STATE OF NEW JERSEY VS. LAURA I. MARTINEZ (19-08-1037, BURLINGTON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4258-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LAURA I. MARTINEZ,
Defendant-Appellant.
________________________
Submitted September 7, 2021 – Decided September 20, 2021
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 19-08-
1037.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stefan Van Jura, Assistant Deputy Public
Defender, of counsel and on the brief).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Nicole Handy, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Following the denial of her motion to suppress evidence seized without a
warrant during a motor vehicle stop, defendant entered a negotiated guilty plea
to third-degree possession of a controlled dangerous substance (CDS), heroin,
N.J.S.A. 2C:35-10(a)(1). She was sentenced to two years of non-custodial
probation.
On appeal, defendant raises the following points for our consideration:
POINT I
AS WAS THE BASIS FOR SUPPRESSION IN STATE
V. ROMAN-ROSADO, 462 N.J. SUPER. 183 (APP.
DIV. 2020), HERE, TOO, THE POLICE LACKED
REASONABLE SUSPICION OF A TRAFFIC
VIOLATION TO STOP DEFENDANT'S VEHICLE
BASED ON A MINOR OBSTRUCTION OF THE
LICENSE PLATE THAT IN NO WAY IMPACTED
THE OFFICER'S ABILITY TO READ THE PLATE.
POINT II
EVEN IF THE INITIAL STOP WERE LAWFUL,
UNLAWFULLY ORDERING DEFENDANT OUT OF
THE VEHICLE AND UNLAWFULLY REQUESTING
HER CONSENT TO SEARCH THE VEHICLE –
BOTH OF WHICH WERE FOUND BY THE TRIAL
COURT – TAINTED THE LATER SEARCH THAT
WAS BASED ON THE SUBSEQUENT "PLAIN
SMELL" OF MARIJUANA.
Because we agree the motor vehicle stop lacked the requisite reasonable
suspicion of a traffic violation, we reverse.
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We glean the following facts from the suppression hearing conducted on
December 13, 2019, during which the State produced Patrolman Joseph Licata
as its sole witness.
According to Licata, at approximately 10:00 p.m. on January 2, 2019,
while employed as a patrolman in the Pemberton Borough Police Department,
he was conducting his regular "area check" at "the 198 Pine Meadows Apartment
Complex." The department had received "complaints" about "drug[] activity in
the area," so Licata was tasked with checking the complex during his "one-man"
nightly patrol. During his area checks, he would drive through the complex
parking lot with his "overhead spotlights on" to look for signs of illegal activity.
After inspecting the parking lot, Licata would position his vehicle in a dirt area
near the lot's exit and "monitor traffic" on Route 530.
During his January 2 area check, Licata "observed a black Dodge
Caravan" running without its lights on in the complex parking lot. Initially,
Licata took no action towards the vehicle and simply continued his traffic
monitoring activity near the exit. However, when the Dodge Caravan pulled out
of its "parking spot" and drove past Licata's vehicle, the patrolman observed "a
little obstruction on the bottom" of the vehicle's "rear license plate" by the frame
surrounding the plate. Licata testified that based on his observation, he had a
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"reasonable suspicion" the license plate obstruction violated N.J.S.A. 39:3-33,
so he followed the vehicle and "conducted a motor vehicle stop" in a Burger
King parking lot.
During his testimony, Licata could not recall what portion of the plate was
obstructed but acknowledged he had no trouble reading the tag number even
prior to pulling the vehicle over. His police report only noted the plate was
unclear. Although the patrol car's motor vehicle recorder (MVR) recorded the
stop, the recording did not capture a clear image of the license plate or the
frame,1 which Licata described as "a normal dealer-issued" frame. On cross-
examination, Licata also acknowledged he was suspicious of the vehicle because
(1) he did not recognize it as one of the cars usually in the parking lot at night,
and (2) the vehicle quickly exited soon after his arrival. However, he later
clarified that he could not have stopped the vehicle based solely on those
observations.
After the vehicle stopped, Licata approached the passenger side for safety
reasons. Defendant was seated in the front passenger seat. Licata asked the
driver, James Bowker, for his "license, registration, and insurance," but Bowker
only handed Licata a New Jersey identification card, "which [was] not a valid
1
The MVR was played for the motion judge during the hearing.
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driver's license." During this exchange, Licata learned that defendant was the
vehicle's registered owner, and verified that she had a valid driver's license and
insurance. Licata also observed a third occupant, Ameer Wimberly, seated "in
the right rear seat" but was unable to see inside clearly, because "[t]he back
window was tinted" and could not be lowered due to a malfunction.
At that juncture, Licata asked defendant to step out of the vehicle and
defendant complied. Licata testified he "just wanted to speak with [her]" for
"safety" reasons since she was the registered owner of the vehicle. During their
conversation, Licata asked defendant "where she was coming from" that evening
and defendant identified an individual she was visiting at the apartment
complex. Licata recognized the name as "a person of interest" to the department
"for drug-related offenses." Licata also testified defendant appeared "nervous,"
avoided "eye contact," and "was very evasive in the way she was speaking."
As a result, Licata asked defendant for permission to search the vehicle
and defendant consented to the search. Licata then headed to the driver's side
of the vehicle and asked the driver, Bowker, to step out of the vehicle. When
Bowker opened the door, Licata smelled the odor of raw marijuana emanating
from the vehicle. As Licata led Bowker to the rear of the vehicle for questioning,
a Pemberton Township police officer arrived to assist. Licata then returned to
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the vehicle and asked Wimberly to step out. When Wimberly opened the rear
door, Licata again smelled raw marijuana emanating from the vehicle. Next,
Licata went back to defendant, advised her of her Miranda2 rights, and reviewed
the Pemberton Borough consent to search form with her, specifically advising
her of her right to refuse consent to the search. Defendant again consented to
the vehicle search and subsequently signed the form.
During the search, Licata discovered a "decorative Christmas bag" in a
storage compartment beneath the rear seats. As he picked up the bag, "[he]
could smell the odor of raw marijuana emanating from the bag." Inside the bag,
Licata found "a large quantity of marijuana." As a result, all three occupants of
the vehicle were arrested. During the search incident to arrest, Licata discovered
a "black cloth bag" containing "heroin, pills, and another brown substance" on
defendant's person. Licata subsequently issued criminal complaints and motor
vehicle summonses in connection with the stop, including a violation of N.J.S.A.
39:3-33 for an obstructed license plate.
Following the hearing, the judge denied defendant's suppression motion.
In a written opinion issued January 24, 2020, initially, the judge found "Licata
to be credible" and made factual findings consistent with his testimony. Next,
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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the judge determined the motor vehicle stop was valid because Licata "believed
the license plate frame violated N.J.S.A. 39:3-33," which prohibits the operation
of a motor vehicle with "a license plate frame or identification marker holder
that conceals or otherwise obscures any part of any marking imprinted upon the
vehicle's registration plate." The judge noted "[l]icense plate frames are not per
se illegal, and simply having a frame on a vehicle is not a reason for a traffic
stop. However, license plate frames that conceal or obscure any markings
imprinted on the license plate are prohibited because they can hinder
identification of the driver."
Citing State v. Cohen, 347 N.J. Super. 375 (App. Div. 2002), the judge
pointed out that "[a]n officer can lawfully initiate a traffic stop when he
reasonably believes that he observed a traffic violation, even if it is later
determined that no violation occurred." Thus, the judge concluded , "the initial
traffic stop was valid because it was based on a reasonable and articulable
suspicion that a motor vehicle offense had occurred." See State v. Locurto, 157
N.J. 463, 470 (1999) ("[A] police officer is justified in stopping a motor vehicle
when he has an articulable and reasonable suspicion that the driver has
committed a motor vehicle offense." (quoting State v. Smith, 306 N.J. Super.
370, 380 (App. Div. 1997))).
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The judge also found "[o]nce Officer Licata determined . . . there was a
reasonable and articulable suspicion of a traffic violation and that Mr. Bowker
was driving without a license, it became lawful, and necessary to require Mr.
Bowker to exit the vehicle during the traffic stop." See Pennsylvania v. Mimms,
434 U.S. 106, 111 (1977) (holding that ordering the driver to get out of a
lawfully stopped vehicle is constitutionally permissible); State v. Smith, 134
N.J. 599, 611 (1994) ("[T]he Mimms test, as applied to drivers satisfies the New
Jersey Constitution as well.").
Further, the judge found, as Bowker exited the vehicle, "probable cause
of criminal activity materialized from unforeseeable and spontaneous
circumstances when Officer Licata detected the odor of raw marijuana
emanating from the vehicle during a lawful motor vehicle stop." See State v.
Nishina, 175 N.J. 502, 515-16 (2003) ("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.'"
(alteration in original) (quoting State v. Vanderveer, 285 N.J. Super. 475, 479
(App.Div.1995))).
According to the judge, "[b]ased on that probable cause, [Licata] then
lawfully searched the vehicle subject to the automobile exception to the warrant
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requirement." See State v. Witt, 223 N.J. 409, 447 (2015) (holding the
automobile exception under the New Jersey Constitution "authorize[s] the
warrantless search of an automobile only when the police have probable cause
to believe that the vehicle contains contraband or evidence of an offense and the
circumstances giving rise to probable cause are unforeseeable and
spontaneous").
