State ex rel. S.H.
| Docket Number | A-2170-20 |
| Decision Date | 31 May 2023 |
| Parties | STATE OF NEW JERSEY IN THE INTEREST OF S.H., a minor. |
| Court | New Jersey Superior Court — 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.
Submitted January 24, 2023
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket Nos FJ-01-0124-21, FJ-01-0322-21.
Joseph E. Krakora, Public Defender, attorney for appellant S.H (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the briefs).
William Reynolds, Atlantic County Prosecutor, attorney for respondent State of New Jersey (Katrina M. Koerner, Assistant Prosecutor, of counsel and on the brief).
Before Judges Sumners and Fisher.
S.H appeals the trial court's denial of his motion to suppress marijuana and a firearm recovered during a traffic stop. The stop was precipitated by the police officer's determination that the car in which S.H. was a passenger had illegally tinted windows. S.H. contends the court erred in finding the stop valid because the State failed to prove the car windows were illegally tinted. S.H. also argues the State did not prove the police officers had probable cause to search the vehicle or reasonable articulable suspicion to prolong the stop for a dog sniff. Finally, S.H. asserts the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), N.J.S.A. 24:6I-31 to -56, should retroactively apply to his case and remove any reasonable articulable suspicion the officers had that marijuana was in the vehicle. We are unpersuaded by these arguments and affirm.
Shortly before midnight on September 2, 2020, Pleasantville Police Officer Michael Mabkhouti stopped a vehicle with "darkly-tinted front windows" for an illegal tinting infraction under N.J.S.A. 39:3-75.[1] As he was stopping the vehicle, Mabkhouti observed thorough the car's rear window that occupants were moving.
As Mabkhouti approached the car, he claimed he smelled the odor of raw marijuana. Mabkhouti asked the driver, Mohamed Toure, for his license, registration, and insurance, however, Toure only provided a temporary registration and identifying information. Toure stated he was driving S.H., a back-seat passenger, to S.H.'s grandmother's house. There were also two other adults and two infants in the car. Meanwhile, Pleasantville Officer Robert D'Arcangelo arrived and Mabkhouti told him there was a high probability of contraband in the car, specifically, firearms. D'Arcangelo also testified he smelled raw marijuana in the car.
Mabkhouti asked to speak to S.H. about his friend's fatal shooting the prior night because information was received that there may be retaliatory shootings. When S.H. exited the car, Mabkhouti first asked how he was doing, then stated S.H. denied the accusation. Mabkhouti and S.H. moved away from the car, and Mabkhouti frisked S.H.
After briefly questioning S.H., Mabkhouti asked Toure whether he could search the vehicle. Toure declined. Mabkhouti then frisked Toure, before requesting consent to search again and asking whether there were any drugs or firearms in the car. Toure denied both questions.
Mabkhouti went back to his car where he radioed for confirmation that Toure did not have a license and requested a K-9 unit. While waiting for the K-9, Toure refused Mabkhouti's third request to search his car. Dispatch informed Mabkhouti that Toure did not have a license, nor any outstanding warrants.
The K-9 arrived almost twenty-one minutes after Toure's car was stopped. The dog "indicated positively on the vehicle." A search of the car found two small, tied-off bags of marijuana and a handgun in a duffle bag. S.H. took responsibility for the contraband and was arrested. Since the officers did not have a ticket book, Toure was told his ticket for his motor vehicle violation would be mailed to him, so he and the car's other occupants were allowed to leave. The entire stop took approximately one hour.
S.H. was charged with acts that, if committed by an adult, would constitute: second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b(1); second-degree possession of a firearm with an unlawful purpose, N.J.S.A. 2C:39-4a(1); fourth-degree possession of handgun ammunition without a license, N.J.S.A. 2C:58-3.3; and disorderly-persons possession of marijuana, N.J.S.A. 2C:35-10a(4).
S.H. unsuccessfully moved to suppress the gun and marijuana recovered during the traffic stop. S.H. thereafter pled guilty to second-degree unlawful possession of a handgun and violation of probation. He also pled guilty to first-degree maintaining/operating a controlled dangerous substance manufacturing facility for another incident. S.H. was adjudicated delinquent and received an aggregate term of an additional nine months of probation covering all of his offenses.
Our review of a decision on a motion to suppress is limited. State v. Ahmad, 246 N.J. 592, 609 (2021). "Generally, on appellate review, a trial court's factual findings in support of granting or denying a motion to suppress must be upheld when 'those findings are supported by sufficient credible evidence in the record.'" State v. A.M., 237 N.J. 384, 395 (2019) (quoting State v. S.S., 229 N.J. 360, 374 (2017)). The appellate court defers to those factual findings in recognition of the trial court's "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Elders, 192 N.J. 224, 243 (2007). However, legal conclusions to be drawn from those facts are reviewed de novo. State v. Radel, 249 N.J. 469, 493 (2022).
During the motion hearing, Mabkhouti and D'Arcangelo testified, and Mabkhouti's body camera footage was played. The trial court asked S.H.'s counsel, Counsel responded "yes." As a result, the court considered the stop lawful and valid.
Despite his concession at trial, S.H. argues on appeal the State did not present sufficient evidence to establish a reasonable articulable suspicion that Toure's car's window tinting violated either N.J.S.A. 39:3-74 or -75.[2] In support, S.H. notes Mabkhouti's testimony that: (1) the car "ha[d] darkly-tinted front windows, specifically the driver's side window"; and (2) he could see into the car well enough, on a rainy night, to determine multiple people were moving inside. S.H. contends this testimony lacks detail and, in fact, Mabkhouti's ability to see into the car demonstrates the tinting was transparent and did not interfere with visibility.
The success of S.H.'s argument is based on whether we should retroactively apply our Supreme Court's ruling in State v. Smith--rendered after the stop here--that "reasonable suspicion of a tinted windows violation arises when a vehicle's front windshield or front side windows are so darkly tinted that police cannot clearly see peoples or articles within the car." 251 N.J. 244, 253 (2022). Prior to Smith, we would consider whether the stop was lawful under the more lenient "community caretaking function" as it was permissible to stop Toure's car "even if not violative of [a motor vehicle]" violation due to "a hazardous vehicular condition that deviates from the norm." State v. Cohen, 347 N.J.Super. 375, 381 (App. Div. 2002), S.H.'s argument should not be considered because it was unambiguously conceded that the stop was valid. As a result, the trial court's finding cannot be disturbed. See State v. Witt, 223 N.J. 409, 418-19 (2015) () (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 23 (1973)). Because of this concession, relevant testimony and legal argument concerning the tinted windows were not presented to the trial court.
The trial court found Mabkhouti's testimony concerning the legality of their search based on marijuana odor was credible as "nothing . . . was indicated that would challenge [it] and the observations that the officers made." The court held the stop was not unreasonably prolonged considering: (1) it was a particularly busy night; (2) the K-9 had to come from Linwood; (3) the officers did not have a ticket book, so they waited for one to arrive; and (4) the search of the car following the dog sniff was extensive.
S.H argues the officers' testimony indicating they smelled the odor of raw marijuana emanating from the car was "patently incredible," considering: (1) Mabkhouti's statement to D'Arcangelo that he believed it was possible there was a firearm in the car; (2) Mabkhouti's focus on S.H.; (3) Mabkhouti's lack of attention to Toure, the driver of the vehicle; (4) the officers' failure to mention any suspicion of drugs on the body camera footage or inform the car's occupants of their suspicion; and (5) the small amount of marijuana officers found in a sealed bag would not produce an odor strong enough to be smelled from the open window. S.H. also argues the officers unlawfully prolonged the traffic stop for the dog sniff. Citing Rodriguez v. United States, 575 U.S. 348, 357 (2015), S.H. contends the officers' actions following the completion of their inquiry...
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