STATE v ZEB KOCH If detained, Miranda applies

STATE v

ZEB KOCH,

Defendant-Appellant.

______________________________________

	September 26, 2011

Argued April 4, 2011 – Decided

Before Judges A. A. Rodríguez and C. L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Warren County, Municipal Appeal No. A-41-09-Y17.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0602-10T1

PER CURIAM

Zeb Koch was convicted in the Municipal Court of Mansfield of underage consumption of alcohol, in violation of Township of Independence Local Ordinance 121-12.[1] It is undisputed that the ordinance makes it unlawful for "any person under the legal age to knowingly possess or consume alcoholic beverage on private property." The municipal court judge imposed a $250 fine, and $33 court costs.

Koch appealed. At a trial de novo in the Law Division, the judge heard oral argument and issued a written decision, finding Koch guilty of the same charge. The judge imposed the same sanctions. Koch appeals from the judgment of the Law Division. We reverse.

These are the salient facts. On May 8, 2009, Koch, an eighteen-year-old high school student, went to a party in Independence with his nineteen-year-old girlfriend Ashley. The party was held at a home on Barkers Mill Road. A neighbor complained to the police that young people attending the party were smoking marijuana and urinating on his lawn. Independence Township Patrolman Joseph DeWitt testified that he responded to the location of the party. He saw that there were thirty to fifty cars parked near the home. It is undisputed that alcoholic beverages were being consumed in and around the home and on its deck. Upon the arrival of DeWitt in a marked squad car, around twenty young people ran into the woods behind the home. DeWitt did not pursue them. He did detain the forty to fifty young people who had not run into the woods. He lined them up; told them they were not free to leave; and proceeded to sniff the breath of each to determine if they had consumed alcohol. It is undisputed that no Miranda[2] warnings were given. Specifically, no one was advised that they had the right to refuse to submit to being sniffed, or to remain silent.

According to DeWitt, just before he sniffed Koch, the young man said spontaneously, "I only had one." He remembered that Koch's breath smelled of alcohol. After about twenty minutes, DeWitt told the group that they were free to leave, but must do so with a "sober" driver. No summonses were issued at that time.

Ninety minutes after DeWitt left the scene of the party, he came across Koch again. According to DeWitt, he saw a maroon Pontiac, later determined to be registered to Ashley Perch, stationary on the side of the road. He testified that Koch, Ashley and a young woman were the occupants of the vehicle, but, "the operator of the [Pontiac] when I first arrived was not Zeb Koch." DeWitt distinctly remembered speaking with Koch about Koch and Ashley exchanging places, because "Ashley Perch was only 17 years old and was not allowed to drive after midnight."

Ashley testified that Koch was with her the whole time at the party. He did not drink any alcoholic beverages, nor make any comment to DeWitt about drinking. She would not have let Koch drive her car if he had consumed an alcoholic beverage. According to her, after leaving the party with Koch, DeWitt pulled over her Pontiac. Koch was driving. The Pontiac was moving when DeWitt activated his overhead lights to pull it over. She confirmed that that she was nineteen years old, not seventeen as DeWitt had testified.

Koch testified and denied drinking any alcoholic beverages at the party. He was over eighteen on the day of the party. Ashley was not subject to a midnight curfew for new drivers.

After speaking briefly, DeWitt told Koch to continue driving the Pontiac. The motor vehicle stop ended and no charges were issued against anyone.

The defense attempted to introduce into evidence as Exhibit D-5, a videotape made by a camera in DeWitt's police vehicle. The exhibit was excluded from evidence, but it is part of the record on appeal. We have seen it. D-5 shows that the Pontiac was operated by Koch. It was moving for a considerable distance before DeWitt activated his overhead lights and pulled it over.

Four days later, on May 12, 2009, DeWitt issued a summons for underage drinking to Koch. Several days later, Koch learned about the charge for the first time, when his high school principal told him that he was being suspended from school activities because of an underage drinking charge.

Koch appeals, contending:

IT WAS PLAIN ERROR FOR [THE MUNICIPAL COURT AND LAW DIVISION JUDGES] TO EXCLUDE EXHIBIT D-5 AND TESTIMONY ABOUT OFFICER DEWITT'S STOPPING OF THE CAR DRIVEN BY KOCH. BY DOING SO, THE JUDGES EXCLUDED RELEVANT AND MATERIAL EVIDENCE CRUCIAL TO THE CROSS-EXAMINATION OF OFFICER DEWITT AND DENIED KOCH THE OPPORTUNITY TO FULLY AND FAIRLY CHALLENGE BY CROSS-EXAMINATION THE POLICE OFFICER'S ABILITY TO ACCURATELY RECOLLECT THE FACTS CONCERNING THE EVENTS OF THE NIGHT IN QUESTION, INCLUDING HIS IDENTIFICATION OF [KOCH] AS A PERSON WHO MADE A PURPORTED ADMISSION THAT HE HAD BEEN DRINKING ALCOHOL. THIS PLAIN ERROR WAS SO WIDE OF THE MARK THAT IT VIOLATED THE SIXTH AMENDMENT.

We agree.

After a careful review of the record, we conclude that the Law Division judge erred in excluding Exhibit D-5, the videotape of a motor vehicle stop of Koch about an hour and a half after DeWitt left the scene of the party. That videotape directly impeached DeWitt's testimony. It tended to raise a reasonable doubt about the credibility and accuracy of DeWitt's identification of Koch as one of the partygoers who consumed alcohol. The videotape tended to impeach DeWitt's testimony that the Pontiac was stationery when he first saw it and someone other than Koch was the driver.

Koch also contends:

THE STATE BEARS THE BURDEN OF PROVING THAT A SUSPECT HAS BEEN ADVISED OF HIS RIGHTS. [KOCH] AND OTHERS WERE "DETAINED" AND QUESTIONED. THEY WERE NOT FREE TO LEAVE AND THEREFORE WERE "IN CUSTODY". [KOCH'S] PURPORTED "ADMISSION" OF GUILT TO OFFICER DEWITT (WHICH DEFENDANT DENIES MAKING) MUST BE SUPPRESSED BECAUSE NO MIRANDA WARNING WAS GIVEN.

Koch has raised a valid Miranda issue. The partygoers who remained at the scene were detained for about twenty minutes. They were not free to leave. DeWitt's sniffing of their breath was clearly in a custodial setting. His actions were an implied question to Koch and others to indicate whether they had consumed alcoholic beverages. For Miranda purposes, when determining whether a suspect has been subjected to custodial interrogation courts look "not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 307-08 (1980). In keeping with Miranda's protective aims, consideration is paid to the suspect's perception of events, not the intent of police. Innis, supra, 446 U.S. at 301, 100 S. Ct. at 1690, 64 L. Ed. 2d at 308.

Here, Koch was charged in a quasi-criminal matter, which resulted in the imposition of a penal consequence (a fine). Therefore, the statement attributed to Koch should have been suppressed, for failure to give Miranda warnings. In light of this exclusion, the credibility of DeWitt is even more critical with respect to establishing Koch's guilt.

Moreover, the testimony of DeWitt that he sniffed alcohol on Koch's breath, even if believed, is insufficient as a matter of law to sustain a conviction. There were many young people at this party. Alcohol was being consumed by many of them. Therefore, the smell of alcohol in the area of the party was a given. The sniff test without excluding other sources, was not sufficient to establish that Koch was drinking. This is so, in light of the serious impeachment of DeWitt's credibility by D-5, which was erroneously excluded. The conviction cannot stand.

Having determined that the conviction must be vacated due to the exclusion of D-5, and the failure to give Miranda warnings, we do not address the remaining contentions:

THE LAW DIVISION JUDGE WAS OBLIGATED TO MAKE HIS OWN EVIDENTIARY RULINGS AND FINDINGS OF FACT. INSTEAD, HE UNDULY DEFERRED TO THE RULINGS AND FINDINGS OF THE MUNICIPAL COURT JUDGE. BOTH JUDGES' EXCLUSION OF THE PROFFERED EVIDENCE WAS ERRONEOUS.

OFFICER DEWITT'S TESTIMONY WAS NOT CREDIBLE NOR SUFFICIENT TO SUSTAIN A VERDICT OF GUILTY BEYOND A REASONABLE DOUBT.

THE STATE'S BURDEN OF PROOF IN A CRIMINAL CASE IS PROOF BEYOND A REASONABLE DOUBT. NEITHER A MERE PREPONDERANCE OF THE CREDIBLE EVIDENCE, NOR THE PRESENTATION OF CLEAR AND CONVINCING EVIDENCE IS SUFFICIENT TO MEET THE STATE'S BURDEN IN A CRIMINAL CASE. THE EVIDENCE PRESENTED IN THE TRIAL COURT BY THE STATE'S SOLE WITNESS IS OUTWEIGHED BY THE TESTIMONY OF [KOCH], ASHLEY PERCH AND EXHIBIT D-5, SHOULD HAVE BEEN A DEFENSE VERDICT.

THE PROOF PRESENTED WAS INADEQUATE TO ESTABLISH THAT [KOCH] HAD INGESTED AN ALCOHOLIC BEVERAGE. AN OBJECTIVE, SCIENTIFICALLY-RELIABLE TEST WOULD BE NEEDED IN ORDER TO ESTABLISH THE PRESENCE OF ALCOHOL IN A HUMAN BODY. A POLICE OFFICER'S NOSE IS NOT A SCIENTIFICALLY-RELIABLE INSTRUMENT FOR THE DETECTION OF ALCOHOL IN THE HUMAN BODY. VERIFIABLE TESTING IS DESIRABLE. A 'SNIFF' TEST MAY BE ADEQUATE FOR PURPOSES OF ESTABLISHING PROBABLE CAUSE TO INVESTIGATE FURTHER, BUT IS NOT SUFFICIENT FOR ESTABLISHING GUILT BEYOND A REASONABLE DOUBT.

The conviction is reversed.

---

[1] The charges arose in Independence Township, but the trial was held in the Mansfield Township municipal court due to the judge's schedule.

[2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Speedy trial applies to municipal court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIA B. AUSTIN,

Defendant-Appellant.

________________________________

Submitted: September 12, 2011 - Decided:

Before Judges C.L. Miniman and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Municipal

Appeal No. 70-2008.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1060-10T3

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Brian D. Gillet,

Assistant Prosecutor, of counsel; Jason

Seidman, on the brief).

PER CURIAM

Defendant Mia B. Austin appeals her judgment of conviction

for fourth-degree obstruction of the administration of law,

contrary to N.J.S.A. 2C:29-1a; fourth-degree resisting arrest,

contrary to N.J.S.A. 2C:29-2a; speeding, contrary to N.J.S.A.

39:4-98; and expired registration, contrary to N.J.S.A. 39:3-4.

She was not sentenced to incarceration or probation but was

September 16, 2011

2 A-1060-10T3

fined $500 for obstruction, $500 for resisting, $86 for

speeding, and $26 for expired registration. Court costs and

penalties were also imposed.

On April 26, 2005, Piscataway Police Officer Michael Joy

was conducting a speed-enforcement radar detail on Haines Avenue

when he determined that defendant was driving at forty-two miles

per hour in a twenty-five-mile-per-hour zone. Joy flagged her

to stop and approached her vehicle. She presented him with an

expired registration card when he asked for her documentation.

Defendant admitted that she knew she had to renew the

registration.

Joy explained that the car would have to be towed and asked

for the keys. Defendant would not surrender them, despite

repeated requests. Joy requested backup and, when another

officer arrived, instructed defendant to get out of the car and

leave the keys on the dashboard. However, when she got out of

the car, she took the keys with her and refused to surrender

them. When she was placed under arrest for obstructing the

towing and impoundment of her car, she then resisted

handcuffing. She was ultimately subdued, and the officers pried

the keys out of her hand. She was then charged with the above

offenses.

3 A-1060-10T3

Defendant pled not guilty at the first court appearance on

May 10, 2005. Subsequently, there were nine court appearances

over the next eight months, none of which was adjourned at the

request of defendant. However, defendant's counsel failed to

appear on February 23, 2006, and counsel was ordered to appear

on February 28, which was then carried to March 1. On March 7,

2006, defendant objected to the multiple adjournments, the

length of the delay, and the adverse impact all of the daytime

appearances were having on her children and her employment. The

matter was not rescheduled until May 11 on a try-or-dismiss

basis, but the court again adjourned the matter four more times

before beginning the trial on October 24, 2006. However, the

judge did not have sufficient time to complete the testimony of

Joy and adjourned the matter to January 23, 2007. When that

appearance was adjourned, defendant's counsel demanded, verbally

and in writing, that the municipal court provide him with "a

detailed listing of any and all scheduled [court] appearances."

The municipal court never complied with this request.

The trial resumed on March 6, 2007––almost two years after

the offenses in question. Although the testimony of Joy was

completed that day, the judge again adjourned the trial as he

did not have sufficient time available to hear the next witness.

This was the eighteenth court appearance. The matter was

4 A-1060-10T3

rescheduled to an agreed date of May 1, 2007, but that date was

adjourned by the court to June 26, then to August 28, and then

to September 25, 2007. The latter date, too, was adjourned, and

defendant filed a motion to have the Piscataway municipal judge

recused from the case because defendant had sued the Township.

Yet no immediate ruling was made on that motion. The matter was

relisted on October 23, November 27, and December 4 with no

further testimony ever being taken. It was again adjourned to

January 22, 2008.

On the latter date, the municipal judge had apparently not

been reappointed to the bench, and the new judge declared a

mistrial and transferred the matter to the Metuchen municipal

court for disposition. The first appearance in Metuchen on

April 4, 2008, was adjourned; it was now three years after the

offenses in question. Two more scheduled appearances were

adjourned before trial began on July 11, 2008. By that time,

defendant had moved to dismiss for violation of her right to a

speedy trial. The motion was denied, and the trial began that

day. It resumed and was concluded on September 5 with defendant

found guilty on all charges.

Defendant appealed to the Law Division where further delays

occurred. The appeal was not decided until January 22, 2010––

four years and nine months after the offenses in question.

5 A-1060-10T3

Defendant renewed her speedy trial motion, which was again

denied. Defendant was convicted de novo on all charges. This

appeal followed.

Defendant raises the following issues for our

consideration:

POINT I - THE COURT ERRED IN DENYING

DEFENDANT'S MOTION FOR DISMISSAL BASED ON

VIOLATION OF HER RIGHT TO [A] SPEEDY TRIAL.

POINT II - DEFENDANT'S CONVICTION FOR

OBSTRUCTION OF THE ADMINISTRATION OF JUSTICE

SHOULD BE REVERSED.

POINT III - DEFENDANT'S CONVICTION FOR

RESISTING ARREST SHOULD BE REVERSED.

The Sixth Amendment guarantees the accused the right to a

speedy trial. Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct.

2182, 2184, 33 L. Ed. 2d 101, 108 (1972). Because it is

"impossible to determine with precision when the right has been

denied," id. at 521, 92 S. Ct. at 2187, 33 L. Ed. 2d at 112, the

Barker Court rejected an inflexible approach in evaluating

alleged violations of a defendant's right to a speedy trial.

Id. at 529, 92 S. Ct. at 2191, 33 L. Ed. 2d at 116. Rather, the

Court imposed a flexible balancing test, which weighs the

conduct of both the prosecution and the defendant. Id. at 530,

92 S. Ct. at 2191-92, 33 L. Ed. 2d at 116-17. This balancing

test assesses four factors: "[l]ength of delay, the reason for

the delay, the defendant's assertion of his right, and prejudice

6 A-1060-10T3

to the defendant." Id. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d

at 117. None of the factors is dispositive, but instead the

factors "must be considered together with such other

circumstances as may be relevant." Id. at 533, 92 S. Ct. at

2193, 33 L. Ed. 2d at 118.

Our Supreme Court reviewed the history of a defendant's

right to a speedy trial in New Jersey under Article I, paragraph

10, of the New Jersey Constitution in State v. Szima, 70 N.J.

196, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180

(1976). The Court recognized that the federal right to a speedy

trial had been found fundamental in 1967 and that the dimensions

of this right were delineated in 1972 by the Barker Court. Id.

at 200. In adopting that paradigm, it noted that "[t]he proper

approach suggested by the Supreme Court was an ad hoc balancing

test in which the conduct of both the prosecution and the

defendant are weighed." Id. at 200-01. It observed that the

Barker Court "regarded none of the four factors as either a

necessary or sufficient condition to the finding of a

deprivation of the right to a speedy trial." Id. at 201

(emphasis added). It "recognize[d] that application of a

balancing of interests test must be on an ad hoc basis and

necessarily involves subjective reaction to the balancing of

circumstances." Ibid.

7 A-1060-10T3

In State v. Farrell, 320 N.J. Super. 425, 427 (App. Div.

1999), an appeal from a DWI conviction, we found that "663 days

from the issuance of the summonses through thirteen noncontinuous,

widely-spaced court sessions" amounted to a

violation of the defendant's right to a speedy trial. Id. at

428. The defendant's counsel "entered his appearance and a notguilty

plea, filed notice of several motions, made discovery

requests and proffers, and asserted [the] defendant's

constitutional right to a speedy trial." Ibid. Three weeks

later, he "acknowledged receipt of some discovery and requested

other, missing" discovery. Ibid. The next day, he filed a

brief in support of his motions. Ibid. "An inordinate number

of continuances and lengthy adjournments then ensued." Ibid.

