STATE OF NEW JERSEY VS. BORN I. GRAHAM (14-10-1522, BERGEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4697-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BORN I. GRAHAM, a/k/a
BORN ISLA GRAHAM,
Defendant-Appellant.
_________________________
Submitted September 24, 2019 - Decided November 21, 2019
Before Judges Accurso and Rose.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Indictment No. 14-10-
1522.
Alan Dexter Bowman, attorney for appellant.
Mark Musella, Bergen County Prosecutor, attorney for
respondent (Ian C. Kennedy, Assistant Prosecutor, of
counsel and on the brief; Catherine A. Foddai, Legal
Assistant, on the brief).
PER CURIAM
Following the denial of his motion to suppress evidence seized in a
warrantless search, defendant Born I. Graham was found guilty by a jury of
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-
degree transportation of a large capacity ammunition magazine, N.J.S.A.
2C:39-9(h); and a second-degree certain persons offense, N.J.S.A. 2C:39-7(b).
Defendant appeals from the denial of his motion to suppress the gun and
magazine found in his car. 1 Finding no basis to disturb Judge Foti's factual
findings or legal conclusions, we affirm defendant's conviction.
The arresting officer testified at the suppression hearing that he stopped
defendant's car in Paramus late one evening in March 2014 because it had a
1
Defendant has not appealed his sentence. The State notes, however, that the
sentences imposed on the unlawful possession and certain persons convictions
are inconsistent with the code. Defendant was sentenced on the unlawful
possession charge to seven years in State prison, five of which are to be served
without eligibility for parole, although the maximum parole ineligibility period
is forty-two months. See N.J.S.A. 2C:43-6(c). On the certain persons offense,
the court sentenced defendant to five years in State prison with a forty-two
month parole ineligibility term, although the minimum term imposed by statute
is five years, "during which the defendant shall be ineligible for parole."
N.J.S.A. 2C:39-7(b)(1).
The State contends "[i]t is clear" the judge "merely imposed the
sentences on the wrong count" and seeks a remand to amend the judgment of
conviction to reflect what it believes was the judge's intent. As the sentences
imposed on those counts are illegal, we will effect a limited remand to allow
correction of the sentences in conformance with the code, based on the record
at the prior sentencing. See State v. Randolph, 210 N.J. 330, 352 (2012).
A-4697-17T2
2
broken headlight and tinted front windows. When defendant rolled down one
of those windows, the officer smelled a strong odor of raw marijuana and saw
air fresheners clipped to the vents and an aerosol can of air freshener between
the driver's seat and the center console. The officer testified defendant was
"very short and dismissive" in responding to questions.
After reviewing defendant's driving credentials, the officer returned to
his patrol car to ask dispatch to run a warrant check on defendant. While
awaiting those results, the officer asked defendant to step out of the car to
further investigate the marijuana smell. The officer noted defendant's
increased nervousness, and when he "kept putting his hands in his pockets,"
the officer patted defendant down, as he testified, for his own safety.
After learning from dispatch that defendant had no outstanding warrants
but several prior drug convictions, the officer asked defendant for consent to
search his car. Defendant refused, and the officer asked dispatch to send a
canine unit. After the dog and his handler arrived ten or fifteen minutes later,
the dog "hit" on two locations on the outside of the car. The officer issued
defendant two summonses, impounded the car and applied for a search warrant
detailing the facts we've noted here. Defendant got a ride home with a friend.
Following issuance of the warrant, police discovered a loaded Glock in the
A-4697-17T2
3
center console, the high capacity magazine, and a black ski mask. Police did
not find marijuana or any other drugs in the car.
Defendant's counsel cross-examined the arresting officer extensively
about his experience in the police academy and on the job in smelling raw
marijuana. Although the officer testified he could not recall how many of his
fifty prior drug arrests had involved raw marijuana, he was confident it was
marijuana he smelled even though none was discovered in the car during the
warrant search.
The State also presented the testimony of the dog handler, Sheriff's
Officer Robert Mantone. The officer explained he had worked as part of the
canine unit for two years prior to the search of defendant's car. Both Officer
Mantone and his dog, Mike, attended the Union County Sheriff's Department
canine training program, receiving certifications for patrol and narcotics in
2012. Those certifications, as well as two positive evaluations from in-service
trainings, both just weeks before this stop, were admitted in evidence.
On cross-examination, defense counsel established that Officer Mantone
believed it was not possible to induce a "false alert" in a drug detection dog
and thought Mike was "perfect" in his ability to detect the odor of marijuana or
narcotics, asserting the dog had never alerted in an actual search when
A-4697-17T2
4
narcotics were not found. When told the State stipulated no marijuana was
found in defendant's car, notwithstanding Mike's alert, Officer Mantone
testified that if his "dog alerts, there is the presence of the odor of narcotics if
there's physically drugs there or not when the dog indicates there's an odor of
narcotics." Defense counsel also established that Officer Mantone did not
have any deployment records for Mike detailing the number of field sniffs he
had performed, including any comparison of the dog's positive indications to
"finds." Accordingly, the State could offer no proof as to how effective Mike
was at detecting the presence of drugs on patrol.
Defendant presented the testimony of Andre Brian Jimenez, an expert in
the training, supervision, deployment and handling of narcotics detection dogs.
Jimenez testified Mike's training records did not provide enough information
to permit him to provide an opinion as to the adequacy of the dog's training.
He testified no drug detection dog was "perfect," and the best were only
accurate seventy to eighty percent of the time in laboratory conditions. He
also testified that handlers can easily and inadvertently induce a false alert, and
thus must be trained to be conscious of and combat any tendency to
subconsciously influence their dogs to alert.
A-4697-17T2
5
Jimenez was critical of Mantone for not recognizing the potential to
induce a false alert in his dog and in his belief that his dog was one hundred
percent accurate, especially given his failure to maintain accurate deployment
records. He testified Mantone was obviously not adequately trained, and the
records for Mike did not comply with the Attorney General's K-9 Guidelines.
Jimenez was also critical of the police's failure to have a dog re-sniff the car
when the search warrant did not turn up any drugs. He claimed that step
should always be taken as a matter of course when drugs are not discovered
after an alert. Doing so might reveal a hidden compartment in the car and
would also assist the handler in ascertaining why the dog alerted when no
drugs were found. In response to a question from the court, Jimenez
acknowledged it was, "of course," possible for an officer to detect the smell of
raw marijuana.
On cross-examination, the assistant prosecutor established Jimenez had
no proof that Mantone had intentionally manipulated Mike to alert in this case.
Although agreeing with the assistant prosecutor that dogs are not trained to
find drugs, but only to detect the odor of drugs, and that the odor of drugs can
persist after drugs are removed, and thus that the failure to find drugs "doesn't
mean that the dog didn't properly hit," Jimenez continued to insist the failure
A-4697-17T2
6
to find drugs here was fatal because there was no corroboration for Mike's
alert. He rejected the arresting officer's report of smelling raw marijuana as
irrelevant, deeming it insufficient to constitute corroboration for the "hit."
Jimenez admitted there was no requirement that deployment records be
maintained, although he argued it had been standard practice for over thirty
years. Jimenez conceded the only discrepancy between Mike's records and the
A.G. Guidelines was the failure of certain supervisory signatures and
identifying information in the dog's daily training reports. Jimenez
acknowledged the dog's required certifications were properly signed and
otherwise in order.
In a comprehensive twenty-eight page written opinion, Judge Foti
summarized the testimony of the arresting officer, the dog handler and
defendant's expert, addressed the case law relied on by the defense, and
methodically stepped through each event from the officer's reasonable
suspicion for the stop, his pat down of defendant, and his ordering of the
canine sniff, to the probable cause for issuance of the search warrant for
defendant's car. The judge next proceeded to analyze whether the State had
sufficiently established the dog's reliability under Florida v. Harris, 568 U.S.
237, 246-47 (2013), to support probable cause for the issuance of the warrant
A-4697-17T2
7
under State v. Sullivan, 169 N.J. 204, 210-12 (2001). Applying the law to the
facts she found, based on the testimony she deemed credible, Judge Foti
concluded the officers' actions did not transgress the Fourth Amendment and
accordingly denied defendant's motion to suppress the evidence obtained
pursuant to the search warrant.
Specifically, Judge Foti found defendant's broken headlight and tinted
windows, both of which he conceded, provided the arresting officer
reasonable, articulable suspicion for the stop. See State v. Scriven, 226 N.J.
20, 33-35 (2016). The judge found the officer a good, credible witness, who
answered questions on direct and cross-examination forthrightly and without
hesitation. Accepting the officer's testimony that he had both the training and
experience to identify the odor of raw marijuana, which emanated from
defendant's car when he rolled down the window to speak to the officer,
coupled with the multiple air fresheners he saw, defendant's nervousness and
his curt and dismissive manner, Judge Foti found the totality of circumstances
supported both defendant's continued detention to investigate the marijuana
smell, see State v. Dunbar, 229 N.J. 521, 540 (2017), and defendant's pat
down, see State v. Privott, 203 N.J. 16, 26 (2010).
