerning their reasons for stopping defendant's car was credible.

Defendant urges us to reject the municipal court's and the Law Division's findings that defendant had run the red light. He argues that the failure of police to immediately issue defendant a motor vehicle citation once they effectuated the motor vehicle stop demonstrates that defendant did not run a red light. We decline defendant's urging that we reject the findings made by the Law Division. As long as the Law Division's findings are supported by sufficient and credible evidence in the record, we will not disturb them. State v. Locurto, 157 N.J. 463, 470-71 (1999). We therefore accept the Law Division's findings concerning defendant's failure to stop at the red light. Once defendant failed to stop at a red traffic light, the officers who witnessed the traffic violation had reasonable and articulable suspicion to stop his vehicle. We reject defendant's arguments to the contrary.

III.

Defendant next argues that even if the stop is deemed lawful, the "duration of the detention, combined with the degree of the intrusion, are far more intrusive than necessary for a traffic stop," thereby rendering the ensuing search of the interior of the vehicle unlawful. We disagree.

The use of a drug-sniffing dog is permissible as long the officer has reasonable suspicion that contraband will be found in the vehicle. State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006), rev'd on other grounds, 189 N.J. 224 (2007); State v. Cancel, 256 N.J. Super. 430, 435 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993). As we observed in Elders, "[t]here is no easy formula by which to measure 'reasonable and articulable suspicion,' and the determination requires a highly fact-sensitive analysis." Elders, supra, 386 N.J. Super. at 225. "Facts that might seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate, so long as the officer maintains an objectively reasonable belief that the collective circumstances are consistent with criminal conduct." Ibid. (quoting State v. Nishina, 175 N.J. 502, 511 (2003)). "Reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence." Id. at 224 (quoting State v. Stovall, 170 N.J. 346, 370 (2002)). Under the circumstances presented here, we are satisfied that defendant's false statement that he dropped something off at his sister's apartment at Marlton Meadows, his passenger's evasive and non-committal responses to police inquiries, and defendant's car being parked at the home of Townsend, who was known to be involved with narcotics, together constituted reasonable suspicion that criminal activity was afoot. Under those circumstances, bringing the K-9 unit to the scene was lawful.

That, however, is not the end of the inquiry. "[A]n investigative stop becomes a de facto arrest when 'the officers' conduct is more intrusive than necessary for an investigative stop.'" State v. Dickey, 152 N.J. 468, 478 (1998)(quoting United States v. Jones, 759 F.2d 633, 636 (8th Cir. 1984)). As the Court observed in Dickey, "there are no 'bright line' tests" to determine whether the duration of an investigative stop is so lengthy as to require probable cause, rather than merely reasonable suspicion. Id. at 478-79. Factors to be considered include whether there is any delay unnecessary to the legitimate investigation being performed; the degree of fear and humiliation that the police conduct engenders; whether the suspect is transported to another location or isolated from others; and whether the defendant is handcuffed or confined in a police car. Id. at 479.

Applying those factors to the circumstances of this case leads us to conclude that the duration of the detention and the degree of intrusion did not transform the investigatory detention into a de facto arrest. Although defendant was placed in the back of the police car while the search of his vehicle was taking place, the entire incident occurred on a busy state highway, he was permitted to be in telephone contact with his mother who soon arrived on the scene, and the K-9 unit arrived shortly after Siitonen called to request its assistance. Although the investigation itself lasted for another forty-five minutes after the K-9 unit arrived on the scene, we do not view that additional time as sufficient to transform an otherwise permissible investigatory stop into an arrest that requires probable cause. State v. Chapman, 332 N.J. Super. 452, 461 (App. Div. 2000), appeal dismissed, 167 N.J. 624 (2001) (holding that where police officers detained and questioned several defendants for approximately forty-five minutes, the "duration of the detention and the degree of intrusion . . . did not exceed permitted bounds").

IV.

Defendant also argues that even if the initial stop and the ensuing investigative detention were proper, the K-9's reaction to the door jamb area of the car was insufficient to constitute probable cause, thereby rendering the resulting search of the interior of the car unlawful as the fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). We disagree.

A trained police dog's positive reaction provides probable cause to proceed further with a search. Cancel, supra, 256 N.J. Super. at 433-34. Once the dog entered the interior compartment of defendant's vehicle, he responded positively to the center console area. That reaction again constituted probable cause. Ibid. Under those circumstances, it was permissible for Siitonen to enter the vehicle and search in the area where the dog had scratched. It was there that Siitonen found the four burnt marijuana cigarettes. We therefore conclude that the search and seizure of the evidence was supported by probable cause. The Law Division's denial of the motion to suppress was correct.

V.

Defendant also argues that the Law Division's finding of guilt must be reversed because the court failed to make its own findings of fact. The record demonstrates that, contrary to defendant's arguments, the Law Division judge made thorough findings of fact when he denied the motion to suppress; however, the judge believed defendant had pled guilty in the municipal court, which was not correct. The judge therefore did not make findings on whether the State had proven the charges beyond a reasonable doubt.

We accordingly remand this matter for findings of fact on that issue.

VI.

In light of our disposition of this appeal, we need not address defendant's sentencing arguments in detail. We add only these comments. The Law Division judge imposed a mandatory two-year suspension of driving privileges on the charge of CDS in a motor vehicle, N.J.S.A. 39:4-49.1, and then imposed a consecutive one-year suspension of driving privileges on the possession of marijuana charge, N.J.S.A. 2C:35-10(a)(4). The judge did not explain his reasons for imposing consecutive, rather than concurrent, driver's license suspensions on those two charges. A judge is required to explain in detail the reasons for imposing consecutive sentences. State v. Yarbough, 100 N.J. 627, 643 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

Based on comments at oral argument, we note that N.J.S.A. 2C:35-16(a) permits a court, in appropriate circumstances, to grant a hardship exception from the statutory requirement of driver's license suspension. State v. Bendix, ___ N.J. Super. ___ (App. Div. 2007). Even though the statute was enacted before defendant was sentenced in the Law Division, defendant did not make a request for a hardship exception. We do not consider defendant to have waived his right to seek relief under that statute. If defendant is convicted, we intimate no view on whether a hardship exception should be granted or denied.

Affirmed in part. Reversed and remanded in part. We do not retain jurisdiction.

 

Defendant was also found guilty of failure to present credentials, N.J.S.A. 39:3-29, and failure to observe a traffic signal, N.J.S.A. 39:4-81. On appeal, he challenges only the denial of his motion to suppress evidence, and does not challenge his conviction for failure to present credentials and failure to observe a traffic signal. Accordingly, we do not address those two convictions.

Defendant had not pled guilty. He had only stipulated to the lab report and the chain of custody.

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A-0716-06T5

November 23, 2007