Trial did not actually begin until ten months after the

defendant was charged. Id. at 428, 433. It was then carried

for three months; was adjourned for five weeks, at which point

the defendant again asserted his right to a speedy trial; and

was then adjourned again until July 10, 1996——eighteen months

after the defendant was charged. Id. at 436-37. At that point

it was adjourned again to September 11, 1996. Id. at 439. On

that date, the trooper was not available and the prosecutor

sought an adjournment, the defendant renewed his motion to

dismiss, and the case was adjourned again and again, id. at 439-

8 A-1060-10T3

42, until it was tried to conclusion on November 13, 1996, id.

at 443-44. The defendant continued throughout this time to

press his right to a speedy trial. Id. at 439-43.

In State v. Tsetsekas, 411 N.J. Super. 1, 4 (App. Div.

2009), we again considered the delay in a DWI conviction.

There, the defendant was arrested on May 8, 2007, and charged

with DWI. Id. at 4-5. He first appeared in court on May 15,

2007, entered a plea of not guilty, and was scheduled for trial

on July 17, 2007. Id. at 5. At that time, the State requested

an adjournment because it had just provided the defendant with

discovery. Ibid. The matter was relisted for August 14, 2007,

when the State revealed it had not provided the videotape of the

defendant's stop and arrest. Ibid. Multiple adjournments were

requested by the State over the next four months when on

December 18, 2007, the State represented it had not alerted its

witnesses of the date for trial. Id. at 5-6. The defendant

sought a speedy-trial dismissal, which the judge denied, and the

trial finally commenced at 11:00 p.m. when one of the troopers

arrived. Id. at 6-7. The trial was scheduled to continue on

March 5, 2008, but the State again sought an adjournment because

the troopers were not available. Id. at 7. The defendant

renewed his motion to dismiss, and the judge again denied the

motion. Ibid. On April 16, 2008, almost a year after the

9 A-1060-10T3

defendant's arrest, the State concluded its presentation of

evidence, and the defense presented its case. Ibid. The

defendant was convicted of DWI and appealed. Ibid. The Law

Division denied the defendant's speedy-trial motion and affirmed

the conviction. Id. at 7-8.

The Law Division judge measured the length of the delay

against the delay in Farrell and concluded that the delay in

Tsetsekas was not excessive. Id. at 11. We rejected that

approach and held that "no set length of time . . . fixes the

point at which delay is excessive." Ibid. We pointed out that

"[t]he first step in analyzing the facts requires a court to

remember" the Supreme Court's policy on DWI dispositions. Ibid.

(quoting Farrell, supra, 320 N.J. Super. at 446-47). We

observed that the 344-day dispositional period was "more than

five times the stated objective." Ibid. We concluded that

amount of delay was excessive. Id. at 11-12.

We have, however, on separate occasions concluded that

delays in drunk-driving trials were not excessive. State v.

Misurella, ___ N.J. Super. ___ (App. Div. 2011) (rejecting

speedy trial claim where delay was caused by defendant and the

State); State v. Berezansky, 386 N.J. Super. 84, 85, 99 (App.

Div. 2006) (rejecting "defendant's contention that he was

deprived of his constitutional right to a speedy trial based on

10 A-1060-10T3

the nearly five months that elapsed between his arrest and the

beginning of his trial"), certif. granted, 191 N.J. 317 (2007),

appeal dismissed, 196 N.J. 82 (2008); State v. Prickett, 240

N.J. Super. 139, 141-42, 148 (App. Div. 1990) (affirming denial

of speedy-trial motion in a trial held approximately six months

after arrest). We acknowledge these cases involved DWI charges,

but we discern no reasons why the same speedy trial principles

and analysis should not apply to municipal court trials in

general.

The delay here far exceeded the five-month delay in

Berezansky and the six-month delay in Prickett. In fact, it far

exceeded the almost one-year delay in Tsetsekas and the 663-day

delay in Farrell. This delay consumed 1228 days from arrest to

conviction and subjected defendant to no less than thirty-one

court appearances. Indeed, the delay was further exacerbated by

the fact that it took another 504 days before the Law Division

heard defendant's appeal from the municipal conviction. By any

standard, the delay here was extraordinary. As a consequence,

we must next consider the second Barker factor––the reasons for

the delay.

The Barker Court suggested that a "deliberate attempt to

delay the trial in order to hamper the defense should be

weighted heavily against the government." Barker, supra, 407

11 A-1060-10T3

U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. On the

other hand, a valid reason for the delay, such as the absence of

a witness, will be considered justifiable and excuse the delay.

Ibid. Similarly, although more neutral and given less weight,

"delays of scheduling and other failures of the process for

which the trial court itself was responsible are attributable to

the State and not to the defendant," for it is the ultimate

responsibility of the government to bring the defendant to

court. Farrell, supra, 320 N.J. Super. at 451 (citing Barker,

supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117).

Finally, delays attributable to the defendant "would not weigh

in favor of finding a speedy trial violation." State v.

Gallegan, 117 N.J. 345, 355 (1989).

Here, there is no suggestion that there was any "deliberate

attempt to delay the trial in order to hamper the defense."

Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d

at 117. However, the bulk of the delays were attributable to

the municipal court judge, his staff, and the prosecutor. The

record is devoid of any evidence that defendant caused any of

the twenty-nine adjournments with the exception of one

adjournment when she filed her recusal motion. Although the

State blames the judge, his delays "are attributable to the

12 A-1060-10T3

State and not to the defendant." Farrell, supra, 320 N.J.

Super. at 451.

The third Barker factor, the defendant's assertion of her

right to a speedy trial, "is entitled to strong evidentiary

weight in determining whether the defendant is being deprived of

the right." Barker, supra, 407 U.S. at 531-32, 92 S. Ct. at

2192-93, 33 L. Ed. 2d at 117. The strength of the defendant's

efforts are closely related to the other Barker factors. Id. at

531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117; see, e.g., Farrell,

supra, 320 N.J. Super. at 451-52 (finding in favor of the

defendant who, given the "excessive" delays, invoked his right

to a speedy trial at the outset and on eight other occasions).

