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 

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

NOT FOR PUBLICATION WITHOUT THE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.

June 13, 2017
2 A-0172-15T3

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.
3 A-0172-15T3

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 
4 A-0172-15T3

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 backup 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 
5 A-0172-15T3

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 
6 A-0172-15T3

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 
7 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).
8 A-0172-15T3

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 nontransparent 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.
9 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 
10 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.