STATE OF NEW JERSEY IN THE INTEREST OF K.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY IN THE

INTEREST OF K.M., a minor.

February 26, 2014

Submitted February 11, 2014 - Decided

Before Judges Alvarez, Ostrer and Carroll.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1855-12.

Joseph E. Krakora, Public Defender, attorney for appellant K.M. (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the briefs).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Joshua D. Detzky, Legal Assistant, on the brief).

PER CURIAM

K.M., a sixteen-year-old juvenile, appeals from a July 25, 2012 final adjudication of delinquency for possession of a controlled dangerous substance, i.e., marijuana, N.J.S.A.2C:35-10(a)(4), which if committed by an adult would constitute a disorderly persons offense. Following the denial of his motion to suppress the marijuana seized from him, K.M. was adjudicated guilty and sentenced to probation until his eighteenth birthday. He was also ordered to undergo random drug testing, participate in an outpatient substance abuse program, and pay fines and assessments totaling $555. On appeal, he challenges the denial of his motion to suppress evidence. For the reasons that follow, we affirm.

On February 11, 2012, at around 11:15 p.m., Wall Township Police Department Patrolman Miles Shanklin was driving on State Highway 35 (Route 35) in his marked patrol car, looking "into the business parking lots to see if there are any suspicious vehicles, activity." Such business checks were part of his regular patrol duties. While driving near Sea Girt Avenue, he observed a vehicle in the Wells Fargo Bank parking lot that was parked "right in front of the doors leading to the ATM machine." He continued driving south on Route 35 toward a traffic circle, because he understood "that people . . . still utilize the ATM machine." He also noted that the vehicle "didn't look suspicious" at that point. Shanklin continued his patrol duties checking other businesses.

One minute later Shanklin passed Wells Fargo a second time, from the opposite direction, and observed that the vehicle was still there. He could not determine what type of vehicle it was, and noted that while the vehicle had its exterior lights on, the "parking lot . . . at that time . . . isn't well lit." Shanklin then continued driving northbound on Route 35 "for some time." He turned around half a mile north of the bank, because he "wanted to see if that vehicle was still there." From the time he first observed the car, to the time he returned to the bank entrance, "between two minutes [and] two and a half minutes" had elapsed.

Shanklin approached the Wells Fargo entrance, "looked in and . . . saw the vehicle was still parked there, and there was no movement." Shanklin thought that "with experience of using an ATM machine, for the most part it's relatively quick to make a transaction. And the car was parked there for a little bit longer than [] that transaction usually takes." He thought it was "a little suspicious" and "wanted to do a check on the vehicle and [its] occupants [] to see if everything was alright." Its headlights were on, so he "wasn't able to see how many people were in the vehicle."

Shanklin had no "intention[]" to get out of his vehicle. However, as he pulled into the lot, "the driver's side door opened. And the driver, [did] like a slow jog around the rear of the vehicle, back into the ATM area." Shanklin testified: "I just thought that was a little strange, it wasn't normal." Shanklin believed it odd that as "soon as you see a police officer pull in, they immediately exit the vehicle after being parked there for some time." As the driver was about halfway to the ATM machine, Shanklin pulled up to him, and asked him to come to the window of the patrol vehicle. The driver responded "I'm going to use the ATM machine" and continued jogging. At this point, Shanklin thought "that was odd, it wasn't normal. . . . He just continued running into the bank, or jogging into the bank."

Shanklin then approached the vehicle on foot, "to continue [his] investigation, make sure that everything was okay" and "that they didn't need any assistance." He also envisioned the worst case scenario "[m]aybe a robbery occurred, and they were trying to use the ATM card."

The rear-passenger door was "closest to [him]." Shanklin "knocked on the window, and the rear passenger put down the window. And just to find out exactly what they were up to." Shanklin observed three occupants in the vehicle, in addition to the driver, who at that point was inside the bank. The rear-seat passenger, later identified as K.M., was "shy" and "appeared a little nervous." As soon as the window was rolled down, Shanklin was "able to detect a very strong odor of raw marijuana . . . from inside the vehicle." The officer had undergone marijuana odor detection training and had experience with "multiple marijuana arrests." The other passengers in the vehicle "consistently avoided eye contact." At this point, Shanklin was not sure exactly which person possessed the marijuana. However, upon detecting the odor of marijuana, he opined that the situation had now transformed into an investigative detention.

Shanklin kept the rear-seat passenger "in the vehicle." After the driver returned from making his ATM transaction, Shanklin conducted a "brief interview" of him and was not "pressing him for anything." He asked the driver "who in the vehicle has marijuana?" The driver initially hesitated, but then "advised that the rear seat passenger, sitting directly behind him, was in possession of [the marijuana]." Shanklin went to his patrol car to check the driver's license information, and called for another officer to assist him because "it was basically [him] against four occupants of the vehicle."

After the second officer arrived, Shanklin ordered the driver to sit on the curb, and asked K.M. to step out of the vehicle. K.M. appeared extremely nervous to the officer. They then walked a short distance and "just started a conversation." Shanklin asked "do you have marijuana on you, and where is it?" K.M. "kind of mumbled, put his head down, and pointed towards his crotch area." K.M. then reached into his pants and pulled out the marijuana. Shanklin described K.M.'s behavior as "extremely cooperative." Shanklin placed K.M. under arrest, and advised the driver and the remaining passengers that they were free to leave.

In denying K.M.'s motion to suppress the marijuana evidence, Judge Eugene A. Iadanza found Shanklin to be a credible witness and accepted his version of events. He also found that Shanklin had the "absolute right" as part of his patrol duties to pull into the parking lot to investigate suspicious activities. He characterized Shanklin's conduct until he smelled marijuana as a field inquiry that did not require a warrant or a reasonable, articulable suspicion of criminal activity. He also found that Shanklin acted reasonably in either knocking on the window or asking K.M. to roll it down, and that his actions were an extension of his field inquiry.

Once Shanklin detected a marijuana odor, his investigation became an investigatory stop, based on the reasonable suspicion that a crime had occurred. Rather than immediately arrest K.M., he chose to continue the investigative detention. The judge found:

[B]ased on the odor of the marijuana, based on the information from the driver, [Shanklin] then had a reasonable suspicion that a crime had been committed. There was the ability to reasonably at that point have a limited seizure of the defendant to continue the investigative detention . . . . [K.M. was] asked some very brief questions, the defendant was not in custody at the time. The defendant's answering those questions was not a violation of his Miranda rights, it was not a violation of the Fourth Amendment or the New Jersey Constitution with regard to unreasonable search and seizures."

K.M.'s sole argument on appeal is that Shanklin was conducting an unlawful investigatory detention without reasonable and articulable suspicion, rather than a field inquiry, when he requested K.M. to roll down the window of the vehicle. As a result, K.M. argues that the marijuana should have been suppressed. We disagree.

Our review of a trial judge's decision on a suppression motion is deferential. State v. Robinson, 200 N.J.1, 15 (2009). We "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." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks and citations omitted). Because the trial judge observes the character and demeanor of the witnesses, he or she is better positioned to determine credibility. State v. Locurto, 157 N.J. 463, 474 (1999). On the other hand, as appellate review of the trial court's legal conclusions is plenary, we need not defer to the trial court's decisions when a question of law is at stake. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect the State's citizens against "unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, 7. "A seizure occurs if, 'in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.'" State v. Sloane, 193 N.J.423, 429 (2008) (quoting State v. Stovall, 170 N.J. 346, 355 (2002)) (alteration in original).

Law enforcement officers violate neither the federal nor the state constitution when they conduct a field inquiry "'without grounds for suspicion.'" State v. Rodriguez, 172 N.J.117, 126 (2002) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)). If the officers do not prohibit an individual's right to move, the inquiry does not amount to detention. State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973). "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (quoting State v. Nishina, 175 N.J. 502, 510 (2006) (alteration in original). "'The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" Ibid. (quoting Maryland, supra, 167 N.J. at 483).

