STATE OF NEW JERSEY v. WARREN GUERRIER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5081-05T45081-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WARREN GUERRIER,

Defendant-Appellant.

____________________________________________________________

 

Submitted February 6, 2008 - Decided

Before Judges R. B. Coleman and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-04-0320.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Warren Guerrier appeals from an October 21, 2005 judgment of conviction entered following the trial court's acceptance of his March 2, 2005 guilty plea. In accordance with the plea agreement, the court imposed a four-year sentence with one year of parole ineligibility as a result of defendant's conviction on count two of Union County Indictment No. 04-04-0320, charging third degree conspiracy to commit the crime of identity theft, N.J.S.A. 2C:5-2 and N.J.S.A. 2:21-7a(1). Count one, charging third degree possession of devices and materials to make false drivers' licenses or other documents issued by a governmental agency, N.J.S.A. 2C:21-2.16, was dismissed.

Prior to the date of the plea hearing, Guerrier had moved to suppress evidence seized from his car after a stop for traffic violations under the New Jersey motor vehicle code. The trial court denied Guerrier's motion, finding that the police had the right to stop the vehicle and probable cause to conduct the subsequent search of the interior of the car because the smell of marijuana emanated from the vehicle. Thereafter, Guerrier agreed to plead guilty to count two of the indictment, third degree conspiracy, in exchange for the dismissal of the charge in count one and the prosecutor's recommendation of four years of imprisonment with a one year period of parole ineligibility. At the plea hearing, the judge conducted a colloquy with Guerrier and ultimately accepted his guilty plea as having been knowingly and voluntarily entered. As noted, the judge sentenced Guerrier consistent with the plea agreement. Guerrier appealed, and we now affirm.

The facts relevant to this appeal are as follows. On September 12, 2003, at approximately 12:01 a.m., Officers James Stivale and Kevin O'Keefe of the Westfield Police Department pulled over a Honda wagon driven by Guerrier. The reasons for the stop were that the officers observed that the car had an unreadable expiration date on its Virginia license plate tag, in violation of N.J.S.A. 39:3-33, and the car's front side windows were unlawfully tinted, in violation of N.J.S.A. 39:3-75. The officers approached the vehicle and asked the driver, Guerrier, to provide his driving credentials. Guerrier could not produce them. At that time, Officer O'Keefe detected a strong odor of marijuana emanating from the vehicle. Officer O'Keefe then instructed Guerrier and his passenger, co-defendant Alexander Young, to exit the vehicle. Both men were advised of their Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The officers searched the vehicle and discovered the following items: two empty zip-loc bags on the front passenger seat; one small zip-loc bag containing marijuana; three fraudulent New Jersey drivers' licenses each bearing a picture of Young; one Sony digital camera; pages of personal financial information belonging to others; one piece of a tobacco leaf; rolling paper; drivers' license blanks; and three false drivers' licenses. Guerrier and Young were placed under arrest. A police dashboard video camera recorded the stop and search.

The following information elicited during the hearing on the motion to suppress is relevant to this appeal. The trial judge watched the dashboard video and found that:

It is quite clear from that second viewing of [the video] that the officer who testified, Kevin O'Keefe, did advise his other officer and partner Stivali that he had detected from the car an odor of burnt marijuana. There was an exchange between the two officers during which Stivali tells O'Keefe that the passenger had told Stivali that he had, indeed, smoked marijuana, according to the passenger, before entering the car.

When Stivali tells O'Keefe that, O'Keefe replies that he [smelled] burned marijuana coming from the car, and I believe also on the defendant.

The judge concluded that the officers did smell marijuana in the vehicle, and there was an obvious need to protect the public from people driving under the influence of marijuana. Thus, the officers had a duty to inquire and investigate whether there was marijuana in the vehicle. The judge further concluded that the police were initially justified in stopping the car based upon the car's "very darkened tinted windows" and "the faulty nature of the sticker and license plate."

On appeal, Guerrier presents the following arguments for our consideration:

POINT I: THE STOP AND SEARCH OF DEFENDANT'S CAR WAS UNLAWFUL.

POINT II: THE COURT SHOULD VACATE DEFENDANT'S GUILTY PLEA TO THIRD-DEGREE CONSPIRACY BECAUSE IT RESTS ON INSUFFICIENT FACTS.

POINT III: DEFENDANT'S SENTENCE IS IMPROPER AND UNJUSTIFIED.

In State v. Elders, 192 N.J. 224, 243-44 (2007), the Court described the standard of our review of a trial court's findings on a motion to suppress evidence:

[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [Elders, supra, 386 N.J. Super. at 228] (citing State v. Locutro, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164, (1964))).

An appellate court "should 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, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.

We find no merit in defendant's argument that the stop for violating the motor vehicle code was unlawful. A police officer may conduct a stop of an automobile and check the driver's credentials if the officer has articulable and reasonable suspicion that the motorist is unlicensed, the automobile is unregistered or that either the vehicle or an occupant is otherwise subject to seizure for violation of the law. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); Locurto, supra, 157 N.J. at 470 (quoting State v. Smith, 306 N.J. Super. 370 (App. Div. 1997)) ("'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. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990) (referencing several Federal and New Jersey cases holding that "law enforcement officials may stop motor vehicles where they have a reasonable or articulable suspicion that a motor vehicle violation has occurred.").

Having evaluated the record and adhering to our standard of review, we are satisfied that the trial judge's findings pertaining to the motor vehicle stop were supported by sufficient credible evidence. Moreover, Guerrier's brief does not seriously challenge the propriety of the initial stop, but he urges the subsequent search was not justified and was not confined to areas where ownership and driving credentials might normally be kept. Without any contest from Guerrier or evidence contrary to the reasons provided for the motor vehicle stop, we conclude that the trial court appropriately found that the stop was valid.

Turning to the subsequent search of the vehicle, we note that the court found that one of the officers smelled burnt marijuana. The smell of marijuana emanating from a vehicle constitutes sufficient probable cause for police officers to search the entire passenger compartment. In a case with similar facts to the present, we explained the following:

Probable cause is a well grounded suspicion that a criminal offense has been or is being committed. It is more than bare suspicion but less than legal evidence necessary to convict beyond a reasonable doubt. Whether probable cause existed is to be determined by the objective reasonableness standard.
 
[The State Trooper] was familiar with the characteristic odor of burnt marijuana. Once the trooper smelled burnt marijuana, a reasonable inference could be drawn that it was smoked recently by casual users of marijuana. Similarly, the smell of burnt marijuana gave "rise to an inference that would lead a police officer of ordinary prudence and experience conscientiously to entertain a strong suspicion that additional contraband is present in the . . . automobile." Expressed another way, an odor of unburned marijuana creates an inference that marijuana is physically present in the vehicle. An odor of burnt marijuana creates an inference that marijuana is not only physically present in the vehicle, but that some of it has been smoked recently. The suspected marijuana could reasonably have been located in the passenger compartment and/or on the person of the occupants of the vehicle. To be sure, possession and/or use of marijuana in this State, in any amount, is illegal. Therefore, the smell of burnt marijuana alone suggested a breach of law.
 
In addition, it is a serious traffic offense for a driver to "operate a motor vehicle on any highway while knowingly having in his possession or in the motor vehicle, any controlled dangerous substance as classified in Schedules I, II, III, IV and V . . ." of our Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C:35-1 et seq. N.J.S.A. 39:4-49.1. Marijuana is classified as a Schedule I controlled dangerous substance.

 
Probable cause determinations require an assessment of the totality of the circumstances in light of an objective reasonableness standard. The total circumstances here involve a motor vehicle exceeding the speed limit by twelve miles per hour on an interstate superhighway at 12:36 a.m. The driver and the two passengers were from Ohio; the vehicle was registered in the same state. While conversing with the driver, the trooper smelled the odor of burnt marijuana.

Unlike the smell of alcohol emanating from the passenger compartment of a stopped motor vehicle, or even on the breath of the driver, both of which might be lawful, using or possessing marijuana in a motor vehicle in New Jersey is a per se violation of the laws of this State. The trooper was entitled to apply "the factual and practical consideration of everyday life" on which reasonable and prudent persons act. Thus, the smell of burnt marijuana under the total circumstances created a heightened and reasonable suspicion that an offense was being committed. We are persuaded that under the totality of the circumstances, probable cause was established.

[State v. Judge, 275 N.J. Super. 194, 200-02 (App. Div. 1994) (internal citations and footnote omitted).]

We find that reasoning persuasive and applicable to the present appeal.

Also, in State v. Cooke, the Court explained that there must be exigent circumstances in order for police to conduct a warrantless search of a vehicle. 163 N.J. 674, 675 (2000). In Cooke, supra, the Court found that the following factors were sufficient for a finding of exigency:

[I]t would have been impracticable to require [the officer] to leave his surveillance post to stand guard over the [vehicle]; the element of surprise was lost when defendant was arrested in the presence of [a known criminal]; third parties had knowledge of the location of the [vehicle] and were aware that defendant stored drugs in either the [vehicle] or Hyundai; those same parties could have attempted to remove or destroy the drugs in the time necessary to obtain the warrant; and other parties in this known drug-trafficking area could have removed the car itself. Based on those factors, we are persuaded that the State has met its burden in demonstrating the impracticability of obtaining a warrant.

[Id. at 675.]

Similarly, in State v. Colvin, the Court stated that:

The justification to conduct a warrantless automobile search does not turn on whether the vehicle is parked or moving. The justification turns on the circumstances that make it impracticable to obtain a warrant when the police have probable cause to search the car. When, as here, the police have no advance knowledge of the events to unfold, no warrant is required to search a parked car if the police have probable cause to believe that the car contains criminal contraband and have articulable reasons to search the vehicle immediately to prevent the loss or destruction of the evidence.

