Opinion
DOCKET NO. A-2075-13T1
11-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NILES T. BROWN, Defendant-Appellant.
James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the briefs). Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Yomtov, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment Nos. 12-05-0275 and 13-05-0309. James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the briefs). Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Yomtov, of counsel and on the brief). The opinion of the court was delivered by LEONE, J.A.D.
Defendant Niles T. Brown appeals from his judgment of conviction, challenging the denial of his motion to suppress. We affirm.
I.
At the motion to suppress hearing, Salem City Patrolman Sean Simpkins testified as follows.
On the evening of December 2, 2011, at around 8 p.m., Patrolman Simpkins and his partner were in uniform and in a marked police car. They were on routine patrol in and around a private housing complex. Simpkins observed a man walking inside the complex, about fifty feet from the front gate, whom he believed to be defendant. Simpkins was familiar with defendant because Simpkins had transported defendant during Simpkins' prior employment with the Salem County Sheriff's Office.
Patrolman Simpkins believed defendant was on the housing complex's "no-trespass" list. Simpkins familiarized himself with the no-trespass list by reading it when it was updated once or twice a week. Simpkins radioed dispatch that the two officers were going to exit the vehicle to speak "with a subject."
Simpkins testified that when he pulled into the housing complex, defendant was initially walking in one direction, but when he saw the patrol car he began walking in the opposite direction. Defendant testified that when he saw the patrol car pull into the housing complex, he turned and began walking toward the patrol car.
The officers exited their patrol car and approached defendant. Simpkins testified he asked defendant "to step over." Simpkins testified he asked defendant's name, which defendant gave. Simpkins asked defendant if he was on the no-trespass list, and defendant replied "no," and that "nobody ever told him" that. Defendant testified that Simpkins asked for his name and if he was allowed to be there, and that he responded "I don't know if I'm allowed out here, but the guard let me in." Simpkins then radioed police dispatch to ask whether defendant was on the no-trespass list. Dispatch responded that defendant was on the list "for possession of a weapon."
The trial court admitted this hearsay solely "for the purpose of establishing Officer Simpkins' state of mind" as to why he took subsequent steps.
Based on that information, Patrolman Simpkins asked defendant to step over to the patrol vehicle and place his hands on the hood. Simpkins conducted a pat-down for the "sole reason" of "officer safety." During the pat-down, defendant reached for his back right pocket, but the officer placed defendant's hand back on the vehicle.
Patrolman Simpkins testified that he detected an odor of marijuana on defendant "initially when [Simpkins] approached him" and smelled a "strong odor of marijuana" after defendant moved his hand. On cross-examination, Simpkins was asked if it was after he had made defendant put his hand back on the car that he noticed the smell of marijuana. Simpkins replied that he smelled the marijuana "before that, but in the report it indicates that I smelled it then." When asked by the court to clarify, Simpkins confirmed that he smelled "a very strong odor" of marijuana "when [defendant] initially approached[.]" Relying on his personal observations of the witness and Simpkins' acknowledgement of the discrepancy, the court expressly credited Simpkins' testimony that he smelled the odor of raw marijuana coming from defendant when Simpkins first approached him.
Simpkins' report indicated that after the defendant had moved his hand, Simpkins smelled raw marijuana on defendant.
During the pat-down, Simpkins did not feel any weapons. He asked defendant if he had marijuana on him, and defendant replied "no." Simpkins "continued to pat [and] [f]elt a bulge in [defendant's] fifth pocket, consistent with a bag of marijuana." Simpkins again asked defendant if he had any marijuana and defendant admitted "yes, just a bag." Simpkins retrieved the marijuana, placed defendant under arrest, and transported defendant to the police station.
A more thorough search incident to arrest was conducted at the station. Defendant was asked if he had anything illegal on his person, and he replied that he did not. Simpkins then searched defendant and "felt what appeared to be a plastic bag up in the left crotch area," which contained what felt like a "rock like substance." Two clear-plastic bags were retrieved. The first contained "a large amount of white rock[-]like substance." The second bag contained twenty-five plastic bags of a white rock-like substance, six bags of a white powdery substance, and twenty prescription pills.
Defendant was indicted for third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), and third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(5).
Defendant filed a motion to suppress. At the hearing, Patrolman Simpkins and defendant testified as set forth above.
The State also called Richard Kent, the security supervisor for the housing complex. Kent affirmed that defendant's name was on the no-trespass list, and testified that defendant had been turned away from the complex and told he was on the no-trespass list on November 30, 2011. Kent testified he had recognized defendant from his previous job as a corrections officer at the Salem County correctional facility, and that defendant had identified himself by name.
Kent identified the no-trespass list from January 13, 2011, which listed defendant. The list, which was admitted into evidence, stated that the listed individuals would be trespassing if they were found on the property, and had been properly notified they were not allowed on the property.
Defendant testified that on December 2, 2011, he went to the private housing complex to visit his sister. He stopped at the security booth, and gave his name and tendered his jail ID. The guard then called defendant's sister and verified that defendant was invited and expected. The guard returned defendant's ID and allowed him to enter the premises. Defendant testified that the guard did not mention anything about a no-trespass list, and that he had never been told he was on the list.
Defendant's sister testified that she invited defendant to her apartment on December 2, 2011, and was contacted by the security guard on duty to confirm defendant's invitation. Defendant also called Salem City Police Chief John Pelura, III. Pelura testified that the housing complex's no-trespass list is distributed to Salem City police officers, posted in the squad room, and emailed to those who need it.
On December 20, 2012, the suppression court partially denied defendant's motion. The court credited Patrolman Simpkins, and made factual findings consistent with his testimony. The court found that defendant was on the no-trespass list.
The court found that Simpkins' action in approaching defendant, whom he recognized and thought to be on the no-trespass list, was a lawful field inquiry intended to confirm that defendant was on the no-trespass list. The court rejected, however, that there was a reasonable suspicion that defendant was armed or dangerous to justify a protective frisk.
Nevertheless, the court found that because Simpkins had smelled raw marijuana when he first approached defendant, he had probable cause to conduct a warrantless search under the "plain smell" doctrine. The court denied defendant's motion to suppress the physical evidence seized from him.
The court did suppress defendant's admissions to Simpkins that he possessed the marijuana, and his subsequent statements, because defendant was never given his warnings under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Pursuant to a plea agreement with the State, defendant pled guilty to third-degree possession of cocaine with intent to distribute. On August 1, 2013, the court denied defendant's motion to withdraw his plea. The trial court sentenced defendant to a mandatory extended term of six years in prison with three years' parole disqualification for possession of cocaine with intent to distribute.
Defendant had also been charged in unrelated Accusation No. 13-05-309 for resisting an arrest on February 22, 2013. He pled guilty to third-degree resisting arrest, and was sentenced to a concurrent three years in prison.
Defendant appeals the denial of his pre-plea suppression motion, pursuant to Rule 3:5-7, arguing:
BECAUSE THE INITIAL STOP OF DEFENDANT WAS BASED UPON A MISTAKE OF LAW, AND NOT A REASONABLE, OBJECTIVE BELIEF OF CRIMINAL ACTIVITY, THE SEARCH CANNOT BE SUSTAINED UNDER EITHER THE SEARCH INCIDENT TO ARREST, REASONABLE SUSPICION TO FRISK, OR PLAIN SMELL THEORIES.We must hew to our "deferential standard of review." State v. Rockford, 213 N.J. 424, 440 (2013). "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." Ibid. (internal quotation marks omitted). "Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (alteration in original) (internal quotation marks omitted). "Thus, appellate courts should reverse only when the trial court's determination is so clearly mistaken that the interests of justice demand intervention and correction." State v. Gamble, 218 N.J. 412, 425 (2014) (internal quotation marks omitted).
II.
The suppression court properly found that Patrolman Simpkins' initial interaction with defendant was a field inquiry. Both Simpkins and defendant testified that when defendant saw the marked police car, he turned to walk toward the uniformed officers on his own volition. Simpkins testified he exited the patrol car and "asked [defendant] to step over." Defendant testified the officers asked him questions. Neither side testified that the officers said "stop" or otherwise ordered defendant to do anything.
"'[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen[.]'" State v. Shaw, 213 N.J. 398, 410 (2012) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983) (plurality opinion)); accord Illinois v. Lidster, 540 U.S. 419, 425, 124 S. Ct. 885, 890, 157 L. Ed. 2d 843, 851 (2004). Such field inquiries are "permissible warrantless conduct" which, "except for impermissible reasons such as race, may be conducted without grounds for suspicion." State v. Diloreto, 180 N.J. 264, 275 (2004) (internal quotation marks omitted). "So long as the questioning 'is not harassing, overbearing, or accusatory in nature,' and the person is free to refuse to answer and '"go on his way,"' the person's Fourth Amendment rights are not implicated." State v. Gibson, 218 N.J. 277, 291 (2014) (citations omitted); see, e.g., State v. Sirianni, 347 N.J. Super. 382, 385-86, 391-92 (App. Div.) (knocking on a car window and asking for a person's name and ID was a proper field inquiry), certif. denied, 172 N.J. 178 (2002).
Here, there is no indication that the officers questioned defendant improperly or had prevented him from going on his way. Thus, the trial court properly found that this was initially a field inquiry rather than a stop. See State v. Daniels, 393 N.J. Super. 476, 481, 484-85 (App. Div. 2007) (holding officers asking a person "if he would stop so that they could talk" was a field inquiry).
Although the court said Simpkins "stopped Mr. Brown and asked him his name," it is clear the court found a consensual field inquiry, not a forcible stop.
We uphold the trial court's ruling despite a footnote in the Attorney General's brief expressing the belief that, "when Patrolman Simpkins asked defendant 'to step over' towards him, the instruction was more akin to a command rather than a request." The record does not support that belief. At the suppression hearing, defendant did not even mention being asked to step over. Instead, he testified he was never asked to stop and that he chose to approach the officers.
Moreover, "a seizure occurs 'only when, by means of physical force or a show of authority, [the suspect's] freedom of movement is restrained.'" State v. Tucker, 136 N.J. 158, 164 (1994) (alteration in original) (citation omitted). "A minimally intrusive field inquiry is transformed into an investigative stop or detention — a seizure 'within the meaning of the Fourth Amendment' — when 'a reasonable person would have believed that he was not free to leave.'" Shaw, supra, 213 N.J. at 410 (citation omitted). Merely asking a person to step over would not have caused a reasonable person to have such a belief, because "'the officer d[id] not deny the individual the right to move.'" State v. Stovall, 170 N.J. 346, 356 (2002) (citation omitted); see, e.g., Fowler v. State, 371 S.W.3d 677, 680-81 (Ark. 2010) (finding no seizure where the officers "asked Fowler to come over to their vehicle"), cert. denied, ___ U.S. ___, 132 S. Ct. 95, 181 L. Ed. 2d 24 (2011); Commonwealth v. Lopez, 887 N.E.2d 1065, 1066-69 (Mass. 2008) (finding no seizure where the officer "motion[ed] at the defendant to come to him, [and] asked, 'Can I speak with you?'"); see also 4 Wayne R. LaFave, Search and Seizure, § 9.4(a), at 577-80 & n.62 (5th ed. 2012).
On appeal, for the first time, defendant argues that Simpkins ordered him to "stop." However, at the suppression hearing, defendant testified that he was not "told to stop." Defendant cites Simpkins's report which states he "called out for [defendant] to 'stop,'" but that portion of the report was not mentioned at the hearing. Defendant also cites the prosecutor's pre-hearing brief, which echoed the report, but the court properly relied on the testimony. Thus, the court properly found defendant was not seized at this point.
In any event, the officers had the right to stop defendant because they had the reasonable suspicion he was engaged in defiant trespass. A person commits defiant trespass if, "knowing that he [was] not licensed or privileged to do so," he enters a "place as to which notice against trespass is given by . . . [a]ctual communication to the actor." N.J.S.A. 2C:18-3(b). Here, Patrolman Simpkins reasonably believed that defendant was on the private housing complex's no-trespass list. Moreover, Simpkins had reasonable suspicion defendant had received notice that he was not permitted on the property by "[a]ctual communication," ibid., because the no-trespass list stated that the listed individuals had been properly notified. Defendant said the guard let him in and "nobody ever told him" he was on the list. However, Simpkins was not required to believe either statement.
