STATE OF NEW JERSEY v. GRADY C. JILUS

NOT FOR PUBLICATION WITHOUT THE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-3516-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

GRADY C. JILUS,

     Defendant-Appellant.
__________________________

              Submitted February 14, 2018 — Decided March 16, 2018

              Before Judges Koblitz and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 16-
              01-0056.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Tamar Y. Lerer, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

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

PER CURIAM

        Defendant Grady C. Jilus appeals from his November 4, 2016

conviction       after    pleading     guilty     to   third-degree      unlawful

possession of an air or spring gun, 
N.J.S.A. 2C:39-5(b).                   He pled
guilty after the court denied his motion to suppress evidence.

Defendant was sentenced to five years in prison with a three and

one-half year term of parole ineligibility.1   We affirm the denial

of the suppression motion substantially for the reasons expressed

by Judge John M. Deitch.

     Only one witness testified at the suppression hearing: Linden

Police Officer John Halkias, whom the judge found to be credible.

Halkias testified that around 12:30 a.m., while on patrol alone

in a high drug-crime area of Linden, he observed a parked Acura.

The car had "heavily tinted" side windows, which the officer

believed violated Title 39.    As the officer drove past in his

marked patrol car, the headlights of his car lit up the inside of

the Acura through the front windshield, which was not tinted.      He

observed the occupants duck down to avoid detection.      Based on

that observation, he called for back-up. Halkias then drove around

the block and returned to the location where another police vehicle

with two officers was then positioned behind the Acura.    Halkias

parked his police car in front of the Acura.        Other officers

arrived at the scene.

     Two officers and Halkias approached the Acura, where Halkias

instructed the driver, defendant, to roll down the front window.


1
  Defendant was also sentenced to an aggregate concurrent term of
three years in prison for other offenses. He does not challenge
those convictions.
                                2                          A-3516-16T1
Halkias detected a strong odor of burnt marijuana.        Defendant

admitted they had recently smoked marijuana. Halkias also observed

that two of the rear seat occupants were on their cell phones.

Halkias instructed them to stop using their cell phones, but they

continued to do so.   The officers ordered the occupants out of the

vehicle and searched the Acura.

     Several bystanders soon arrived at the location.       One of

them, who said he was there in response to a call he received from

one of the people in the Acura, approached the investigation area.

The police instructed him to step back across the street with the

other bystanders.     Another individual then approached and was

instructed to stand back.    Officer Halkias' testimony as to the

approach of these people was corroborated by video from the patrol

cars.

     A gun and ammunition was found in the glove box and marijuana

inside the center console.

     On appeal, defendant argues:

          POINT I:    BECAUSE THERE WAS NO REASONABLE
          SUSPICION OF EITHER A MOTOR VEHICLE VIOLATION
          OR A CRIME, THE STOP WAS ILLEGAL.     BECAUSE
          THERE WAS NO EXIGENCY, THE SEARCH OF THE CAR
          WAS ILLEGAL.   ON EITHER BASIS, THE EVIDENCE
          FOUND IN THE CAR MUST BE SUPPRESSED.

     Both parties agree that the police conducted an investigatory

stop followed by a warrantless search.   An investigatory stop must

be based on a "reasonable and particularized suspicion . . . that

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an individual has just engaged in, or was about to engage in,

criminal activity."   State v. Rosario, 
229 N.J. 263, 272 (2017)

(alteration in original) (quoting State v. Stovall, 
170 N.J. 346,

356 (2002)).   A stop may not be premised on "a reasonable but

mistaken understanding of the law" by the police.         State v.

Sutherland, ___ N.J. ___, ___ (2018) (slip op. at 22).    However,

"a police officer's objectively reasonable mistake of fact does

not render a search or arrest unconstitutional." Id. at 18. Thus,

even if the darkly tinted side windows of the Acura did not

represent a sufficient obstruction in this instance to constitute

a violation of Title 39, 
N.J.S.A. 39:3-74, the stop was not

unconstitutional.   See State v. Cohen, 
347 N.J. Super. 375, 380-

81 (App. Div. 2002) (approving a motor vehicle stop where the

officer saw heavily tinted windows).   The ducking movements of the

four occupants in the early morning in a high-crime area provided

additional suspicious circumstances.

     The smell of marijuana after the officers approached the

Acura provided probable cause to search the car for contraband.

State v. Nishina, 
175 N.J. 502, 515-16 (2003).   The parties agree

that the standard enunciated in Pena-Flores, requiring exigent

circumstances to search after a motor vehicle stop, controls.

State v. Pena-Flores, 
198 N.J. 6, 28 (2009), overruled by State

v. Witt, 
223 N.J. 409, 450 (2015).     Although the occupants were


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removed   from       the   car,    and   thus   could    not   reach    weapons     or

contraband, this stop took place in a high-crime area early in the

morning   and    a    group   of    bystanders     had    formed,      two   of   whom

approached the police. Two of the occupants of the Acura continued

to use cell phones, and one person approached saying he had been

summoned by someone from the stopped car.                Thus, the circumstances

were sufficiently dangerous that a call to secure a telephonic

search warrant, or a wait for the Acura to be towed and then a

warrant secured, was not objectively required under Pena-Flores.

     We affirm substantially for the reasons expressed in Judge

Deitch's July 22, 2016 written opinion.

     Affirmed.




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