[ 123 N.J. 428, 437 (1991).]

Reviewing the record before us with our deferential standard of review in mind, we are convinced that there is sufficient credible evidence for the officers to have searched the vehicle driven by Guerrier. Not only was there an odor of marijuana emanating from the vehicle, Guerrier appeared nervous and could not produce the proper credentials. The totality of the circumstances were sufficient for a finding of probable cause and made it impractical to obtain a warrant prior to searching the vehicle. As pointed out by the trial judge, the officers were searching the vehicle for both evidence of further drug activity and Guerrier's credentials. Cf. State v. Patino, 83 N.J. 1, 12 (1980) (holding that a small amount of marijuana found in the interior of the car does not suggest participation in drug trafficking, rendering the search of the trunk invalid). Because the officers were authorized to conduct a warrantless search of the vehicle, the materials used to make false government-issued documents were properly seized in the course of that search and the search did not need to be confined to the "glove compartment or other area[s] where a registration might normally be kept in a vehicle." Ibid.

Guerrier contends in Point II of his brief that his guilty plea should be vacated because the plea colloquy was insufficient in that: (1) it was obtained through leading questions; and (2) it did not satisfy the elements of conspiracy to commit the underlying offense. As to the first alleged deficiency, Guerrier emphasizes the Supreme Court's statement in State v. Barboza, that "the trial court must be 'satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" 115 N.J. 415, 422 (1989) (citing State v. Stefanelli, 79 N.J. 418, 439 (1979)). Neither that phraseology nor the terms of Rule 3:9-2 preclude the use of leading questions in a plea hearing so long as the court can be independently satisfied that the defendant acknowledged and admitted under oath facts supporting a finding that he is guilty of the offense to which he was pleading. State v. Smullen, 118 N.J. 408, 415 (1990).

In Smullen, the Court made the following remark about the acceptability of leading questions:

The Appellate Division was understandably troubled in this case by the fact that defendant furnished the factual basis for the plea as a result of leading questions. The trial court had no choice, however, but to satisfy itself that defendant was admitting the distasteful reality that makes the charged conduct criminal. It is not the kind of thing that people like to admit. Nonetheless, we are satisfied that taken in the context of entire plea colloquy - the rather extensive discussion between the court and defendant concerning the written plea agreement that defendant signed and defendant's consultations with his attorney - there was an adequate factual basis for the plea.

[Ibid.]

As to the second asserted deficiency, defendant is plainly wrong when he asserts that his admissions do not satisfy the elements of a conspiracy to commit the underlying offense. Pursuant to N.J.S.A. 2C:5-2,

[a] person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (1) [a]grees with such other person or persons that they or one of more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime[.]

Guerrier admitted that on the date he was arrested he had documents that contained other people's personal information, including false drivers' licenses that he and co-defendant Young were going to use for the purpose of defrauding others. He expected to derive money from the use of the documents containing false information, and he admitted that on one occasion he had transported someone else involved in the conspiracy and that person received at least $500 from Western Union by presenting or using false identification. He agreed that providing co-defendant Young with additional false documents would likely bring about a loss of over $500 in property or cash to some company or some person. We have no doubt that such facts establish a basis of guilt of the charged offense.

Finally, Guerrier's sentence was within the statutory range for a crime of the third degree - between three and five years of imprisonment. N.J.S.A. 2C:43-6a(3). In fact, it is the sentence that the State indicated on the plea form that it would recommend. In light of the great deference to be accorded to judges who exercise discretion and comply with principles of sentencing, we find the analysis sound, and we decline to disturb the sentence in this case. State v. Dalziel, 182 N.J. 494, 501 (2005).

 
Affirmed.

Although the indictment indicated that N.J.S.A. 2C:21-2.1b is a third degree crime, the New Jersey Code of Criminal Justice provides that it is a crime of the second degree. Since that count was dismissed, it did not have an impact on the sentence imposed.

As a preliminary matter, we note that Guerrier is no longer incarcerated, having been granted parole on October 25, 2007. Neither of the litigants reported that development to this court. Our information is derived from an internet posting by the New Jersey Department of Corrections. Nevertheless, we do not regard Guerrier's arguments regarding the sentence as moot, because even though he has already served the mandatory minimum of the custodial term imposed, his release from confinement is conditional. State v. Franklin, 175 N.J. 456, 470 (2003). "[A] determination after an administrative hearing by the Parole Board that a defendant has violated the conditions of his parole [could] result[] in the revocation of parole and the return of the defendant to custody to serve the remaining portion of his original sentence." Ibid.

(continued)

(continued)

14

A-5081-05T4

July 28, 2008