Opinion
DOCKET NO. A-1482-13T3
03-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANIEL R. GONZALEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy 1st Assistant Prosecutor, of counsel and on the brief; Yael Spiewak, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-08-1309. Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy 1st Assistant Prosecutor, of counsel and on the brief; Yael Spiewak, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Daniel R. Gonzalez appeals from his conviction by guilty plea following the trial court's denial of his motion to suppress evidence. See R. 3:5-7(d). We affirm.
I.
Defendant was charged under Middlesex County indictment number 11-08-1309 with third-degree possession of cocaine, a controlled dangerous substance ("CDS"), N.J.S.A. 2C:35-10a(1) (count one); first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); and third-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25 (count three).
Defendant filed a motion to suppress. After three days of testimony, the trial court denied the motion on February 27, 2013. After the suppression hearing, defendant entered into a plea agreement. On April 23, 2013, defendant pled guilty to count two and the State dismissed the remaining counts. On July 18, 2013, the court sentenced defendant to ten years of incarceration, with four years of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court filed defendant's judgment of conviction on July 19, 2013.
We discern the following facts from the motion record. On April 26, 2011, at approximately 10:00 a.m., codefendant Antoine Draughon was driving southbound on the New Jersey Turnpike. Defendant was a passenger in codefendant's vehicle.
Codefendant joined in defendant's motion to suppress, and ultimately pled guilty.
Codefendant cut off a silver car, causing that car to make an evasive maneuver. New Jersey State Trooper Edward Bobal, patrolling nearby in an unmarked police vehicle, observed the incident and stopped codefendant's vehicle.
Trooper Bobal approached the passenger side of the vehicle and requested codefendant's credentials. Relying on his extensive training and experience in narcotics recognition, Trooper Bobal identified the smell of burnt marijuana emanating from the vehicle. He also noticed that codefendant's hands were shaking uncontrollably, and codefendant accidentally handed Trooper Bobal a credit card with his other documents.
Trooper Bobal returned to his vehicle and radioed for backup. Once backup arrived, Trooper Bobal again approached the car, removed codefendant from the vehicle, and placed him under arrest. Trooper Bobal then handcuffed codefendant, completed a search incident to arrest, and advised him of his Miranda rights. During the search of codefendant, Trooper Bobal discovered a bundle of twenty dollar bills totaling $1540. Trooper Bobal also noted a greenish-brown coating on codefendant's tongue, which was consistent with the ingestion of marijuana.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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Meanwhile, another trooper removed defendant from the vehicle, handcuffed and searched him, and advised him of his Miranda rights. Defendant admitted to having smoked marijuana earlier in the morning. At some point after removing him from the vehicle, the arresting trooper noticed the smell of raw marijuana on defendant, and he admitted to having raw marijuana in his underwear. Police transported defendant to the station, where they recovered the marijuana.
Codefendant refused to consent to a search of his car. Police impounded the vehicle, and had it towed to the station. There, a drug-sniffing dog indicated the presence of CDS in the vehicle and on codefendant's money. Police then obtained a search warrant for the vehicle. According to Trooper Bobal, the search discovered "just over a half [of a] pound of crack cocaine with a street value of approximately $27,000" in the trunk.
The trial judge found that Trooper Bobal's testimony was credible. She found that Trooper Bobal had lawfully stopped codefendant's vehicle after observing erratic driving that required "another vehicle to take evasive action in order to avoid an accident." She further found that Trooper Bobal
smelled a strong odor of burnt marijuana when he approached the vehicle and observed [codefendant] who was acting in a nervous and suspicious fashion fumble for his
credentials and mistakenly hand over a credit card prior to handing over his credentials.The judge also found that the search warrant for codefendant's vehicle was supported by probable cause obtained from the dog's positive reaction to the presence of narcotics in the vehicle.
. . . .
Under these circumstances, Trooper Bobal had probable cause to arrest both defendants as he had a well-grounded suspicion that both defendants had committed a crime.
On appeal, defendant raises the following argument:
THE UNLAWFUL ARREST OF DEFENDANT AND CO-DEFENDANT TAINTED THE SUBSEQUENT SEARCH AND THE EVIDENCE DISCOVERED AFTER THE UNLAWFUL ARRESTS MUST BE SUPPRESSED. U.S. CONST., AMENDS. IV, XIV; NJ CONTS. (1947), ART. 1, PAR. 7
II.
In reviewing a motion to suppress, we "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). We only reverse if the decision was "so clearly mistaken that the interests of justice demand intervention and correction." Id. at 425 (citations and internal quotation marks omitted). The "trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference[,]" and are therefore "reviewed de novo." Ibid.
Warrantless arrests are presumptively invalid, and the State bears the burden of proving the validity of the arrest by a preponderance of the evidence. State v. Walker, 213 N.J. 281, 290 (2013). The State must show that the arresting officer had probable cause. State v. Gibson, 218 N.J. 277, 293 (2014). "Probable cause has been defined as 'a well grounded suspicion that a crime has been or is being committed[.]'" Id. at 292 (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). For a non-indictable offense, state police can effectuate a warrantless arrest if the offense occurs in the presence of the arresting officer. N.J.S.A. 53:2-1; State v. Dangerfield, 171 N.J. 446, 460 (2002); Mesgleski v. Oraboni, 330 N.J. Super. 10, 26 (App. Div. 2000).
In State v. Judge, 275 N.J. Super. 194, 201 (App. Div. 1994), we held that the smell of burnt marijuana created "a reasonable inference . . . that it was smoked recently by casual users of marijuana." Moreover, "the smell of burnt marijuana [gives] 'rise to an inference that would lead a police officer of ordinary prudence and experience conscientiously to entertain a strong suspicion that additional contraband is present in the . . . automobile.'" Ibid. (citation and internal quotation marks omitted). Our Supreme Court subsequently adopted this conclusion, finding that "'the smell of marijuana itself constitutes probable cause that a criminal offense ha[s] been committed and that additional contraband might be present.'" Walker, supra, 213 N.J. at 290 (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 515-16 (2003)).
Here, Trooper Bobal identified the smell of burnt marijuana emanating from codefendant's vehicle. Accordingly, the record supports a well-grounded suspicion that defendant and codefendant possessed additional contraband. This constitutes probable cause to believe that defendant and codefendant were committing both indictable and non-indictable offenses in Trooper Bobal's presence. See N.J.S.A. 2C:35-10a. Thus, the warrantless arrest was lawful and did not violate defendant's rights. Dangerfield, supra, 171 N.J. at 460.
As defendant's arrest was lawful, and the search warrant of codefendant's vehicle was validly issued, the trial court correctly declined to suppress the crack cocaine seized as fruits of defendant's arrest. Therefore, we affirm the court's February 27, 2013 order denying defendant's motion to suppress, and the subsequent July 19, 2013 judgment of conviction.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION