STATE OF NEW JERSEY VS. CLAUDE L. WALLACE (17-06-0425 AND 17-06-0426, UNION 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NOT FOR PUBLICATION WITHOUT THE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-1479-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CLAUDE L. WALLACE,
Defendant-Appellant.
________________________
Argued November 29, 2021 – Decided December 13, 2021
Before Judges Sabatino and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment Nos. 17-06-0425
and 17-06-0426.
Robert Carter Pierce argued the cause for appellant.
Milton S. Leibowitz, Assistant Prosecutor, argued the
cause for respondent (William A. Daniel, Union County
Prosecutor, attorney; Milton S. Liebowitz, of counsel
and on the brief).
PER CURIAM
After the trial court denied his motion to suppress a firearm police seized
from him during a traffic stop, defendant Claude L. Wallace pled guilty to
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1). The
trial court sentenced him to a five-year custodial term, subject to a forty-two-
month parole ineligibility period.
Pursuant to Rule 3:5-7(d), defendant appeals the suppression denial. He
argues that under search-and-seizure case law, the police were not entitled to
seize the handgun without a warrant in the circumstances presented. As a related
argument, defendant asserts the trial court erred in disallowing him from calling
an additional police officer as a witness at the suppression hearing. We affirm.
I.
The following facts germane to these issues emerged at the suppression
hearing.
On February 1, 2017, defendant was driving his Nissan Murano and ran a
red light at the intersection of Lincoln Drive and Boulevard in Kenilworth. He
was pulled over by Sergeant Michael Scanielo of the Kenilworth Police
Department. Before approaching defendant's car, Sergeant Scanielo searched a
computer database and learned that defendant's vehicle registration was expired.
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The sergeant walked to the passenger side door of defendant's car and
spent four to five minutes speaking with him. 1 According to the sergeant's
testimony, he told defendant he smelled "raw marijuana," and defendant
responded his girlfriend had smoked marijuana in the car earlier. The sergeant
told defendant the smell gave him probable cause to conduct a search of the car.
The sergeant walked around the back of the car to get to the driver's side.
As described by the sergeant, defendant then reached into the center console of
his vehicle, grabbed an "object," then opened the door and fled. The sergeant
and Patrolman Ryan Kernan, who was also at the scene, ran after defendant,
tackled him, and apprehended him. During a search of defendant's person and
the immediate area, the officers recovered and seized a Ruger LCP .380 caliber
handgun.
A subsequent inventory search of the car at the roadside by Officer
Matthew Torre uncovered in the center console a closed plastic cannister
1
Much of the sequence of events was filmed from a police "dash-cam" mobile
video recorder, which was provided to the trial court before the suppression
hearing. At our request, appellate counsel supplied this video exhibit and we
have viewed it as part of our consideration of the issues.
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containing four small bags of marijuana. 2 The canister was eventually lost while
in police custody.
Defendant was thereafter charged with second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b)(1); fourth-degree prohibited
weapons and devices, N.J.S.A. 2C:39-3(f)(2); and third-degree resisting arrest
and eluding an officer, N.J.S.A. 2C:29-2(a)(2).
Defendant moved to suppress the gun, arguing that the police's warrantless
seizure of that evidence violated both the Fourth Amendment of the United
States Constitution as well as the New Jersey Constitution. Although he did not
contest the legality of the initial traffic stop, defendant argued the police had no
probable cause to search the car, and that it was improper for the sergeant to tell
him he had the grounds to conduct such a search. As part of that argument,
defendant contended it was physically impossible for the sergeant to have
smelled raw marijuana emanating from the car, because the only marijuana
2
The video includes about four seconds of footage in which Officer Torre
appears to be carrying the plastic container out of the car and walking away with
it. The confiscation of the container is also noted in Officer Torre's
supplemental investigation report, which was part of the submissions to the
motion judge. See State v. Bacome, 440. N.J. Super. 228, 239-40 (App. Div.
2015), rev'd on other grounds, 228 N.J. 94 (2017) (allowing hearsay evidence to
be considered by the court in connection with pretrial admissibility hearings);
see also Manata v. Pereira, 436 N.J. Super. 330, 345 (App. Div. 2014) (applying
the hearsay exceptions for business records and public records to police reports).
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present was packed away in the closed plastic container in the console.
