STATE OF NEW JERSEY v. WILLIAM F. COAN

NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

WILLIAM F. COAN,

Defendant-Appellant.

__________________________

November 3, 2014

Submitted October 22, 2014 Decided

Before Judges Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 16-13-A.

Laszlo Zacharias, Jr., attorney for appellant.

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (John R. Ascione, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant William F. Coan appeals the denial of his motion to suppress evidence recovered following a routine traffic stop. After pulling defendant over for a traffic violation, the investigating officer detected a strong odor of "raw, fresh" marijuana emanating from defendant's vehicle. After defendant was questioned about the smell, and advised that a canine unit was being dispatched to further investigate it, defendant then surrendered the marijuana in his possession to the officer.

Defendant was issued multiple summonses, and moved to suppress the incriminating evidence he had turned over to the officer. Both the municipal court and the Law Division denied the motion. On appeal, defendant argues that the police officer conducted an illegal warrantless search, and subjected him to custodial interrogation without first advising him of his Miranda rights.1 For the reasons expressed in Judge Paul W. Armstrong's thorough written opinion of August 22, 2013, we affirm.

The facts are undisputed, and are derived from the events depicted on the police officer's audio and video recording of the traffic stop.2 On March 13, 2012, Hillsborough Police Officer Robert Fariello stopped defendant for driving with a cracked windshield. After obtaining defendant's credentials, the officer returned to his police vehicle and requested a canine unit to respond to conduct a sniff test, noting that he smelled "raw, fresh marijuana" emanating from defendant's vehicle. A few minutes later, Fariello revisited defendant's vehicle to inquire about the cracked windshield and then returned to his police car.

Shortly thereafter, the officer again approached defendant and asked him to exit the vehicle. Fariello informed defendant that he had smelled marijuana and asked him if he had any in his possession. Defendant indicated that he did not have any marijuana on him or in his car. The officer told defendant that the canine unit would arrive soon3 and that he and his vehicle would be searched "real good." Defendant replied that he had two marijuana "roaches" on his person, which he then removed and handed to the officer.

When the canine unit arrived, Fariello asked for consent to search defendant's vehicle. Defendant agreed, and signed the consent form that the officer had read to him. The ensuing search did not yield any additional evidence. Defendant was placed under arrest and transported to police headquarters.

Following the denial of his motion to suppress evidence in the Hillsborough Municipal Court, defendant pled guilty to the disorderly persons offenses of possession of marijuana under fifty grams, N.J.S.A. 2C:35-10(a)(4), and possession of drug paraphernalia, N.J.S.A. 2C:36-2. Defendant also pled guilty to having a cracked windshield on his motor vehicle, N.J.S.A. 39:3-74. As part of the negotiated plea agreement, the State agreed to dismiss a charge of possession of drugs in a motor vehicle, N.J.S.A. 39:4-49.1, and defendant reserved the right to appeal the denial of his motion to suppress. See R. 7:6-2(c).

Defendant appealed to the Law Division, which conducted a trial de novo on his motion to suppress. On August 22, 2013, Judge Armstrong issued a comprehensive ten-page written decision denying the motion. He first determined that

Officer Fariello properly conducted an investigatory stop of [d]efendant's vehicle. He observed a crack in the windshield of [d]efendant's vehicle, and this observation alone provided sufficient articulable and reasonable suspicion to justify an investigatory stop of [d]efendant.

The judge then analyzed the events that followed the initial stop in light of applicable case law, and concluded

In the present case, this [c]ourt reviewed both parties' submissions, the transcript of the proceedings below, and the video recording of [d]efendant's traffic stop. It is apparent to this [c]ourt that Officer Fariello's questioning of [d]efendant during the investigatory stop was lawful. Officer Fariello did not tell [d]efendant he was under arrest, handcuff [d]efendant, subject [d]efendant to a search, nor hold [d]efendant for an excessive amount of time. Officer Fariello simply requested that [d]efendant exit his vehicle an action within the bounds of an investigatory stop while they waited for a canine unit to arrive. This action does not constitute the functional equivalent of a formal arrest. Thus, Officer Fariello was allowed to question [d]efendant without providing Miranda warnings.

Moreover, Officer Fariello did not coerce [d]efendant during this investigatory stop. Officer Fariello properly questioned [d]efendant about the cracked windshield on his vehicle and the smell of marijuana in the vicinity of his vehicle. Officer Fariello also informed [d]efendant that a canine unit was en route and suggested that this canine unit would conduct a thorough search. In response, [d]efendant spontaneously admitted he was in possession of marijuana and produced the marijuana from his pocket. Under these facts, Officer Fariello did not violate [d]efendant's constitutional rights by coercing [d]efendant or conducting an unreasonable warrantless search. In fact, Officer Fariello did not need to search [d]efendant's person, as [d]efendant voluntarily provided Officer Fariello with this incriminating information without a search having taken place.

Defendant now appeals from the denial of his motion to suppress and raises the following issue for our consideration

Defendant's admission of possession of 2 marijuana roaches was not consensual or freely volunteered since the police officer did not give defendant COAN whom he suspected of possessing marijuana his Mirandarights prior to informing defendant "you['re] gonna get searched real good" rendering the admission by defendant of possession of 2 marijuana roaches subject to suppression WHERE a search warrant could have been obtained but was not applied for OR where no exception for obtaining a warrant to search existed.

Generally, when considering the ruling on a motion to suppress, "if the trial court has had the benefit of and has relied upon testimony of witnesses, appellate courts must give due deference to those findings because it is the trial court that had the opportunity to evaluate the credibility of the witnesses who appeared and testified." State v. Diaz-Bridges, 208 N.J.544, 565 (2011) (citation omitted). The availability of a videotape documenting a police-citizen encounter does not "extinguish[] the deference owed to a trial court's findings." State v. Elders, 192 N.J.224, 244 (2007). However, "[w]hen the trial court's factual findings are based only on its viewing of a recorded interrogation that is equally available to the appellate court and are not dependent on any testimony uniquely available to the trial court, deference to the trial court's interpretation is not required." Diaz-Bridges, supra, 208 N.J.at 566.

An investigatory stop is a "type of encounter . . . sometimes referred to as a 'Terry'4 stop." State v. Privott, 203 N.J. 16, 25 (2010). An investigatory stop of a motor vehicle is lawful if the authorities have a reasonable and articulable suspicion that violations of motor vehicle or other laws have been or are being committed. State v. Carty, 170 N.J. 632, 639-40, modified on other grounds, 174 N.J. 351 (2002). As a threshold matter, we agree with Judge Armstrong that, having observed the cracked windshield, the officer was justified in stopping defendant's vehicle.

Once a lawful stop has been made, an officer may "conduct an investigation reasonably related in scope to the circumstances that justified the traffic stop." State v. Bernokeits, 423 N.J. Super. 365, 371 (App. Div. 2011). During the course of the stop, if "the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions." State v. Dickey, 152 N.J. 468, 479-80 (1998) (alteration in original) (internal quotation marks and citation omitted). To facilitate this investigation, an officer may order the driver to step out of the vehicle. State v. Smith, 134 N.J. 599, 610-11 (1994). Additionally, an officer may ask for consent to search the vehicle when "there is [a] reasonable and articulable suspicion to believe that [a motorist] has engaged in, or is about to engage in, criminal activity . . . beyond the initial valid motor vehicle stop." Carty, supra, 170 N.J. at 647.

Reasonable and articulable suspicion, a lower standard than probable cause, has been defined as "a particularized and objective basis for suspecting the person stopped of criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (internal quotation marks and citations omitted). Additionally, "New Jersey courts have recognized that the smell of marijuana itself constitutes probable cause that a criminal offense has been committed and that additional contraband might be present." State v. Nishina, 175 N.J. 502, 515-16 (2003) (internal quotation marks and citation omitted).

Having lawfully stopped defendant's vehicle, it is undisputed that the officer observed the scent of raw marijuana. At that point he had sufficient reasonable suspicion to order defendant to step out of the vehicle and detain him while he continued his investigation, which included summoning a canine unit for assistance.

We have held that "[t]he test of a justifiable use of a drug-sniffing dog is reasonable suspicion -- the same test applicable to justify a request for consent to search." State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006), aff'd in part and rev'd in part, 192 N.J. 224 (2007); State v. Cancel, 256 N.J. Super. 430, 435 (App. Div. 1992) (explaining that evidence that flights from Texas and Arizona were being used increasingly to transport marijuana into New Jersey was sufficient to satisfy the modest level of reasonable suspicion needed to justify the unintrusive use of canines to sniff all luggage on such flights for narcotics), certif. denied, 134 N.J. 484 (1993). In Illinois v. Caballes, however, the United States Supreme Court held that police generally do not require a reasonable, articulable suspicion to justify using a drug-detection canine to sniff a vehicle during a legitimate traffic stop. 543 U.S. 405, 409, 125 S. Ct. 834, 838, 160 L. Ed. 2d 842, 847 (2005).

Here, defendant was detained for a limited period and advised that the canine unit was responding to investigate the source of the raw marijuana smell. Confronted with what he apparently perceived to be its inevitable discovery, we agree with Judge Armstrong's conclusion that defendant then voluntarily admitted he possessed the marijuana and handed it over to the officer.

Defendant further argues that because he did not receive Miranda warnings prior to being questioned by the officer, his statements and the marijuana he surrendered should be suppressed. Again we disagree.

In State v. O'Neal, 190 N.J. 601 (2007), the Court described the circumstances under which Miranda warnings are required

In general, Miranda warnings must be given before a suspect's statement made during custodial interrogation [may] be admitted in evidence. In Miranda, the Court defined "custodial interrogation" as questioning initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. The determination whether a suspect is in custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned . . . . [T]he only relevant inquiry is how a reasonable [person] in the suspect's position would have understood his situation.

[Id. at 615-16 (first and third alterations in original) (internal citations and quotation marks omitted).]

"The rights set forth in Miranda are not implicated when the detention and questioning is part of an investigatory procedure rather than a custodial interrogation, or where the restriction on a defendant's freedom is not of such significance as to compel the conclusion that his liberty is restrained." State v. Smith, 307 N.J. Super. 1, 9 (App. Div. 1997) (internal quotations and citations omitted), certif. denied, 153 N.J. 216 (1998).

Ordinarily, roadside questioning of a motorist detained pursuant to a routine traffic stop does not constitute "custodial interrogation" necessitating Miranda warnings. State v. Hickman, 335 N.J. Super. 623, 631 (App. Div. 2000). Miranda warnings may be needed, however, if the totality of the circumstances surrounding the stop "impose a restraint on freedom of movement of the degree associated with a formal arrest." State v. Smith, 374 N.J. Super. 425, 430-31 (App. Div. 2005) (internal quotation marks and citation omitted). Factors considered in evaluating whether the suspect was subject to custodial interrogation include: "the time, place[,] and duration of the detention; the physical surroundings; the nature and degree of the pressure applied to detain the individual; language used by the officer; and objective indications that the person questioned is a suspect." Id. at 431.

In the present case, we find sufficient credible evidence in the record to support the trial court's determination that the police officer's questioning of defendant did not necessitate Miranda warnings. After viewing the video recording of the traffic stop, Judge Armstrong noted that under the totality of the circumstances, the roadside stop did "not constitute the functional equivalent of a formal arrest." The judge noted that prior to the officer's questioning, defendant was not told he was under arrest, handcuffed, searched, held for an excessive amount of time, or coerced in any other way. Under such circumstances, it was permissible for the officer to question defendant about the cracked windshield on his vehicle and the smell of marijuana without administering Miranda rights.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 The factual narrative of the events leading up to defendant's arrest is taken from Judge Armstrong's written opinion, which is based on his viewing of the DVD recording of the roadside stop. Aside from the DVD, no other evidence or testimony was presented at the municipal and Law Division motion hearings.

3 While waiting for the canine unit to arrive, Fariello asked defendant to open his mouth so that the officer could look inside. The officer also inquired about defendant s 2004 arrest.

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