STATE OF NEW JERSEY VS. MAURICE ROBINSON (14-09-0949 AND 17-10-0746, 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NOT FOR PUBLICATION WITHOUT THE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-0201-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAURICE ROBINSON,
Defendant-Appellant.
___________________________
Submitted January 12, 2021 — Decided January 25, 2021
Before Judges Mawla and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Accusation No. 14-09-0949
and Indictment No. 17-10-0746.
Joseph E. Krakora, Public Defender, attorney for
appellant (Morgan A. Birck, Assistant Deputy Public
Defender, of counsel and on the briefs).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Albert Cernadas, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
After his motion to suppress the physical evidence seized following a
motor vehicle stop was denied, defendant Maurice Robinson pled guilty to
second-degree unlawful possession of a handgun without a permit, N.J.S.A.
2C:39-5(b)(1), and violation of probation, N.J.S.A. 2C:45-3. Defendant was
sentenced to a five-year custodial term subject to a forty-two-month period of
parole ineligibility. We affirm the convictions and remand for correction of the
sentence to reflect certain jail credits.
We take the following facts from the record of the motion to suppress. In
August 2017, defendant rode in the front passenger seat of a vehicle operated by
another individual. Linden patrol officer, Daniel Araque, stopped the vehicle
for having heavily tinted front windows. Araque approached the vehicle on the
passenger side where there was a curb and asked the driver for his license and
registration. Defendant was smoking a Black & Mild cigar, which Araque asked
him to extinguish. Araque smelled a "strong odor of marijuana coming from
inside the vehicle" and observed defendant "shaking and breathing rapidly and
deeply." Backup units arrived while Araque was conversing with the driver, so
he asked the driver to step out and go to the rear of the vehicle because defendant
kept talking over the driver as he was answering Araque's questions. As Araque
conversed with the driver at the rear of the vehicle, defendant remained in the
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car and spoke with another officer who informed Araque defendant was nervous,
sweating, and shaking.
Araque returned to the vehicle and noticed "two Blunt Effect sprays, . . .
some . . . loose cigar wrappings and Dutch guts" on the driver's side. Araque
asked the driver "[w]hen's the last time you smoked weed in a car?" The driver
responded "[i]t's been a minute" and gestured to another police officer , stating
it was when that officer pulled him over. Araque searched the driver but found
no marijuana. He sat the driver on the curb and "signaled for the officer talking
with [defendant] to take him out of the car." As he began to search defendant
for marijuana, Araque asked defendant if he had any weapons, defendant
responded affirmatively. Araque "simultaneously fe[lt] the grip of a handgun
on [defendant's] front waistband" and with the assistance of another officer
grabbed control of defendant's hand, arrested him, and removed the gun. No
marijuana was recovered from the vehicle or either occupant.
Following the presentation of Araque's testimony and the evidence,
including bodycam footage, defendant argued police lacked a basis to order him
out of the vehicle. He alleged the pat down and warrantless search of the gun
was unconstitutional because he disputed there was a smell of marijuana
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emanating from the vehicle, and even if there was such an odor, it did not
provide probable cause to search and seize the gun.
On June 21, 2018, the motion judge issued a comprehensive written
opinion denying defendant's motion. The judge found the vehicle stop lawful
due to the front tinted windows constituting a motor vehicle infraction. N.J.S.A.
39:3-75.
The judge found Araque's testimony about the facts following the stop
credible. The judge noted Araque, a five-year veteran of Linden Police
Department,
presented as comfortable, and familiar with the facts of
the case and carefully but succinctly [testified]. . . . On
occasion, . . . Araque candidly conceded he could not
remember certain details of the stop, particularly
whether he smelled raw or burnt marijuana. [He] told
the [c]ourt he could not distinguish whether it was raw
or burnt marijuana, but that he did remember smelling
marijuana, which is something he told [d]efendant.
The judge stated: "Having risen to the level of an investigatory stop once
. . . Araque smelled marijuana, . . . Araque lawfully ordered [d]efendant out of
the vehicle and then frisked him. This is all the probable cause necessary for
law enforcement to search [d]efendant." He further stated:
In addition to smelling the odor of marijuana, . . .
Araque also saw tobacco wrappings on the floor, a can
of 'blunt effects' deodorizer, and observed [d]efendant
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smoking a [B]lack [& M]il[d]. . . . Araque testified that
the tobacco wrapping on the ground appeared to be the
result of hollowing out a cigar to smoke marijuana, and
that the blunt effect spray, and [B]lack [& M]il[d] are
commonly used to the mask the odor of marijuana.
These items, in conjunction with the odor of marijuana
that . . . Araque actively smelled, led [him] to believe
that a crime was recently, or in the process of being
committed.
The judge found defendant's argument the search was invalid because
Araque could not recall whether he smelled raw or burnt marijuana did not
determine the outcome because "[t]he detection of either odor provides an
officer with probable cause because both the possession and/or use of marijuana
is illegal." The judge concluded the totality of the circumstances gave rise to
probable cause to conduct the warrantless search of defendant's person.
Defendant raises the following points on appeal:
POINT I – THERE WAS NO PROBABLE CAUSE TO
SEARCH THE DEFENDANT, VIOLATING THE
DEFENDANT'S NEW JERSEY AND FEDERAL
CONSTITUTIONAL RIGHTS AGAINST
UNREASONABLE SEARCHES AND SEIZURES.
THE GUN SHOULD BE SUPPRESSED.
A. There was no probable cause to search
[defendant].
B. The smell of marijuana is no longer
adequate to provide probable cause.
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POINT II – THE JUDGMENT OF CONVICTION
SHOULD BE AMENDED TO REFLECT THAT JAIL
CREDITS APPLY TO THE SENTENCE ON
DEFENDANT'S VIOLATION OF PROBATION.
"[A]n appellate court reviewing a motion to suppress must uphold factual
findings underlying the trial court's decision so long as those findings are
'supported by sufficient credible evidence in the record.'" State v. Elders, 192
N.J. 224, 243 (2007) (citing State v. Locurto, 157 N.J. 463, 474 (1999)).
Deference should be given "'to those findings of the trial judge which are
substantially influenced by his [or her] opportunity to hear and see the witnesses
and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Id. at
244 (citing State v. Johnson, 42 N.J. 146, 161 (1964)). "A trial court's findings
should be disturbed only if they are so clearly mistaken 'that the interests of
justice demand intervention and correction.'" Ibid. (citing Johnson, 42 N.J. at
161).
The Fourth Amendment of the U.S. Constitution and Article I, Paragraph
7 of the N.J. Constitution protects against unreasonable governmental searches
and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ⁋ 7. "A warrantless
search is presumed invalid unless it falls within one of the recognized exceptions
to the warrant requirement." State v. Gamble, 218 N.J. 412, 425 (2014) (citing
State v. Cooke, 163 N.J. 657, 664 (2000)). To validate a warrantless search, the
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State bears the burden of proving it "[falls] within one of the few well-delineated
exceptions to the warrant requirement." State v. Johnson, 193 N.J. 528, 553
(2008) (quoting State v. Pinerio, 181 N.J. 13, 19-20 (2004)).
Vehicle searches are valid without a warrant "under the 'automobile
exception' on the basis of probable cause." Gamble, 218 N.J. at 426 (citing State
v. Pierce, 136 N.J. 184, 205 (1994)). Probable cause "requires nothing more
than a 'practical, common-sense decision whether, given all the circumstances
. . . there is a fair probability that contraband or evidence of a crime will be
found in a particular place.'" State v. Johnson, 171 N.J. 192, 214 (2002)
(alteration in original) (quoting State v. Demeter, 124 N.J. 374, 380-81 (1991)).
"[I]n determining the reasonableness of actions taken by [an officer] under the
Fourth Amendment and the New Jersey Constitution, consideration must be
given 'to the specific reasonable inferences which he is entitled to draw from the
facts in light of his experience.'" Id. at 215 (citing Terry v. Ohio, 392 U.S. 1,
27 (1968)).
"'New Jersey courts have [long] 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. Myers, 442 N.J.
Super. 287, 295-96 (App. Div. 2015) (alterations in original) (quoting State v.
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Walker, 213 N.J. 281, 290 (2013)). It has been "'repeatedly recognized that . . .
the smell of burning marijuana establishes probable cause that there is
contraband in the immediate vicinity and that a criminal offense is being
committed,' and that the detection of that smell satisfies the probable -cause
requirement.'" Id. at 296 (alterations in original) (quoting Walker, 213 N.J. at
287-88). "'[A] strong odor is [not] required'; detection of the 'characteristic'
'smell of burnt marijuana, by a trained and experienced [police officer],
emanating from the passenger compartment of a legally stopped motor vehicle,
created probable cause to believe that a violation of law had been or was being
committed.'" Id. at 297 (second alteration in original) (quoting State v. Judge,
275 N.J. Super 194, 197 (App. Div. 1994)). Therefore, the smell of burnt
marijuana gives "probable cause to conduct a warrantless search of the persons
in the immediate area from where the smell has emanated." State v. Vanderveer,
285 N.J. Super. 475, 481 (App. Div. 1995).
We have no reason to second guess the motion judge's findings relating to
the credibility of Araque's testimony that he smelled the odor of marijuana when
he approached the passenger side of the vehicle where defendant sat. This, in
addition to Araque's observation of items evidencing marijuana use, provided
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probable cause to search the driver. When that search did not yield marijuana,
it was logical to search defendant.
As the motion judge noted, Araque's inability to recall whether the odor
was of raw or burnt marijuana had no legal bearing on the probable cause issue.
In Judge, 275 N.J. Super. at 201, we held:
[A]n odor of unburned marijuana creates an inference
that marijuana is physically present in the vehicle. An
odor of burnt marijuana creates an inference that
marijuana is not only physically present in the vehicle,
but that some of it has been smoked recently. . . . To
be sure, possession and/or use of marijuana in this State
. . . is illegal.
For these reasons, there was probable cause for the warrantless search of
defendant's person and the judge properly declined to suppress the evidence of
the unlawful weapon.
Finally, defendant asserts "[t]rial counsel asked the court to ensure
[defendant] received [sixty-four] days of jail credit on his plea to a violation of
probation" yet, "the filed Judgment of Conviction [JOC] . . . only grant[ed him]
394 days of credit, and does not include all of the additional [sixty-four] days."
Defendant explains
the amount reflects [twenty-six] days [defendant] was
incarcerated in 2014 after the initial arrest on the
accusation plus 368 days he was incarcerated in 2017
and 2018 after his most recent arrest. . . . The [JOC] is
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still missing credits for [thirty-eight] additional days
[defendant] spent in jail from September 23, 2015 to
October 30, 2015, on a previous violation of probation.
Defendant asserts the JOC "should be amended to include this [thirty-eight]-day
time period[.]"
The State concedes this point. Moreover, during defendant's sentencing
hearing, the judge accepted defendant's request for an additional sixty-four days
of jail credit. However, the JOC does not reflect the credit. Therefore, we
remand for the matter for correction of the JOC to reflect jail credit totaling 432
days. R. 3:21-8(a).
Affirmed in part and remanded in part. We do not retain jurisdiction.
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