However, the judge also determined because the occupants complied with
Licata's requests and made no furtive movements prior to defendant's removal
from the vehicle, "it was not lawful to remove [defendant] from the vehicle
because the circumstances did not present the need for heightened caution." See
State v. Bacome, 228 N.J. 94, 107 (2017) ("[O]fficers may remove passengers
only when the circumstances present reason for heightened caution.").
Additionally, the judge determined "it was not lawful to request [defendant's]
consent to search" the vehicle because Licata "had no articulable suspicion of
criminal activity unrelated to the purpose of the car stop at the time of th[e]
request." The judge noted Licata requested defendant's consent "before he
detected the odor of marijuana from inside the vehicle." See State v. Carty, 170
N.J. 632, 646 (2002) (invalidating "suspicionless consent searches following
valid motor vehicle stops"). This appeal followed.
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On appeal, defendant argues the judge erred in "rul[ing] that a nonspecific
'little obstruction on the bottom' of the plate could constitute a violation of
N.J.S.A. 39:3-33" to support the motor vehicle stop in light of "this [c]ourt's
recent decision in State v. Roman-Rosado, 462 N.J. Super. 183 (App. Div.
2020), [aff'd as modified by sub nom. State v. Carter, __ N.J. __, __ (2021)]."
Prior to our decision in Roman-Rosado, State ex rel. D.K., 360 N.J. Super. 49(App. Div. 2003) was "the only published opinion interpreting N.J.S.A. 39:3-
33." Roman-Rosado, 462 N.J. Super. at 198. In D.K., we held the word obscure
in N.J.S.A. 39:3-33 "reasonably construed, means merely to make [the license
plate] less legible." 360 N.J. Super. at 53. We inferred the statute "was
formulated specifically to address the need for license plate legibility in policing
activities." Ibid. Thus, under D.K.'s legibility standard, a license plate frame
obscuring a portion of the plate without making the plate less readable, did not
violate N.J.S.A. 39:3-33.
We reached a similar conclusion in Roman-Rosado, where police officers
predicated a motor vehicle stop of the defendant's car on the words "Garden
State" on the rear license plate being partially covered. 462 N.J. Super. at 190.
Although the officer estimated the license plate frame covered about ten or
fifteen percent of the bottom of the letters on the plate, he admitted he could
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clearly recognize the words "Garden State." Ibid. In invalidating the trial
judge's interpretation of N.J.S.A. 39:3-33 and, in turn, the motor vehicle stop
upon which it was premised, we concluded:
Based on our common understanding of the verbs
"conceal" and "obscure," coupled with our prior
interpretation of the N.J.S.A. 39:3-33 in D.K., a license
plate only violates N.J.S.A. 39:3-33 if any part of the
license plate's marking is concealed or obscured so as
to make it less legible. By "less legible," we mean an
inability to discern critical identifying information
imprinted on the license plate. Otherwise, this would
cause an absurd result where a law enforcement officer,
as was the situation here, has the unfettered right to stop
a motorist where there is the slightest, and candidly
insignificant, covering of "Garden State" on a driver's
rear license plate.
. . . We cannot envision the Legislature intended a slight
covering of a license plate's words to form the basis for
the stop of an otherwise lawful driver when it enacted
N.J.S.A. 39:3-33. If such was the case, the statute
would have used the word "covers" or "obstructs"
instead of "conceals or otherwise obscures," where it
states, "conceals or otherwise obscures any part of any
marking imprinted upon the vehicle's registration
plate."
[Id. at 199.]
Thereafter, our Supreme Court granted certification and issued a
consolidated opinion in Roman-Rosado and another case, State v. Carter, which
also involved an interpretation of N.J.S.A. 39:3-33. See Carter, __ N.J. at __
A-4258-19
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(slip op. at 4). In the Carter case, police officers stopped Carter's vehicle for a
suspected violation of N.J.S.A. 39:3-33 because the words "Garden State" were
covered on the car's license plate. Id. at __ (slip op. at 6). The trial court denied
the defendant's suppression motion, finding the officer had reasonable suspicion
Carter was operating his vehicle in violation of N.J.S.A. 39:3-33 because the
words "Garden State" on the license plate were covered. Id. at __ (slip op. at 7).
This court affirmed, finding that N.J.S.A. 39:3-33 barred even the partial
concealment of any marking on the license plate, including the words "Garden
State." Id. at __ (slip op. at 7-8).
