State v. Myers

• Decision Date: 08 September 2015
• Docket Number: DOCKET NO. A-4295-12T4
• Citation: 122 A.3d 994,442 N.J.Super. 287
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. George A. MYERS, a/k/a G, Defendant–Appellant.
• Court: New Jersey Superior Court — Appellate Division

442 N.J.Super. 287

122 A.3d 994

STATE of New Jersey, Plaintiff–Respondent

v.George A. MYERS, a/k/a G, Defendant–Appellant.

DOCKET NO. A-4295-12T4

Superior Court of New Jersey, Appellate Division.

Submitted March 2, 2015.

Decided Sept. 8, 2015.

Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Sara M. Quigley, Deputy Attorney General, on the brief).

Before Judges SABATINO, GUADAGNO and LEONE.

Opinion

The opinion of the court was delivered by

LEONE, J.A.D.

Defendant George A. Myers appeals his conviction for possession of a handgun discovered during his arrest for a marijuana offense. His primary argument on appeal, raised for the first time, asserts that as a result of the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I–1 to –16, the odor of marijuana can no longer serve as a basis for probable cause that a marijuana offense is being committed. We disagree, and affirm.

I.

The following facts are drawn from the testimony at the suppression hearing and the factual findings of Judge James R. Swift. After 1:00 a.m. on January 7, 2012, the New Jersey State Police received a report of three gunshots near an intersection in Fairfield Township, Cumberland County. Trooper Matthew Gore was dispatched and arrived two minutes later. Gore observed three parked cars near a residence where there was a party. Gore approached the only occupied car, containing three males to inquire about the reported gun shots. Defendant rolled down the driver's window of the car, and denied seeing or hearing anyone firing a gun. Gore then asked defendant if he had attended the party. Defendant replied he had just arrived to pick up his cousins, but then said he had been in the residence for a short time.

After conversing with defendant for one to two minutes, Trooper Gore continued up the street to the residence and spoke to the young female holding the party. She said she had heard three gunshots, but it was unclear who fired the shots.

While walking back to his vehicle and looking for shell casings, Trooper Gore heard a woman a couple of houses away yelling at defendant's vehicle, which had pulled into her driveway, telling him to get his car out of her driveway. Both because of defendant's dispute with the homeowner, and because defendant's movement of the car to a new location seemed suspicious, Gore approached defendant's car to speak with him.

Trooper Gore testified that he then detected the odor of burnt marijuana coming from the car.¹ As a result, Gore asked defendant and then the other two males to exit the car. All three were arrested and searched. In the search incident to arrest, Gore found a small baggie of marijuana in an exterior pocket of defendant's jacket, and a handgun in the interior pocket.

Defendant was charged with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39–5(b) ; and the disorderly persons offense of possession of marijuana, N.J.S.A. 2C:35–10(a)(4). Defendant moved to suppress both the gun and drugs.

At the suppression hearing, defendant testified that, after his first encounter with Trooper Gore, another officer told him to move his car, and then told him to pull into the driveway while the officer spoke to defendant's cousin who had approached on foot. Defendant admitted he had smoked marijuana in the past. However, he testified that he had not smoked marijuana in his car before he got to the scene, that no one who got in his car smelled of marijuana, and that no one had smoked marijuana in his car between his first and second encounters with Gore.

At the suppression hearing, there was no dispute about the lawfulness of the first encounter between Trooper Gore and defendant, in which defendant admittedly was not detained and was free to leave. Judge Swift found that, in the second encounter, Gore lawfully approached the car to make a field inquiry. The court credited Gore's testimony that he smelled the odor of burnt marijuana. The court also credited defendant's testimony that no one in the car smoked marijuana between their first and second encounters “with cops all ... around.” The court found that because Gore's sensitivity to the odor of marijuana could exceed that of a marijuana smoker, such as defendant, Gore could smell marijuana that defendant said he did not smell. The court concluded that Gore permissibly asked defendant to exit the car and lawfully discovered the handgun and marijuana.

After the trial court denied the suppression motion, defendant pled guilty to second-degree unlawful possession of a handgun without a permit. Pursuant to the plea agreement, the State dismissed the marijuana charge, and successfully moved to reduce the mandatory sentence to five years in prison with one year of parole ineligibility. The court imposed that sentence. Under the plea agreement, defendant was granted bail pending appeal of the denial of suppression. See R. 3:5–7(d).

