State v. Cohen

• Decision Date: 20 April 2020
• Docket Number: DOCKET NO. A-2354-18T2
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. CORNELIUS C. COHEN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. CORNELIUS C. COHEN, Defendant-Appellant.

DOCKET NO. A-2354-18T2

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted February 5, 2020

April 20, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Koblitz and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 16-10-0162.

Hunt Hamlin & Ridley, attorneys for appellant (Raymond Louis Hamlin, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent (Sarah C. Hunt, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence seized from his vehicle without a warrant after a motor vehicle stop, defendant entered a conditional negotiated guilty plea, R. 3:9-3(f), to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). He was sentenced in accordance with the plea agreement to five years' imprisonment, with the mandatory three-and-one-half-years of parole ineligibility. See N.J.S.A. 2C:43-6(c).

Defendant now appeals from the December 24, 2018 judgment of conviction, raising the following points for our consideration:

POINT ONE:

THE MOTION COURT'S RULING FINDING THAT [STATE V. KAHLON¹] PERMIT[]S THE SEARCH OF THE ENTIRE AUTOMOBILE UPON THE SMELL OF MARIJUANA WAS IN ERROR.

POINT TWO:

THE STATE FAILED TO ESTABLISH THAT THERE WERE EXIGENT CIRCUMSTANCES THAT WOULD SUPPORT THE WARR[A]NTLESS SEARCH OF DEFENDANT'S AUTOMOBILE.

A. IN ASSESSING WHETHER THE STOP AND SEARCH WAS PREPLANNED, THE MOTION COURT ERR[]ED IN FINDING THAT THE VERIFICATION OF THE CONFIDENTIAL INFORMANT'S

INFORMATION PERMITTED THE STATE TROOPERS TO SEARCH THE AUTOMOBILE.

B. THE MOTION COURT'S FINDING THAT TWO STATE TROOPERS INDEPEND[E]NTLY SMELLED RAW MARIJUANA IS NOT DETERMINATIVE AS TO WHETHER THE STOP AND SEARCH OF THE AUTOMOBILE WAS PREPLANNED.

We affirm.

At the hearing on the suppression motion, State Police Detective Joseph Czech and Trooper Charles Travis IV testified for the State. Trooper Caitlin Brennan and Najah² Baker testified for the defense. Czech, an eleven-year veteran assigned to the State Police Trafficking Unit, testified that in January of 2016, a confidential informant (CI) who had provided reliable information to other detectives in the past notified him that defendant was trafficking weapons between the Carolinas and New Jersey. The CI stated defendant used two different vehicles to transport the weapons "to the Essex . . . as well as Middlesex County area[s]," and provided a description of the vehicles, including the license plate numbers. Czech's investigation revealed that the vehicles, a gray Infiniti G35 and a black Honda Civic, were registered to defendant and Baker,respectively. The investigation also confirmed that the Honda Civic had traveled through the southern states in November 2015.

On January 15, 2016, the CI notified Czech that defendant was "en route to one of the Carolinas" and "would be returning" to New Jersey on Sunday, "January 17th." As a result, Czech entered "[t]he license plates of both vehicles" into "various [law enforcement] databases" so that he would be notified by "[t]he Regional Operations Intelligence Center [ROIC]" if either license plate "was r[u]n by another officer or . . . picked up by an automated reader." In addition, Czech's supervisor "sent out an e-mail to State Police stations" to "be on the lookout [BOLO] for the[] vehicles" being operated by defendant or Baker. However, the e-mail only directed recipients to "notify [Czech] or other unit members if they . . . came across the vehicle[s]." Subsequently, Czech was notified by the ROIC and Travis that the Honda Civic was located and responded to the location.

Travis, a nine-year veteran trooper, testified that he was aware of the BOLO from the e-mail being "forwarded to . . . [his] work e-mail" and "disseminated at rol[l] call." According to Travis, during his shift on January 17, he observed the Honda Civic identified in the BOLO "swerve[] over the lines" "several times" as it "entered the turnpike northbound," leading him tosuspect that the driver was operating the vehicle under the influence of alcohol. In addition, "[a]s the vehicle was going through the toll plaza" for "the Woodbridge area, . . . the E-ZPass reader indicated unpaid tolls." Travis continued to "follow[] the vehicle" onto "parkway north" and, based on the violations, conducted a motor vehicle stop "around [milepost] 137." Brennan assisted with the stop as "a back-up trooper."

Defendant was identified as the driver of the vehicle, and Baker was identified as the front seat passenger. Upon approaching the vehicle, Travis detected "[a] strong odor of raw marijuana" emanating from the vehicle and observed "multiple air fresheners hanging from the rearview mirror," indicating an attempt "to mask the [marijuana] odor." Additionally, while requesting defendant's driving credentials, Travis "observed greenish-brown vegetation on [defendant's] beard and . . . shirt," believed to be marijuana residue. After defendant and Baker confirmed that neither was a medical marijuana user, Travis ordered them out of the vehicle, placed them under arrest, and conducted a search of the vehicle to ascertain the source of the marijuana odor while other officers responded to the scene, one of whom also detected the odor of marijuana emanating from the vehicle.

During the search, Travis found a spent 9mm shell casing in a shot glass inside the glove compartment of the vehicle's interior. After completing the search of the passenger compartment with negative results for marijuana, Travis proceeded to search "the engine compartment" because "[m]arijuana can fit in the engine compartment" and "will get sucked into the air . . . vents." There, Travis found "[a] black canvas bag" containing a "shotgun" along "the firewall of the engine . . . where it meets the partition for the passenger compartment." Inside "a smaller bag" on "the driver's side in the same location up against . . . the firewall," he found "a revolver." Proceeding to the trunk, Travis found a "duffle bag" inside the trunk containing "various calibers of ammunition," including hollow point bullets.

The entire encounter was recorded on the dash-cam video recording in Travis's patrol car, which "start[ed] recording" once Travis activated his overhead emergency lights to conduct the stop. The dash-cam video was played during the hearing and viewed by the judge. After the search, Travis transported defendant back to the State Police barracks and issued him "[m]otor vehicle violation[] summonses" for "failure to pay tolls" and "failure to maintain . . . lane of travel." Based on the seizure of the two firearms and the hollow point bullets, defendant was subsequently indicted for two counts of second-degreeunlawful possession of a weapon, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:39-5(c)(1); and fourth-degree possession of a prohibited device, N.J.S.A. 2C:39-3(f).

For the defense, Trooper Brennan testified at the hearing that she "had been speaking with Travis" on the Turnpike during her shift on January 17, when "he abruptly took off." She followed him and served as a back-up during the motor vehicle stop, but did not know the reason for the stop and had no recollection of receiving the BOLO. In turn, Baker testified that when they were stopped on January 17, neither she nor defendant had consumed marijuana or had marijuana in their possession. She also provided her E-ZPass records for the period in question, which were moved into evidence.

Following the hearing, the judge denied defendant's motion. In a written decision, the judge credited Travis's testimony, which was corroborated by the dash-cam video, applied the governing principles, and concluded that the search was legally justified. First, citing State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997), the judge determined that "based on his training and experience," Travis's observation of defendant's "failure to maintain his lane of traffic" "indicated possible intoxication" and "provided him with an 'articulable andreasonable suspicion that the driver committed a motor vehicle offense.'" The judge added

Travis also testified he observed . . . [d]efendant drive through the EZ Pass lane without paying the toll. Specifically, when . . . [d]efendant drove through the EZ Pass lane, the toll sign indicated "No Toll Paid." To contradict this observation, . . . [d]efendant provided the [c]ourt with . . . Baker's EZ Pass records and argued the toll was paid. Based on the [c]ourt's review and interpretation of the records, it appears . . . Baker's EZ Pass account had a negative balance on January 17, 2016. The records also indicate the toll charged on January 17, 2016 was not actually recorded as paid until January 21, 2016, two days after a prepaid payment of $50.00 posted to the account. . . .

Thus . . . [d]efendant's efforts to impeach the credibility of Trooper Travis with the EZ-Pass records is misplaced . . . .

The judge also dismissed defendant's attempt to discredit Travis's testimony with Brennan's. In that regard, the judge found

Brennan's testimony ancillary to the core issues of this case. According to . . . Brennan, she and . . . Travis were parked next to each other on the Turnpike when . . . Travis quickly drove off. At this time, . . . Brennan was unaware as to why . . . Travis unexpectedly drove off. . . . Brennan decided to follow . . . Travis as back up. However, . . . Brennan had no reason to focus her attention on the vehicle pursued by . . . Travis because she was unaware of who . . . Travis was pursuing, or why. In addition to . . . Brennan's lack of knowledge, she was

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