Opinion
DOCKET NO. A-2769-14T2
10-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GAVIN D. BANSIE, Defendant-Appellant.
Jill R. Cohen argued the cause for appellant. Sarah Lichter, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Ms. Lichter, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-12-3695. Jill R. Cohen argued the cause for appellant. Sarah Lichter, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Ms. Lichter, of counsel and on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.
Defendant Gavin D. Bansie appeals from a judgment of conviction entered after defendant conditionally pled guilty to one count of second-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b). On appeal, he challenges the trial court's earlier denial of his motion to suppress the handgun found in his possession. He argues that the arresting officer's "stopping, questioning and searching of defendant while being ticketed for loud music and illegal parking was unconstitutional . . . ." We disagree and affirm.
The facts adduced at defendant's suppression hearing can be summarized as follows. At approximately 8:00 p.m. on September 15, 2013, Camden County police officers, who were on foot patrol, observed defendant drive past them while playing loud music. Defendant pulled his car up in front of the residence where his daughter lived, double parked his vehicle, and walked his daughter to the front door. When he returned to his car, officers Robert MacFarlane and Joseph McGrath approached defendant and asked for his driving credentials, which he quickly gave to them. The officers told defendant they stopped him because he was double parked and playing loud music from his car. Defendant attempted to explain to the officers that he was dropping his daughter off, and he denied that he was playing loud music.
At the suppression hearing, the arresting officer, defendant, defendant's father, and the mother of his daughter testified. The father testified he was with his son during the day and did not detect an odor of marijuana. Also, when he picked up defendant's car after his son's arrest, he did not detect a smell of marijuana in the car. Defendant's daughter's mother testified that when he dropped the child off he did not enter her home.
MacFarlane remained with defendant at his car while McGrath took defendant's credentials to conduct a search of defendant's records. The search took one half hour because, as the officers told him, there was a problem with the computers.
According to MacFarlane's testimony at the suppression hearing, he immediately detected an odor of marijuana emanating from defendant and his vehicle, which he mentioned to defendant. Defendant stated that he had smoked marijuana earlier that day. The officer asked if defendant would consent to a search of the vehicle. Defendant refused.
MacFarlane glanced to see if McGrath was approaching and, when he turned back to defendant, he observed defendant reaching under his seat in an attempt to hide an object. As McGrath returned to the vehicle, MacFarlane asked defendant to get out of his car so that he could conduct a pat down. As defendant left his vehicle, MacFarlane observed a gun holster sticking out from under the driver's seat. During his search of defendant's body, he identified a hard object in defendant's pants, asked defendant several times what it was, and, after defendant informed him it was a gun, the officer arrested and secured defendant, removed the weapon from defendant's pants, and placed him in a patrol car that had arrived. The officers did not search defendant's vehicle.
Defendant, who also testified, told a different version of the events that led to the handgun's seizure. According to defendant, while waiting for McGrath to complete his investigation, MacFarlane asked defendant if he would consent to a search of his vehicle. Defendant refused. When McGrath completed the records search, he informed MacFarlane that there were no warrants or other problems with defendant, except he mistakenly reported the extent of defendant's prior criminal history. At that point, MacFarlane informed defendant that he detected an odor of marijuana emanating from defendant and his vehicle, and repeatedly asked defendant why there was as strong smell of marijuana in his car. In response, defendant informed the officer that he had smoked marijuana in his apartment during the morning, but denied having any marijuana in the vehicle.
A third officer appeared at the scene in a patrol car. MacFarlane then had defendant step out of his vehicle, leaving the door open, in order to give defendant a summons. The officer performed a pat down of defendant and, while searching his genital area, felt a metal object. The officer repeatedly began asking defendant what it was that he felt inside defendant's pants and finally reached inside of his pants and underwear, and retrieved a handgun. After he was in the patrol car, the police searched his vehicle and it was during that search that the officers found the holster, which had not been in plain sight.
After his arrest, in addition to being issued summonses for illegally parking and playing loud music, defendant was indicted for unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). Pursuant to his plea agreement, defendant preserved his right to appeal the denial of his suppression motion, R. 3:5-7(d), the latter charge was dismissed, and he was convicted of the one charge. The court sentenced him to a seven-year term of imprisonment, subject to a three-and-one-half-year period of parole ineligibility.
On appeal, defendant argues:
POINT I
THE DETENTION OF DEFENDANT LASTED LONGER THAN WAS NECESSARY TO COMPLETE THE PURPOSE OF THE MOTOR VEHICLE STOP
POINT II
THE OFFICER'S ALLEGATION THAT HE SMELLED MARIJUANA WAS A PRETEXT TO REMOVE DEFENDANT FROM THE CAR AND SEARCH
In our review of a "grant or denial of a motion to suppress we 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." State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). "An appellate court 'should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). However, "[w]hen a question of law is at stake," appellate review is plenary. State v. Mann, 203 N.J. 328, 337 (2010).
Here, in deciding, defendant's suppression motion, the motion judge made specific credibility and fact findings. The judge found MacFarlane to be credible, relying on his experience as a trained officer and his demeanor while he testified. As a result, he found that defendant had been playing loud music from his car and he observed there was no dispute as to defendant having double parked his vehicle. In addition, the judge determined that the officer in fact smelled marijuana emanating from defendant's vehicle. The judge also found that the delay in obtaining the results of McGrath's inquiry into defendant's credentials was the result of a computer problem. In addition, he accepted the officer's testimony that he saw defendant reaching under the seat and "taking actions in an attempt to secret something." Based on all of the events, he found the officer justified in removing defendant from the vehicle and patting him down because "there was a basis for probable cause" and the officer had a legitimate "concern . . . for his safety."
Defendant contends that the motion judge failed to find that his detention by MacFarlane was unlawful because it lasted longer than necessary to issue him the tickets he ultimately received for parking illegally and playing loud music. He also argues the judge erred by not accepting his version of when MacFarlane smelled marijuana and raised the suspicion with defendant.
We find defendant's arguments to be without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say the officers' initial encounter with defendant was proper. They heard loud music from the vehicle and defendant double parked; the officers were authorized to cite defendant for these minor infractions. It was while in the course of that duty that one officer smelled marijuana and, later, observed defendant reaching under his seat. These two circumstances provided a reasonable suspicion of criminality and justified defendant's removal from his vehicle and the Terry pat down, which led to the discovery of the weapon.
Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968).
Defendant's contentions regarding the officer smelling marijuana were also unavailing as that fact was not the reason for his removal from the car and his arrest. As the officer testified and the motion judge found, the officer removed defendant from the car when he saw defendant try to hide something under his seat and he patted him down after he saw the item was an empty holster. Even if the marijuana played some role in the officer's decision to remove defendant from the car, defendant's argument would have us reject the motion judge's credibility determinations and disregard his finding that the officer smelled marijuana, which defendant admitted using that day. We discern no reason to disturb the judge's findings. See Elders, supra, 192 N.J. at 244.
"New Jersey courts have 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.'" State v. Nishina, 175 N.J. 502, 515-16 (2003) (alteration in original) (quoting State v. Vanderveer, 285 N.J. Super. 475, 479 (App. Div. 1995)). "[T]he smell of marijuana [gives] rise to probable cause 'to conduct a warrantless search of the persons in the immediate area from where the smell [had] emanated.'" Id. at 516 (alteration in original) (quoting Vanderveer, supra, 285 N.J. Super. at 481). --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION