Opinion
DOCKET NO. A-3095-12T2
04-07-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SALADINE R. DAVIS, a/k/a RAHEEM DAVIS, DARIES JOHNSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Nasheena D. Porter, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-06-0648. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Nasheena D. Porter, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his convictions for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(3) and N.J.S.A. 2C:35-5a(1); third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7; and a disorderly persons offense of possession of CDS, N.J.S.A. 2C:35-10. We affirm.
Two police officers conducted routine evening patrol in an area known for high crime and violence. They noticed a black Acura pull away from the curb without the driver wearing his seatbelt. The officers pulled over the Acura and recognized the driver from prior drug arrests as defendant. There was one front seat passenger in the vehicle.
The grand jury indicted defendant and the passenger and charged them each with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (Count Two); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); second-degree possession of cocaine with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (Count Four); fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(12) (Count Five); third-degree possession of marijuana with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Six); and third-degree possession of marijuana with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (Count Seven). The jury acquitted the passenger of all charges.
The officers approached the Acura and detected an odor of raw marijuana. One of the officers noticed that defendant, who admitted that his driver's license was suspended, was shaking uncontrollably. The officer watched defendant move his hand down to his right leg and then asked defendant to step out of the Acura.
Defendant opened the door, started to exit the Acura, but then tried to sit back down with his feet hanging out of the vehicle. The officer noticed that defendant kept looking in the direction of a change compartment to the left of the steering wheel. Defendant then exited the Acura and the officer searched him, seizing $900. Meanwhile, the other officer was attending to the passenger, who had also exited the vehicle.
By this time, two crowds began to gather. One was ten to fifteen feet away. The other crowd, including a known gang member who had recently been shot, was approximately fifty feet from the Acura, near a housing complex. Traffic also began to build and was moving slowly. The officers knew that another police unit had been responding to a different motor vehicle stop. As a result, they feared for their safety because back-up was not immediately available.
One of the officers spotted a sandwich bag containing marijuana stuffed between the driver's seat and the center console. He also located cocaine in the compartment area where defendant had been staring. The officers arrested defendant, read him his Miranda rights, and then defendant admitted to the officers that the drugs were his.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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Defendant moved to suppress the drugs. The motion judge took testimony from one of the officers, finding him to be credible. The judge found the stop to be unexpected and that probable cause existed to believe that the Acura contained drugs. The judge also found that exigent circumstances justified a search without a warrant.
The parties proceeded to trial and the jury found defendant guilty of Counts One through Three, and a lesser-included offense on Count Four. The trial judge granted the State's motion for a mandatory extended term and imposed an aggregate prison term of nine years with fifty-four months of parole ineligibility.
On appeal, defendant raises the following points:
POINT [I]
THE DRUGS FOUND DURING THE SEARCH OF DEFENDANT'S CAR SHOULD BE SUPPRESSED BECAUSE THE STATE DID NOT ESTABLISH EXIGENT CIRCUMSTANCES NECESSARY TO JUSTIFY THE WARRANTLESS SEARCH PURSUANT TO STATE V. PENA-FLORES, 198 [N.J.] 6 (2009).
POINT [II]
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
I.
When reviewing a trial court's decision on a motion to suppress evidence, we defer to the trial court's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation and internal quotation marks omitted). The trial court's legal conclusions are subject to de novo review. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
This case involves application of the automobile exception to the warrant requirement under the United States Constitution and New Jersey Constitution. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7; see also State v. Minitee, 210 N.J. 307, 318-19 (2012) (indicating that our State constitution provides greater protections than its federal counterpart). The State may conduct a warrantless search of an automobile under the automobile exception when "the stop is unexpected;" there is "probable cause to believe that the vehicle contains contraband or evidence of a crime;" and exigent circumstances "under which it is impracticable to obtain a warrant" justify the search. State v. Pena-Flores, 198 N.J. 6, 28 (2009).
It is well-recognized that probable cause and exigency are determined on a case-by-case basis. Ibid. Probable cause is a concept that is difficult to define with precision. State v. Brown, 205 N.J. 133, 144 (2011). However, "probable cause requires 'more than a mere suspicion of guilt' but less evidence than is needed to convict at trial." Ibid. (quoting State v. Basil, 202 N.J. 570, 585 (2010)).
Our Supreme Court has held that the "smell of marijuana [from a vehicle] constitutes probable cause to believe [a] crime has been committed and that additional contraband might be present[.]" Pena-Flores, supra, 198 N.J. at 30 (citing State v. Nishina, 175 N.J. 502, 515-16 (2003)). Here, probable cause existed based on the smell of raw marijuana emanating from the Acura.
The presence of exigent circumstances must be based on a review of facts that "bear on the issues of officer safety and the preservation of evidence . . . ." Id. at 28-29. "There is no magic formula[.]" Id. at 29. A trial court may consider
the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.
[Ibid.]In applying these factors, the court determines "not whether the police could have done something different, but whether their actions, when viewed as a whole, were objectively reasonable." Minitee, supra, 210 N.J. at 323 (citation and internal quotation marks omitted).
Here, exigent circumstances justified a warrantless search of the Acura. The vehicle was registered to defendant's brother; the officers detected the odor of marijuana coming from the vehicle; the stop occurred in the evening in a high crime area known for narcotics; defendant was shaking uncontrollably; and his movements suggested he was covering up or hiding something. Moreover, the officers feared for their safety because two crowds gathered nearby, one containing a known gang member; traffic was moving slowly near the stop; there was no immediately available back-up due to a contemporaneous motor vehicle stop at a different location; and before the arrest, one officer monitored both defendant and co-defendant while the other officer was near the Acura.
II.
We reject defendant's contention that the judge imposed an excessive sentence. Defendant does not contest that he was subject to a mandatory extended term. Rather, he contends that the judge misapplied the aggravating and mitigating factors.
Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily disturb a sentence imposed which is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). In sentencing, the trial court "first must identify any relevant aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, 220 N.J. 49, 64 (2014). The court must then "determine which factors are supported by a preponderance of [the] evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record." Ibid.
Here, the judge found that aggravating factors three, six, and nine substantially outweighed the non-existent mitigating factors. We have carefully considered defendant's contentions and conclude that they are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).
There is no reason to second-guess the trial court's application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." Roth, supra, 95 N.J. at 364; see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION