State v. Baker

• Court: New Jersey Superior Court
• Writing for the Court: CURRIER, P.J.A.D.
• Citation: State v. Baker, 478 N.J.Super. 116, 311 A.3d 537 (N.J. Super. 2024)
• Docket Number: DOCKET NO. A-2800-21
• Decision Date: 07 March 2024
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Robert A. BAKER, a/k/a Robert Baker, and Robert Baker Jr., Defendant-Appellant.

311 A.3d 537

478 N.J.Super. 116

STATE of New Jersey, Plaintiff-Respondent,

v.Robert A. BAKER, a/k/a Robert Baker, and Robert Baker Jr., Defendant-Appellant.

DOCKET NO. A-2800-21

Superior Court of New Jersey, Appellate Division.

Submitted December 6, 2023

Decided March 7, 2024

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 20-12-0495.

Joseph E. Krakora, Public Defender, attorney for appellant (Tiffany J., Barlow, Assistant Deputy Public Defender, of counsel and on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Stephen Christopher Sayer, Assistant Prosecutor, of counsel and on the brief).

Before Judges Currier, Susswein and Firko.

₁₂₁The opinion of the court was delivered by

CURRIER, P.J.A.D.

In this matter, we consider whether the trial court properly denied defendant’s motion to suppress evidence seized after a search of the vehicle defendant was operating following a traffic stop. When the officer approached defendant’s vehicle, he noticed a burnt smell of marijuana emanating from it. The officer did not intend to search the vehicle at that point. However, after the dispatcher informed the officer defendant had an outstanding warrant necessitating defendant’s arrest, and the officer smelled a perceptible odor of raw marijuana on defendant’s person as they sat, together in the patrol car, the officer decided to search the vehicle.

We conclude that the officer’s testimony regarding the odors established probable cause for the subsequent search of the vehicle. In addition, the finding of probable cause arose in unforeseeable and spontaneous circumstances. There were not two stops as argued by defendant. The discovery of the warrant and new smell emanating from defendant’s person permitted the officer to continue the investigation. The search was permissible under the automobile exception to the warrant requirement as articulated in State v. Witt, 223 N.J. 409, 126 A.3d 850 (2015). We affirm.

I.

Defendant was charged in an indictment with first-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(b)(8), and three counts of third-degree possessions₁₂₂ of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1).

After defendant moved to suppress the evidence seized during the search, Judge Cristen D’Arrigo conducted a hearing during which the State presented testimony from New Jersey State Trooper Will Clements, video footage of the encounter recorded by Clements’s body worn camera (BWC), and a transcript of the BWC audio.

Clements testified that at approximately 1:30 a.m. on June 20, 2020, he observed an SUV, driven by defendant, swerve several times out of the traffic lane and onto the shoulder of the roadway and then make an illegal U-turn. Clements directed defendant to pull over and activated his BWC.

As Clements approached defendant’s driver-side window, he asked for defendant’s credentials. Defendant stated he did not have any documentation regarding the vehicle, nor did he have his license or wallet with him. He denied that the square, bulky shape in his pocket was a wallet. Clements did not notice any marijuana odor during this first interaction, which lasted approximately six minutes.

Defendant called his girlfriend and owner of the SUV, Tameka Hannah, and asked her to bring the vehicle’s documents. He also provided his name and date of birth to Clements. The dispatcher advised Clements that defendant had an outstanding traffic warrant. Therefore, Clements made his second approach to defendant’s driverside window. Hannah had arrived and given defendant documents regarding the SUV that defendant gave to Clements.

Clements told defendant about the traffic warrant and explained that, although he had to arrest defendant, the jail was not accepting individuals with traffic warrants because of COVID-19, so defendant would be released on his own recognizance "on the scene" after Clements processed him. Clements testified that he detected the "faint" "odor of burnt marijuana" coming from the ₁₂₃SUV during this second driver-side-window interaction, which lasted approximately one and a half minutes.

Clements handcuffed defendant and performed a search of him incident to arrest, revealing a large amount of cash, two cell phones, and a wallet containing his driver’s license. Then Clements returned the items to defendant’s pockets. No marijuana was discovered on defendant’s person.

Once Clements had assisted defendant into the back seat of the patrol car and returned to the driver’s seat, the dispatcher advised him that defendant also had an outstanding warrant for a violation of probation. During the approximately ten minutes that passed while Clements waited for dispatch to confirm the second warrant, he spoke briefly with the officer who had arrived at the scene, Trooper Lewis. The discernible dialogue heard on the BWC included the following exchange:

CLEMENTS: I …

LEWIS: Uh getting a odor?

CLEMENTS: Little bit, but … [interrupted by radio transmission][.]

Clements testified during the hearing that he said "little bit, but" because—despite smelling marijuana—he did not intend to search the vehicle at that point. He explained that, with only an outstanding traffic warrant, he would process defendant and then release, him on his own recognizance.

However, after the dispatcher confirmed the second warrant, Clements informed defendant that he was required to transport defendant to the county jail. Clements testified that he still did not intend to search the vehicle, explaining:

I was out actively looking for individuals drinking and driving. [Defendant] ended up having two warrants. I knew I was going to take him to the county, jail, which during the time was taking quite a bit of time because of COVID[-19] restrictions. At that point, it was almost [two] in the morning, I figured my shift was done in a few hours, go back to get some paperwork done.

Defendant asked Clements to give the belongings from defendant’s pockets to Hannah who was going to drive the SUV to her home. While emptying defendant’s pockets for the second time, ₁₂₄Clements asked defendant whether he had any marijuana on him; defendant replied he did not. This discussion followed:

CLEMENTS: Did you smoke earlier?

DEFENDANT: Yeah, I probably did smoke earlier.

CLEMENTS: Alright, cause I can smell it coming off ya.

DEFENDANT: Yeah.

Clements testified that the odor coming from defendant smelled like "raw marijuana" and was noticeable as defendant sat in the patrol car.

According to Clements, at this point, he decided to call his sergeant and ascertain whether he could search the SUV if he smelled raw marijuana on defendant and a "faint burnt" smell coming from inside the vehicle. The BWC captured Clements’s side of the conversation. He understood the discussion as confirmation that he could search the vehicle.

During the search, Clements observed "bits and pieces of marijuana" on the floor of the front driver and passenger sides of the SUV, but he did not collect any raw marijuana. He also found a "large sum of cash currency inside a rubber band in the center console of the vehicle" and a backpack containing various types of controlled dangerous substances and baggies used for distribution.

Following the close of the hearing, Judge D’Arrigo issued an oral decision. The judge "first and foremost found … Clements’ testimony to be quite credible," characterizing the search as "reluctant," and "the most non-pretextual search [he’d] ever seen." The judge denied defendant’s motion to suppress, finding: the initial stop of the. SUV was based on a reasonable articulable suspicion of a motor vehicle violation; defendant’s arrest was valid due to the outstanding motor vehicle warrant; and Clements had detected a faint burnt odor inside the vehicle and the smell of raw marijuana on defendant, furnishing him with probable cause to search the vehicle.

Thereafter, defendant pleaded guilty to first-degree possession of a controlled dangerous, substance with intent to distribute. He ₁₂₅was sentenced to a ten-year term of imprisonment with a thirty-nine-month period of parole ineligibility.

II.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN FINDING THAT THE OFFICER HAD PROBABLE CAUSE TO CONDUCT A WARRANTLESS CAR SEARCH BECAUSE THERE IS NO CREDIBLE EVIDENCE IN THE RECORD THAT THE OFFICER SMELLED MARIJUANA. ALTERNATIVELY, THE CIRCUMSTANCES LEADING TO PROBABLE CAUSE WERE NOT UNFORESEEABLE AND SPONTANEOUS, BECAUSE THE OFFICER HAD ALREADY

CONCLUDED THE STOP PRIOR TO THE SEARCH[.]

A. There Was No Credible Evidence in [t]he Record [t]o Support [a] Finding That [t]he Officer Smelled the Odor [o]f Marijuana.

B. Alternatively, Probable Cause [W]as Not Unforeseeable and Spontaneous Because the Trooper Concluded the Stop [b]efore Deciding to Go Back and Search.

Defendant contends the court erred in denying the suppression, motion because Clements’s testimony was not credible and therefore could not support a finding of probable cause. In addition, he asserts the search did not fall within the automobile exception because the circumstances giving rise to probable cause were not unforeseeable and spontaneous.

[1, 2] "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court’s decision so long as those findings are supported by sufficient credible evidence in the record." State v. Ahmad, 246 N.J: 592, 609, 252 A.3d 968 (2021) (alteration in original) (quoting State v. Elders, 192 N.J. 224, 243, 927 A.2d 1250 (2007)). "[F]actual findings based on a video recording or documentary evidence" are reviewed under the same standard. State v. S.S., 229 N.J. 360, 381, 162 A.3d 1058 (2017).

[3–5] We accord deference to a trial court’s credibility finding's, in particular, because they "are often influenced by matters such as observations of the...