STATE OF NEW JERSEY VS. ASIM Q. JULESÂ (15-02-0343, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2400-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ASIM Q. JULES,
Defendant-Appellant.
————————————————————————————————————-
Submitted May 10, 2017 – Decided July 26, 2017
Before Judges Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
15-02-0343.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stefan Van Jura, Deputy Public
Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Alissa
Goetz, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Asim Jules appeals from his conviction for third-
degree possession of alprazolam (Xanax), N.J.S.A. 2C:35-10(a)(1).
The judgment of conviction was based on defendant's guilty plea,
following his indictment for fourth-degree obstruction, N.J.S.A.
2C:29-1, and third-degree possession of alprazolam. The judge
sentenced defendant to two years of probation and a six-month
suspension of his license, along with fines and penalties.
Defendant's appeal focuses solely on the denial of his motion
to suppress evidence obtained from a strip search, which police
conducted at their headquarters after his arrest. Having reviewed
the suppression record and the applicable law, we are compelled
to reverse.
I.
We discern the following facts from the suppression hearing.
On September 19, 2014, at approximately 1:42 a.m., Officer Aaron
Lay of the Neptune Township Police Department observed a vehicle
pass by his parked patrol car and slow down at a traffic light;
at that point, the vehicle's passenger side brake light failed to
illuminate. Officer Lay followed the vehicle and entered its
license plate number into his mobile data terminal (MDT) system.
The MDT check revealed the vehicle's registration had expired, and
the license of the registered owner had been suspended.
Upon learning this information, Officer Lay stopped the
vehicle and exited his patrol car. As he approached the driver's
side of the vehicle, he detected an "overwhelming odor of raw
marijuana," which "became stronger and more pungent" as he drew
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closer. Officer Lay observed defendant in the driver's seat and
noted he was the only person in the vehicle. The officer obtained
defendant's vehicle registration card, which he confirmed was
expired. Defendant said he was coming from a party; he denied any
prior arrests, but a records check revealed a prior arrest for
marijuana possession in 2013.
After backup arrived, Officer Lay asked defendant to step out
of the vehicle because of the marijuana odor. According to the
officer, the odor became stronger as defendant exited the vehicle
and seemed to emanate from his person. Officer Lay proceeded to
search defendant, beginning with his pockets. The officer then
reached into defendant's groin area, where he felt a round, hard,
cylindrical object made of plastic or similar material. Officer
Lay testified as follows regarding this object:
Q. Based on those observations – what
you could feel, what did you believe it to be?
A. I suspected that it was most likely
a prescription pill bottle.
Q. And how did you know – what made you
believe that it was a pill bottle?
A. I've handled them in the past so I
was familiar with it.
Q. In . . . your work as a police
officer?
A. Yes, ma'am.
3 A-2400-15T1
Q. Did the discovery of the pill bottle
near the groin alert you to anything?
A. It's just a common place that
subjects will frequently store contraband drug
or items to conceal them from law enforcement.
Upon discovery of the object, defendant became "antagonistic"
and attempted to "twist away" from Officer Lay. Defendant stated
the object was his genitalia, but Officer Lay did not believe him.
Defendant made the search difficult by "moving around" and at one
point "took a step backwards and began to fall on the ground."
The police placed defendant in handcuffs so they could continue
the search; however, they eventually ended the search because of
defendant's continued noncompliance and secured him in back seat
of the patrol car, which began to smell of marijuana. Defendant
admitted to another officer he had smoked marijuana in his car,
but none remained in his vehicle. Officer Lay affirmed he arrested
defendant "based off the smell of marijuana and what [he] fe[lt]
at [that] point."
Officer Lay transported defendant to police headquarters and
obtained permission from his shift commander to conduct a strip
search. Police asked defendant to remove each article of clothing
until he was in his underwear. Defendant then removed his
underwear, revealing a translucent orange prescription pill bottle
clenched between his legs. The bottle contained eight tablets,
which police later identified as alprazolam.