At the suppression hearing, the head of security for the housing complex testified that only two days before the incident, he personally told defendant he was on the no-trespass list and he denied defendant entry. By contrast, defendant testified that he never received notice, and that shortly before encountering Simpkins, he had been admitted by a different security guard. The testimony regarding those facts would have been relevant in a trial for trespass, to show or contest notice, and arguably to support an affirmative defense to trespass. N.J.S.A. 2C:18-3(a), (d). However, such facts play no role in the suppression analysis, because they were unknown to Patrolman Simpkins. In making a suppression ruling, a court must "'consider the totality of the information available to the officer at the time of the conduct' to evaluate whether a constitutional defect exists. 'Information acquired subsequently cannot be used to either bolster or defeat the facts known at the time.'" State v. Myers, ___ N.J. Super. ___, ___ (2015) (slip op. at 7 n.2) (citations omitted); see State v. Bruzzese, 94 N.J. 210, 221 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
We note the suppression court suggested that defendant's being on the no-trespass list "wasn't enough to arrest him for defiant trespass." However, "the '[r]easonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest.'" State v. Amelio, 197 N.J. 207, 211 (2008) (alteration in original) (quoting Stovall, supra, 170 N.J. at 356), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). Even if the information available to the officers was not sufficient to charge defendant with defiant trespass it was sufficient to justify an investigatory stop.
This case is distinguishable from State v. Dangerfield, 171 N.J. 446, 457 (2002), where the detective immediately arrested the defendant for defiant trespass even though he lacked probable cause because he knew the defendant had previously been on the property with permission, and thus had no reason to believe the defendant lacked permission on that occasion. The Dangerfield Court encouraged officers to follow "established police procedures for determining whether defendant was lawfully on the premises," for example, by pointing out to the defendant the prohibition on trespassing, asking why he was there, or confirming the defendant's story by "checking a tenant list" or seeking confirmation. Ibid. Here, as the suppression court found, Simpkins' belief that defendant was on the no-trespass list "certainly permit[ted] the officers to do exactly what the Court in Dangerfield said they should do, investigate further." See Daniels, supra, 393 N.J. Super. at 485.
Defendant also cites Gibson. However, as in Dangerfield, in Gibson "[t]he central issue is not whether [the officer] was authorized to conduct a field inquiry or an investigative stop of Gibson, but rather whether he had probable cause to make an arrest," because the officer had "placed him under arrest immediately." Gibson, supra, 218 N.J. at 291-92. Our Supreme Court held that there was no probable cause to arrest for defiant trespass, because a "no loitering" sign did not warn the defendant that leaning against a porch was trespassing. Id. at 289-91, 298. By contrast, here, the officers had a reasonable suspicion that defendant was on the property's no-trespass list and that he was aware that he was on that list, and defendant was irrefutably on the property. Thus, this was not a random stop. Cf. id. at 298 ("The defiant trespass statute cannot be used as an instrument for random stops and arrests.").
The officers did not have to assume that defendant's entry was authorized despite his inclusion on the no-trespass list, merely because when they first saw him he was already on the property. Otherwise, officers would perversely have to assume all such trespassers on the property had somehow gotten authorization despite remaining on the list. The officers were certainly not required to let defendant wander about the private housing complex, which had barred his entry, because they had only a reasonable suspicion. Thus, we affirm the suppression court's characterization of the initial encounter as a field inquiry, but we also note the officers also had reasonable suspicion to conduct an investigatory stop of defendant.
III.