A-4697-17T2
8
Finally, Judge Foti found based on the arresting officer's testimony and
his affidavit supporting the search warrant that there was probable cause for
issuance of the warrant. See Sullivan, 169 N.J. at 210-12. Specifically, the
judge noted the officer cited four "key reasons" for the search of defendant's
car: 1) the odor of marijuana, 2) defendant's demeanor, 3) the air fresheners
and aerosol can, and 4) Mike's positive alert to drugs. The judge found the
first three were well within the arresting officer's ken and because the State
satisfied the Harris factors, namely that canine Mike was certified by a bona
fide organization and had "recently and successfully completed a training
program that evaluated his proficiency in locating drugs," Harris, 568 U.S. at
247, the officer's testimony and the dog sniff established probable cause for
issuance of the search warrant.
The judge addressed and rejected defendant's contention that the
arresting officer falsely testified to the odor of raw marijuana in order to
escalate the car stop. The judge reiterated she believed the officer's testimony
that he knew the smell of raw marijuana, which even defendant's expert
testified was distinct, and recognized it wafting from defendant's window.
Judge Foti accepted the defense expert's testimony that no dog could
accurately detect the odor of drugs one hundred percent of the time and found
A-4697-17T2
9
Officer Mantone's testimony that Mike was "perfect" incredible. She also
agreed with the expert that police should have arranged a second sniff when
they were executing the warrant. Nevertheless, she found those flaws and "any
record keeping deficiencies" as to canine Mike "not fatal" to the State's case
because neither impugned the dog's certifications and recent successful
reevaluations.
The judge found no evidence in the record to support the defense
expert's assertion that Officer Mantone either deliberately or unintentionally
cued the dog to falsely alert. Although finding defendant's expert clearly
knowledgeable about the training and deployment of drug detection dogs, the
judge found the expert abandoned his role on critical points. Specifically,
Judge Foti found the expert's unwillingness to acknowledge that the arresting
officer having smelled raw marijuana was corroborative of the dog's alert and
the expert's insistence that the failure to have found marijuana here was
conclusive proof the dog falsely alerted, despite testifying that a well-trained
drug dog could detect the odor even after the drugs were moved, amounted to
no more than advocacy on behalf of defendant. She accordingly rejected those
aspects of the expert's testimony as incredible.
A-4697-17T2
10
Finally, the judge rejected defendant's contention "that the entire case
was pretextual or mistaken because the police failed to find any narcotics."
The judge noted that "[p]robable cause exists if at the time of the police action
there is 'a "well grounded" suspicion that a crime has been or is being
committed.'" Sullivan, 169 N.J. at 211 (emphasis added) (quoting State v.
Waltz, 61 N.J. 83, 87 (1972)). That marijuana was not ultimately discovered
in defendant's car despite the officer smelling it and the dog alerting to it, does
not invalidate the officer's probable cause to suspect it was there. The judge
found "[t]here is simply no evidence in the record to support a finding that the
police fabricated the evidence which forms the basis for the search warrant in
this case."
Defendant appeals, raising one issue:
THE COURT ERRED IN DENYING APPELLANT'S
MOTION TO SUPPRESS EVIDENCE SEIZED
PURSUANT TO A CONSTITUTIONALLY INFIRM
SEARCH.
Specifically, defendant contends that "[a]t no time did the police officer detect
an odor of marijuana nor were answers to questions uttered by [him] short and
dismissive." Defendant maintains the court denied his suppression motion
"despite the clear evidence that the alleged odor of marijuana was fabricated to
underpin a K-9 sniff; the required training records were not maintained, and
A-4697-17T2
11
neither the K-9 nor its handler were properly trained, and no form of CDS was
found in the vehicle during the illegal search."
We reject his arguments as without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2). Defendant does no more than challenge
the trial judge's credibility findings, which we are in no position to second-
guess. See State v. Elders, 192 N.J. 224, 243 (2007). We are obligated to
"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). Deference "is required because
those findings 'are substantially influenced by [an] opportunity to hear and see
the witnesses and to have the "feel" of the case, which a reviewing court
cannot enjoy.'" Id. at 424-25 (quoting State v. Johnson, 42 N.J. 146, 161
(1964)).
Because Judge Foti's findings are amply supported by the record, and her
finding that the arresting officer credibly testified he smelled raw marijuana in
defendant's car would itself support a finding of probable cause sufficient to
support the search warrant without the dog sniff, see State v. Nishina, 175 N.J.
502, 515-16 (2003), we affirm the denial of defendant's suppression motion,
and his conviction, essentially for the reasons she expressed in her opinion of
A-4697-17T2
12
July 11, 2016. We remand for the limited purpose of correction of the
sentences in conformance with the code, based on the record at the prior
sentencing.
Affirmed and remanded. We do not retain jurisdiction.
A-4697-17T2
13