State ex rel. B.L., DOCKET NO. A-4531-11T2
| Decision Date | 23 September 2013 |
| Docket Number | DOCKET NO. A-4531-11T2 |
| Parties | STATE OF NEW JERSEY IN THE INTEREST OF B.L., A Juvenile. |
| Court | New Jersey Superior Court — Appellate Division |
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges St. John and Leone.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1521-12.
Joseph E. Krakora, Public Defender, attorney for appellant B.L. (Charles H. Landesman, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief and Joshua D. Detzky, law clerk on the brief).
Defendant B.L. appeals from his final adjudication of juvenile delinquency. He alleges that the judge erred by denying his motion to suppress and his motion for judgment of acquittal. We affirm.
On December 5, 2011, Patrolman David Gilliland was conducting random license plate inquiries in Howell Township. He ascertained that a passing pickup had no valid registration. The officer pulled over the pickup, which was being driven by B.L., who was seventeen and one-half years old. The officer had B.L. step out of the pickup, and asked him about the expired registration. B.L. responded that he was the principal operator of the pickup, though his grandfather owned it.
The officer separately asked B.L. and his passenger, S.S., where they were coming from and where they were going. B.L. replied they had come from S.S.'s residence and that "he was taking [S.S.] back to his residence to hang out." However, S.S. answered that they were coming from a gas station and going to another friend's house in Marlboro Township.
While questioning S.S., the officer saw two packages of rolling papers on the bench seat between the passenger and the driver. The officer was aware that rolling papers are commonly used for smoking marijuana. When he asked S.S. what the rolling papers were for, S.S. responded that he was taking them to the friend in Marlboro, and that he believed the friend would use them to smoke marijuana. The officer asked S.S. and B.L. if they smoked marijuana. S.S. said he had smoked marijuana, buthad recently quit. B.L. replied that he smoked marijuana, but did so infrequently.
The officer then asked B.L. for consent to search the pickup. The officer advised B.L. of his rights to refuse a search, be present during the search, and stop the search. B.L. said he understood, gave permission to search, and signed a form consenting to the search.
The officer looked underneath the passenger's side of the pickup's single bench seat and discovered a two-foot-tall purple marijuana smoking pipe emitting an odor of marijuana. Right next to this "bong," the officer found a small bag containing marijuana. Another officer found in the driver's door panel a seven-inch silver dagger with a decorative blade. B.L. said the knife belonged to him, and gave no reason why he had it with him. The officers arrested B.L. and S.S. The entire stop lasted only fifteen minutes.
The juvenile complaint charged B.L. with fourth-degree possession of a weapon under circumstances not manifestly appropriate for lawful use. N.J.S.A. 2C:39-5d. The complaint also charged B.L. with two disorderly persons offenses: possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10a(4), and possession of drug paraphernalia with intent to use, N.J.S.A. 2C:36-2.
After hearing the testimony of the officers, the judge denied the motion to suppress. Based on the same evidence, the judge denied B.L.'s motion for judgment of acquittal, and adjudicated B.L. delinquent on all the charges. The judge placed B.L. on probation for less than five months, and assessed fines and costs. B.L. appeals, raising the following issues:
B.L. first asserts that the judge erred in denying the motion to suppress. In addressing this argument, we must hew to our standard of review:
B.L. does not dispute that Officer Gilliland properly checked and stopped the pickup for an expired registration. See State v. Donis, 157 N.J. 44, 54-59 (1998). During the stop, "[t]he officer may also ask 'routine' questions of the vehicle's occupants, such as where they are going and coming from, and for what purpose." State v. Baum, 393 N.J. Super. 275, 286-87 (App. Div. 2007), aff'd as modified, 199 N.J. 407, 424 (2009). That question was particularly pertinent here, as the officer testified that the juveniles would not have been allowed to drive away in the unregistered vehicle in any event. Once B.L.and S.S. "advanced conflicting versions of their travels," and the officer simultaneously saw the rolling papers in plain view, "the circumstances 'g[a]ve rise to suspicions unrelated to the traffic offense, [so the] officer may broaden [the] inquiry and satisfy those suspicions.'" See id. at 287 (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998) (citation omitted)); see also State v. Nishina, 175 N.J. 502, 518 (2003) ().
B.L. argues that the officer lacked probable cause to search the pickup. However, probable cause was unnecessary if the officer properly obtained consent to search. See State v. Domicz, 188 N.J. 285, 305 (2006).
B.L. next challenges the consent to search on two grounds. First, B.L. argues that the officer lacked reasonable suspicion prior to requesting consent to search. "[I]n order for a consent to search a motor vehicle and its occupants to be valid, law enforcement personnel must have a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent to search a lawfully stopped motor vehicle." State v. Carty, 170 N.J. 632, 635 (2002).
The judge found that the officer had reasonable suspicion based on the conflicting stories of B.L. and S.S., the presence on the seat of rolling papers commonly used to smoke marijuana,the admission by B.L. and S.S. that they had smoked marijuana, and S.S.'s statement that they were taking the rolling papers to a friend who would use them to smoke marijuana. We agree these facts gave rise to reasonable suspicion. See, e.g., Baum, supra, 393 N.J. Super. at 290.
Second, B.L. argues on appeal that the consent to search was invalid because the officer did not attempt to contact B.L.'s parent or guardian before conducting the search. However, no such argument was made at the suppression hearing. B.L. does not claim that the argument was raised in his suppression motion. Rule 3:5-7(f) (formerly R.R. 3:2A-6) provides that "[i]f a timely motion [to suppress] is not made in accordance with this rule, the defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained."
We have long held that "a strict approach should be taken to the requirements of R.R. 3:2A-6(a) and that the issue of illegal search and seizure raised for the first time on appeal did not warrant application of the plain error rule." State v. Morse, 106 N.J. Super. 1, 4 (App. Div. 1968), aff'd, 54 N.J. 32, 34 (1969); see State v. Cox, 114 N.J. Super. 556, 560 (App. Div.) (), certif. denied, 58 N.J. 93 (1971). An obvious purpose of this rule is to ensurethat the factual record for and against suppression is developed at a suppression hearing. Here, no testimony was developed about why the officer did or did not contact B.L.'s parents prior to the request to search, or about any impact on B.L.'s response.1 Although B.L. did file a motion to suppress, his failure to raise this issue in the suppression motion or hearing violates the purpose of Rule 3:5-7.
Even if we could consider this argument, it is meritless. B.L. relies on State v. Presha, 163 N.J. 304 (2000), but that case addressed interrogation "in a custodial setting" where Miranda2 warnings are required. Id. at 307, 310, 312, 315-17. The Supreme Court has rejected the "application of Presha to a non-custodial context." State ex rel. J.D.H., 171 N.J. 475, 480 (2002). Presha's requirements, including that "'law enforcement officers must use their best efforts to locate [a parent or legal guardian] before beginning the interrogation,'" are only "triggered when a...
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