Next, we address the recovery of marijuana from defendant's person at the housing complex. The suppression court found that when he and defendant first approached each other, Patrolman Simpkins plainly smelled a very strong odor of raw marijuana emanating from defendant. Accordingly, we agree with the suppression court that Simpkins had probable cause to search defendant. See State v. Nishina, 175 N.J. 502, 515-18 (2003) (holding that, though the officer "was not authorized to conduct a Terry search of defendant," his pat-down search was authorized by probable cause because he smelled the odor of marijuana emanating from the defendant's clothing); see also Daniels, supra, 393 N.J. Super. at 482, 487-91 (holding that probable cause justified a thorough search for drugs, even if the officer began by conducting a weapons pat-down for officer safety).
The court found that Simpkins was "credible" and "very forthright" based on "his demeanor [and] the way he answered questions" and "explained the discrepancy" in his report. We afford particular deference to this credibility determination. See State v. Kuropchak, 221 N.J. 368, 382 (2015).
Because the smell of marijuana justified the search of defendant for marijuana, we need not determine if the information known to Patrolman Simpkins, including that defendant was on the no-trespass list for possession of a weapon, provided probable cause for arrest for defiant trespass, see Daniels, supra, 393 N.J. Super. at 485-87, or justified a frisk for weapons, see Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968); State v. Valentine, 134 N.J. 536, 547-49 (1994), or authorized the seizure of the marijuana during that frisk, see State v. Toth, 321 N.J. Super. 609, 614 (App. Div. 1999), certif. denied, 165 N.J. 531 (2000). --------
Among the exceptions to the warrant requirement is the doctrine of "plain smell." "[T]he United States Supreme Court and other federal courts have long 'recognized that the odor of an illegal drug can be highly probative in establishing probable cause for a search.'" Myers, supra, ___ N.J. Super. at ___ n.4 (slip op. at 10 n.4) (citation omitted). "In addition, the federal courts have recognized a 'plain smell' doctrine, which is simply a logical extension of the 'plain view' doctrine, and allows a law enforcement officer to seize evidence of a crime without a search warrant." Ibid. (internal quotation marks omitted).
Similarly, "'New Jersey courts have [long and repeatedly] 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."'" Id. at ___ (slip op. at 9-10) (quoting State v. Walker, 213 N.J. 281, 290 (2013) (quoting Nishina, supra, 175 N.J. at 515-16)). Thus, the odor of raw marijuana coming from a vehicle gives probable cause to search that vehicle. See, e.g., State v. Pena-Flores, 198 N.J. 6, 12, 14 (2009); State v. Pompa, 414 N.J. Super. 219, 226, 237 (App. Div.), certif. denied, 205 N.J. 14 (2010). Moreover, "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 has emanated.'" Myers, supra, ___ N.J. Super. at ___ (slip op. at 11) (quoting State v. Legette, 441 N.J. Super. 1, 15 (App. Div.), certif. granted, ___ N.J. ___ (2015)); see Nishina, supra, 175 N.J. at 516; State v. Vanderveer, 285 N.J. Super. 475, 481 (App. Div. 1995).
Indeed, the smell of marijuana emanating off defendant gave Patrolman Simpkins "the right to arrest defendant for committing an apparent marijuana offense in his presence." Myers, supra, ___ N.J. Super. at ___ (slip op. at 11-12). "The 'in presence' requirement . . . is satisfied by the [patrolman]'s use of his sense of smell in much the same manner as if he had used his sight or hearing or touch[.]" Id. at ___ (slip op. 12) (quoting Legette, supra, 441 N.J. Super. at 29); see State v. Judge, 275 N.J. Super. 194, 203 (App. Div. 1994). Thus, Patrolman Simpkins had the right to arrest defendant and conduct a search incident to arrest.
In any event, the odor of marijuana emanating from defendant gave Patrolman Simpkins the right to search defendant to determine if marijuana was present. Ibid.; see, e.g., Vanderveer, supra, 285 N.J. Super. at 477, 479-80 (holding a strong odor of burnt and raw marijuana on a porch justified the search of the two persons on the porch). In the course of that pat-down search, Simpkins felt what he recognized, and defendant admitted, was a bag of marijuana. That justified his seizure of the marijuana, his arrest of defendant, and the subsequent search incident to arrest at the police station that discovered the remainder of the drugs.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION