STATE OF NEW JERSEY v. DONALD KILPATRICK
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0666-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONALD KILPATRICK, a/k/a DONALD
ATKINS and RAY KILPATRICK,
Defendant-Appellant.
____________________________
Submitted May 1, 2018 - Decided May 16, 2018
Before Judges Gilson and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment No.
14-08-0541.
Joseph E. Krakora, Public Defender, attorney
for appellant (Paul B. Halligan, Assistant
Deputy Public Defender, of counsel and on the
brief).
Michael H. Robertson, Somerset County
Prosecutor, attorney for respondent (Paul H.
Heinzel, Assistant Prosecutor, of counsel and
on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Donald Kilpatrick was convicted of third-degree
possession of a controlled dangerous substance (CDS),
N.J.S.A.
2C:35-10(a)(1). Defendant appeals from the denial of his motion
to suppress the seized CDS evidence. He also appeals from his
conviction, arguing the prosecutor's comments during closing
argument deprived him of a fair trial. We affirm.
The following facts were presented during the evidentiary
hearing on defendant's motion to suppress evidence. On June 25,
2014, Officer Frederick Fittin of the South Bound Brook Police
Department was on patrol and observed a car exit a QuickChek
parking lot. Fittin testified that the car had tinted windows,
so he followed the car briefly, until it parked in an active crime
area.
Fittin parked his patrol car in such a way that it blocked
the car with the tinted windows. Defendant, who was driving the
car, exited the vehicle. The officer got out of his patrol car
and asked defendant for his credentials, including the
registration and insurance information for the car. Defendant
provided a New Jersey identification card, explaining he did not
have his driver's license with him.
With the car door open, defendant looked for the registration
and insurance information. Fittin smelled marijuana and alcohol
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emanating from the interior of the car. Fittin advised defendant
that he detected these odors and called for backup.
Fittin then performed a pat down of defendant because the
officer wanted to ensure his safety in case of a potential weapon.
When Fittin conducted the pat down, he felt a soft bulge in the
front "fifth" pocket of defendant's pants. Fittin asked defendant
what was in his pocket, and defendant replied he did not know.
Fittin asked Officer Thomas Burgin, who had arrived as back-up,
to feel defendant's front pocket. Burgin testified that the bulge
in defendant's pants pocket felt like CDS. Defendant gave Fittin
permission to remove the object from his pocket, which turned out
to be a plastic bag filled with white powder. The substance later
tested positive as cocaine.
Fittin advised defendant of his Miranda1 rights and handcuffed
defendant. The officers asked defendant for consent to search the
car. Defendant agreed and signed a written consent form for the
search of the car. The search uncovered cigars, cigar tobacco,
and empty alcoholic beverage containers.
In the motion to suppress the CDS evidence, defendant argued
the police did not have reasonable articulable suspicion to believe
that a motor vehicle violation occurred or that defendant was
1
Miranda v. Arizona,
384 U.S. 436 (1966).
3 A-0666-16T3
armed and dangerous. Consequently, defendant contended the motor
vehicle stop and the pat-down search of his person were
unconstitutional.
The motion judge denied the motion. The judge found the stop
of defendant's car was justified based on the officer's testimony
that the car windows were darkly tinted, obstructing the view
through the windows. The judge also concluded the officer's search
of defendant's person was proper. The judge deemed the officer
smelling marijuana in the car's interior created a reasonable
suspicion that an offense was being committed sufficient to
establish probable cause for defendant's arrest and the
warrantless search of defendant's person. The judge also found
exigent circumstances justifying the search of defendant's person
because the officer had no practical opportunity to secure a
warrant without risking the destruction of CDS evidence.
After denial of defendant's motion to suppress, the matter
proceeded to trial. The trial testimony of Officers Fittin and
Burgin was consistent with their testimony during the suppression
hearing. Based on the testimony and evidence presented, the jury
found defendant guilty of possession of CDS. The judge sentenced
defendant to a four-year term of imprisonment with a one-year
period of parole ineligibility.
On appeal, defendant argues:
4 A-0666-16T3
POINT I
THE DENIAL OF THE MOTION TO SUPPRESS MUST BE
REVERSED AS THE STOP OF THE CAR WAS UNLAWFUL
UNDER THE FOURTH AMENDMENT OF THE UNITED
STATES CONSTITUTION AND ARTICLE I, PARAGRAPH
7, OF THE NEW JERSEY CONSTITUTION.
POINT II
THE DENIAL OF THE MOTION TO SUPPRESS MUST BE
REVERSED AS THE SEARCH OF DEFENDANT'S PERSON
WAS UNLAWFUL UNDER THE FOURTH AMENDMENT OF THE
UNITED STATES CONSTITUTION AND ARTICLE I,
PARAGRAPH 7, OF THE NEW JERSEY CONSTITUTION.
POINT III
THE SEIZURE OF THE OBJECT FROM DEFENDANT'S
POCKET WAS UNLAWFUL BECAUSE IT WAS NOT CLEAR
TO THE OFFICER THAT THE OBJECT WAS ILLEGAL
CONTRABAND AT THE TIME IT WAS SEIZED.
POINT IV
DEFENDANT'S CONVICTION MUST BE REVERSED
BECAUSE OF PROSECUTORIAL MISCONDUCT AS THE
PROSECUTOR COMMENTED ON DEFENDANT'S POST-
ARREST SILENCE IN HER SUMMATION.
We first consider defendant's arguments related to the denial
of his motion to suppress evidence. In reviewing a motion to
suppress, we "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) (citation omitted). This is true especially
when the findings of the trial court are "substantially influenced
by [its] opportunity to hear and see the witnesses and to have the
5 A-0666-16T3
'feel' of the case." Id. at 244 (quoting State v. Johnson,
42 N.J. 146, 161 (1964)). The trial court's legal conclusions are
entitled to no special deference, and are reviewed de novo. State
v. Gandhi,
201 N.J. 161, 176 (2010).
"A motor vehicular violation, no matter how minor, justifies
a stop without any reasonable suspicion that the motorist has
committed a crime or other unlawful act." State v. Bernokeits,
423 N.J. Super. 365, 370 (App. Div. 2011). The State does not
need to prove that the motor vehicle violation occurred, only that
"the police lawfully stopped the car." State v. Heisler,
422 N.J.
Super. 399, 413 (App. Div. 2011) (quoting State v. Williamson,
138 N.J. 302, 304 (1994)).
In accordance with
N.J.S.A. 39:3-74, a person is prohibited
from driving a "vehicle [with tinted windows] . . . as to unduly
interfere with the driver's vision to the front and to the sides."
Tinted windows obstructing vision are a basis for a lawful stop.
State v. Cohen,
347 N.J. Super. 375, 378-81 (App. Div. 2002).
According to Officer Fittin's testimony at the suppression
hearing, the windows on defendant's car were "all tinted, driver's
side, passenger's side, front and rear." As a result, the officer
was unable to see defendant in the driver's seat despite the
officer's close proximity to defendant's vehicle. Defendant
6 A-0666-16T3
failed to proffer any testimony during the suppression hearing
with respect to the tint on the car windows.
Defendant argues that the officer lacked reasonable suspicion
necessary to stop his vehicle. We agree with the finding of the
motion judge that the motor vehicle stop was proper based on the
officer's reasonable belief that the car had unlawfully tinted
windows. Moreover, the judge's finding was based on Officer
Fittin's uncontroverted testimony during the suppression hearing.
Having concluded that the stop of defendant's car was
constitutional, we next examine whether the officers' search of
defendant's person was illegal such that the CDS evidence should
have been suppressed.
The motion judge deemed the search of defendant's person was
not a search for weapons because the officer had no reasonable
belief that defendant was armed and dangerous. Rather, the judge
determined the search of defendant's person was based on the
officer smelling marijuana and believing that defendant possessed
drugs on his person.
The judge concluded that exigent circumstances existed to
support a warrantless search of defendant's person based on the
possible destruction of drug evidence. The judge found
[e]xigent circumstances justifying the
warrantless search were present because of the
destructible nature of [drug] evidence. It
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is clear that [drug] evidence could have been
consumed, hidden, or destroyed by the time a
search warrant was issued. Given . . . the
impracticality of obtaining a search warrant
in this situation, the warrantless search of
[d]efendant's person comported with the
requirements of the Fourth Amendment.
"New Jersey courts have [long] recognized that the smell of
marijuana itself constitutes probable cause 'that a criminal
offense ha[s] been committed and that additional contraband might
be present.'" State v. Walker,
213 N.J. 281, 290 (2013)
(alteration in original) (quoting State v. Nishina,
175 N.J. 502,
515-16 (2003)). The odor of marijuana gives rise to probable
cause to conduct a warrantless search of the persons in the
immediate area from where the smell emanated. State v. Myers,
442 N.J. Super. 287, 297 (App. Div. 2015). Once an officer smells
burnt marijuana emanating from a vehicle, the officer has probable
cause to arrest the driver, as well as to search the driver
incident to arrest. State v. Judge,
275 N.J. Super. 194, 202-03
(App. Div. 1994).
In this case, the officer stopped defendant's car in "an
active crime area." When defendant opened the car door to look
for the registration and insurance documents, the officer
"detected the odor of marijuana." Based on the smell of marijuana,
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as well as the time and location of the motor vehicle stop,2 it
was objectively reasonable for Fittin to conduct a search of
defendant's person.
Upon conducting the search, based on his years of experience
and training as a police officer, Fittin held a reasonable belief
that the soft bulge in defendant's pants pocket was drugs. More
importantly, defendant, after denying knowledge as to the item in
his pocket, gave permission to the officer to remove the item from
his person. On this record, we reject defendant's argument that
the officer lacked sufficient information, under the totality of
the circumstances, to identify the object in defendant's pocket
as probable contraband.
We discern no error in the motion judge's determination that
the officer "had no practical opportunity to secure a warrant once
faced with an immediate and well-grounded suspicion that defendant
illegally possessed marijuana in the officer's presence."
Nishina,
175 N.J. at 517. The officer had probable cause to arrest
and search defendant based on the smell of burnt marijuana
emanating from the car and the exigent circumstances involving the
potential destruction of drug evidence. Based on the credible
2
The time of the stop was 2:00 a.m. and the location of the stop
was in a known drug area where the officer had made multiple
arrests previously.
9 A-0666-16T3
evidence in the record, the drugs found in defendant's pocket were
the product of a lawful search, justifying denial of defendant's
motion to suppress.
We next consider whether the assistant prosecutor's comments
during summation deprived defendant of his right to a fair trial.
All persons accused of crimes are guaranteed the right to a fair
trial. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. When a
prosecutor engages in improper conduct during trial, such behavior
can erode a defendant's right to a fair trial. State v. Wakefield,
190 N.J. 397, 446 (2007). To justify a reversal based on
prosecutorial misconduct, the prosecutor's conduct must
"substantially prejudice the defendant's fundamental right to have
a jury fairly evaluate the merits of his [or her] defense." State
v. Roach,
146 N.J. 208, 219 (1996) (quoting State v. Bueanis,
26 N.J. 45, 56 (1958)).
We review the import of a prosecutor's remarks during
summation in their entirety. State v. Jackson,
211 N.J. 394, 409
(2012). We also consider whether defense counsel made a timely
objection to such remarks, whether the remarks were withdrawn, and
whether the court instructed the jury regarding the remarks. Ibid.
In her summation, defense counsel suggested that the police
planted the drugs on defendant's person during the motor vehicle
stop. The assistant prosecutor responded to defense counsel's
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suggestion, arguing in summation that defendant would not have
remained silent and would have said something if the officers had
planted drug evidence.
Defense counsel objected to the assistant prosecutor's
summation, arguing that the statement amounted to improper burden
shifting and impermissible argument. Although the trial judge did
"not believe that [the] comment is of a type which impairs the
defendant's Fifth Amendment privilege," the judge agreed to
"instruct the jury that the defendant does not have to prove that
the cocaine was planted on him." The trial judge also explained
that "in an exercise of caution, the jury should be told, reminded
that the defendant need not prove that he is innocent."
The judge invited defense counsel to draft the language for
a curative instruction on the issue. Based on defense counsel's
suggested curative instruction, the judge instructed the jury:
I wanted to tell you that the State has argued
in its summation that during the course of
that video that you – and audio that you heard
but didn't see, that when the officer pulled
the alleged cocaine from the defendant's jeans
pocket, the defendant would have been expected
to say something to the effect, whoa, what are
you doing? What are you trying to pull here?
And then the officer says, what are you
saying? We planted this? And it was suggested
that if the defendant felt the officer was
trying to plant something on him he would have
said something to that effect.
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Now, I remind you that the defendant, Mr.
Kilpatrick, has no obligation to prove his
innocence. The State retains the burden of
proof. The defendant retains the presumption
of innocence. And that remains unless and
until you find that the State has met its
burden to prove the charge beyond a reasonable
doubt.
So, therefore, you must consider all of the
evidence presented in reaching your
verdict . . . . But any reference to what the
defendant might have been expected to say may
not be used by you or considered as evidence
of his guilt because a failure of a defendant
to produce evidence or to say anything at that
time or under those circumstances is not
evidence of his guilt because he has no such
burden.
On appeal, defendant argues his conviction must be reversed
because the assistant prosecutor impermissibly commented on his
post-arrest silence. Defendant also claims that the assistant
prosecutor's statement shifted the burden of proof, resulting in
an unfair trial.
We reject defendant's arguments on this point. The trial
judge responded to defense counsel's objection by incorporating
her proposed language into the curative instruction read to the
jury. Even if the assistant prosecutor's comments were improper,
they were not "so egregious that a prompt and proper instruction
would not ameliorate their prejudicial effect." State v. Cooke,
345 N.J. Super. 480, 486 (App. Div. 2001). We find that the trial
judge took swift and appropriate action in response to defense
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counsel's objection such that defendant was not deprived of a fair
trial. We have considered defendant's pro se appellate brief and
conclude it is without sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(2).
Affirmed.
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