Defendant further argued the police unreasonably prolonged the traffic stop and
thereby infringed unduly on his freedom of movement.3
The State, in turn, argued that probable cause was supported by the
sergeant's testimony recounting the "plain smell" of marijuana when he
approached the car. Moreover, regardless of whether probable cause of a
marijuana offense existed, defendant had no right to flee from the car, let alone
while carrying a handgun. Because of that unauthorized flight during a motor
vehicle stop, the police had the authority to apprehend defendant and to search
his person incident to that arrest. The State further asserted the police, upon
arresting defendant, were justified in searching the interior of the car pursuant
to State v. Witt, 223 N.J. 409, 447-48 (2015).
The motion judge considered the testimony of Sergeant Scanielo at the
suppression hearing and found his account to be credible. In his oral opinion
dated January 21, 2020, the judge concluded that the sergeant's smelling of
marijuana constituted probable cause to permit him to conduct a search of the
car, but that defendant's flight prevented him from being able to do so. The
3
Responding to an argument made by defendant's trial counsel, the judge found
no racial issue of consequence in the case.
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judge found "there was no search conducted [] until after Mr. Wallace ran from
his vehicle, was apprehended, and found with a gun" and that the defense's
argument would be stronger if Wallace had "remained in the – in the car and
[the officers] then searched the vehicle and found the marijuana and then he
[ran]."
The motion judge declined to allow defendant to call Officer Torre as a
witness at the hearing. Defendant proffered that Officer Torre would
corroborate that an odor of marijuana could not have been detected through the
what his counsel characterized as an "air-tight" plastic container, and therefore
the sergeant's assertion that he smelled marijuana was untruthful. The judge
discerned no need for Officer Torre's testimony, noting the court already had his
written report describing how the marijuana was packaged when he discovered
it in defendant's car. In addition, the judge had the sergeant's testimony
providing an alternative source of the marijuana odor, i.e., defendant's statement
that his girlfriend had smoked marijuana in the car at an earlier time.
After losing the suppression motion, defendant entered into a plea
agreement with the State admitting his guilt of the second-degree weapons
offense. The remaining charges were dismissed pursuant to the agreement. The
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sentence imposed by the court was consistent with the plea agreement, and it is
not challenged on appeal.
II.
On appeal, defendant presents the following arguments in his brief:
POINT I:
THE TRIAL COURT DEPRIVED MR. WALLACE OF
HIS DUE PROCESS AND COMPULSORY PROCESS
CONSTITUTIONAL RIGHTS BY ORDERING THAT
MR. WALLACE WAS PROHIBITED FROM
CALLING OFFICER TORRE AS A DEFENSE
WITNESS AT THE SUPPRESSION HEARING, WHO
WOULD HAVE PRESENTED EVIDENCE AND
TESTIMONY THAT THE PLAIN SMELL
EXCEPTION TO THE WARRANT REQUIREMENT
WAS NOT APPLICABLE.
POINT II:
THE TRIAL COURT ERRED BY RULING THAT
THE STATE HAD MET THEIR BURDEN OF PROOF
THAT THE "SEARCH INCIDENT TO ARREST"
EXCEPTION TO THE WARRANT REQUIREMENT
WAS ESTABLISHED.
In considering these arguments on appeal, we adhere to well settled
principles. We must sustain a trial court's factual findings from a suppression
hearing, so long as they are supported by sufficient credible evidence in the
record. State v. Nelson, 237 N.J. 540, 551 (2019). That said, a trial court's
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interpretation of the law and the legal "consequences that flow from established
facts" are reviewed de novo. State v. Gamble, 218 N.J. 412, 425 (2014).
Analytically, the first issue to address is whether the recovery of the gun
incidental to defendant's arrest after fleeing from the car stop was constitutional,
regardless of any events that preceded it. It is well established that law
enforcement officials may conduct a warrantless search of a person incident to
that person's arrest if there was probable cause to arrest that person before the
search. See Chimel v. California, 395 U.S. 752, 762-63 (1969). Probable cause
to arrest exists when the totality of the facts and circumstances presented to the
arresting officer would support "a [person] of reasonable caution in the belief
that an offense has been or is being committed." State v. Sims, 75 N.J. 337, 354
(1978) (quoting Draper v. United States, 358 U.S. 307, 313 (1959)).
In this case, the police witnessed defendant flee from a concededly lawful
motor vehicle stop before it was duly completed. Even if a person thinks, and a
court later concludes, that police officers have no right to detain or search the
driver, the law prohibits the driver from disregarding the police fleeing from the
officers before, while, or after the officers complete their investigatory
functions. See, e.g., State v. Williams, 192 N.J. 1, 11-13 (2007) (discussing the
obstructing administration of law statute, N.J.S.A. 2C:29-1); State v. Crawley,
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187 N.J. 443, 460-62 (2006) (same); State v. Seymour, 289 N.J. Super. 80, 87
(App. Div. 1996) (discussing the resisting arrest and eluding an officer statute,
N.J.S.A. 2C:29-2).
An officer's first-hand observation of a criminal act constitutes probable
cause for the purposes of arresting the offender. See Maryland v. Pringle, 540
U.S. 366, 371-72 (2003); State v. O'Neal, 190 N.J. 601, 613 (2007). Because
the officers in this case witnessed defendant violate numerous statutes by fleeing
from the roadside stop, they had probable cause to arrest defendant and perform
a search incident to the arrest.
A search incident to arrest cannot exceed the arrestee's person and the area
"within his immediate control." Chimel, 395 U.S. at 763. Here, the gun was
recovered from underneath defendant after he was tackled to the ground, clearly
"within his area of immediate control" from which he could possibly use it
against the officers. This is the precise justification for the search incident to
arrest rule. Id. at 762-63. For these reasons, the search incident to arrest which
resulted in the confiscation of the gun was manifestly constitutional.
Defendant argues the events that preceded his arrest were unconstitutional
and thereby tainted the constitutionality of the events that followed. To be sure,
an otherwise-constitutional arrest or recovery of evidence may, at times, be
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deemed unconstitutional if it is preceded by constitutional violations. See, e.g.,
State v. Chisum, 236 N.J. 530, 551 (2019); State v. Rodriguez, 172 N.J. 117,
132-33 (2002). The arrest may be invalidated and the evidence may be
suppressed, unless one of the exceptions to the exclusionary rule applies. State
v. Badessa, 185 N.J. 303, 311 (2005) (referencing Wong Sun v. United States,
371 U.S. 471, 485 (1963)).
As we have noted, defendant fled from what began as a constitutional stop,
based on the sergeant's reasonable suspicion that he had committed a traffic
violation. State v. Carty, 170 N.J. 632, 647, modified on other grounds, 174
N.J. 351 (2002).
Defendant further argues the police unconstitutionally prolonged the
motor vehicle stop by conversing with him for a period of less than five minutes.
We are unpersuaded that such a brief passage of time amounted to an
unreasonable restriction on his freedom of movement. The police were entitled
to take at least that modest amount of time to investigate defendant's driving and
expired license violations before issuing him the corresponding traffic tickets.
It is clear such reasonable suspicion existed and the stop was valid. Even
so, defendant contends the sergeant's alleged detection of the odor of marijuana
coming from the car, during the course of that valid stop, was patently false.
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Consequently, he argues the sergeant's proclamation that he had a right to search
the car based on the "plain smell" of marijuana was pretextual, thereby making
the ensuing search of his person unconstitutional.
As of the time this motor vehicle stop occurred in 2017, a police officer's
detection of the "plain smell" of marijuana could suffice to furnish probable
cause to conduct a warrantless search of a motor vehicle. See, e.g., State v.
Nishina, 175 N.J. 502, 515-17 (2003). Since that time, the Legislature has
substantially curtailed that justification, in a statute that became effective on
February 22, 2021.4
In any event, we need not resolve for purposes of the constitutional
analysis whether the sergeant could, or could not have, smelled marijuana
emanating from the car. That is because the illegal flight of defendant from the
scene broke the chain of events and attenuated any alleged police impropriety.
4
The smell of marijuana is no longer deemed sufficient to constitute reasonable
articulable suspicion of a crime, except in limited circumstances. N.J.S.A.
2C:35-10(c). In 2021, Governor Murphy signed into law the New Jersey
Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization
Act, which, among other things, partially legalized the "possessing" and
"transporting" of small quantities of cannabis. N.J.S.A. 2C:35-10(a). Under the
new statute, the smell of marijuana alone will not be sufficient grounds for a
police officer to search a civilian's motor vehicle. N.J.S.A. 2C:35-10(c).
However, the statute's effective date in 2021 was years after the 2017 search in
this case, and defendant has not argued it applies retroactively here.
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One of the recognized exceptions to the exclusionary rule is the
attenuation doctrine. That doctrine applies when a certain (often momentous)
event occurs, or a long period of time passes, between the constitutional
violation and the recovery of the evidence, so as to conclude the "taint" of the
constitutional violation has dissipated. See State v. Herrerra, 211 N.J. 308, 330-
38 (2012).
To determine whether evidence is "attenuated" for the purpose of
introducing it against a defendant, courts must consider: "(1) the temporal
proximity between the illegal conduct and the challenged evidence; (2) the
presence of intervening circumstances; and (3) the flagrancy and purpose of the
[alleged] police misconduct." Id. at 331 (quoting State v. Johnson, 118 N.J. 639,
653 (1990)).
A defendant's attack upon or flight from a law enforcement officer
constitutes an intervening circumstance that can make alleged earlier
constitutional violations sufficiently attenuated from the recovery of the
challenged evidence. See, e.g., id. at 336-37 (deeming defendant's violent attack
upon a police officer who pulled him over and ordered him out of the car an
intervening circumstance that dissipated the taint of any possible illegality of
the original stop); Williams, 192 N.J. at 10 (finding defendant's resistance and
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flight from an officer after he was stopped on the street purged the taint of any
unconstitutional stop, and attenuated the post-flight recovery of a gun on his
person).
Defendant's sudden flight from the police, who had yet to complete his
motor vehicle stop and issue traffic tickets, was a quintessential superseding
event for the purposes of the attenuation doctrine. It severed the link between
any alleged preceding unconstitutional conduct and the later recovery of the gun
during the search incident to arrest.
Although the temporal proximity of the events was certainly close, the
abrupt flight of defendant—armed with a handgun that could have harmed the
officers—was a momentous, intervening circumstance that satisfies the
attenuation doctrine. In addition, we are unpersuaded that the alleged
impossibility that the sergeant could have smelled marijuana—even if it had
been proven, contrary to the trial judge's factual findings—was sufficiently
flagrant to delegitimatize the officer's pursuit and apprehension of the fleeing
defendant and the confiscation of his weapon. We also note that the key focus
of the motion in this case was to suppress the gun rather than the marijuana
found in the car.
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We do not take lightly defendant's concern that he may have been the
object of racial stereotyping, and take note of his brief's generic allusion to
"nationwide civil unrest over police-community relations." But the record in
this case, at least as it was developed in the trial court, lacks an adequate
evidential basis and particularized findings to compel relief on those exceptional
grounds.5
In sum, the officers' warrantless seizure of defendant's handgun under the
circumstances presented here was constitutional. We affirm the trial court's
decision, albeit for slightly different reasons than the judge articulated. See El-
Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 169 (App. Div. 2005)
(noting "that a correct result, even if predicated on an erroneous basis in fact or
in law, will not be overturned on appeal").
5
We do, however, repudiate the suggestion made by the State at oral argument
that it can be constitutionally acceptable for a police officer to deliberately lie
to a motorist to effectuate a warrantless search of the motorist or his vehicle.
Although case law under the Fifth Amendment self-incrimination doctrine
tolerates some degree of deception during the course of a police interrogation,
see State v. L.H., 239 N.J. 22, 44 (2019), we are aware of no comparable
authority under Fourth Amendment search-and-seizure jurisprudence, and
counsel cited none. Nor do we adopt defendant's argument in his brief that the
sergeant was obligated to provide him with Miranda warnings when they were
conversing through the car window; defendant was not at that point in custo dy,
but instead was the subject of an ongoing motor vehicle stop. Miranda v.
Arizona, 384 U.S. 436, 444 (1966) (specifying warnings required for "custodial"
police interrogations).
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As a final matter, given the foregoing analysis, we are not convinced the
trial court deprived defendant of due process or abused its discretion in declining
to have Officer Torre called to the witness stand. His anticipated testimony
about the container found in the console would have had only limited relevance.
It would not refute the legitimacy of the other officers' apprehension of
defendant once he chose to run from the scene. The judge already had Officer
Torre's police report describing the cannister, albeit without commenting on its
smell, if any, as well as video footage. The court had the discretion to curtail
testimony that would be, in essence, largely, if not entirely, cumulative of that
report. N.J.R.E. 403.
Affirmed.
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