STATE OF NEW JERSEY v. CLAUDE L. WALLACE

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1479-20

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CLAUDE L. WALLACE,

     Defendant-Appellant.
________________________

                   Argued November 29, 2021 – Decided December 13, 2021

                   Before Judges Sabatino and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment Nos. 17-06-0425
                   and 17-06-0426.

                   Robert Carter Pierce argued the cause for appellant.

                   Milton S. Leibowitz, Assistant Prosecutor, argued the
                   cause for respondent (William A. Daniel, Union County
                   Prosecutor, attorney; Milton S. Liebowitz, of counsel
                   and on the brief).

PER CURIAM
      After the trial court denied his motion to suppress a firearm police seized

from him during a traffic stop, defendant Claude L. Wallace pled guilty to

second-degree unlawful possession of a weapon,  N.J.S.A. 2C:39-5(b)(1). The

trial court sentenced him to a five-year custodial term, subject to a forty-two-

month parole ineligibility period.

      Pursuant to Rule 3:5-7(d), defendant appeals the suppression denial. He

argues that under search-and-seizure case law, the police were not entitled to

seize the handgun without a warrant in the circumstances presented. As a related

argument, defendant asserts the trial court erred in disallowing him from calling

an additional police officer as a witness at the suppression hearing. We affirm.

                                       I.

      The following facts germane to these issues emerged at the suppression

hearing.

      On February 1, 2017, defendant was driving his Nissan Murano and ran a

red light at the intersection of Lincoln Drive and Boulevard in Kenilworth. He

was pulled over by Sergeant Michael Scanielo of the Kenilworth Police

Department. Before approaching defendant's car, Sergeant Scanielo searched a

computer database and learned that defendant's vehicle registration was expired.




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      The sergeant walked to the passenger side door of defendant's car and

spent four to five minutes speaking with him. 1 According to the sergeant's

testimony, he told defendant he smelled "raw marijuana," and defendant

responded his girlfriend had smoked marijuana in the car earlier. The sergeant

told defendant the smell gave him probable cause to conduct a search of the car.

      The sergeant walked around the back of the car to get to the driver's side.

As described by the sergeant, defendant then reached into the center console of

his vehicle, grabbed an "object," then opened the door and fled. The sergeant

and Patrolman Ryan Kernan, who was also at the scene, ran after defendant,

tackled him, and apprehended him. During a search of defendant's person and

the immediate area, the officers recovered and seized a Ruger LCP .380 caliber

handgun.

      A subsequent inventory search of the car at the roadside by Officer

Matthew Torre uncovered in the center console a closed plastic cannister




1
  Much of the sequence of events was filmed from a police "dash-cam" mobile
video recorder, which was provided to the trial court before the suppression
hearing. At our request, appellate counsel supplied this video exhibit and we
have viewed it as part of our consideration of the issues.
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containing four small bags of marijuana. 2 The canister was eventually lost while

in police custody.

      Defendant      was thereafter    charged with second-degree unlawful

possession of a weapon,  N.J.S.A. 2C:39-5(b)(1); fourth-degree prohibited

weapons and devices,  N.J.S.A. 2C:39-3(f)(2); and third-degree resisting arrest

and eluding an officer,  N.J.S.A. 2C:29-2(a)(2).

      Defendant moved to suppress the gun, arguing that the police's warrantless

seizure of that evidence violated both the Fourth Amendment of the United

States Constitution as well as the New Jersey Constitution. Although he did not

contest the legality of the initial traffic stop, defendant argued the police had no

probable cause to search the car, and that it was improper for the sergeant to tell

him he had the grounds to conduct such a search. As part of that argument,

defendant contended it was physically impossible for the sergeant to have

smelled raw marijuana emanating from the car, because the only marijuana


2
   The video includes about four seconds of footage in which Officer Torre
appears to be carrying the plastic container out of the car and walking away with
it. The confiscation of the container is also noted in Officer Torre's
supplemental investigation report, which was part of the submissions to the
motion judge. See State v. Bacome, 440. N.J. Super. 228, 239-40 (App. Div.
2015), rev'd on other grounds,  228 N.J. 94 (2017) (allowing hearsay evidence to
be considered by the court in connection with pretrial admissibility hearings);
see also Manata v. Pereira,  436 N.J. Super. 330, 345 (App. Div. 2014) (applying
the hearsay exceptions for business records and public records to police reports).
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present was packed away in the closed plastic container in the console.

