STATE OF NEW JERSEY v. CHARLES EDWARD HOLMES, JR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1274-05T41274-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

CHARLES EDWARD HOLMES, JR.,

Defendant-Appellant.

__________________________________

 

Submitted: October 24, 2007 - Decided:

Before Judges Cuff, Lihotz and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 04-03-0115 & S2003-315-2120.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jeffrey S. Mandel, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).

PER CURIAM

Following a bench trial, defendant was convicted of third degree possession with intent to distribute a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(2) (Count 1); third degree possession of CDS (cocaine), contrary to N.J.S.A. 2C:35-10a(1) (Count 2); third degree possession with intent to distribute CDS (methamphetamine), contrary to N.J.S.A. 2C:35-5a and 2C:35-5b(3) (Count 3); third degree possession of CDS (methamphetamine), contrary to N.J.S.A. 2C:35-10a(1) (Count 4); third degree possession with intent to distribute CDS (psilocin mushrooms), contrary to N.J.S.A. 2C:35-5a and 2C:35-5b(13) (Count 5); third degree possession of CDS (psilocin mushrooms), contrary to N.J.S.A. 2C:35-10a(1) (Count 6); third degree possession with intent to distribute CDS (marijuana), contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(11) (Count 7); fourth degree possession of CDS (marijuana), contrary to N.J.S.A. 2C:35-10a(3) (Count 8); and the disorderly persons charge of possession of drug paraphernalia. At sentencing, the judge granted the State's motion for imposition of a mandatory extended term and sentenced defendant to an extended term of five years imprisonment with a three-year period of parole ineligibility on Count 1. The judge also imposed concurrent three-year terms of imprisonment on Counts 2, 3, 4, 5, 6 and 7; a concurrent eighteen-month prison term on Count 8, and time-served on the disorderly persons possession of paraphernalia offense. The aggregate term is five years imprisonment with a three-year parole ineligibility term. The appropriate fees, fines, penalty and license suspension were also imposed.

In the late evening hours of November 11, 2003, Officer Frank Pagano and canine officer Ali were riding westbound in a patrol car on Route 22 in Pohatcong Township. Pagano had worked with Ali for almost three of his eight-year tenure on the police force. Pagano received special training in CDS violations laws, including twenty weeks of canine training, which taught him how to handle and train narcotics canines and identify their behaviors to signal the presence of narcotics. Ali, a Shepherd Malawah, was trained for narcotics detection, particularly in identifying "[ha]sh, marijuana, crack, co[caine], heroin, meth[amphetamine] and ecstasy."

At 11:54 p.m., Pagano noticed a silver Honda Accord with Pennsylvania license plates, traveling four or five car lengths in front of his vehicle. The officer observed that the license plate lights did not work and the reflectors were not the proper color. Pagano activated the overhead lights on his patrol car and stopped the Honda in the parking lot of Sammy's, an ice cream establishment.

Pagano exited his vehicle carrying a flashlight and approached the Honda on the driver's side. He noticed two occupants in the vehicle as he reached the car. Through the open window, the officer asked defendant, the driver, for his license, registration and proof of insurance. Pagano advised defendant why he had been stopped. Defendant replied that he was aware of the change in the reflectors and would replace them with the original reflectors.

As Pagano was speaking to defendant, Pagano noticed with the aid of his flashlight, "marijuana residue or [a] small amount of marijuana" by the driver's feet on the floor of the vehicle. The officer saw more marijuana residue in the map compartment on the driver's side door and a black film container with a plastic bag tucked under the lid with white powder around it.

Defendant produced a Pennsylvania driver's license, registration and an insurance card. Pagano learned that defendant's license was suspended, but the registration and insurance card were valid and registered to defendant's mother.

Pagano requested backup assistance and asked defendant to exit his vehicle and walk behind it. Defendant complied. The passenger, co-defendant Kelly Warrelmann, remained in the vehicle. While standing behind defendant's vehicle, Pagano asked defendant if he owned the marijuana observed in the vehicle. Defendant replied, "I don't know," but admitted to possession of "a little weed inside [his] pocket." As defendant reached into his pocket, the officer stopped him, reached into defendant's pocket and retrieved a clear plastic bag containing what the officer suspected to be marijuana. The officer handcuffed defendant and placed him under arrest. No other drugs or drug paraphernalia were found on defendant's person, but $153 in cash was discovered in his right pants pocket. The denominations of the $153 consisted of one $100 bill, two $20 bills, one $5 bill and eight $1 bills.

The officer placed defendant in the patrol car of Lieutenant McBride who, along with Officer Robb, had arrived in separate vehicles. Pagano returned to defendant's vehicle and asked co-defendant Warrelmann to exit the car and stand in front of it. She complied.

Pagano walked to his patrol car and returned to defendant's Honda with Ali who, on the officer's command, began sniffing the exterior of the car. When Ali reached the driver's side door, the dog indicated the presence of narcotics. The location was consistent with Pagano's observation of the marijuana residue and black film container. Ali finished searching the exterior of the automobile and then entered the car through the driver's side door.

Inside the automobile, Ali indicated the presence of narcotics in the map compartment on the driver's side door. Ali then searched the center console between the front seats and a black duffel bag/backpack located on the floor behind the console in the backseat. The dog indicated the presence of more narcotics. Pagano then placed Ali in the patrol car and returned to defendant's vehicle to search the areas indicated by Ali.

In the map compartment on the driver's side door, Pagano found a film container holding sixteen individual, clear plastic bags of what appeared to be crack cocaine. In the black duffel bag/backpack, Pagano found fifteen bags of suspected marijuana, two bags of mushrooms, one bag containing seven pills, another bag containing ten more pills, one bag containing a large rock of suspected crack cocaine and two empty plastic bags. Pagano also seized the marijuana residue from the floor of the driver's side and the map compartment on the driver's side door. The officer placed the seized items in bags, secured them, and prepared them for transportation to headquarters for processing.

Pagano then placed Warrelmann under arrest. She did not appear to be under the influence of CDS and a search of her person yielded no narcotics or drug paraphernalia. Warrelmann was placed into the second responding officer's vehicle. Defendant's car was impounded, defendant and Warrelman were transported to the police station, and Pagano and his canine colleague remained at the scene to await a tow truck.

The suspected drugs found on defendant's person and in his vehicle were submitted to the State Police Laboratory for analysis. The substances in the black duffel bag/backpack, in defendant's pocket, in the map compartment on the driver's side door and on the floor of the driver's side all tested positive for CDS. The total weight of the marijuana was 56 grams; the seventeen pills, which tested positive for methamphetamine, weighed 3.13 grams; the single rock of crack cocaine weighed 7.58 grams; the sixteen individual bags of suspected cocaine, which tested positive, weighed 7.41 grams; the marijuana found on defendant's person weighed 2.35 grams, and the residue from the car floor was "a trace amount."

The mushrooms, which tested positive for psilocin, were not weighed. Captain Robert J. Bunn of the Warren County Prosecutor's Office testified that, in his experience, the State Police Laboratory commonly identifies the presence of CDS in mushrooms but may not necessarily "do an individual weight as they would do with say a rock of cocaine or a vial of cocaine."

At trial, Captain Bunn testified as an expert witness for the State about narcotics distribution and the possession with intent to distribute charge. Based on a hypothetical mirroring the facts in this case, Bunn opined that "[u]nder those circumstances predominantly all of the drugs were for possession with intent. The only thing that I see there that could -- would fit into a personal possession would be the marijuana found in [defendant's] pocket." The officer grounded his opinion on the weight, variety and monetary value of the CDS, the packaging and the "quantity of street level doses that could be derived from the quantity of [CDS] . . . possessed." He also added that defendant did not have any drug paraphernalia on his person, which indicated possession with intent to distribute based on Bunn's training and experience.

On appeal, defendant raises the following arguments:

POINT I

IN THIS DRUG PROSECUTION CASE, THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE AN UN-REDACTED PHOTOGRAPH OF DEFENDANT WEARING A SHIRT THAT DEPICTED DRUGS AND AN INDIVIDUAL USING DRUGS.

POINT II

ONE CANNOT BE CONVICTED OF POSSESSION WITH INTENT TO DISTRIBUTE A CDS WHEN THE STATE FAILS TO COMPLETELY TEST THE SUSPECTED CDS, ITS EXPERT FAILS TO SET FORTH A WEIGHT OF THE CDS, AND THE EXPERT CONCEDES THAT HE CANNOT PROVIDE A STREET VALUE FOR THE CDS WITHOUT KNOWING THE WEIGHT.

POINT III

THE WARRANTLESS SEARCH OF A CLOSED BACKPACK LOCATED ON THE REAR SEAT OF THE DEFENDANT'S MOTHER'S AUTOMOBILE, WHICH DEFENDANT WAS OPERATING, VIOLATED ARTICLE I, PARAGRAPH 7 OF THE STATE CONSTITUTION.

POINT IV

THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT "POSSESSED" THE BACKPACK LOCATED IN THE BACK OF DEFENDANT'S MOTHER'S VEHICLE.

POINT V

THE TRIAL COURT ERRED IN IMPOSING AN EXTENDED SENTENCE.

POINT VI

THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE LABORATORY RESULTS THAT WERE ADMITTEDLY INCOMPLETE AND FURTHER ERRED IN PERMITTING TESTIMONY ABOUT THE LABORATORY CERTIFICATES FROM SOMEONE OTHER THAN THE TECHNICIAN.

POINT VII

DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE STATE INTRODUCED HIGHLY PREJUDICIAL INFORMATION ABOUT DEFENDANT'S POTENTIAL LINK TO OTHER DRUG DISTRIBUTION.

POINT VIII

THE TRIAL COURT ERRED IN ADMITTING EXPERT TESTIMONY OF LIEUTENANT ROBERT BUNN.

POINT IX

THE POLICE LACKED A LEGAL BASIS TO VIEW THE CONTENTS OF THE VEHICLE BEING OPERATED BY DEFENDANT BECAUSE THE VEHICLE WAS REGISTERED OUT OF STATE.

We hold that the warrantless search of the backpack was not justified by the automobile exception. Nevertheless, we affirm the conviction on Counts 1 and 8 because neither conviction was founded on the CDS found in the backpack.

We commence our discussion of the many issues raised by defendant with the warrantless search of the automobile driven by defendant. Defendant argues that the warrantless search of the vehicle and the backpack in the rear seat of his mother's car cannot be considered a valid search incident to arrest. The State responds that the search of the vehicle and the backpack were justified under the automobile exception to the warrant requirement.

The warrantless search of the vehicle cannot be considered a valid search incident to defendant's arrest, or incident to the arrest of his passenger. The Court has recognized that a search of an automobile is an invasion of privacy. State v. Cooke, 163 N.J. 657, 670 (2000). The Court has also acknowledged that a person has a lesser expectation of privacy in an automobile than in their home or office. State v. Colvin, 123 N.J. 428, 429 (1991). The Court has never held, however, that the Constitution, federal or state, does not apply to automobile searches. Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S. Ct. 2022, 2035, 29 L. Ed. 2d 564, 580 (1971); State v. Eckel, 185 N.J. 523, 539 (2006).

In Eckel, the Court held unequivocally that a search of an automobile cannot be justified by the search incident to arrest exception once the occupant of the vehicle has been removed from the vehicle, arrested and secured elsewhere. Eckel, supra, 185 N.J. at 541. The Court stated:

Once the occupant of a vehicle has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception is inapplicable.

[Ibid.]

Here, as in Eckel, defendant and Warrelmann had been removed from the vehicle, arrested, and placed in separate police vehicles. Any concern about officer safety was ameliorated by the removal of the occupants from the vehicle and their immobilization. The subsequent warrantless search of the vehicle cannot be supported as a search incident to arrest.

We turn then to whether this warrantless search falls within the automobile exception to the requirement of a warrant prior to any search. Two recent opinions, State v. Dunlap, 185 N.J. 543 (2006) and State v. Birkenmeier, 185 N.J. 552 (2006), as well as Cooke, supra, guide this discussion.

The automobile exception to the warrant requirement depends on the existence of probable cause and exigent circumstances. Dunlap, supra, 185 N.J. at 549; Birkenmeier, supra, 185 N.J. at 562-63; Cooke, supra, 163 N.J. at 661. The observations by Pagano and the dog provided ample probable cause to obtain a warrant to search the backpack inside the car. On the other hand, exigent circumstances did not exist to justify the warrantless search of the backpack inside the car.

In Dunlap, supra, the defendant had been alerted by his girlfriend that her mother had found heroin and a gun in her room. 185 N.J. at 544. Police were informed that the defendant used three cars and drugs and weapons would likely be found in each car. Id. at 545. When the defendant arrived at his girlfriend's house, he parked his car at the curb. Ibid. As the defendant approached the house, he was arrested by waiting police officers. Ibid. Following his arrest, the police searched the interior of the car and found a large quantity of heroin and a loaded handgun. Id. at 546.

The Court recognized that application of the automobile exception to the warrant requirement necessitates an analysis of the facts of each case, id. at 549, and then held that the circumstances were not exigent to excuse the warrant requirement. Id. at 550-51. The Court noted that the car was parked on the street in a residential area that was neither a high crime area nor an area known for drug trafficking. Id. at 550. There was no known third party who might arrive on the scene and take the car or destroy the contraband. Ibid. Moreover, eight to ten police officers were present. Id. at 545, 550.

In Birkenmeier, the Court found that exigent circumstances justified the warrantless search of the automobile. There, a confidential informant advised police that the defendant would leave his house in the late afternoon with a large quantity of marijuana which the defendant intended to deliver to another for distribution. Birkenmeier, supra, 185 N.J. at 555-56. When the defendant was en route to the delivery point, police stopped the car. Id. at 556. The defendant was arrested, id. at 557, and police detected a strong odor of marijuana emanating from the large laundry bag on the front seat of the car. Id. at 557. The bag was removed from the car and opened. Ibid. The officer discovered three white plastic bags containing thirty-five pounds of marijuana. Id. at 556-57.

The Court found the circumstances of the stop presented exigent circumstances to remove the bag from the car and inspect its contents. Id. at 563. Although the Court did not identify the facts that created the exigent circumstances, the difference between the facts in Dunlap and in Birkenmeier are readily apparent. In Birkenmeier, the defendant was intercepted on a city street en route to deliver a substantial quantity of illicit drugs. Others, including the informant and the person or persons who would accept delivery of the marijuana, knew that the defendant was transporting a large quantity of drugs. The possibility that someone may seek to retrieve or destroy the evidence was very real.

Similarly, the Court found exigent circumstances in Cooke where the car that was subject to the warrantless search was parked in the parking lot of a housing complex known for drug-trafficking. Cooke, supra, 163 N.J. at 673. During a surveillance, an officer observed the defendant selling drugs in the vicinity of the car and using the car to store his inventory. Id. at 662. In fact, before the defendant left the scene in another car, the surveilling officer observed three drug transactions and also watched as the defendant placed a plastic bag containing suspected drugs under the passenger seat of the car. Ibid. Finally, the police commenced the surveillance operation based on a tip from an informant. Id. at 671.

In finding exigent circumstances existed to justify the warrantless search, the Court stated that the potential of removal or destruction of the drugs existed because several people knew the defendant was engaged in drug transactions and used the car to store the drugs. Id. at 673. In addition, the police might not have possessed the only set of keys to the car, and events unfolded swiftly from the time of the surveillance to defendant's apprehension. Id. at 673-74. Moreover, the surveilling officer could not risk revealing his observation location to guard the car. Id. at 674.

The record in this case does not present situations similar to Birkenmeier or Cooke. While defendant was stopped on a street, the stop was not precipitated by information from an informant. Defendant was stopped because the lights on the car did not conform to motor vehicle regulations. When defendant and his passenger were arrested, three officers and a dog were at the scene. Defendant was transported to the police station in one patrol car; his passenger was transported in another.

Pagano and his dog remained on the scene to await the tow truck. Although defendant's mother appeared at the scene of the stop, she left the scene after speaking to Pagano and observing her car. These facts demonstrate that Pagano was able to control access to the car. Thus, according to the facts of this case, there were no circumstances that required the backpack to be searched at the scene without a warrant.

We hold, therefore, that the motion to suppress the evidence obtained from the warrantless search of the backpack should have been granted. This ruling, however, does not affect the conviction based on the marijuana found in the map compartment, the residue found on the floor of the car, the CDS found in the film container located in the map compartment, and the marijuana found on defendant. Moreover, this disposition does not affect the sentence imposed on Count 1 of five years imprisonment with a three-year parole ineligibility term and the concurrent eighteen-month prison term on Count 8. The terms imposed on the counts affected by this ruling were concurrent to the term imposed on Count 1. That term, a mandatory extended term, was controlled by defendant's prior record.

Our disposition also does not require discussion of the arguments presented in Points II, IV, VI AND VII. The argument raised in Point IX that the police lacked a legal basis to view the contents of the vehicle because it was registered in Pennsylvania is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Any error in admission of the photograph of defendant wearing a shirt with "a guy [that] looks like [he is] smoking a blunt and next to it there's a picture of a marijuana leaf" must be considered harmless error. Defendant was tried by a judge without a jury. By his training and experience, the judge is able to accept and analyze evidence dispassionately and assign the appropriate weight to testimonial and documentary evidence. State v. Medina, 349 N.J. Super. 108, 130 (App. Div.), certif. denied, 174 N.J. 193 (2002); State v. Kern, 325 N.J. Super. 435, 444 (App. Div. 1999).

As a result of our disposition, we remand this matter to the trial court to enter an amended judgment of conviction consistent with our ruling that the CDS seized from the warrantless search of the backpack should have been suppressed.

Affirmed in part; reversed in part; remanded for entry of an amended judgment of conviction.

Pagano testified that "anything that's out of the bag and it's loose" is referred to as "residue."

In Eckel, the Court remanded the matter to determine whether other recognized exceptions to the warrant requirement would support the warrantless search. Id. at 542.

In other words, our ruling appears to affect only the convictions in Counts 2, 3, 4, 5, 6 and 7 and perhaps the disorderly persons charge of possession of drug paraphernalia. It does not affect the convictions on Counts 1 and 8.

(continued)

(continued)

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A-1274-05T4

December 17, 2007