                        NOT FOR PUBLICATION WITHOUT THE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-2369-15T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JAHLIL D. JACKSON,

     Defendant-Appellant.
____________________________

              Submitted April 5, 2017 – Decided June 14, 2018

              Before Judges Fuentes and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Indictment No.
              14-06-0761.

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

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

              The opinion of the court was delivered by

FUENTES, P.J.A.D.
     Defendant Jahlil D. Jackson pled guilty to second degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). On December

11, 2015, Judge Pedro J. Jimenez sentenced defendant to a term of

eight years, with a four-year period of parole ineligibility as

required under the Graves Act, N.J.S.A. 2C:43-6(c).1

     Defendant now appeals raising the following arguments:

          POINT I

          IN VIEW OF CHANGES IN THE LAW DECRIMINALIZING
          THE   SMOKING   OF  MEDICAL   MARIJUANA   AND
          IMMUNIZING SAID USERS, AS WELL AS PERSONS IN
          THE VICINITY OF LAWFUL SMOKERS OF MEDICAL
          MARIJUANA, THE ODOR OF BURNT MARIJUANA, BY
          ITSELF, DOES NOT CONSTITUTE PROBABLE CAUSE TO
          ARREST AND SEARCH EVERYONE IN AN AUTOMOBILE.

          POINT II

          THE EVIDENCE SEIZED FROM THE SEARCH OF THE CAR
          MUST BE SUPPRESSED BECAUSE THE CONSENT TO
          SEARCH WAS NOT VOLUNTARY AND BECAUSE THE
          CONSENT WAS TAINTED BY THE ILLEGAL ARREST.

          POINT III

          BECAUSE THE TRIAL COURT FAILED TO PROVIDE
          SUFFICIENT REASONS FOR THE SENTENCE IMPOSED
          AND IGNORED A MITIGATING FACTOR IN THE RECORD,
          AN EXCESSIVE SENTENCE WAS IMPOSED AND A REMAND
          FOR RESENTENCING IS REQUIRED.




1
  At the time of sentence, defendant was serving a three-year term
of imprisonment for an unrelated offense committed in Cumberland
County.   Judge Jimenez ordered that the sentence he imposed in
this case run concurrent to the sentence imposed in the Cumberland
County matter.

                                2                          A-2369-15T4
     We reject these arguments and affirm. We derive the following

facts from the evidence presented at the evidentiary hearing

conducted by Judge Jimenez to adjudicate defendant's motion to

suppress.

     At approximately 7:42 p.m. on March 15, 2015, State Police

Trooper Alan Cook was on patrol in Trenton, driving a white Crown

Victoria with the New Jersey State Police logo on the door panels,

and overhead lights.      As he drove through the area of Cass Street

and Route 29, Cook noticed that the person seated on the passenger

side of a silver Mazda Protégé was not wearing his seatbelt.                    As

the Mazda turned left on Route 29, Cook activated his overhead

lights, which simultaneously activated the video camera mounted

on the side of the police vehicle.         The driver of the Mazda heeded

the implied command to stop and pulled the vehicle over to the

side of the road.

     Trooper   Cook     approached   the    Mazda's    passenger    side      and

informed the passenger, subsequently identified as defendant, that

he had stopped the car because he noticed that defendant was not

wearing his seatbelt.       Defendant admitted he was not wearing his

seatbelt.      Cook    asked   the   driver   and     defendant    for     their

identification.       As he stood by the opened passenger side window,

Cook detected the odor "of burnt marijuana."            Cook testified that

in the course of taking possession of the identification documents,

                                      3                                  A-2369-15T4
he "lean[ed] into the car to confirm the original smell of . . .

burnt marijuana."2

     The driver did not have a driver's license.    Cook testified

the driver told him her "first name, middle initial, last name,

[and] date of birth."      Cook told her he needed to conduct a

computer motor vehicle search to determine the status of her

driving privileges, and testified that he was then going to "move

along with . . . [the] consent to search procedure."            Cook

testified that, based on the odor of burnt marijuana, he believed

he had probable cause to arrest defendant and the driver. However,

he did not want to take any action until backup units arrived

because, at this point in time, he was outnumbered two-to-one.

     Cook decided "to follow through with . . . [the] consent to

search protocol."    The protocol required that "all occupants have

to be detained, [and] secured as a first step."    However, because

backup units were not nearby, he decided not to remove defendant

and the driver from their car. Cook nevertheless decided to charge

both defendant and the driver with possession of marijuana based

only on the "smell of burnt marijuana."        According to Cook,

defendant told him "they were at a party or something to that



2
  As a trained State Police Trooper with nine years' experience,
Cook testified he was familiar with the smell of burnt marijuana.


                                  4                         A-2369-15T4
effect, other people might have been, or he was around people that

were smoking it or something to that effect."

       As a prelude to his arrest, Cook apprised defendant of his

Miranda3 rights.    After conducting a search of defendant's person

incident to his arrest, Cook found ten glassine baggies4 containing

suspected crack cocaine.   Cook returned to the Mazda and asked the

driver to step out of the vehicle.    He handcuffed her and placed

her and defendant in the back of the State Police car.5    He then

presented the driver with a completed "consent to search" form

allowing him to search the car without a warrant.       The driver

declined to sign the form.