At the same time, the defendant's "failure to assert the right

will make it difficult for a defendant to prove that he was

denied a speedy trial." Barker, supra, 407 U.S. at 532, 92 S.

Ct. at 2193, 33 L. Ed. 2d at 118.

Here, defendant asserted her right to a speedy trial on

March 7, 2006, February 27, 2007, and March 26, 2008. Because

we do not have transcripts of all court appearances, we do not

know if there were other occasions when defendant asserted her

right to a speedy trial, but we do know that she maintained that

position for almost two years, leaving only one factor to

consider.

13 A-1060-10T3

The final Barker factor is the prejudice to the defendant

caused by the delay. Ibid. The Barker Court identified three

interests that the right to a speedy trial protects: (1)

preventing oppressive pretrial incarceration; (2) minimizing

anxiety and concern of the defendant; and (3) limiting the

possibility that the defense will be impaired. Ibid. Moreover,

prejudice can be found "from employment interruptions, public

obloquy, anxieties concerning the continued and unresolved

prosecution, the drain on finances, and the like." State v.

Smith, 131 N.J. Super. 354, 367-68 n.2 (App. Div. 1974), aff’d

o.b., 70 N.J. 213 (1976).

Here, defendant was not incarcerated pretrial, and there is

no suggestion that her defense was impaired as a result of the

delay. She does, however, urge that she "experienced anxiety

over the drawn[-]out prosecution, had interruptions in her

employment, and suffered financial drain as a result of the

delay." Indeed, we cannot imagine that the latter was not the

case as generally attorneys expect to be compensated for making

thirty-one court appearances. In Farrell we found that

the prosecution's clear inattention to its

responsibilities along with the municipal

court's patent failure to prepare itself to

try the matter expedi[ti]ously and shepherd

it to resolution efficiently . . . were so

egregious that no showing of prejudice is

required in order for this defendant to

succeed on his argument that, in fundamental

14 A-1060-10T3

fairness terms, he was denied his adequately

asserted right to a speedy trial.

[Farrell, supra, 320 N.J. Super. at 452-53.]

The delay there was 663 days; here it was almost twice as

long. We see no basis for distinguishing the facts in Farrell

and are persuaded that the result should be the same. Although

some showing of prejudice has been made, none was required. As

a result, it was error to deny defendant's speedy-trial motion

because "the denial of fundamental fairness was so great, and

the integrity of the judicial process so crippled, as to require

that the convictions be vacated." Id. at 453.

In light of our disposition of the speedy-trial issue,

defendant's claim that her convictions should be reversed on

other grounds is moot.

Reversed and remanded for vacation of the judgment of

conviction and refund of all fines, penalties, and costs.

theft requires unlawful control over, movable property of another with purpose to deprive him thereof.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS BATIZ,

Defendant-Appellant.

Telephonically argued September 2, 2011

Decided September 16, 2011

Before Judges Alvarez and Nugent.

On appeal from the Superior Court of New

Jersey, Law Division, Cumberland County,

Municipal Appeal No. 26-10.

DOCKET NO. A-2070-10T3

Marianne V. Rogers, Assistant Prosecutor,

argued the cause for respondent (Jennifer

Webb-McRae, Cumberland County Prosecutor,

attorney; Ms. Rogers, of counsel and on the

brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

PER CURIAM

Defendant Luis Batiz appeals a disorderly persons theft

conviction, N.J.S.A. 2C:20-3(a), after a trial de novo on the

record in the Law Division pursuant to Rule 3:23. For the

reasons that follow, we reverse.

2 A-2070-10T3

In addition to the theft conviction, defendant was

convicted in the municipal court of the petty disorderly persons

offense of disorderly conduct, N.J.S.A. 2C:33-2(a), the

disorderly persons offenses of obstruction, N.J.S.A. 2C:29-1(a),

and hindering apprehension, N.J.S.A. 2C:29-3(a). After the

November 19, 2010 trial de novo, the Law Division judge

determined that the statutory elements for the offenses other

than theft were not established and found defendant guilty only

of theft.

The facts can be briefly summarized. At the municipal

court trial, the State presented one witness, State Police

Trooper DeTullio.1 DeTullio testified that on February 23, 2010,

he was dispatched to a house in Fairfield Township. Upon

arrival, he saw a moving van with the name "Pack Rat Moving

Company" (Pack Rat) in defendant's driveway to the right of his

home. A Honda CRV owned by defendant's wife blocked the van's

access to the street. A second Pack Rat vehicle was parked on

the street in front of the house.

Defendant explained to DeTullio that the moving company was

attempting to remove its storage pod, filled with his personal

belongings, from his driveway; as a result, he in turn had

hidden the "key tool" or jack which secured the pod to the

1 Trooper DeTullio did not place his first name on the record.

3 A-2070-10T3

moving van.2 At DeTullio's urging, defendant produced the item,

defendant's wife moved her CRV, and both Pack Rat vehicles left

the residence, pod in tow.

Defendant contends that the State failed to prove theft

beyond a reasonable doubt. He also asserts that his claim of

right established an absolute defense to the charge. See

N.J.S.A. 2C:20-2(c)(2).

The State's position that defendant's acknowledgment that

he removed the key in order to prevent the removal of the pod,

when joined with the circumstantial evidence, was sufficient

proof of theft. The State also asserts defendant could not

raise the claim of right argument since he did not own the key

and, therefore, his removal of the key constituted theft. At

oral argument, the State advanced the further theory that Pack

Rat's ownership of the pod barred defendant from successfully

asserting a claim of right defense based on his ownership of the

pod's contents.

We review the record to determine if the conclusions

reached in the Law Division were based on sufficient credible

evidence. State v. Johnson, 42 N.J. 146, 162 (1964). In the

process, we accord substantial deference to the trial court's

2 The record contains no information regarding the dispute

between defendant and Pack Rat.

