                                NOT FOR PUBLICATION WITHOUT THE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-2538-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GARVENS ALEXANDRE, a/k/a
ALEXANDRE GARVIN,
ALEXANDRE GARVINS, and
ALEXANDRE GARVEN,

     Defendant-Appellant.
_____________________________

                   Submitted May 13, 2020 – Decided June 8, 2020

                   Before Judges Gooden Brown and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 17-08-0556.

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

                   Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                   attorney for respondent (Michele C. Buckley, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   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

negotiated guilty plea to unlawful possession of a controlled dangerous

substance, namely alprazolam or Xanax, with intent to distribute, N.J.S.A.

2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(13). He was sentenced in accordance

with the plea agreement to three years' probation conditioned upon serving 180

days at the county jail at the end of the probationary term.

      Defendant now appeals from the September 6, 2018 memorializing

judgment of conviction, raising the following single point for our consideration:

            BECAUSE THE COURT ERRED IN FINDING THAT
            A     DIMMED    HEADLIGHT      CREATED
            REASONABLE SUSPICION SUFFICIENT TO
            JUSTIFY STOPPING THE CARAVAN, THIS
            MATTER MUST BE REMANDED FOR A NEW
            ANALYSIS OF REASONABLE SUSPICION,
            ABSENT THE IMPROPER CONSIDERATION OF
            THE HEADLIGHT.

      After reviewing the record and the applicable legal principles, we find no

merit to defendant's contention because the judge's finding of reasonable

suspicion did not rely exclusively on "a dimmed headlight." Rather, in denying

defendant's suppression motion, Judge Candido Rodriguez, Jr. determined that

defendant's car was "lawfully stopped . . . because of the various motor vehicle

                                                                         A-2538-18T3
                                        2
violations committed by defendant." We therefore affirm substantially for the

reasons stated in Judge Rodriguez's comprehensive and well-reasoned written

opinion issued on June 20, 2018. We add these comments.

      At the suppression hearing, Officer Luciano Porto testified for the State.

Based on his testimony, which the judge found "credible," 1 Judge Rodriguez

made the following key factual findings:

            On March 23, 2017, at approximately 9:18 p.m.,
            Elizabeth Police Officers Eric Gora and Luciano Porto
            were patrolling the high crime area of Walnut Street
            and Magnolia Avenue in Elizabeth . . . . While on
            patrol, Officer Porto testified that he observed a Dodge
            Grand Caravan . . . traveling west on Magnolia Avenue
            approaching Walnut Street. The vehicle was traveling
            at a high rate of speed over [twenty-five] miles per
            hour.[2]

                  Officer Porto also observed that the passenger
            side headlight was partially inoperable, and that neither
            the driver[3] nor passenger in the vehicle had a fastened
            seatbelt. The police officers positioned their police
            vehicle behind the Dodge . . . and the [o]fficers could
            see the driver and passenger moving about the cabin.
            This caused the Dodge . . . to jerk to the right, almost

1
  The officer's testimony was also supported by the body camera footage that
the judge viewed.
2
  Porto testified the posted speed limit on Magnolia Avenue was twenty-five
miles per hour.
3
  The driver was identified as defendant. "The [o]fficers and [d]efendant[] were
familiar with each other from prior investigations."
                                                                        A-2538-18T3
                                       3
            striking a parked vehicle. At this time, the [o]fficers
            activated their overhead lights and siren to conduct a
            motor vehicle stop. The Dodge . . . came to a complete
            stop in front of 1215 Magnolia Avenue . . . .

      Upon approaching the Dodge, Gora detected "a strong smell of marijuana

emanating from the vehicle," and asked defendant, who "was visibly nervous,"

to "step out of the vehicle in order to conduct a search." Initially, defendant

"refused to step out of the vehicle" and "requested that a supervisor be brought

to the scene." When defendant eventually "stepped out [of the vehicle,] an odor

of marijuana emanated from [his] person." As a result,

            Gora proceeded to search defendant . . . and located two
            unmarked prescription pill bottles in his jacket's
            pockets. Recovered from inside the first bottle were
            [fifty-seven] Alprazolam pills. Inside the second pill
            bottle, the police located . . . a total of [twenty-five]
            glassine envelopes containing suspected heroin, . . .
            suspected cocaine packaged in [twenty-five] pink tinted
            baggies[,] and . . . one knotted plastic bag containing
            suspected marijuana. Defendant . . . had $915 in his
            possession . . . . A search of the Dodge . . . proved
            negative for further contraband. [4]


4
    The passenger was also ordered to step out of the vehicle once Gora
determined that he "had an active warrant." As the passenger exited the vehicle,
he "attempted to [discreetly] drop onto the ground a knotted sandwich baggie,
containing various medium sized Ziploc baggies of suspected marijuana," which
was "immediately recovered" by Porto. Following the encounter, defendant was
issued several motor vehicle summonses, including careless driving, N.J.S.A.
39:4-97, failure to maintain headlamps, N.J.S.A. 39:3-66, and failure to wear a
seatbelt, N.J.S.A. 39:3-76.2f.
                                                                        A-2538-18T3
                                       4
      Judge Rodriguez determined that as a result of their "personal

observations," the "officers lawfully stopped defendant's vehicle" based on their

objectively reasonable and articulable suspicion that the driver committed a

motor vehicle violation. See State v. Scriven, 226 N.J. 20, 33-34 (2016) ("Under

both the Fourth Amendment and Article I, Paragraph 7 [of the New Jersey

Constitution], ordinarily, a police officer must have a reasonable and articulable

suspicion that the driver of a vehicle . . . is committing a motor-vehicle violation

. . . to justify a stop." (citing State v. Locurto, 157 N.J. 463, 470 (1999))).

