STATE OF NEW JERSEY v. CLAYTON R. ALLWOOD, JR

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1379-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CLAYTON R. ALLWOOD, JR.,
a/k/a CLAYTON R. ALLWOOD,

        Defendant-Appellant.


              Submitted January 17, 2018 – Decided January 31, 2018

              Before Judges Carroll and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment Nos.
              13-06-1182 and 15-05-0868.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Jay L. Wilensky, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Sarah Lichter, Deputy Attorney
              General, of counsel and on the brief).

PER CURIAM

        The trial court denied defendant Clayton R. Allwood Jr.'s

motion to suppress evidence seized as the result of a warrantless
search of the automobile he was driving.           The motion judge found

that   defendant   validly   consented      to   the    search.    Defendant

thereafter pled guilty to third-degree possession of methylone,


N.J.S.A. 2C:35-10a(1).    Pursuant to the negotiated plea agreement,

the State agreed to dismiss the disorderly persons offenses of

possession of less than fifty grams of marijuana, 
N.J.S.A. 2C:35-

10a(4), and possession with intent to use drug paraphernalia,


N.J.S.A. 2C:36-2, as well as traffic summonses related to this

incident.   Defendant was sentenced to a two-year term of probation

and ordered to pay certain fines and assessments.                  Defendant

appeals from the denial of his suppression motion, and the $250

fine imposed by the sentencing judge. For the reasons that follow,

we affirm the denial of the suppression motion but remand for

reconsideration of the fine.

                                  I.

       The only witness at the suppression hearing was Officer Bryan

Belardo, a thirteen-year veteran of the Manalapan Township Police

Department.     Belardo   testified    he    was   on    routine   patrol    at

approximately 2:50 a.m. on April 29, 2014, when he observed a car

that appeared not to stop for a stop sign.              Belardo followed the

car and noticed its "rear plate light was not functioning."               As a

result, Belardo activated the patrol car's emergency lights and

pulled the vehicle over.

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     Belardo approached the car from the passenger side and asked

the driver, subsequently identified as defendant, for his driver's

license, registration, and insurance.         A front-seat passenger,

later identified as co-defendant Born Wright, was also asked to

produce    identification.     Neither   individual   produced   a     valid

driver's    license,   and   Belardo's   investigation   revealed        that

Wright's license was suspended.

     As Belardo checked the occupants' credentials, he noted a

"very strong" odor of marijuana coming from the car.        Wright told

Belardo the car was registered to his grandmother, and that the

smell may have come from his clothing because he had smoked

marijuana earlier that day.

     Both Wright and defendant consented to a search of the car.

Belardo elaborated:

            I asked Mr. Wright if he would sign a consent
            to search form.   He said he would.    I then
            asked [defendant] if he would also sign a
            consent to search form. Mr. Wright at this
            point said [defendant] could sign for both of
            them. I . . . asked Mr. Wright if he would
            sign the consent to search form because it's
            his grandmother's vehicle. He said he doesn't
            drive the vehicle, [defendant] drives the
            vehicle.    It's either [defendant] or his
            grandmother [who] drives the vehicle, so he
            could sign for both of them.

     Belardo explained he sought both occupants' consent because

"[n]either one was a registered owner of the vehicle, so I covered


                                    3                                A-1379-16T4
my bases by asking them both if they would consent to the search."

Belardo then presented defendant with a "consent to search form"

and read it aloud to him.    Defendant signed the form, indicating

he "understood and consented to the search."    Wright also verbally

consented to the search, and "indicated that [defendant] could

sign for both of them."

     Sergeant Daniel Carey arrived at the scene and assisted in

the search of the vehicle. Belardo testified the odor of marijuana

grew stronger toward the rear of the car.       Upon opening the gas

tank door, the police discovered three Ziploc bags that contained

marijuana, a cigar wrapper with burnt marijuana, and two capsules

of metholyne. The drugs were confiscated, and defendant and Wright

were placed under arrest.

     Judge John R. Tassini denied the suppression motion in a

November 18, 2015 oral opinion.   The judge carefully reviewed the

testimony of Officer Belardo, who he "found . . . to be a candid

and credible witness."    The judge concluded that the initial stop

of the vehicle was lawful "based on the stop sign [violation] and

certainly the light violation."

     Judge Tassini next found the strong odor of marijuana and

Wright's admission that he had smoked marijuana established the

reasonable and articulable suspicion needed to support the request

for consent to search the car.        The judge rejected the defense

                                  4                          A-1379-16T4
position that the consent to search was invalid because only

defendant and not Wright signed the consent form.             The judge

determined that Wright consented to the search and authorized

defendant to sign the consent form for him, even though there was

"no competent evidence that [Wright] owns [the car] or controls

it."    The judge further found: "[Wright] also acknowledges that

[defendant]    drives   the   car,   so   [defendant]   has   authority.

[Defendant's] got control of this vehicle. He's driving it around.

He's one of the two people [that based on] Wright's statement

. . . drives the vehicle."

       Finally, Judge Tassini found Belardo testified credibly that

he read defendant each of the rights contained on the consent to

search form.   Consequently, before signing the form, defendant was

properly advised he had the right to: refuse consent; revoke

consent; stop the search; and be present during the search.

       On appeal, defendant presents the following arguments:

            POINT I

            THE WARRANTLESS SEARCH OF AND SEIZURE FROM THE
            CAR WHICH WAS DRIVEN BUT NOT OWNED BY . . .
            DEFENDANT VIOLATED . . . DEFENDANT'S STATE AND
            FEDERAL CONSTITUTIONAL PROTECTIONS AGAINST
            UNLAWFUL SEARCH AND SEIZURE, NECESSITATING
            SUPPRESSION. U.S. CONST. . . . AMENDS. IV,
            XIV; N.J. CONST. (1947) . . . ART. 1, PAR[A].
            7.




                                     5                           A-1379-16T4
            POINT II

            THE TRIAL COURT IMPOSED A FINE THAT WAS NOT
            PART OF THE PLEA AGREEMENT AND WITHOUT
            CONSIDERING THE CIRCUMSTANCES OF THE OFF[E]NSE
            OR   THE   DEFENDANT'S    ABILITY    TO   PAY,
            NECESSITATING VACATION. (Not Raised Below).

                                   II.

      We first address the suppression issue.       The Supreme Court

has   explained   the   standard    of   review   applicable   to   our

consideration of a trial judge's fact-finding on a motion to

suppress:

            We are bound to uphold a trial court's factual
            findings in a motion to suppress provided
            those "findings are 'supported by sufficient
            credible evidence in the record.'" State v.
            Elders, 
192 N.J. 224, 243-44 (2007) (quoting
            State v. Elders, 
386 N.J. Super. 208, 228
            (App. Div. 2006)).       Deference to those
            findings is particularly appropriate when the
            trial court has the "opportunity to hear and
            see the witnesses and to have the feel of the
            case, which a reviewing court cannot enjoy."
            Id. at 244 (quoting State v. Johnson, 
42 N.J.
            146, 161 (1964)).    Nevertheless, we are not
            required to accept findings that are "clearly
            mistaken" based on our independent review of
            the record. Ibid. Moreover, we need not defer
            "to a trial . . . court's interpretation of
            the law" because "[l]egal issues are reviewed
            de novo." State v. Vargas, 
213 N.J. 301, 327
            (2013).

            [State v. Watts, 
223 N.J. 503, 516 (2015).]

      An appellate court remains mindful not to "disturb the trial

court's findings merely because 'it might have reached a different


                                    6                          A-1379-16T4
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."     Elders, 
192 N.J. at 244 (quoting Johnson, 
42 N.J. at 162).     Rather, we reverse only when the court's findings

"are so clearly mistaken 'that the interests of justice demand

intervention and correction.'"        Ibid. (quoting Johnson, 
42 N.J.

at 162).

     The 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).    Here, the motion judge found there was reasonable and

articulable suspicion that defendant committed one or more motor

vehicle violations.     This provided the necessary legal basis for

the stop.     Defendant does not challenge this conclusion.

     "[W]hen the reasonable inquiries by the officer related to

the circumstances that justified the stop 'give rise to suspicions

unrelated to the traffic offense, an officer may broaden [the]

inquiry and satisfy those suspicions.'"       State v. Baum, 
199 N.J.
 407, 424 (2009) (second alteration in original) (quoting State v.

Dickey, 
152 N.J. 468, 479-80 (1998)).       In the present case, when

Belardo approached the car, he smelled a strong odor of raw



                                  7                            A-1379-16T4
marijuana.    This observation led him to request consent to search

the vehicle.

     Under the Fourth Amendment of the United States Constitution

and Article 1, Paragraph 7 of the New Jersey Constitution, a

warrantless search is presumed invalid, and places the burden on

the State to prove that the search "falls within one of the few

well-delineated exceptions to the warrant requirement."     State v.

Pineiro, 
181 N.J. 13, 19 (2004) (quoting State v. Maryland, 
167 N.J. 471, 482 (2001)).   Consent is a well-recognized exception to

the Fourth Amendment's search warrant requirement.      Schneckloth

v. Bustamonte, 
412 U.S. 218, 227-28 (1973).    Furthermore, "consent

searches are considered a 'legitimate aspect of effective police

activity.'"    State v. Domicz, 
188 N.J. 285, 305 (2006) (quoting

Schneckloth, 
412 U.S. at 228).

     "Consent may be obtained from the person whose property is

to be searched, from a third party who possesses common authority

over the property, or from a third party whom the police reasonably

believe has authority to consent . . . ."   State v. Maristany, 
133 N.J. 299, 305 (1993) (citations omitted).     To be valid, a consent

to search must be voluntary and knowing in nature.     Schneckloth,


412 U.S.  at 222.    In New Jersey, the person giving consent must

first be advised of his or her right to refuse.    State v. Johnson,


68 N.J. 349, 353-54 (1975).

                                  8                          A-1379-16T4
      Additionally, when police request consent to search during a

motor vehicle stop, they must have a reasonable and articulable

suspicion     that    the   search    will   produce    evidence     of    criminal

wrongdoing.     Carty, 
170 N.J. at 635; State v. Thomas, 
392 N.J.

Super. 169, 188 (App. Div. 2007).            That standard has been defined

as "a particularized and objective basis for suspecting the person

stopped of criminal activity[,]" and is a far lower standard than

probable cause.        State v. Stovall, 
170 N.J. 346, 356-57 (2002)

(quoting Ornelas v. United States, 
517 U.S. 690, 696 (1996)). "[A]

finding   of    reasonable      and    articulable     suspicion      of    ongoing

criminality" is determined by objective "cumulative factors in a

totality of the circumstances analysis . . . ."                  Elders, 
192 N.J.

at 250.

      In summary, the consent exception to the warrant requirement,

as applied to the search of a motor vehicle, has three prongs.

The   State    must    prove:   1)    the    police    had   a    reasonable     and

articulable suspicion of criminal activity; 2) the consent was

voluntary; and 3) the person who granted consent had the authority

to do so.

      Here, the first and second prongs were clearly established.

Regarding the first prong, Officer Belardo smelled the odor of raw

marijuana emanating from the vehicle.                 "New Jersey courts have

recognized that the smell of marijuana itself constitutes probable

                                         9                                  A-1379-16T4
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, 516-17 (2003)).              Defendant argues that the

fact that the amount of marijuana was small and it was found in

plastic bags within the fuel tank door renders Belardo's testimony

that   he   smelled   a   strong   odor    of   marijuana      incredible.        In

rejecting this argument, we defer to Judge Tassini's finding that

"[t]he car had its window down and [Belardo] candidly and credibly

testified that he smelled the odor of marijuana."                  Additionally,

Wright's statement that he had smoked marijuana is unchallenged.

       Regarding the second prong, after the car was stopped, Belardo

asked the occupants for consent to search the vehicle and both

agreed.     Belardo then presented defendant with the consent to

search form.    This form clearly explained to defendant his rights,

including his right to refuse to give his consent.                    The record

thus shows that defendant's consent was knowing and voluntary.

       Defendant's    appeal   thus       focuses     on     the   third    prong.

Specifically, he contends he lacked the authority to consent to

the search of the car, and that valid consent was not given by

Wright.     We disagree.

       Whether a third party possesses the authority over property

to consent to its search depends on the "appearances of control"

                                      10                                   A-1379-16T4
at the time of the search.   State v. Farmer, 
366 N.J. Super. 307,

313-14 (App. Div. 2004) (holding it was reasonable for the officers

to believe that the female that answered the door and advised the

officers that her mother and children were present in the apartment

was a resident with authority to consent to a search); see also

State v. Miller, 
159 N.J. Super. 552, 558-59 (App. Div. 1978)

(third party consent was valid where the third party told the

police she resided in the room in question and possessed keys to

the room).

     In assessing an officer's reliance on a third party's consent,

courts look to whether the officer's belief that the third party

had the authority to consent was "objectively reasonable" in view

of the facts and circumstances known at the time of the search.

State v. Suazo, 
133 N.J. 315, 320 (1993).        As recognized in

Maristany, "[a]ppearances of control at the time of the search,

not subsequent determinations of title or property rights, inform

our assessment of the officer's conduct."   Maristany, 
133 N.J. at
 305 (citing State v. Santana, 
215 N.J. Super. 63, 71 (App. Div.

1987)); see also Farmer, 
366 N.J. Super. at 313.     The "validity

of the search does not depend on whether the [officer] used the

best procedure, but rather on whether the officer's conduct was

objectively reasonable under the circumstances."    Maristany, 
133 N.J. at 308.

                                11                          A-1379-16T4
      A mistake as to whether a third party actually had authority

to grant consent will not automatically invalidate a search. "[I]f

a law-enforcement officer at the time of the search erroneously,

but reasonably, believed that a third party possessed common

authority over the property to be searched, a warrantless search

based on that third party's consent is permissible under the Fourth

Amendment."   Suazo, 
133 N.J. at 320 (citing Illinois v. Rodriguez,


497 U.S. 177, 186 (1990)).     A police officer need not be factually

correct; the officer need only have a reasonable belief that the

consenting party has sufficient control over the property.            State

v. Crumb, 
307 N.J. Super. 204, 243 (App. Div. 1997).

      As the motion judge noted, our holding in State v. Powell,


294 N.J.   Super.   557,   563   (App.   Div.   1996),   is   especially

instructive here.     In Powell, defendant was the passenger in a car

stopped by the State Police just over the Delaware Memorial Bridge.

Id. at 560.    The car was owned by defendant's friend, who often

stayed with him, or a relative of that friend.        Id. at 560.     After

the driver could not produce the vehicle's registration, and he

and defendant gave the police conflicting stories about their

destination, the troopers requested permission to search the car.

Id. at 560-61.    The driver gave permission by signing a consent

form, and the police discovered cocaine concealed in a bag in a

side panel of the driver's door.         Ibid.

                                    12                              A-1379-16T4
     Defendant challenged the consent search, arguing, among other

things, "that the investigating officers had a duty to determine

which of the defendants had the superior right to the car, and to

obtain consent from that defendant.    Defendant asserts that he had

such superior right."    Id. at 562.    In rejecting this argument,

we held:

           Defendant's claim of a superior right to the
           car because his friend entrusted the car to
           him is . . . unavailing.      As we noted in
           [Santana, 
215 N.J. Super. at 71], we do not
           impose on investigating officers any duty to
           determine the actual property rights of those
           in apparent possession of the property or area
           to be searched.        Rather, "[s]ince the
           reasonableness of the police action at the
           time is the question to be determined, the
           case must turn upon the appearances of control
           at the time. . . ." [Id. at 71]. Because the
           driver is in apparent control of the vehicle,
           it is objectively reasonable for the police
           to accept the driver's permission to search
           when the passenger does not demonstrate
           ownership   or   other   superior   right   to
           possession of the vehicle.      State in the
           Interest of C.S., 
245 N.J. Super. 46, 50-51
           (App. Div. 1990); State v. Binns, 222 N.J.
           Super. 583, 590-91 (App. Div. 1988).

           [Powell, 
294 N.J. Super. at 563.]

     Here, it is undisputed that neither defendant nor Wright

owned the vehicle that the police sought consent to search. Wright

told Belardo his grandmother owned the car, and that she and

defendant were its authorized users.     Moreover, defendant had a

valid driver's license, while Wright did not.       The record thus

                                13                           A-1379-16T4
fails to demonstrate that Wright either had ownership or a superior

right to possession of the car.           Defendant was driving the car,

which gave him "the appearance of control."          As such, the search

was   valid   as   the   police   "reasonably   believed"   defendant     had

authority to grant consent to the search.

                                    III.

      In his second point, defendant argues that the $250 fine

imposed by the sentencing judge should be vacated because: (1) it

was not part of the plea agreement; (2) the judge failed to state

a reason for imposing it, and (3) the judge failed to consider

defendant's ability to pay the fine.          We find insufficient merit

in the first and third contentions to warrant discussion in a

written   opinion.       R.   2:11-3(e)(2).     However,    we   agree   with

defendant that the sentencing judge was required to explain his

reasons for imposing a fine, State v. Ferguson, 
273 N.J. Super.
 486, 499 (App. Div. 1994), and that he failed to do so here.

Accordingly, we remand for the court to consider the criteria

governing the imposition of fines as established in 
N.J.S.A. 2C:44-

2(a), and to state its reasons when determining the amount and

method of payment should it again choose to impose a fine.                See


N.J.S.A. 2C:44-2(c)(1).

      Affirmed in part and remanded in part.           We do not retain

jurisdiction.

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