4 A-2070-10T3

credibility determinations. State v. Barone, 147 N.J. 599, 615

(1997). We do not give particular deference, however, to the

trial court's interpretation of the law. Manalapan Realty, L.P.

v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

Theft is defined as follows: "[a] person is guilty of theft

if he unlawfully takes, or exercises unlawful control over,

movable property of another with purpose to deprive him

thereof." N.J.S.A. 2C:20-3. Deprive is defined as "(1) to

withhold or cause to be withheld property of another permanently

or for so extended a period as to appropriate a substantial

portion of its economic value . . . or (2) [to] dispose or cause

disposal of the property so as to make it unlikely that the

owner will recover it." N.J.S.A. 2C:20-1(a).

If for the sake of our discussion we assume the State

proved the item did not belong to defendant, the State

nonetheless did not prove that defendant's removal of the key

was intended to be permanent, for an extended period of time, or

even intended to make it unlikely that the moving company would

recover it. Rather, the State proved only that defendant's

conduct was intended to prevent the towing of the pod and his

belongings from his property until such time as his dispute with

the moving company was resolved. In other words, nothing

DeTullio said in his brief testimony established a purpose to

5 A-2070-10T3

deprive the rightful owner of the object, within the meaning of

the statute.

Moreover, the State's position that the defense of claim of

right is restricted solely to property in which a defendant has

an ownership interest is not borne out in the case law. See

State v. Taplin, 230 N.J. Super. 95, 96-97, 100 (App. Div. 1988)

(defendant entitled to present a claim of right defense, and

court must instruct the jury accordingly, where defendant helped

a friend remove a television from the friend's home, assuming

the friend had the right to remove it).

The statute permits the defense to be asserted where a

person "[a]cted under an honest claim of right to the property

or service involved or that he had a right to acquire or dispose

of it as he did[.]" N.J.S.A. 2C:20-2(c)(2). In this case,

defendant acted on the belief that he had the right to prevent

removal of the pod from his own property, because his personal

belongings were inside. Although the trooper convinced

defendant to return the key, it is undisputed that defendant

took the object, which lacks any inherent value, solely to

protect his own personalty. Thus we disagree with the State's

further contention that the defense was inapplicable because the

pod belonged to Pack Rat even though the contents belonged to

defendant. Pack Rat's ownership of the pod or the key does not

6 A-2070-10T3

prevent defendant from successfully asserting the defense

because without attempting to control the pod he simply could

not protect his own property.

We are mindful of "the fundamental premise that criminal

laws are to be strictly construed." State v. Hodde, 181 N.J.

375, 379 (2004). The State did not prove theft or present

evidence which defeated the claim of right defense. Thus,

defendant should not have been found guilty.

Reversed and remanded.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. I.S. A-5793-09T3

In this appeal, defendant challenges the order entered by the Family Part judge granting custody of one of defendant's twin daughters to her former spouse and the twins' biological father. Defendant contends that in the absence of a finding ofabuse or neglect, the minor child should have been returned to defendant, from whom she had been removed.

We hold that the court's jurisdiction over the matter was appropriately continued, notwithstanding the absence of a finding of abuse or neglect, because the court's continued assistance was required. In addition, because the Division of Youth and Family Services initiated proceedings against defendant and her former spouse under both Title 9 and Title 30, the court's jurisdiction was also appropriately invoked pursuant to Title 30.

We additionally hold that as long as appropriate procedural due process is satisfied and the requisite standards and burdens of proof attendant to each statutory scheme are satisfied, overlapping or hybrid proceedings brought pursuant to both Title 9 and Title 30 will not be set aside. 8-31-11

STATE OF NEW JERSEY VS. COREY MISURELLA A-1439-10T4

In this appeal from a DWI conviction, the State concedes that the right not to be subjected to unreasonable delay applies to an appeal, see State v. Le Furge, 222 N.J. Super. 92, 98 (App. Div.), certif. denied, 111 N.J. 568 (1988), and therefore, to a trial de novo in the Superior Court. We apply the factors established in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), and conclude that defendant's speedy trial right was not violated by a 798-day delay from the time he filed his notice of appeal in the Law Division under R. 3:23 until a trial de novo was actually held. 8-26-11

L.M.F. VS. J.A.F., JR. A-0121-10T3

In this appeal from a final domestic violence restraining order, we apply the principles articulated by the Court in J.D. v. M.D.F., _____ N.J. _____ (2011), and conclude the trial court erred in finding the predicate offense of harassment. Theparties are divorced parents. They used text messaging as the primary means of exchanging information about their two children. The domestic violence complaint alleged harassment based on defendant sending plaintiff eighteen text messages over a three-hour period. The content of the messages was not threatening or menacing in any way. We also hold there was insufficient evidence of a history of domestic violence to substantiate that a restraining order was necessary to prevent further abuse as required under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). 8-22-11

STATE OF NEW JERSEY VS. ERIC CLEMENTE RANGEL A-2051-09T3

N.J.S.A. 2C:14-2(a) elevates the offense of sexual assault to first-degree aggravated sexual assault if

an act of sexual penetration of another person is committed under any one of the following circumstances: . . . (3) [t]he act is committed during the commission, or attempted commission . . . of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape ....

We construe the phrase "of another," which modifies "aggravated assault" in section (3), to mean aggravated assault of a third person, such as a spouse or child, committed for the purpose of compelling the submission of the sexual assault victim, and not an aggravated assault on the sexual assault victim, which is covered in another section of the statute. 8-22-11

STATE OF NEW JERSEY VS. PHILLIP JOHNSON A-5686-08T4

The prosecutor committed prejudicial error, contrary to State v. Bankston, 63 N.J. 263 (1973), and State v. Branch, 182 N.J. 338 (2005), when he remarked in summation that the State was precluded by the rules of evidence from explaining why a police detective chose defendant's picture to include in a photo array, and the court compounded the error by instructing the jury to the same effect. Additionally, defendant's right to a fair trial was prejudiced when the detective volunteered on direct examination that he selected the photo from a computer database that he called a "Mug Master." 8-19-11

State v. Larry R. Henderson (A-8-08; 062218)

The current legal standard for assessing eyewitness identification evidence must be revised because it does not offer an adequate measure for reliability; does not sufficiently deter inappropriate police conduct; and overstates the jury’s ability to evaluate identification evidence. Two modifications to the standard are required. First, when defendants can show some evidence of suggestiveness, all relevant system and estimator variables should be explored at pretrial hearings. Second, the court system must develop enhanced jury charges on eyewitness identification for trial judges to use. Defendant is entitled to a new pretrial hearing consistent with this opinion to determine the admissibility of the eyewitness evidence introduced at his trial.

State v. Cecilia X. Chen (A-69-08; 063177)

Even without any police action, when a defendant presents evidence that an identification was made under highly suggestive circumstances that could lead to a mistaken identification, trial judges should conduct a preliminary hearing, upon request, to determine the admissibility of the identification evidence.

STATE OF NEW JERSEY v. LAMBERT A-5323-09T4 May 5, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5323-09T4

STATE OF NEW JERSEY, Plaintiff-Appellant, v. ZAIRE E. LAMBERT, Defendant-Respondent.

Submitted January 25, 2011 - Decided May 5, 2011

Before Judges Wefing, Payne and Koblitz.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

Indictment No. 09-09-3055.

Warren W. Faulk, Camden County Prosecutor,

attorney for appellant (Rachael Minardi,

Assistant Prosecutor, of counsel and on

the brief).

Yvonne Smith Segars, Public Defender,

attorney for respondent (Diane Toscano,

Assistant Deputy Public Defender, of

counsel and on the brief).

PER CURIAM

Defendant was charged with one count of unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and one count of receiving stolen property, N.J.S.A. 2C:20-7. Defendant filed a motion to suppress the evidence seized during a search of a vehicle, and the trial court granted the motion. The State appeals, pursuant to leave granted, from the trial court's order granting that motion. After reviewing the record in light of the contentions advanced on appeal, we reverse.

One witness testified at the motion, Patrolman Al Higginbotham of the Clementon Police Department. Higginbotham was on routine patrol on the night of May 13, 2009, and shortly after 11:00 p.m. was patrolling the area around the Pine Valley Court Apartments, a multi-building complex; he was in a marked troop car, by himself. Higginbotham testified that the area was "a high crime area, [with] a lot of drugs, a lot of burglaries, had a couple of home invasions there, assaults." He himself had made a number of arrests in the area.

He noticed a car in the parking lot with its lights out in which several people were sitting. He decided to approach the car because of his knowledge of the area's reputation for narcotics trafficking. Before doing so, however, he radioed his intention to the department's central dispatch. Higginbotham stopped his patrol car behind the parked vehicle and perpendicular to it. He said he did not block the vehicle in when he parked his patrol car and that there was sufficient room for the vehicle to back up and leave if the driver had wanted to do so. While he did not formally request the assistance of back-up units, two other patrol cars, which had evidently been nearby, pulled into the lot as he was getting out of his patrol car and approaching the parked vehicle. He identified the other two officers as Patrolman Clark and Sergeant Laub. Higginbotham testified that it was a common procedure for central dispatch to notify other units in the area that an officer was going to investigate a suspicious vehicle. He said that when they arrived, they also got out of their vehicles and came toward the car. None of the three officers turned on the emergency lights in their patrol cars. He also said that while he did not remember how the two officers parked their patrol cars, he did not believe that they would have prevented the driver from moving his car from the scene if he had wanted to do so. The defense did not present any testimony that the patrol cars in any way hemmed in the other car.

Higginbotham testified that it was very dark in the parking lot and that it was not until he approached the car, that he could see that three individuals were in the car, the driver, the front-seat passenger, and the driver's-side, rear-seat passenger. The driver's-side window was partially rolled down, and as he approached the car, he could detect the odor of raw marijuana. The driver rolled down his window all the way, and the odor of marijuana became stronger. Higginbotham asked the driver why he was parked there, and the driver responded that he had been visiting his cousin and came outside to talk to his friends. Higginbotham asked the driver where was his cousin and the driver answered, "The F Building right there." He was pointing, however, to the "J" Building.

Higginbotham then asked for identification from all three men, and two were able to produce documentation; the third identified himself verbally. None of the three lived at the apartment complex. Higginbotham then called his dispatcher and asked that a warrant check be run; he learned that there was an outstanding warrant for the driver. He then asked the driver to step out of the car and spoke to him at the rear. He asked who owned the car, and the driver responded that it belonged to the front-seat passenger, defendant. Higginbotham again asked the driver where he was coming from, and this time he pointed toward the "F" Building and said he was coming from the "F" Building. When asked why, just a few minutes earlier, he had pointed to the "J" Building, he denied doing so.

Higginbotham placed the driver in one of the other patrol cars that had responded to the scene and then approached defendant, the front-seat passenger. He asked defendant if the car was his, and he responded that his mother leased it. Higginbotham again smelled the odor of raw marijuana and asked defendant and the individual in the back seat to both step out, and they did so. Higginbotham asked if he could search the car, and defendant agreed. Higginbotham gave him a form to execute, indicating his consent, and defendant signed it. Higginbotham testified that before defendant signed the form, he explained it to defendant, and explained that he did not have to agree to the search. He said that defendant's demeanor was cooperative throughout and that he signed the form willingly.

Although the consent form was admitted into evidence at the hearing, it has not been supplied to us in connection with the appeal. From testimony presented, however, the following additional facts were presented. The time noted for execution of the form was 10:30 p.m. Higginbotham testified that was clearly incorrect, that the time was 11:30 p.m. He also testified, however, that defendant inserted the time when he signed the form, not Higginbotham. In addition, execution of the form gave consent to search two vehicles, the one in which the three men had been sitting, and another, parked nearby. Higginbotham testified that defendant told him that he owned that vehicle, and thus Higginbotham included it on the form.