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Following the suppression hearing, the judge denied
defendant's motion in a written opinion. The judge found Officer
Lay had reasonable articulable suspicion that defendant committed
two traffic violations, justifying the initial stop. He then
determined Officer Lay had probable cause to arrest defendant for
possession of a controlled substance, based on "the late hour of
the night, the suspicious conduct of [d]efendant, the 'plain feel'
of a prescription pill bottle, the odor of raw marijuana, and
Officer Lay's training, experience, and expertise." Relying on
N.J.S.A. 2A:161A-1,1 he concluded the strip search was lawful under
the search incident to arrest exception to the warrant requirement,
finding "[d]efendant's arrest and search of his person were part
of one uninterrupted transaction."
After he was sentenced, defendant filed this appeal. He
presents the following point of argument:
IN THE ABSENCE OF A WARRANT OR A RECOGNIZED
EXCEPTION TO THE WARRANT REQUIREMENT, THE
STRIP SEARCH OF DEFENDANT WAS UNLAWFUL, AND
THE EVIDENCE SEIZED FROM HIS GROIN MUST BE
SUPPRESSED. U.S. CONST. AMENDS. IV AND XIV;
N.J. CONST. ART. 1 PAR 7.
II.
In reviewing the denial of a suppression motion, we "must
uphold the factual findings underlying the trial court's decision
1
The judge cited N.J.S.A. 2A:161A-3 in his opinion but applied
the language from N.J.S.A. 2A:161A-1.
5 A-2400-15T1
so long as those findings are supported by sufficient credible
evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014)
(citing State v. Elders, 192 N.J. 224, 243 (2007)). However, we
grant no special deference to the trial judge's "interpretation
of the law . . . and the consequences that flow from established
facts." Id. at 425 (citing State v. Gandhi, 201 N.J. 161, 176
(2010); Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995)).
"Both the United States Constitution and the New Jersey
Constitution guarantee an individual's right to be secure against
unreasonable searches or seizures." State v. Minitee, 210 N.J.
307, 318 (2012) (citing U.S. Const. amend. IV; N.J. Const. art.
I, ¶ 7). A search or seizure undertaken without a warrant is
"presumed to be invalid." Ibid. (citing State v. Cooke, 163 N.J.
657, 664 (2000)).
Nonetheless, the police may arrest a suspect in public without
a warrant so long as probable cause exists to justify the arrest.
State v. Shannon, 222 N.J. 576, 585 (2015), cert. denied, U.S.
___, 136 S. Ct. 1657, 194 L. Ed. 2d 800 (2016). "[A] police
officer has probable cause to arrest a suspect when the officer
possesses 'a well[-]grounded suspicion that a crime has been or
is being committed.'" Ibid. (alterations in original) (quoting
State v. Basil, 202 N.J. 570, 585 (2010)). "That well-grounded
6 A-2400-15T1
suspicion should be based on the totality of the circumstances as
viewed by 'an objectively reasonable police officer.'" Ibid.(quoting Basil, supra, 202 N.J. at 585).
However, "an encounter that begins with a valid arrest or
investigative stop may lead to a seizure that will be suppressed
because the officer has unreasonably expanded the permissible
scope of an otherwise valid search." State v. Evans, 449 N.J.
Super. 66, 80 (App. Div.), certif. granted, ___ N.J. ___ (2017).
"The touchstone of the Fourth Amendment and Article I, [P]aragraph
7 of the New Jersey Constitution is reasonableness." State v.
Watts, 223 N.J. 503, 514 (2015) (alteration in original) (quoting
State v. Hathaway, 222 N.J. 453, 476 (2015)).
Defendant does not dispute the police lawfully stopped his
vehicle because of his inoperative brake light and expired
registration. See State v. Bernokeits, 423 N.J. Super. 365, 370
(App. Div. 2011) ("A motor vehicular violation, no matter how
minor, justifies a stop without any reasonable suspicion that the
motorist has committed a crime or other unlawful act."). Nor does
he challenge his arrest, conceding police had probable cause to
take him into custody based on the smell of marijuana emanating
from his person and vehicle. See State v. Myers, 442 N.J. Super.
287, 297 (App. Div. 2015) ("[T]he smell of marijuana itself can
7 A-2400-15T1
suffice to furnish probable cause that a criminal offense has been
committed . . . ."), certif. denied, 224 N.J. 123 (2016).
Rather, defendant's sole point of contention is that the
police acted unlawfully by subjecting him to a strip search without
first obtaining a warrant. The parties agree the police conducted
a strip search as defined by N.J.S.A. 2A:161A-3, thereby subjecting
the encounter to the protections outlined in N.J.S.A. 2A:161A-1.
See Evans, supra, 449 N.J. Super. at 80. "We have observed that
this statute 'was adopted to provide greater protection than is
afforded by the Fourth Amendment,' noting that 'a statute providing
rights coextensive with constitutional protections would be
superfluous.'" Id. at 81 (quoting State v. Hayes, 327 N.J. Super.
373, 381 (App. Div. 2000)).
N.J.S.A. 2A:161A-1 states:
A person who has been detained or arrested for
commission of an offense other than a crime
shall not be subjected to a strip search
unless:
a. The search is authorized by a warrant
or consent;
b. The search is based on probable
cause that a weapon, controlled dangerous
substance . . . or evidence of a crime
will be found and a recognized exception
to the warrant requirement exists; or
c. The person is lawfully confined in
a municipal detention facility or an
adult county correctional facility and
the search is based on a reasonable
8 A-2400-15T1
suspicion that a weapon, controlled
dangerous substance . . . or contraband,
as defined by the Department of
Corrections, will be found, and the
search is authorized pursuant to
regulations promulgated by the
Commissioner of the Department of
Corrections.
Because defendant did not consent to the strip search, nor
was he confined in a detention or correctional facility, the only
provision that could apply is subsection (b). However, the
protections of subsection (b) have no effect unless we determine
police arrested defendant "for commission of an offense other than
a crime." Ibid. Our Criminal Code differentiates between
"crimes," which are offenses of the first, second, third, or fourth
degree, and "disorderly persons" offenses. See N.J.S.A. 2C:1-4.
Defendant argues the protections of N.J.S.A. 2A:161A-1(b)
apply because police arrested him for possessing less than fifty
grams of marijuana, N.J.S.A. 2C:35-10(a)(4), a disorderly persons
offense. See State v. Harris, 384 N.J. Super. 29, 49 (App. Div.)
("[T]he strip search of defendant, who was arrested for the
disorderly persons offense of marijuana possession, is prohibited
unless supported by both probable cause and 'a recognized exception
to the warrant requirement.'" (quoting N.J.S.A. 2A:161A-1(b))),
certif. denied, 188 N.J. 357 (2006). Conversely, the State argues
N.J.S.A. 2A:161A-1(b) is inapplicable because police also had
probable cause to arrest defendant for unlawful possession of
9 A-2400-15T1
prescription pills, N.J.S.A. 2C:35-10.5(e)(2), a crime of the
fourth degree. The State asserts the plain feel of the pill
bottle, the fact defendant attempted to hide it, his demeanor, and
Officer Lay's experience established probable cause by a totality
of the circumstances. See Shannon, supra, 222 N.J. at 585. The
State stresses that Officer Lay's subjective intent to arrest
defendant for marijuana possession is immaterial to the
determination of probable cause. See State v. O'Neal, 190 N.J.
601, 613-14 (2007).
Having reviewed the suppression record, we reject the State's
position. To convict a defendant under N.J.S.A. 2C:35-10.5(e)(2),
the State must prove he possessed "a prescription legend drug
. . . in an amount of five or more dosage units unless lawfully
prescribed . . . by a licensed physician." Officer Lay's suspicion
that the item in defendant's groin area was a prescription pill
bottle does not establish probable cause defendant committed this
offense. A suspect can store marijuana in a bottle, see State v.
Miller, 342 N.J. Super. 474, 480 (App. Div. 2001), and would react
as defendant did upon its discovery. As Officer Lay's testimony
only established facts suggesting marijuana use, we find there was
no "objectively reasonable" basis to arrest defendant for
possession of prescription pills. See Shannon, supra, 222 N.J.
at 585.
10 A-2400-15T1
The State further argues that if N.J.S.A. 2A:161A-1(b) does
apply, the strip search was justified because there was probable
cause defendant possessed illicit prescript pills, and "a
recognized exception to the warrant requirement exist[ed]." Ibid.
The trial judge reached this conclusion on the warrant issue,
finding police acted lawfully under the search incident to arrest
exception. The State urges us to agree and further presents the
exigent circumstances exception as an alternative justification
for the search.
However, we have held that the search incident to arrest
exception "may not be relied upon as the recognized exception to
the warrant requirement to satisfy the second criteria of
subsection 2A:161A-1(b)." Evans, supra, 449 N.J. Super. at 81
(citing Hayes, supra, 327 N.J. Super. at 378). In reaching this
conclusion, we found because "the strip search statute's
protections are triggered by an arrest[,] [a]n arrest alone . . .
cannot be both the event invoking the protections as well as the
event nullifying them." Ibid. (quoting Hayes, supra, 327 N.J.
Super. at 378). We further concluded that the risk a defendant
might destroy the evidence could not create an exigency justifying
a warrantless search under N.J.S.A. 2A:161A-1(b), because "it
would effectively nullify the statutory protection afforded to
11 A-2400-15T1
persons detained or arrested for non-criminal offenses." Hayes,
supra, 327 N.J. Super. at 378.
The State urges us to find Hayes distinguishable, contending
the defendant in that case "was arrested for a non-criminal offense
and probable cause that [the] defendant possessed criminal
contraband did not develop until after [the] defendant was already
searched and secured in the police vehicle," and "[n]o exigency
existed because [the] defendant was already secured when probable
cause arose." In Hayes, police arrested the defendant for an
outstanding warrant and secured him in the patrol car, where he
then attempted to place his hands down his pants. Id. at 376.
Believing the defendant was reaching for drugs hidden in his pants,
police conducted a strip search and discovered a bag containing
cocaine. Id. at 376-77. As noted, we determined N.J.S.A. 2A:161-
1(b) could not justify this search because "[a]n arrest alone
. . . cannot be both the event invoking the protections as well
as the event nullifying them." Id. at 378.
Despite the State's assertions, we find Hayes applies to the
instant matter. The police only had probable cause to arrest
defendant for marijuana possession, and upon doing so, triggered
the protections of N.J.S.A. 2A:161A-1(b). That the probable cause
arose before police secured defendant does not alter the outcome;
the police could not use the search incident to arrest exception
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to circumvent the protections that arose from defendant's arrest.
Furthermore, exigency could not support the search once the police
handcuffed and secured defendant. See Hayes, supra, 327 N.J.
Super. at 378.
Finally, although not fully discussed by the State, our
decision in Evans suggests that the "plain feel" exception to the
warrant requirement might support a strip search under N.J.S.A.
2A:161A-1(b).2 Evans, supra, 449 N.J. Super. at 83-86. The plain
feel doctrine applies "when the officer conducting a lawful search
'feels an object whose contour or mass makes its identity
immediately apparent.'" Id. at 85 (quoting Minnesota v. Dickerson,
508 U.S. 366, 375, 113 S. Ct. 2130, 2137, 124 L. Ed. 2d 334, 345
(1993); State v. Jackson, 276 N.J. Super. 626, 630-31 (App. Div.
1994)). "The officer's knowledge that the arrestee has concealed
drugs on his person in the past may also contribute to the
officer's immediate realization that the bulge he touched was
drugs." Ibid.However, as in Evans, we find this exception does not apply
in the instant matter. Officer Lay's feeling of an object he
believed to be a prescription pill bottle did not make it
2
Because the Evans court found the record did not support
application of the plain feel doctrine, the court did not make the
ultimate determination whether this exception could justify a
strip search under N.J.S.A. 2A:161A-1. Evans, supra, 449 N.J.
Super. at 84 n.9.
13 A-2400-15T1
"immediately apparent" that the bottle contained contraband.
Moreover, although defendant had a prior arrest for marijuana
possession, there was no evidence in the record he had previously
concealed drugs on his person.
Therefore, because we conclude the police did not act
reasonably in this matter, we reverse the order denying suppression
and remand for dismissal of defendant's judgment of conviction.
Reversed and remanded. We do not retain jurisdiction.
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