STATE OF NEW JERSEY v. GEORGE A. MYERS, a/k/a G
DOCKET NO. A-4295-12T4
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
September 8, 2015
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION; APPROVED FOR PUBLICATION September 8, 2015
Submitted March 2, 2015 - Decided September 8, 2015
Before Judges Sabatino, Guadagno and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 12-03-248.
John J. Hoffman, Acting Attorney General, attorney for respondent (Sara M. Quigley, Deputy Attorney General, on the brief).
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),
I.
The following facts are drawn from the testimony at the suppression hearing and
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,
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
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
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 (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 (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 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 (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 (2002) (quoting Maryland, supra, 167 N.J. at 483); see also State v. Elders, 192 N.J. 224, 246 (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
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 (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. 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 (2009). Accordingly, we will allow defendant to raise this claim under the plain error rule.
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 [long] recognized that the smell of marijuana itself
These and other decisions have “‘repeatedly recognized that . . . the smell of burning marijuana establishes probable cause that there is contraband in the immediate vicinity and that a criminal offense is being committed,’ and that the detection of that smell satisfies the probable-cause requirement.” Walker, supra, 213 N.J. at 287-88 & n.1. Here, the “smell of marijuana emanating from the automobile gave the officer probable cause to believe that it contained contraband.” Pena-Flores, supra, 198 N.J. at 30.
In some of these cases, the odor of marijuana is described as “strong” or “overwhelming.” E.g., id. at 12, 30. Trooper Gore did not use such adjectives, but he detected the odor of
marijuana before he reached the vehicle. In any event, subject to any pertinent defenses, possession of any quantity of marijuana is an offense.
Hence, cases have held that the odor of marijuana gives “rise to probable cause ‘to conduct a warrantless search of the persons in the immediate area from where the smell has emanated.‘” Legette, supra, 441 N.J. Super. at 15 (quoting Vanderveer, supra, 285 N.J. Super. at 481); see, e.g., Pena-Flores, supra, 198 N.J. at 12 (an officer smelling marijuana in an automobile ordered the driver out of the car and searched him for drugs). Here, the search
Moreover, because the smell of marijuana itself can suffice to furnish probable cause that a criminal offense has been committed, the smell of marijuana gave Trooper Gore the right to arrest defendant for committing an apparent marijuana offense in his presence.5 “‘The “in presence” requirement . . . is satisfied by the trooper‘s use of his sense of smell in much the same manner as if he had used his sight or hearing or touch[.]‘” Legette, supra, 441 N.J. Super. at 29 (quoting Judge, supra, 275 N.J. Super. at 203).6
B.
Defendant claims the New Jersey cases cited above must be modified due to the 2010 passage of the CUMMA. However, “‘[p]ossession of marijuana’ remains an offense” under New Jersey law. Legette, supra, 441 N.J. Super. at 29 n.9 (citing
Notes
In the CUMMA, the Legislature intended that “a distinction be made between medical and non-medical uses of marijuana.”
The CUMMA defines a “[q]ualifying patient” as a State resident “who has been provided with a certification by a physician pursuant to a bona fide physician-patient
relationship.”
The registry identification card “identifies a person as a registered qualifying patient.”
is engaged in the suspected or alleged medical use of marijuana is lawfully in possession of a registry identification card.”
A registered qualifying patient may engage in the “‘[m]edical use of marijuana[,]’ mean[ing] the acquisition, possession, transport, or use of marijuana . . . as authorized by [the CUMMA].”
The CUMMA provides that “[t]he provisions of
However,
Moreover, the CUMMA does not permit any person, including a registered qualifying patient, to “operate . . . or be in actual physical control of any vehicle . . . while under the influence of marijuana,” or to “smoke marijuana . . . in a private vehicle unless the vehicle is not in operation.”
C.
Here, defendant does not claim that he or anyone in his car was a qualifying patient who had a registry identification card, or even a physician‘s certification.10 Because defendant has not shown that he was the “authorized holder of an appropriate registration” under the CUMMA, he cannot and does not assert that his possession of marijuana was exempt under the CUMMA.
Instead, defendant argues the well-established New Jersey precedent allowing the odor of marijuana to establish probable cause is no longer good law after the CUMMA. He bases his argument on the assertion that marijuana is no longer “per se contraband.”11
However, under search and seizure law, probable cause can arise about objects that are not “per se contraband.” Probable cause merely requires “a practical, common sense determination whether, given all of the circumstances, ‘there is a fair probability that contraband or evidence of a crime will be found[.]‘” State v. Moore, 181 N.J. 40, 46 (2004) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)).
Defendant argues the CUMMA requires marijuana to be treated like alcohol. He cites State v. Jones, 326 N.J. Super. 234, 241 (App. Div. 1999). In Jones, we ruled that “the odor of alcohol [on a driver‘s breath], combined with [his] admission of consumption of one bottle of beer,” was not “sufficient to establish probable cause to search the vehicle for open containers of alcohol” without a warrant. Id. at 237, 244-45. We noted that Judge “differentiated the smell of marijuana from the odor of alcohol emanating from either the passenger compartment or driver by pointing out that, unlike the use of marijuana, the use of alcohol is not a per se violation of the law.” Id. at 241 (citing Judge, supra, 275 N.J. Super. at 202).
Here, we are not concerned with a warrantless vehicle search. Moreover, the odor of alcohol on a person‘s breath speaks to the contents of the person‘s gastrointestinal tract. It may signify far less about the contents of the person‘s pockets and vehicle than the odor of marijuana wafting out of the vehicle.
Most importantly, alcohol is an entirely “‘lawful‘” product which may be purchased and consumed by any adult without a permit or license, and is legally available for sale from innumerable stores, restaurants, bars, and other establishments. See Nishina, supra, 175 N.J. at 516 (quoting Judge, supra, 275 N.J. Super. at 202). By contrast, the possession, consumption, and sale of marijuana remains illegal except in the instance of a registered qualifying patient who obtains medical marijuana from one of the limited number of ATCs. See Caporusso v. N.J. Dep‘t of Health & Senior Servs., 434 N.J. Super. 88, 95-96 (App. Div. 2014).
The CUMMA provides that possession of a registry identification card is an affirmative defense, not an element of the offense.
We stress that this is not a situation where a person suspected of possessing or using marijuana has proffered to a law enforcement officer a registry identification card or other evidence that the person is a registered qualifying patient under the CUMMA. We note that the “Attorney General Medical Marijuana Enforcement Guidelines For Police” (Dec. 6, 2012),12 advises that
where it reasonably appears to a police officer that the CUMMA affirmative defense applies (e.g., the person in possession of marijuana presents a valid medical marijuana registry identification card and otherwise appears to be complying with all of the [CUMMA] statutory requirements), an officer should generally refrain from making an arrest, filing criminal charges, and/or seizing the marijuana or associated paraphernalia.
[Id. at 6.]
However, the Attorney General‘s guidelines also advise that “the officer need not assume that the marijuana is medical
marijuana authorized by CUMMA,” that it is the responsibility of the person to assert the affirmative defense, and that
when an officer develops reasonable articulable suspicion or probable cause to believe that a marijuana offense is being or has been committed (e.g., a plain view observation or “plain smell” of marijuana), that reasonable articulable suspicion or probable cause does not dissipate merely because a suspect asserts that the detected marijuana is medical marijuana possessed in accordance with CUMMA.
[Id. at 8, 23.]
The Attorney General advises officers in that situation to “make appropriate inquiries of the person, and access other available sources of information” such as a database query of the person‘s registry status, “to determine whether the possession or use is in fact authorized under State law.” Id. at 5-9, 24.
We need not address the propriety of the advice in the Attorney General‘s guidelines. Here, no claim was or is made that defendant or anyone in his car was a registered qualifying patient or otherwise authorized to possess marijuana under the CUMMA. In that situation, Trooper Gore‘s smell of the odor of marijuana emanating from defendant‘s car gave him probable cause, which justified his arrest of defendant.
We affirm the judgment of conviction. We remand to the trial court to address defendant‘s bail status within twenty days of this opinion. We do not retain jurisdiction.
LEONE, J.A.D.
CLERK OF THE APPELLATE DIVISION