       Cook called the State Police barracks to request a truck to

impound the car. When the driver overheard the radio transmission,

she asked Cook what would happen to the car.    According to Cook,

he told her that the car would be towed to the State Police

barracks in Hamilton Township.    He told her she was going to come

with him because he "would be pursuing other investigative means



3
    Miranda v. Arizona, 384 U.S. 436 (1966).
4
  Cook described the glassine bags as "about an inch long, very
small ziplock bag[s]."
5
  Cook also asked defendant and the driver whether either of them
were in "CUMMA," an acronym for the "Compassionate Use Medical
Marijuana Act," N.J.S.A. 24:6I-1 to -16. Defendant told Cook he
did not know what CUMMA meant.

                                  5                         A-2369-15T4
. . . ."     Cook again told the driver he was impounding the car

because he smelled burnt marijuana emanating from inside the

vehicle.

     According to Cook, both defendant and the driver said to him,

"why can't you let us go, there's no weed in the car."        Cook told

them he could not just take their word for it.            This colloquy

between Cook and the driver continued until, according to Cook,

she capitulated and said, "you can go ahead [and] search it

. . . ."    Cook testified that he asked her, "would you like me to

reread the form to you, and then, I guess, you can make a decision

at the end of the form."      Cook testified that she simply relented

and said: "Search the car, or go ahead and search[.]"

     Despite her alleged capitulation, Cook testified that he

reread the "consent to search" form to the driver again to make

sure she understood her right to refuse.         The signed "consent to

search" form was admitted into evidence at the evidentiary hearing

without    objection   by   defense   counsel.    Cook   testified   that

"underneath the passenger seat" of the Mazda he found "a chrome

colored [loaded] revolver . . . ."        The handgun had been tampered

with.     Cook explained, "on a normal revolver, there's a cylinder

release pin that's located underneath the barrel. That was missing

. . . ."     The search of the car began at 8:07 p.m. and ended at

8:26 p.m.    Defendant told Cook the handgun was his and "that the

                                      6                          A-2369-15T4
driver had nothing to do with it."         Cook accepted defendant's

statement and did not charge the driver as an accomplice or as

joint possessor of the handgun.

     Against   this   evidence,   Judge   Jimenez   denied   defendant's

motion to suppress the handgun.     After stating the legal standards

applicable here, the Judge made the following findings:

          Here we have in this case an officer who by
          his own uncontroverted testimony . . . which
          was   provided    in   a    clear,    concise,
          straightforward manner, which as a result this
          [c]ourt finds to be credible, the officer
          testified that he noticed [defendant], the
          passenger of a vehicle, without a seat belt
          and proceeded to make a motor vehicle stop to
          that effect.

          The stop was recorded . . . [and] is in
          evidence, which was viewed by the [c]ourt,
          . . ., was the best evidence and the clearest
          representation of what happened subsequent to
          the stopping of the motor vehicle.

                . . . .

          Arguably, to [Cook's] surprise, . . . not
          anticipating that this would be the case, as
          he stood by the passenger side of the vehicle
          speaking to [defendant], addressing the fact
          that he was not wearing a seatbelt, Trooper
          Cook testified that he had smelled the burnt
          odor of marijuana emanating from inside the
          vehicle. And . . . that would in and of itself
          justify a warrantless search of the vehicle
          given the trooper was standing where he should
          have been standing. No issue with regards to
          that. The smell of marijuana was inadvertent
          in that the trooper could not offer or did not
          offer, and just from the facts, would not
          . . . be able to offer a basis for expecting

                                   7                             A-2369-15T4
              that he would be smelling the marijuana from
              inside the vehicle, especially given that the
              entire incident was premised on a no seat belt
              violation.

      Based     on    these    findings,       Judge   Jimenez   concluded      Cook

lawfully stopped the vehicle and, under the plain view doctrine,

had probable cause to arrest defendant based solely on having

smelled burnt marijuana emanating from inside the car.                       Judge

Jimenez also found the driver of the car freely and knowingly

consented to the search of the car.              The Judge emphasized that the

video/audio record shows the driver made an unsolicited statement

to Cook authorizing him to search the car.                  The Judge concluded

that the handgun Cook found under the passenger seat of the car

was the product of a lawful, freely given consent to search.

      We defer to Judge Jimenez's factual findings, which are

supported by substantial credible evidence.                 See State v. S.S.,

229 N.J. 360, 379-81 (2017).             He had the opportunity to observe

the witness first-hand, to assess his credibility, and to get a

feel for the case, which is something beyond the reach of an

appellate court.        State v. Elders, 192 N.J. 224, 243-44 (2007);

State v. Locurto, 157 N.J. 463, 471 (1999).                 We also agree with

Judge Jimenez's well-reasoned conclusions of law.                    As this court

has   held,    "the    smell    of   burnt     marijuana,   by   a    trained    and

experienced      State        Trooper,   emanating       from    the     passenger


                                           8                               A-2369-15T4
compartment of a legally stopped motor vehicle, created probable

cause to believe that a violation of law had been or was being

committed."   State v. Judge, 275 N.J. Super. 194, 196-197 (App.

Div. 1994); see also State v. Myers, 442 N.J. Super. 287, 290

(App. Div. 2015).

    Defendant's argument attacking the sentence imposed by the

court lacks sufficient merit to warrant discussion in a written

opinion.   R. 2:11-3(e)(2).

    Affirmed.




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