After obtaining defendant's consent, Higginbotham entered the car and uncovered what he termed a "chunk" of marijuana between the seat and the center console, which he estimated at less than fifty grams. With that discovery, Higginbotham called the dispatch office to see if there was a K-9 unit in the area. He learned that one was nearby and would respond to the scene. It arrived in approximately ten minutes. Higginbotham said he did not conduct any further search of the car in the interim but simply waited for the K-9 unit to arrive. Higginbotham testified that one of the reasons he waited was Sergeant Laub's uncertainty whether the executed consent form conferred permission to search the trunk. While they were waiting, Sergeant Laub contacted someone from the prosecutor's office, who advised him that it did.

When the dog did arrive, his handler first placed him in the car and then had him walk around the car. The handler told Higginbotham that the dog had reacted both to the car's console and the trunk. Higginbotham opened the console and found cash in the sum of $632, in denominations of twenty dollars and less. Higginbotham, together with Sergeant Laub, then turned to the trunk, opening it with the keys that had been in the ignition. They could see the remnants of marijuana on the driver's side panel. They looked further and came upon a loaded Taurus nine millimeter pistol in the wheel well area. They called in the weapon's serial number to dispatch and learned that it had been reported as stolen in Pennsauken. Defendant was placed under arrest. Based upon a supervisor's recommendation, Higginbotham did not search the vehicle that defendant had identified as belonging to him.

Following this testimony, the trial court granted defendant's motion to suppress. In the court's oral opinion, it made no findings with respect to Higginbotham's credibility, i.e., whether it accepted his testimony as credible or did not. In that opinion, it rejected the State's characterization of Higginbotham's initial encounter with the three occupants of the car as a field inquiry. It stressed the presence of the three patrol cars on the scene and its view that as a consequence, the driver of the car in question would not have considered himself free to leave the scene. It concluded, rather, that it was an investigatory stop, and since Higginbotham did not have reasonable and articulable suspicion to support an investigatory stop, the subsequent search, although done with consent, was invalid. Thereafter, we granted the State's motion for leave to appeal.

On appeal, the State raises the following arguments for our consideration:

POINT I: THE TRIAL COURT ERRED IN FINDING THAT OFFICER HIGGINBOTHAM DID NOT POSSESS REASONABLE AND ARTICULABLE SUSPICION TO CONDUCT AN INVESTIGATIVE STOP OF DEFENDANT.

[Raised Below.]

POINT II: THE TRIAL COURT ERRED IN FINDING THAT OFFICER HIGGINBOTHAM'S INITIAL CONTACT WITH DEFENDANT CONSTITUTED AN INVESTIGATIVE DETENTION; RATHER, THE POLICE ENCOUNTER BEGAN AS A LAWFUL FIELD INQUIRY. [Raised Below.]

We note initially the standard governing our review of this matter. "[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 . . . . [A] trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)). Our review of its legal conclusions, on the other hand, is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Our New Jersey Constitution provides similar protections. N.J. Const. art. I, ¶ 7. Not all encounters between a citizen and the police implicate the Fourth Amendment. For instance, police may approach a person in a public place and ask him if he is willing to answer some questions without any grounds for suspicion. State v. Rodriguez, 172 N.J. 117, 125-26 (2002). The individual has no obligation to answer and is free to move on. If, however, the individual's right to leave the scene is obstructed, even briefly, there has been a seizure of his person within the meaning of the Fourth Amendment. Id. at 126. The police "may stop for brief investigatory questioning if they have an articulable, reasonable basis for suspicion; and they may make an inquiry without any grounds or suspicion." State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div.), certif. denied, 172 N.J. 178 (2002). "Brief, non-intrusive encounters with individuals on the street or in parked cars implicate none of the privacy or security concerns engendered by discretionary police spot checks of moving vehicles." Ibid.

A field inquiry is "the least intrusive encounter" between a citizen and the police. State v. Pineiro, 181 N.J. 13, 20 (2004). It occurs when an officer approaches an individual and asks if he or she would be willing to answer some questions. "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (quoting State v. Nishina, 175 N.J. 502, 510 (2003)).

An investigatory stop, on the other hand, is more intrusive and

is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of the circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.

[State v. Davis, 104 N.J. 490, 504 (1986).]

"A key distinction between a field inquiry and an investigative stop is whether, considering the totality of the circumstances, a reasonable person would feel that the police had encroached on his or her freedom to leave." State v. Daniels, 393 N.J. Super. 476, 484 (App. Div. 2007).

The trial court here concluded that the presence of the three police vehicles at the scene transformed this encounter from a permissible field inquiry into an investigative detention. In our view, the trial court's analysis of this question was incomplete and did not recognize the testimony of Higginbotham that it was the practice of the department to notify nearby units that an officer was approaching a car to inquire further.

What the record does indicate is that Higginbotham was by himself, patrolling a high crime area at night. The scene was dark and not well-lit. He saw a vehicle parked, with several occupants, with the engine off and no lights. In light of his knowledge of the level of criminal activity in the area, which included drugs, burglaries and assaults, it was entirely reasonable for him to stop to talk to the occupants.

We should not view the events of that night in isolation. If Higginbotham was justified in approaching the car on a field inquiry, we are unable to conclude that constitutional principles required that he do so on his own, without the protection afforded to him by the presence of other officers. We cannot turn a blind eye to the inherent dangers officers face every day. Just as we have an obligation to ensure the rights of the citizens with whom the police come in contact, we have an equal obligation not to require that the police expose themselves to avoidable risks.

The trial court, moreover, in its oral opinion, completely disregarded Higginbotham's testimony that as he approached the car, he "immediately detected an odor of raw marijuana." That additional element provided ample support for all that followed.

The order granting defendant's motion to suppress is reversed, and the matter is remanded to the trial court for further proceedings.