Unlike a field inquiry, "an investigatory stop, sometimes referred to as a Terry1 stop, is valid 'if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" Ibid. (quoting Nishina, supra, 175 N.J. at 510-11) (internal quotation marks and citation omitted). The suspicion necessary to conduct a lawful Terry stop "need not rise to the 'probable cause necessary to justify an arrest.'" Ibid. (quoting Nishina, supra, 175 N.J. at 511).

When evaluating whether a police officer had a reasonable suspicion that criminal activity had taken place or was about to take place, a court must "ascribe sufficient weight to the officer's knowledge and experience and to the rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." State v. Arthur, 149 N.J. 1, 10 (1997). "[S]imply because a defendant's actions might have some speculative innocent explanation does not mean that they cannot support articulable suspicions if a reasonable person would find the actions are consistent with guilt." Id. at 11.

Summarizing, critical differences exist between a "field inquiry" and an "investigatory stop." Maryland, supra, 167 N.J. at 486; State v. Privott, 203 N.J. 16, 24-25 (2010); State v. Sirianni, 347 N.J. Super. 382, 388 (App. Div.), certif. denied, 172 N.J. 178 (2002). Unlike a field inquiry, an investigatory stop "directly implicates the Fourth Amendment because it involves a seizure in the constitutional sense." Maryland, supra, 167 N.J. at 486. An officer's conduct must be justified by "a reasonable and particularized suspicion" of criminal activity, while a field inquiry does not require any threshold suspicion. Id. at 487.

Here, we conclude that Shanklin was conducting a lawful field inquiry when he knocked on the passenger-side window of the vehicle occupied by K.M. and others. Since the vehicle had already stopped, Shanklin was not conducting a motor vehicle stop that would have transformed the inquiry into a detention. See Sloane, 193 N.J. at 430. Shanklin's stated reason in approaching the vehicle was to check on the status of the occupants. He was also suspicious of the vehicle that was parked in a bank parking lot at night, and of the driver's actions in jogging out of the vehicle to use the ATM exactly when Shanklin pulled into the parking lot. However, save for race-based concerns not present here, Shanklin's suspicions in approaching the vehicle are not critical to a constitutional analysis. As noted, officers can make a field inquiry "without grounds for suspicion." Maryland, supra, 167 N.J. at 483 (internal quotation marks and citation omitted). "Brief, non-intrusive encounters with individuals on the street or in parked cars implicate none of the privacy or security concerns engendered by discretionary police spot checks of moving vehicles." Sirianni, supra, 347 N.J. Super. at 387.

Defendant argues that Shanklin's mere act of knocking on the window constituted an unlawful stop because he was a police officer. However, "[w]hile most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response." INS v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247, 255 (1984). It is only when "the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded," that a detention or stop occurs. Id. at 216, 104 S. Ct. at 1763, 80 L. Ed. 2d at 255; see also State v. Davis, 104 N.J. 490, 497-98 (1986).

Based on the totality of the circumstances, we agree with the trial court that K.M. was not detained, and was free to refuse the officer's request and leave. There were "no restraints on defendant's movement" and nothing in Shanklin's actions "conveyed to defendant that he was not free to refuse the officer's request." Sirianni, supra, 347 N.J. Super. at 392. Shanklin's approach was "non-offensive" and no "demands or orders were issued." Ibid. There is no allegation that his conduct was "overbearing or harassing." Ibid. Instead, Shanklin tapped on the vehicle's rear window as part of his field inquiry. At most, he asked K.M. to open the window; he neither demanded nor commanded him to do so. At the time K.M. rolled the window down, there was no indication he was the "subject of a particularized investigation," and the exchange was "unremarkable and non-confrontational." Ibid. There is also no evidence that Shanklin displayed his firearm, activated his flashing lights, boxed the vehicle in with his patrol car, or otherwise engaged in a display of force. United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980).

K.M. only challenges Shanklin's actions prior to and including his act of knocking on the window he does not dispute on appeal that Shanklin acted constitutionally once he smelled the marijuana odor. Simply put, under well-settled Fourth Amendment doctrine, until the officer detected the odor of marijuana, and was told that it belonged to K.M., K.M. was merely subject to a lawful field inquiry, and the suppression motion was therefore properly denied.

1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).