STATE OF NEW JERSEY VS. PAUL K. EUSTACHE (17-09-0685, UNION COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0726-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PAUL K. EUSTACHE,
Defendant-Appellant.
_______________________
Submitted October 7, 2020 – Decided November 10, 2020
Before Judges Alvarez and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 17-09-0685.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel Gautieri, Assistant Deputy Public
Defender, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Frank Muroski, Deputy Attorney General,
of counsel and on the brief).
PER CURIAM
Defendant Paul K. Eustache appeals his conviction of third-degree
unlawful possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b).1 Following
the denial of his motion to suppress evidence seized in a warrantless search of
his vehicle, defendant entered a conditional plea of guilty to the offense. On
August 27, 2018, pursuant to the terms of the plea agreement, the judge imposed
a prison term of five years with a three-and-a-half years' period of parole
ineligibility. See N.J.S.A. 2C:43-6(c). On appeal, defendant argues that the
smell of marijuana was a pretext to search his vehicle for other contraband.
Having reviewed the record and considering the applicable law, we affirm.
We discern the following facts from the transcript of the suppression
hearing. Officer Michael Twerdak has been a patrol officer with the Rahway
Police Department for approximately five years. Twerdak attended the police
academy where he received training on the odors of both raw and burnt
marijuana. Twerdak has also encountered raw marijuana, on approximately 100
occasions, during arrests and while assisting other officers on narcotics buys.
1
Pursuant to the plea agreement, the other charge in the indictment, first-degree
unlawful possession of a shotgun without a permit while having a prior enumerated
conviction, contrary to N.J.S.A. 2C:39-5(c) and N.J.S.A. 2C:39-5(j), was dismissed
at sentencing.
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2
On July 4, 2017, Twerdak was on patrol in a marked police vehicle. At
approximately 8:30 p.m., he was dispatched to a row of apartments in response
to a call that a white SUV had just pulled into the parking lot and the occupants
were causing a disturbance. The police had been summoned to the same address
the week before on a report of shots fired. The caller reported that "the driver
was a black male with [dreadlocks], and the passenger was also a black male
that possibly had a gun in his waistband."
Upon arrival, Twerdak saw a white Acura SUV parked approximately
twenty to twenty-five feet directly in front of Apartment No. 2. Both front
windows of the vehicle were down, and the sunroof was open. Twerdak
observed Taquan Bowden standing outside the vehicle on the driver's side. He
was familiar with Bowden as a suspect in a shooting the week before. The
officer also observed defendant, Shawntay Gastelo, and Mark Hernandez on the
porch of Apartment No. 2. Defendant matched the caller's description of the
vehicle's driver. Twerdak was familiar with defendant from prior police
encounters, and he had seen defendant driving the subject Acura SUV.
Twerdak watched Bowden walk away from the driver's side of the white
SUV, and throw something back in the direction of the front of the vehicle.
Bowden was facing towards the front driver's side of the SUV when he tossed
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3
the item, after which he headed towards the porch of Apartment No. 2. Twerdak
testified that he "was not sure where exactly this item was, if it was in the vehicle
or outside of the vehicle."
Twerdak exited his patrol car and ordered all four individuals to the rear
of the vehicle to conduct a pat down for weapons, assisted by other officers who
arrived on the scene shortly after his arrival. After conducting the pat down2
and contacting dispatch to check for outstanding warrants, Twerdak detected a
strong odor of raw marijuana that he believed was emanating from the interior
of the vehicle. Additionally, he observed fireworks in the open trunk area.
Twerdak proceeded to search the SUV beginning in the front passenger
area, including the glove box and the console. He continued to the middle row
of seats and then to the trunk. Twerdak found a ski mask, a sawed-off shotgun,
shotgun shells on the floor of the trunk under a security shade.
Even after Twerdak secured the contraband from the trunk, he still smelled
marijuana in the vehicle. He went to the middle row, but on the driver's side to
continue the search. Ultimately, he discovered a plastic bag filled with an ounce
of marijuana near the front driver's side tire. Twerdak testified that the
marijuana was "literally right under the tire, almost touching the tire." He also
2
The pat down revealed no weapons or contraband.
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testified that "it was not in plain view . . . it was not easily seen. . . I had initially
walked past it." Bowden, who had an outstanding warrant, and defendant, the
owner of the vehicle, were both placed under arrest.
Defendant filed a motion to suppress, and the judge conducted an
evidentiary hearing on January 19, 2018. In his written opinion, the judge found
Twerdak credible, as he "expressed no hesitancy in responding when he was
unsure of an answer in response to a posed question," and the judge "discerned
no animus or embellishment." The judge opined that "Twerdak had probable
cause to search the white Acura SUV upon smelling raw marijuana emanating
from the vehicle." Additionally, the search was precipitated by "unforeseeable
and spontaneous circumstances," and consequently he denied defendant's
motion. Defendant then entered the conditional negotiated guilty plea, R. 3:9-
3(f), to third-degree unlawful possession of a sawed-off shotgun, and was
sentenced accordingly.
On appeal, defendant presents the following point for our consideration:
POINT I
THE SEARCH OF EUSTACHE'S VEHICLE WAS
UNREASONABLE WHERE OFFICER TWERDAK
OBSERVED A BAG OF MARIJUANA TOSSED
TOWARD THE PARKED VEHICLE AS A PRETEXT
TO SEARCH THE VEHICLE FOR WEAPONS
BASED ON THE ODOR OF MARIJUANA WHEN
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NO EFFORT WAS MADE TO RETRIEVE THE BAG
PRIOR TO THE SEARCH.
Our review of the trial court's decision on a motion to suppress is limited.
State v. Robinson, 200 N.J. 1, 15 (2009). "An appellate court reviewing a
motion to suppress evidence in a criminal case must uphold the factual findings
underlying the trial court's decision, provided that those findings are 'supported
by sufficient credible evidence in the record.'" State v. Boone, 232 N.J. 417,
425-26 (2017) (quoting State v. Scriven, 226 N.J. 20, 40 (2016)). We do so
"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.'" State v. Gamble, 218 N.J. 412, 424-25 (2014) (alteration in
original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "The governing
principle, then, is that '[a] trial court's findings should be disturbed only if they
are so clearly mistaken that the interests of justice demand intervention and
correction.'" Robinson, 200 N.J. at 15 (alteration in original) (quoting State v.
Elders, 192 N.J. 224, 244 (2007)). "We owe no deference, however, to
conclusions of law made by trial courts in deciding suppression motions, which
we instead review de novo." State v. Brown, 456 N.J. Super. 352, 358-59 (App.
Div. 2018) (citing State v. Watts, 223 N.J. 503, 516 (2015)).
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Defendant's principal argument, both on appeal and at oral argument
below, is that Twerdak used the odor of marijuana as a pretext to search the
vehicle for a gun. Defendant argues that "police should have investigated the
apparent source of the marijuana, which was outside the vehicle, not ignored it
until after a search of the Acura had revealed the gun . . ." We disagree.
Preliminarily, "the proper inquiry for determining the constitutionality of
a search and seizure is whether the conduct of the law enforcement officer who
undertook the search was objectively reasonable, without regard to his or her
underlying motives or intent." State v. Kennedy, 247 N.J. Super. 21, 27 (App.
Div. 1991). "The fact that the officer does not have the state of mind
hypothesized by the reasons which provide the legal justification for the search
and seizure does not invalidate the action taken, so long as the circumstances,
viewed objectively, support the police conduct." Id. at 28 (citing State v.
Bruzzese, 94 N.J. 210, 220 (1983)).
The exception invoked in this case to justify the warrantless search is the
automobile exception. Officers may conduct a warrantless, nonconsensual
search during a lawful roadside stop "in situations where: (1) the police have
probable cause to believe the vehicle contains evidence of a criminal offense;
and (2) the circumstances giving rise to probable cause are unforeseeable and
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spontaneous." State v. Rodriguez, 459 N.J. Super. 13, 22 (App. Div. 2019)
(citing State v. Witt, 223 N.J. 409, 447-48 (2015)).3 "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. Walker, 213 N.J. 281, 290 (2013) (internal quotation
marks omitted) (quoting State v. Nishina, 175 N.J. 502, 516-17 (2003)); see also
State v. Myers, 442 N.J. Super. 287, 297 (App. Div. 2015) ("the smell of
marijuana itself can suffice to furnish probable cause that a criminal offense has
been committed").
Applying these principles to the case at bar, we conclude that the judge's
factual findings are amply supported by the record and his legal conclusions are
sound. See Elders, 192 N.J. at 244. In that regard, the judge found Twerdak's
testimony that he smelled a strong odor of raw marijuana emanating from the
interior of the vehicle to be credible. We agree with the judge that Twerdak's
3
"This exception applies to situations involving parked and unoccupied
vehicles encountered by police in public parking lots or on city streets as well
as to moving vehicles stopped on the open highway." State v. Martin, 87 N.J.
561, 567 (1981).
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detection of a strong odor of marijuana from the vehicle's interior gave rise to
probable cause to search the vehicle. 4 See Myers, 442 N.J. Super. at 297.
Defendant contends that "police should have investigated the apparent
source of the marijuana, which was outside the vehicle, not ignored it until after
a search of the Acura had revealed the gun . . . " We reject this argument as it
is without merit. There is nothing in the record to suggest Twerdak "ignored"
the marijuana. To the contrary, the officer testified that he "was not sure where
exactly this item was, if it was in the vehicle or outside of the vehicle."
Moreover, Twerdak stated that the marijuana was located "literally right under
the tire, almost touching the tire." He testified that "it was not in plain view . .
. it was not easily seen. . . I had initially walked past it." As the trial court aptly
observed, the role of the judiciary is not to dictate or instruct police officers as
to the specific manner or precise procedure for conducting searches, but to
ensure that individuals are protected from unreasonable searches and seizures.
U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7.
4
The State also argues that Twerdak's observation of fireworks in the trunk,
provides an alternative justification for the search of the vehicle. We need not
address this argument as the detection of a strong odor of marijuana emanating
from inside the vehicle undoubtedly gave the officer probable cause to believe
it contained evidence of a criminal offense. See Walker, 213 N.J. at 290.
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We are also satisfied that the circumstances that gave rise to probable
cause were objectively unforeseeable and unanticipated. "[T]he exigent
circumstances that justify the invocation of the automobile exception are the
unforeseeability and spontaneity of the circumstances giving rise to probable
cause[.]" State v. Alston, 88 N.J. 211, 233 (1981) (citing Chambers v. Maroney,
399 U.S. 42, 50-51 (1970)). An important consideration is whether the exigency
arose in a fluid, ongoing investigation that precluded an attempt to obtain a
warrant. See State v. Hutchins, 116 N.J. 457, 470-71 (1989).
Here, the officer initially responded to a dispatch call that a white SUV
had just pulled into the parking lot, the occupants were causing a disturbance,
and that "the driver was a black male with [dreadlocks], and the passenger was
also a black male that possibly had a gun in his waistband." In the course of his
investigation of the report, the officer detected the odor of raw marijuana that
he believed was emanating from the interior of the vehicle. We agree with the
motion judge that the circumstances that gave rise to probable cause in this case
were fluid, spontaneous, and unforeseeable. Therefore, the search of the vehicle
was lawful under the automobile exception.
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To the extent we have not specifically addressed any of defendant's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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