Defendant further argued the police unreasonably prolonged the traffic stop and

thereby infringed unduly on his freedom of movement.3

      The State, in turn, argued that probable cause was supported by the

sergeant's testimony recounting the "plain smell" of marijuana when he

approached the car.    Moreover, regardless of whether probable cause of a

marijuana offense existed, defendant had no right to flee from the car, let alone

while carrying a handgun. Because of that unauthorized flight during a motor

vehicle stop, the police had the authority to apprehend defendant and to search

his person incident to that arrest. The State further asserted the police, upon

arresting defendant, were justified in searching the interior of the car pursuant

to State v. Witt,  223 N.J. 409, 447-48 (2015).

      The motion judge considered the testimony of Sergeant Scanielo at the

suppression hearing and found his account to be credible. In his oral opinion

dated January 21, 2020, the judge concluded that the sergeant's smelling of

marijuana constituted probable cause to permit him to conduct a search of the

car, but that defendant's flight prevented him from being able to do so. The



3
  Responding to an argument made by defendant's trial counsel, the judge found
no racial issue of consequence in the case.
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judge found "there was no search conducted [] until after Mr. Wallace ran from

his vehicle, was apprehended, and found with a gun" and that the defense's

argument would be stronger if Wallace had "remained in the – in the car and

[the officers] then searched the vehicle and found the marijuana and then he

[ran]."

      The motion judge declined to allow defendant to call Officer Torre as a

witness at the hearing.      Defendant proffered that Officer Torre would

corroborate that an odor of marijuana could not have been detected through the

what his counsel characterized as an "air-tight" plastic container, and therefore

the sergeant's assertion that he smelled marijuana was untruthful. The judge

discerned no need for Officer Torre's testimony, noting the court already had his

written report describing how the marijuana was packaged when he discovered

it in defendant's car.   In addition, the judge had the sergeant's testimony

providing an alternative source of the marijuana odor, i.e., defendant's statement

that his girlfriend had smoked marijuana in the car at an earlier time.

      After losing the suppression motion, defendant entered into a plea

agreement with the State admitting his guilt of the second-degree weapons

offense. The remaining charges were dismissed pursuant to the agreement. The




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sentence imposed by the court was consistent with the plea agreement, and it is

not challenged on appeal.

                                      II.

      On appeal, defendant presents the following arguments in his brief:

            POINT I:

            THE TRIAL COURT DEPRIVED MR. WALLACE OF
            HIS DUE PROCESS AND COMPULSORY PROCESS
            CONSTITUTIONAL RIGHTS BY ORDERING THAT
            MR. WALLACE WAS PROHIBITED FROM
            CALLING OFFICER TORRE AS A DEFENSE
            WITNESS AT THE SUPPRESSION HEARING, WHO
            WOULD HAVE PRESENTED EVIDENCE AND
            TESTIMONY    THAT   THE   PLAIN  SMELL
            EXCEPTION TO THE WARRANT REQUIREMENT
            WAS NOT APPLICABLE.

            POINT II:

            THE TRIAL COURT ERRED BY RULING THAT
            THE STATE HAD MET THEIR BURDEN OF PROOF
            THAT THE "SEARCH INCIDENT TO ARREST"
            EXCEPTION TO THE WARRANT REQUIREMENT
            WAS ESTABLISHED.

      In considering these arguments on appeal, we adhere to well settled

principles. We must sustain a trial court's factual findings from a suppression

hearing, so long as they are supported by sufficient credible evidence in the

record. State v. Nelson,  237 N.J. 540, 551 (2019). That said, a trial court's



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interpretation of the law and the legal "consequences that flow from established

facts" are reviewed de novo. State v. Gamble,  218 N.J. 412, 425 (2014).

      Analytically, the first issue to address is whether the recovery of the gun

incidental to defendant's arrest after fleeing from the car stop was constitutional,

regardless of any events that preceded it.       It is well established that law

enforcement officials may conduct a warrantless search of a person incident to

that person's arrest if there was probable cause to arrest that person before the

search. See Chimel v. California,  395 U.S. 752, 762-63 (1969). Probable cause

to arrest exists when the totality of the facts and circumstances presented to the

arresting officer would support "a [person] of reasonable caution in the belief

that an offense has been or is being committed." State v. Sims,  75 N.J. 337, 354

(1978) (quoting Draper v. United States,  358 U.S. 307, 313 (1959)).

      In this case, the police witnessed defendant flee from a concededly lawful

motor vehicle stop before it was duly completed. Even if a person thinks, and a

court later concludes, that police officers have no right to detain or search the

driver, the law prohibits the driver from disregarding the police fleeing from the

officers before, while, or after the officers complete their investigatory

functions. See, e.g., State v. Williams,  192 N.J. 1, 11-13 (2007) (discussing the

obstructing administration of law statute,  N.J.S.A. 2C:29-1); State v. Crawley,


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 187 N.J. 443, 460-62 (2006) (same); State v. Seymour,  289 N.J. Super. 80, 87

(App. Div. 1996) (discussing the resisting arrest and eluding an officer statute,

 N.J.S.A. 2C:29-2).

      An officer's first-hand observation of a criminal act constitutes probable

cause for the purposes of arresting the offender. See Maryland v. Pringle,  540 U.S. 366, 371-72 (2003); State v. O'Neal,  190 N.J. 601, 613 (2007). Because

the officers in this case witnessed defendant violate numerous statutes by fleeing

from the roadside stop, they had probable cause to arrest defendant and perform

a search incident to the arrest.

      A search incident to arrest cannot exceed the arrestee's person and the area

"within his immediate control." Chimel,  395 U.S.  at 763. Here, the gun was

recovered from underneath defendant after he was tackled to the ground, clearly

"within his area of immediate control" from which he could possibly use it

against the officers. This is the precise justification for the search incident to

arrest rule. Id. at 762-63. For these reasons, the search incident to arrest which

resulted in the confiscation of the gun was manifestly constitutional.

      Defendant argues the events that preceded his arrest were unconstitutional

and thereby tainted the constitutionality of the events that followed. To be sure,

an otherwise-constitutional arrest or recovery of evidence may, at times, be


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deemed unconstitutional if it is preceded by constitutional violations. See, e.g.,

State v. Chisum,  236 N.J. 530, 551 (2019); State v. Rodriguez,  172 N.J. 117,

132-33 (2002).     The arrest may be invalidated and the evidence may be

suppressed, unless one of the exceptions to the exclusionary rule applies. State

v. Badessa,  185 N.J. 303, 311 (2005) (referencing Wong Sun v. United States,

 371 U.S. 471, 485 (1963)).

      As we have noted, defendant fled from what began as a constitutional stop,

based on the sergeant's reasonable suspicion that he had committed a traffic

violation. State v. Carty,  170 N.J. 632, 647, modified on other grounds,  174 N.J. 351 (2002).

      Defendant further argues the police unconstitutionally prolonged the

motor vehicle stop by conversing with him for a period of less than five minutes.

We are unpersuaded that such a brief passage of time amounted to an

unreasonable restriction on his freedom of movement. The police were entitled

to take at least that modest amount of time to investigate defendant's driving and

expired license violations before issuing him the corresponding traffic tickets.

      It is clear such reasonable suspicion existed and the stop was valid. Even

so, defendant contends the sergeant's alleged detection of the odor of marijuana

coming from the car, during the course of that valid stop, was patently false.


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Consequently, he argues the sergeant's proclamation that he had a right to search

the car based on the "plain smell" of marijuana was pretextual, thereby making

the ensuing search of his person unconstitutional.

      As of the time this motor vehicle stop occurred in 2017, a police officer's

detection of the "plain smell" of marijuana could suffice to furnish probable

cause to conduct a warrantless search of a motor vehicle. See, e.g., State v.

Nishina,  175 N.J. 502, 515-17 (2003). Since that time, the Legislature has

substantially curtailed that justification, in a statute that became effective on

February 22, 2021.4

      In any event, we need not resolve for purposes of the constitutional

analysis whether the sergeant could, or could not have, smelled marijuana

emanating from the car. That is because the illegal flight of defendant from the

scene broke the chain of events and attenuated any alleged police impropriety.



4
  The smell of marijuana is no longer deemed sufficient to constitute reasonable
articulable suspicion of a crime, except in limited circumstances.  N.J.S.A.
2C:35-10(c). In 2021, Governor Murphy signed into law the New Jersey
Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization
Act, which, among other things, partially legalized the "possessing" and
"transporting" of small quantities of cannabis.  N.J.S.A. 2C:35-10(a). Under the
new statute, the smell of marijuana alone will not be sufficient grounds for a
police officer to search a civilian's motor vehicle.  N.J.S.A. 2C:35-10(c).
However, the statute's effective date in 2021 was years after the 2017 search in
this case, and defendant has not argued it applies retroactively here.
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                                      11
      One of the recognized exceptions to the exclusionary rule is the

attenuation doctrine. That doctrine applies when a certain (often momentous)

event occurs, or a long period of time passes, between the constitutional

violation and the recovery of the evidence, so as to conclude the "taint" of the

constitutional violation has dissipated. See State v. Herrerra,  211 N.J. 308, 330-

38 (2012).