In its consolidated opinion, the Supreme Court held a broad interpretation
of N.J.S.A. 39:3-33 would raise "serious constitutional concerns." Id. at __ (slip
op. at 26). The Court stated that the statute
requires that all markings on a license plate be legible
or identifiable. That interpretation is consistent with
the plain meaning of the statute's wording. If a license
plate frame or holder conceals or obscures a marking
such that a person cannot reasonably identify or discern
the imprinted information, the driver would be in
violation of the law.
In other words, a frame cannot cover any of the
plate's features to the point that a person cannot
reasonably identify a marking. So, for example, if even
a part of a single registration letter or number on a
license plate is covered and not legible, the statute
would apply because each of those characters is a
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separate marking. If "Garden State," "New Jersey," or
some other phrase is covered to the point that the phrase
cannot be identified, the law would likewise apply. But
if those phrases were partly covered yet still
recognizable, there would be no violation.
[Id. at __ (slip op. at 29) (citations omitted).]
The Court held that Roman-Rosado did not violate N.J.S.A. 39:3-33
because only ten or fifteen percent of the words "Garden State" were obstructed,
and the officer "conceded he could clearly identify the phrase on the license
plate." Id. at __ (slip op. at 30). The Court found, however, that the officer had
the right to stop Carter because it was undisputed that the words "Garden State"
were entirely covered. Ibid. Thus, the plate violated the statute. Ibid.
The Court also rejected the State's contention that even if Roman-Rosado
did not violate N.J.S.A. 39:3-33 and the officer's interpretation of the statute was
mistaken, the mistake was reasonable and the stop lawful. Id. at __ (slip op. at
34). In so doing, the Court refused to adopt the holding of the United States
Supreme Court in Heien v. North Carolina, 574 U.S. 54 (2014). Id. at __ (slip
op. at 34-46).
In Heien, the Court held that a police officer's mistake of law can provide
"reasonable suspicion needed to justify a traffic stop under the Fourth
Amendment." Id. at __ (slip op. at 34) (citing Heien, 574 U.S. at 57). However,
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our Supreme Court declined to adopt a reasonable mistake of law exception
under the New Jersey Constitution. Id. at __ (slip op. at 46). The Court
explained:
An officer's reasonable but mistaken
interpretation of a statute cannot change the fact that
the law does not criminalize particular conduct. In
other words, if a law does not establish an offense
altogether, the reasonable nature of an officer's mistake
cannot transform an officer's error into reasonable
suspicion that a crime has been committed. If officers
could search and seize a person under those
circumstances, reasonable, good faith errors would
erode individual rights that the State Constitution
guarantees.
[Id. at __ (slip op. at 44).]
Here, Licata never suggested he had any trouble reading defendant's
license plate; in fact, he called in the license plate number before he stopped the
vehicle. During his testimony, he stated he observed "a little obstruction on the
bottom" of the vehicle's "rear license plate" by the frame surrounding the plate,
but he could not recall what was obstructed. The judge found Licata credible
and made factual findings consistent with his testimony. "When an appellate
court reviews a trial court's decision on a motion to suppress, the reviewing court
defers to the trial court's factual findings, upholding them 'so long as sufficient
credible evidence in the record supports those findings.'" In Interest of J.A., 233
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N.J. 432, 445 (2018) (quoting State v. Gonzalez, 227 N.J. 77, 101 (2016)). Here,
we are satisfied the judge's factual findings are amply supported by the record.
However, Licata's description of his observation was akin to the partial
obstruction condemned in Roman-Rosado. Therefore, Licata lacked reasonable
suspicion a violation of N.J.S.A. 39:3-33 had occurred. Because we conclude
the judge erred in interpreting N.J.S.A. 39:3-33 and, in turn, determining that
Licata had a reasonable basis for stopping defendant's car for a violation of the
statute, the subsequent search of defendant's person and car was
unconstitutional. See State v. Elders, 192 N.J. 224, 252 (2007) (Rivera-Soto, J.,
dissenting) ("[W]e have repeatedly and uniformly held that '[a] trial court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference.'" (second alteration in original)
(quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995))).
The evidence seized from that unconstitutional search was the fruit of the
poisonous tree and should have been suppressed. See State v. O'Neill, 193 N.J.
148, 171 n.13 (2007) ("The fruit-of-the-poisonous-tree doctrine denies the
prosecution the use of derivative evidence obtained as a result of a Fourth . . .
Amendment violation."). We therefore reverse and remand to afford defendant
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an opportunity to withdraw her guilty plea, which was based on the illegally
obtained evidence, and have the judgment of conviction vacated.
Reversed and remanded for proceedings consistent with this opinion. We
do not retain jurisdiction.
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