      In support, Judge Rodriguez pointed to the fact that defendant was

"traveling at a high rate of speed, the passenger's headlight was partially

inoperable, neither the driver [n]or the passenger had a fastened seatbelt, and

[d]efendant['s] . . . car jerked to the right, almost striking a parked vehicle." See

State v. Pitcher, 379 N.J. Super. 308, 315 (App. Div. 2005) ("In evaluating the

sufficiency of the basis for a stop . . . , courts consider the totality of the

information available to the officer at the time of the conduct."); State v. Arthur,

149 N.J. 1, 7-8 (1997) ("[T]he officer 'must be able to point to specific and

articulable facts which, taken together with rational inferences from those facts,

reasonably warrant [the] intrusion.'" (second alteration in original) (quoting

Terry v. Ohio, 392 U.S. 1, 21 (1969))).


                                                                             A-2538-18T3
                                          5
      Further, the judge found that "the officers lawfully detained defendants"

to investigate based on the fact that "[t]he motor vehicle stop occurred in a high

crime area," defendant "bec[a]me visibly nervous . . . during the traffic stop,"

and Officer Gora "almost immediately detect[ed] an odor of raw marijuana

emanating from the vehicle." See State v. Dickey, 152 N.J. 468, 479-80 (1998)

("If, during the course of the stop or as a result of the reasonable inquiries

initiated by the officer, the circumstances 'give rise to suspicions unrelated to

the traffic offense, an officer may broaden [the] inquiry and satisfy those

suspicions.'" (alteration in original) (quoting United States v. Johnson, 58 F.3d

356, 357-58 (8th Cir. 1995))).

      According to the judge, "not only did the officers validly stop the vehicle

after witnessing [d]efendant . . . commit various traffic infractions, but once the

vehicle was stopped the [o]fficers acquired probable cause based on plain

smell." See State v. Walker, 213 N.J. 281, 290 (2013) ("New Jersey courts have

recognized that the smell of marijuana itself constitutes probable cause 'that a

criminal offense ha[s] been committed and that additional contraband might be

present.'" (quoting State v. Nishina, 175 N.J. 502, 515-16 (2003) (alteration in

original))). The judge concluded that "[g]iven the totality of the circumstances,"

the stop, search and seizure were constitutionally permissible.


                                                                           A-2538-18T3
                                        6
      On appeal, defendant only challenges the motor vehicle stop. He argues

that because Porto's testimony that "[defendant] violated the headlight statutes"

was deficient, the judge's "reasonable-suspicion calculus was erroneous, and the

matter must be remanded for a proper determination of whether reasonable

suspicion existed absent the flawed inclusion of the partially-illuminated

headlight." Specifically, according to defendant, there was no testimony that

the light from the headlight failed to project a distance of 500 feet as required

under N.J.S.A. 39:3-48(b).5 However, even without Porto's testimony regarding

the headlight violation, there remains ample reasonable suspicion that defendant

committed a motor vehicle infraction to justify the stop from the other violations

observed by the officers and found by the judge.

      We conclude there was sufficient credible evidence in the record to

support Judge Rodriguez's factual findings. See State v. Boone, 232 N.J. 417,

425-26 (2017) ("An appellate court reviewing a motion to suppress evidence in


5
   Even if there was a mistake on the part of Porto, based on our decision, we
need not address whether the officer's reasonable suspicion that defendant
violated the headlight statute constituted a "mistake-of-fact" or "a mistake of
law." State v. Sutherland, 231 N.J. 429, 439 (2018). If the former, "the State
need prove only that the police lawfully stopped the car, not that it could convict
the driver of the motor-vehicle offense." State v. Williamson, 138 N.J. 302, 304
(1994). See also State v. Locurto, 157 N.J. 463, 470 (1999) (noting that the
State is not required to prove that the motor vehicle violation occurred in order
to meet the standard of reasonable suspicion).
                                                                           A-2538-18T3
                                        7
a criminal case must uphold the factual findings underlying the trial court's

decision, provided that those findings are 'supported by sufficient credible

evidence in the record.'" (quoting State v. Scriven, 226 N.J. 20, 40 (2016))). We

also agree with the judge's legal conclusions, which we review de novo. See

State v. Brown, 456 N.J. Super. 352, 358-59 (App. Div. 2018) ("We owe no

deference, however, to conclusions of law made by trial courts in deciding

suppression motions, which we instead review de novo." (citing State v. Watts,

223 N.J. 503, 516 (2015))). Defendant's contrary arguments do not warrant

further discussion. R. 2:11-3(e)(2).

      Affirmed.




                                                                         A-2538-18T3
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