      To determine whether evidence is "attenuated" for the purpose of

introducing it against a defendant, courts must consider: "(1) the temporal

proximity between the illegal conduct and the challenged evidence; (2) the

presence of intervening circumstances; and (3) the flagrancy and purpose of the

[alleged] police misconduct." Id. at 331 (quoting State v. Johnson,  118 N.J. 639,

653 (1990)).

      A defendant's attack upon or flight from a law enforcement officer

constitutes an intervening circumstance that can make alleged earlier

constitutional violations sufficiently attenuated from the recovery of the

challenged evidence. See, e.g., id. at 336-37 (deeming defendant's violent attack

upon a police officer who pulled him over and ordered him out of the car an

intervening circumstance that dissipated the taint of any possible illegality of

the original stop); Williams,  192 N.J. at 10 (finding defendant's resistance and


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flight from an officer after he was stopped on the street purged the taint of any

unconstitutional stop, and attenuated the post-flight recovery of a gun on his

person).

      Defendant's sudden flight from the police, who had yet to complete his

motor vehicle stop and issue traffic tickets, was a quintessential superseding

event for the purposes of the attenuation doctrine. It severed the link between

any alleged preceding unconstitutional conduct and the later recovery of the gun

during the search incident to arrest.

      Although the temporal proximity of the events was certainly close, the

abrupt flight of defendant—armed with a handgun that could have harmed the

officers—was a momentous, intervening circumstance that satisfies the

attenuation doctrine.    In addition, we are unpersuaded that the alleged

impossibility that the sergeant could have smelled marijuana—even if it had

been proven, contrary to the trial judge's factual findings—was sufficiently

flagrant to delegitimatize the officer's pursuit and apprehension of the fleeing

defendant and the confiscation of his weapon. We also note that the key focus

of the motion in this case was to suppress the gun rather than the marijuana

found in the car.




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      We do not take lightly defendant's concern that he may have been the

object of racial stereotyping, and take note of his brief's generic allusion to

"nationwide civil unrest over police-community relations." But the record in

this case, at least as it was developed in the trial court, lacks an adequate

evidential basis and particularized findings to compel relief on those exceptional

grounds.5

      In sum, the officers' warrantless seizure of defendant's handgun under the

circumstances presented here was constitutional. We affirm the trial court's

decision, albeit for slightly different reasons than the judge articulated. See El-

Sioufi v. St. Peter's Univ. Hosp.,  382 N.J. Super. 145, 169 (App. Div. 2005)

(noting "that a correct result, even if predicated on an erroneous basis in fact or

in law, will not be overturned on appeal").


5
  We do, however, repudiate the suggestion made by the State at oral argument
that it can be constitutionally acceptable for a police officer to deliberately lie
to a motorist to effectuate a warrantless search of the motorist or his vehicle.
Although case law under the Fifth Amendment self-incrimination doctrine
tolerates some degree of deception during the course of a police interrogation,
see State v. L.H.,  239 N.J. 22, 44 (2019), we are aware of no comparable
authority under Fourth Amendment search-and-seizure jurisprudence, and
counsel cited none. Nor do we adopt defendant's argument in his brief that the
sergeant was obligated to provide him with Miranda warnings when they were
conversing through the car window; defendant was not at that point in custo dy,
but instead was the subject of an ongoing motor vehicle stop. Miranda v.
Arizona,  384 U.S. 436, 444 (1966) (specifying warnings required for "custodial"
police interrogations).
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       As a final matter, given the foregoing analysis, we are not convinced the

trial court deprived defendant of due process or abused its discretion in declining

to have Officer Torre called to the witness stand. His anticipated testimony

about the container found in the console would have had only limited relevance.

It would not refute the legitimacy of the other officers' apprehension of

defendant once he chose to run from the scene. The judge already had Officer

Torre's police report describing the cannister, albeit without commenting on its

smell, if any, as well as video footage. The court had the discretion to curtail

testimony that would be, in essence, largely, if not entirely, cumulative of that

report. N.J.R.E. 403.

      Affirmed.




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