STATE OF NEW JERSEY VS. LEE H. CALHOUN (13-05-1342 AND 14-02-0372, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0172-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEE H. CALHOUN,

Defendant-Appellant.
________________________________

Submitted May 3, 2017 – Decided June 13, 2017

Before Judges Accurso and Lisa.

On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment Nos.
13-05-1342 and 14-02-0372.

Joseph E. Krakora, Public Defender, attorney
for appellant (Jay L. Wilensky, Assistant
Deputy Public Defender, of counsel and on the
briefs).

Christopher S. Porrino, Attorney General,
attorney for respondent (Sara M. Quigley,
Deputy Attorney General, of counsel and on the
brief).

PER CURIAM
 After his suppression motion was denied, defendant pled

guilty, pursuant to a plea agreement, to one count in Indictment

No. 13-05-1342, namely Count Five, first-degree possession with

intent to distribute a controlled dangerous substance, cocaine,

N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1). Defendant was

sentenced to ten years' imprisonment with a parole disqualifier

of twenty-eight months.1 Pursuant to the plea agreement, the six

remaining counts of the indictment were dismissed. The court also

imposed all mandatory assessments and penalties.

The sole issue before us in this appeal is whether the trial

court erred in denying defendant's motion to suppress evidence

seized as a result of a warrantless search incidental to a motor

vehicle stop. More particularly, defendant argues:

POINT I

NEITHER THE STOP NOR THE PATDOWN SEARCH WAS
ADEQUATELY SUPPORTED. BECAUSE THE INTRUSION
WAS ILLEGAL, THE RESULTS OF THE STOP AND
SEARCH MUST BE SUPPRESSED. U.S. CONST.,
AMENDS. IV, XIV; N.J. CONST. (1947), ART. I,
PAR. 7.

1
At the time of sentencing, defendant was also sentenced under
Indictment No. 14-02-0372 for an unrelated drug offense, which was
committed approximately two months after the offense that is the
subject of this appeal. The two offenses were encompassed in the
same plea agreement. Pursuant to the terms of that agreement,
defendant was sentenced under Indictment No. 14-02-0372 to seven
years' imprisonment, to be served concurrently with the sentence
imposed on the offense that is the subject of this appeal.

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 A. The Initial Stop Was Not Supported By the
Requisite Particularized Suspicion.

B. The Pat-Down Search of the Defendant Was
Likewise Insufficiently Supported.

We reject defendant's arguments and affirm.

At the suppression hearing, the State presented the testimony

of the two Toms River police officers involved in the motor vehicle

stop, Shawn Ruiz and Joshua Kuhlwein. The State also produced a

Toms River Police Department K-9 officer, Stephen Eubanks, whose

testimony is not germane to the arguments defendant raises in this

appeal. Defendant did not testify or present any witnesses. The

evidence established the following relevant facts.

On November 30, 2012, at approximately 9:45 p.m., Ruiz was

conducting a surveillance of a 7-Eleven store parking lot in Toms

River, in an area known for high drug activity, with particular

relationship to a nearby motel. In the previous eleven months,

Ruiz had conducted more than sixty investigations or drug related

arrests in that area. While conducting the surveillance, he

observed a vehicle pull into the parking lot and park. The driver

remained in the vehicle. As the vehicle was pulling in, Ruiz

observed that the driver's side and passenger side windows were

tinted.

A man approached the vehicle and entered the passenger side.

About ten seconds later, that individual exited the vehicle and

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walked toward the motel we previously referenced. The car then

backed out of the parking lot. As it did so, Ruiz confirmed his

previous observation that the windows were tinted. He followed

the vehicle and effected a motor vehicle stop. He called dispatch

and reported his location and anticipated the arrival of a back-

up officer.

While still alone at the scene, Ruiz approached the driver's

side of the vehicle. He further observed that the windows were

"heavily tinted." He made contact with the driver, later

identified as defendant, who remained in the car. He informed

defendant that he was stopped because of the tinted windows.

Defendant was very agitated in his demeanor, and his hands were

shaking as he handed Ruiz his driver's license.

During this interaction, Ruiz detected a strong odor of raw

marijuana emanating from inside defendant's vehicle. He also

observed multiple air fresheners placed inside the vents of the

vehicle, which, from his training and experience, Ruiz knew was a

common method used to mask the odor of illegal substances inside

a vehicle. Because of the smell of marijuana, Ruiz told defendant

of the observations he made in the 7-Eleven parking lot.

Kuhlwein arrived as the back-up officer, and he approached

the passenger side of defendant's car. Because of the heavy tint

of the front passenger side window, Ruiz requested that defendant

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lower that window to enable Kuhlwein to observe the conversation.

This measure was also taken for police safety. With the passenger

window lowered, Kuhlwein also detected the odor of marijuana

emanating from inside the vehicle.

At Ruiz's request, defendant exited the vehicle. Defendant

continued to act in an agitated manner, constantly placing his

left hand near his left pocket and on several occasions placing

his hand in that pocket. He was postured in a manner which, as

Ruiz described it, "to be somewhat . . . bladed away from me in

such a stance where I thought that [defendant] may possibly run

away from me or charge at me." Kuhlwein made similar observations.

Ruiz asked defendant if he had anything dangerous or illegal

on him, to which defendant answered in the negative. For purposes

of officer safety, Ruiz conducted a pat down of defendant to search

for weapons. He "immediately felt a hard object which [he]

recognized to be possibly a knife." He removed the object, which

was a folding knife. He then directed defendant to sit in the

back seat of his patrol car. The two officers then spoke with

each other confirming that they each smelled the odor of marijuana,

and it was determined that they should request a consent to search

the vehicle.

Ruiz asked defendant for his consent, which he refused. After

further discussion, defendant continued to withhold his consent

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to search. Ruiz then placed him under arrest, handcuffed him, and

conducted a full search of his person incident to the arrest. He

recovered more than $2000 in currency from his pockets.

The officers then had defendant's vehicle towed to the Toms

River Police Department, and Ruiz transported defendant to the

police department as well. The K-9 officer we previously

mentioned, Eubanks, utilized a drug-sniffing dog to conduct a dog

sniff of the outside of the vehicle. The dog indicated positively.

Ruiz prepared an application for a search warrant, which was

issued. A subsequent search of the vehicle revealed the presence

of cocaine, marijuana, oxycodone, and drug distribution

paraphernalia.

After the conclusion of the hearing, the attorneys submitted

supplemental briefs. Judge James M. Blaney then issued a written

decision on August 15, 2014. Based upon the testimony he heard

and his observation of the witnesses, he made factual findings

consistent with the recitation of facts which we have set forth.

He found that the initial motor vehicle stop was justified based

on Ruiz's reasonable belief that a motor vehicle violation occurred

based on the tinted windows. Because of the smell of marijuana

coming from inside defendant's vehicle, the judge further found

that the officers were justified in extending the investigation

beyond the original purpose of the stop. He further found the pat

6 A-0172-15T3
search of defendant permissible because the events and

circumstances leading up to it provided a sufficient basis for a

protective search. In his remaining findings, which are not

related to this appeal, the judge concluded that the search of

defendant's person and vehicle were valid, and he accordingly

denied the suppression motion.

Our review of a trial court's decision on a suppression motion

is circumscribed. We must defer to the trial court's factual

findings as long as those findings are supported by sufficient

credible evidence in the record. State v. Elders, 192 N.J. 224,

243 (2007). A reviewing court should especially "give deference

to those findings of the trial judge which are substantially

influenced by his opportunity to hear and see the witnesses and

to have the 'feel' of the case, which a reviewing court cannot

enjoy." Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161

(1964)). Those findings should only be disregarded when they are

clearly mistaken. State v. Hubbard, 222 N.J. 249, 262 (2015)

(citing Johnson, supra, 42 N.J. at 162). "A trial court's findings

should not be disturbed simply because an appellate court 'might

have reached a different conclusion were it the trial tribunal.'"

State v. Handy, 206 N.J. 39, 44-45 (2011) (quoting Johnson, supra,

42 N.J. at 162).

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 From our review of the suppression motion record, we are

satisfied that Judge Blaney's factual findings are amply supported

by sufficient credible evidence. Those findings were based on his

assessment of the demeanor of the witnesses as they testified and

his feel of the case. Accordingly, we defer to those factual

findings.

In his first argument, defendant contends that the initial

stop was not supported by the requisite particularized suspicion.

Like Judge Blaney, we reject this argument. Fundamentally,

investigatory stops of motor vehicles by police officers are

justified if based upon a reasonable articulable suspicion that a

motor vehicle violation has occurred. Delaware v. Prouse, 440

U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979).

The stop in this case was based upon Ruiz's belief that defendant

violated N.J.S.A. 39:3-74, which provides in relevant part:

No person shall drive any motor vehicle
with any sign, poster, sticker or other non-
transparent material upon the front
windshield, wings, deflectors, side shields,
corner lights adjoining windshield or front
side windows of such vehicle other than a
certificate or other article required to be
so displayed by statute or by regulations of
the commissioner.

No person shall drive any vehicle so
constructed, equipped or loaded as to unduly
interfere with the driver's vision to the
front and to the sides.

8 A-0172-15T3
 We have interpreted this provision to prohibit windows that

are so darkly tinted as to interfere with a driver's vision. State

v. Cohen, 347 N.J. Super. 375, 380 (App. Div. 2002). Judge Blaney

credited Ruiz's testimony that the windows of defendant's car were

heavily tinted. Ruiz testified that while conducting his

surveillance of the 7-Eleven parking lot, he could not see inside

of the car. At the site of the stop, when Kuhlwein arrived, it

was necessary to lower the passenger side window in order to enable

him to see inside the car.

Thus, the record supports the conclusion that a reasonable

articulable suspicion existed that defendant violated N.J.S.A.

39:3-74. Whether defendant was actually guilty of violating this

statute is not dispositive. State v. Williamson, 138 N.J. 302,

304 (1994).

We next address defendant's second argument, that the pat

down search was insufficiently supported by a reasonable belief

that defendant was armed and dangerous. To determine whether the

officers possessed such a reasonable suspicion, we must evaluate

the totality of the circumstances.

From the initial interaction with Ruiz, defendant acted in

an agitated manner. This, standing alone, is not of great

significance because many motorists stopped by a police officer

might act in such a manner. However, the smell of raw marijuana

9 A-0172-15T3
not only gives rise to a reasonable suspicion of criminal conduct,

but provides the basis for probable cause of such conduct. State

v. Judge, 275 N.J. Super. 194, 202-03 (App. Div. 1994). Ruiz was

also possessed of the knowledge of his observations in the 7-

Eleven parking lot. Based upon his training and experience and

the character of the neighborhood, he suspected that a drug

transaction occurred when an individual entered the car, only to

leave after ten seconds and then proceed toward the motel which

was known for drug activity. Finally, defendant exhibited

potentially aggressive behavior after he got out of his car,

including the movements of his left hand into and out of his left

pocket.

A police officer is permitted to conduct a limited search of

an individual's outer clothing if he reasonably believes the

individual is armed and dangerous and might pose a danger to

himself or others. Terry v. Ohio, 342 U.S. 1, 30, 88 S. Ct. 1868,

1884-85, 20 L. Ed. 2d 889, 911 (1968). We agree with Judge

Blaney's conclusion that this standard was very well supported by

the record, thus justifying a protective pat search of defendant.

Affirmed.

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