Defendant appeals his April 12, 2013 judgment of conviction, raising the following arguments:

POINT I—AS MARIJUANA IS NO LONGER PER SE CONTRABAND, THE CASE LAW REGARDING “PLAIN SMELL” MUST BE MODIFIED ACCORDINGLY

AND THE EVIDENCE SEIZED IN THE INSTANT CASE MUST BE SUPPRESSED. (Not Raised Below).

POINT II—NO PROBABLE CAUSE EXISTED FOR THE TROOPER'S SECOND APPROACH AND INTERROGATION OF THE DEFENDANT.

We must hew to our “deferential standard of review.” State v. Rockford, 213 N.J. 424, 440, 64 A. 3d 514 (2013). “[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.” Ibid. (internal quotation marks omitted). “Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the ‘feel’ of the case, which a reviewing court cannot enjoy.” Ibid. (alteration in original; internal quotation marks omitted). “Thus, appellate courts should reverse only when the trial court's determination is so clearly mistaken that the interests of justice demand intervention and correction.” State v. Gamble, 218 N.J. 412, 425, 95 A. 3d 188 (2014) (internal quotation marks omitted).

II.

We first address defendant's second argument: that Trooper Gore could not approach defendant's car a second time without probable cause or reasonable suspicion. Gore testified he approached defendant's car to speak with him. “The police do not violate a citizen's rights ‘ “by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen[.]” ’ ” State v. Privott, 203 N.J. 16, 24, 999 A. 2d 415 (2010) (quoting State v. Maryland, 167 N.J. 471, 483, 771 A. 2d 1220 (2001) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed. 2d 229, 236 (1983) )). Such field inquiries “do not constitute searches or seizures for purposes of the warrant requirement.” Ibid. They may be conducted “ ‘without grounds for suspicion,’ ” as long as the subject is not chosen “for impermissible reasons such as race.”

State v. Rodriguez, 172 N.J. 117, 126, 796 A. 2d 857 (2002) (quoting Maryland, supra, 167 N.J. at 483, 771 A. 2d 1220 ); see also State v. Elders, 192 N.J. 224, 246, 927 A. 2d 1250 (2007).

Here, Trooper Gore testified he wished to ask about defendant's dispute with the homeowner and his suspicious movement of the car to a new location.²

No claim has been made that Gore initiated this second encounter for any impermissible reason such as race. Moreover, Gore detected the odor of marijuana as he was approaching defendant's car, before he detained or questioned defendant.³ Thus, Gore's approach was a permissible field inquiry that did not implicate defendant's constitutional rights.

Defendant argues that an officer smelling marijuana must be in a lawful vantage point. Defendant compares this case with State v. Cohen, 73 N.J. 331, 375 A. 2d 259 (1977). However, in Cohen the officers did not detect the smell of marijuana until after they improperly opened or compelled the driver to open the doors of his van. Id. at 344, 375 A. 2d 259. Here, Gore testified he smelled the odor of marijuana when he was walking on the public street, and before he asked defendant to exit the car. Thus, Gore lawfully smelled the odor of marijuana emanating from defendant's car.

III.

At the suppression hearing, defendant's other claim was to challenge the “credibility as to whether or not the officer did or did not smell marijuana” when he approached defendant's car the second time. On appeal, defendant does not contest the trial court's credibility finding that Trooper Gore did smell the odor of burnt marijuana when he again approached the car.

Instead, defendant claims that possession of marijuana is no longer illegal in all instances, and that the “plain smell” doctrine no longer applies, after the passage of the CUMMA. Defendant did not raise this claim or even mention the CUMMA at the suppression hearing. However, the State does not argue that defendant's new claim was not properly preserved, and we detect no “factual shortcoming” in the record regarding defendant's new claim. See State v. Robinson, 200 N.J. 1, 18–22, 974 A. 2d 1057 (2009). Accordingly, we will allow defendant to raise this claim under the plain error rule. R. 2:10–2. Because we find no error, we do not consider whether defendant meets the other requirements to show plain error. See State v. Koskovich, 168 N.J. 448, 529, 776 A. 2d 144 (2001).

To address defendant's new claims, we consider: (A) the precedent of our Supreme Court and this court on the odor of marijuana and probable cause; (B) the CUMMA; and (C) the effect of the CUMMA on that precedent in the context of this case.

A.

“ ‘New Jersey courts have ...