Odor of pot does not permit police to search trunk STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MAURICE HOUSTON,
Defendant-Respondent.
____________________________________________
Argued November 13, 2017 – Decided December 12, 2017
Before Judges Messano and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment Nos.
16-06-1965 and 16-06-1966.
Kayla Elizabeth Rowe, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant (Robert D. Laurino,
Acting Essex County Prosecutor, attorney;
Kayla Elizabeth Rowe, of counsel and on the
brief).
Thomas R. Ashley argued the cause for
respondent. NOT FOR PUBLICATION WITHOUT THEAPPROVAL OF THE APPELLATE DIVISION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-0023-17T3
PER CURIAM
We granted the State of New Jersey leave to appeal from the
Law Division's July 28, 2017 order that granted in part defendant
Maurice Houston's motion to suppress physical evidence seized
during a warrantless search of his car. We defer to the factual
findings made by the motion judge following an evidentiary hearing
because those findings are supported by sufficient credible
evidence in the record. State v. Gonzales,
227 N.J. 77, 101
(2016).
New Jersey State Police (NJSP) Detective Joseph Palach and
Trooper Frederick Peters were on patrol in Newark when they spotted
defendant's car, a Cadillac SUV, make a turn into the parking lot
of a housing complex without signaling. As the car turned, Palach
observed the windows were tinted. Defendant parked the car in a
legal parking spot, and the officers conducted a motor vehicle
stop for the observed motor vehicle infraction.
Palach approached the car and observed defendant was not
wearing a seat belt. He also detected the smell of burnt marijuana
once defendant lowered the window. The officers removed defendant
from the car and placed him under arrest after a search of his
person produced five prescription Endocet pills, along with a
large sum of money. Defendant was placed between the officers'
car and his own, and Palach began to search the vehicle's passenger
compartment, as other officers, including NJSP Detective
Christopher Durning, arrived.
2 A-0023-17T3
Palach found a "half-smoked marijuana cigarette" in the
ashtray and detected the odor of raw marijuana. He opened a
backpack that was on the back seat, behind the driver's seat, and
found two Tupperware containers of marijuana, a digital scale and
a plastic bag containing other smaller plastic bags. Palach also
found a bottle in the backpack containing seventy-one Endocet
pills similar in nature to those found on defendant.
In addition, two baby bottles were found in the "driver's
side front seat pocket sleeve." Defendant admitted these contained
promethazine with codeine, a prescription legend drug. Defendant
acknowledged that he "paid for" the vehicle, although it was
legally owned by his sister.
After noticing the dashboard air vents "did not line up"
properly, Palach "popped out [the cover] from the dashboard" and
shone his flashlight into the space. He found a .40 caliber
handgun. Meanwhile, Durning was in the rear area of the vehicle.
He removed plastic paneling above the rear wheel well and found
two packages of marijuana in a "void." The officers took defendant
from the scene and his car was towed.
The motion judge found Palach's credibility "waned on
multiple occasions on cross-examination," and that his testimony
was "less credible." She found that Durning was credible, and she
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discounted Peters' testimony because he denied seeing the critical
elements of the search while he guarded defendant.1
The judge concluded the "vehicle stop was lawful" because the
officers "observed motor vehicle violations." See, e.g., State
v. Scriven,
226 N.J. 20, 33-34 (2016) ("[O]rdinarily, a police
officer must have a reasonable and articulable suspicion that the
driver of a vehicle . . . is committing a motor-vehicle violation
or a criminal or disorderly persons offense to justify a stop.").
She then concluded the officers had probable cause to arrest
defendant based upon the smell of marijuana. See, e.g., State v.
Walker,
213 N.J. 281, 290 (2013) (alteration in original) ("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)).
The judge found that Palach's seizure of the burnt marijuana
cigarette in the ashtray was "valid pursuant to a search incident
to arrest," and because it was in "plain view." However, she
reasoned that after defendant was "handcuffed and removed from the
car, he did not have the ability to access a weapon, destroy
potential evidence or suddenly take flight," therefore, "though
1
Defendant called Peters as a witness.
4 A-0023-17T3
the search incident to arrest started out lawfully, it did not end
that way." The judge concluded the officers had no right to search
the backpack or its contents, "or disassemble the car parts which
covered the voids and the air vents of the car."
Although the judge did not specifically address the two baby
bottles seized, the order did not suppress this evidence, or the
five Endocet pills seized from defendant or the partially burnt
marijuana cigarette. The order suppressed the remaining evidence
seized by the officers.
Relying on the automobile exception to the warrant
requirement as reformulated by the Court in State v. Witt,
223 N.J. 409 (2015), the State argues that because the officers had
probable cause to believe defendant's vehicle contained
contraband, they were free to search anywhere in the vehicle where
"there [was] probable cause to believe that the object of the
search might be found," citing State v. Esteves,
93 N.J. 498, 508
(1983). It argues that based upon the officers' training and
experience, and the odor of raw marijuana that persisted after the
burnt "roach" was removed, they had probable cause to search the
backpack, the void above the rear wheel well and the space behind
the air vents for other contraband.
5 A-0023-17T3
Defendant disagrees. He argues that the officers' search of
the backpack and the vehicle's "voids" exceeded the permissible
scope of a warrantless search under the automobile exception.
In Witt, supra,
223 N.J. at 450, the Court returned to the
formulation of the automobile exception it first adopted in State
v. Alston,
88 N.J. 211 (1981), namely, "searches [of automobiles]
on the roadway based on probable cause arising from unforeseeable
and spontaneous circumstances are permissible." If the search is
justified under these circumstances, police need not secure a
warrant beforehand "merely because 'the particular occupants of
the vehicle may have been removed from the car, arrested, or
otherwise restricted in their freedom of movement.'" Id. at 428
(quoting Alston, supra,
88 N.J. at 234). Therefore, we agree with
the State that the judge erred in considering the search as one
incident to a lawful arrest.
As we see it, the question is whether the search exceeded the
permissible scope pursuant to the automobile exception. We
acknowledge that the Witt Court did not specifically address the
issue, and the law seems somewhat unsettled.
Clearly, once probable cause is established, police may
search the passenger compartment of the vehicle. In Witt, supra,
223 N.J. at 416, after arresting the defendant for driving while
intoxicated, police searched for intoxicants and found a gun in
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the center console of the car. In Alston, supra,
88 N.J. at 216-
17, after seeing shotgun shells in the glove compartment when the
defendant opened it to retrieve his credentials, police returned
to the car, seized the shells, and three other weapons — a sawed-
off shotgun in a bag under the passenger's seat, a revolver in a
holster under the front seat, and a revolver secreted in the
backseat. The Court concluded that under the circumstances
presented, the detectives had "probable cause to search the
passenger compartment." Id. at 232.
The law seems relatively settled regarding closed containers
found in the passenger compartment. See Kevin G. Byrnes, N.J.
Arrest, Search & Seizure § 17:2-3 at 457 (2017-18) ("Seizure of
luggage and other sealed containers from an automobile subject to
a warrantless search under the automobile exception is normally
allowed."). One case the State relies on for support is Esteves.
There, police were dispatched to investigate the possible robbery
of a store and, after confirming none had occurred, observed a
handgun between the front seats of a car parked nearby.
93 N.J.
at 501. Attempting to find the owner of the car, police questioned
the defendant and his compatriot as they left the store. Ibid.
Defendant's compatriot having admitted ownership of the car, the
defendant offered to obtain his identification from the vehicle
and his compatriot/owner gave one officer the keys. Ibid. Police
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opened the door and seized the gun, which was a starter's pistol,
and began to search the car for identification. Id. at 502. They
found drugs in a film canister in the compatriot's shaving kit,
and more drugs in the defendant's knapsack. Ibid.
Applying the automobile exception, id. at 505, the Court
concluded police had probable cause to search for weapons "given
that they were investigating a weapons offense, and had already
discovered what appeared to be a weapon." Id. at 506.
Additionally, the Court considered a "second factor," namely
"[l]egitimate precaution [that] justifies routine police
procedures not designed as pretexts to discover evidence." Ibid.
The Court explained:
We are satisfied that probable cause existed
for the officers to search the car and to take
reasonable precautions for their own safety.
They had been advised of a possible robbery
and had seen what appeared to be a pistol in
the car. When, in addition, neither
[defendant] could produce satisfactory
identification, the police had a sufficient
basis to search the automobile for weapons or
to obtain identification. Nor was the extent
of the search unreasonable. The scope of a
warrantless search of an automobile is defined
by the object of the search and the places
where there is probable cause to believe that
it may be found. Under these circumstances,
the police had probable cause and therefore a
right to search as they did. They found no
other weapons or satisfactory identification
in the front or in the glove compartment. The
shaving kit could reasonably have contained
either weapons, shells or I.D., and so the
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police had the right to check it. In doing
that they came upon the pills in the foil
packet in the film container and two other
pills in the bottom of the kit.
[Id. at 507-08 (citations omitted) (emphasis
added).]
Regarding the knapsack, the Court cited United States v. Ross,
456 U.S. 798, 824,
102 S. Ct. 2157, 2172,
72 L. Ed. 2d 572, 593
(1982)), decided after the search in the case, and explained in a
footnote "that once probable cause exists to search the interior
of a motor vehicle, the police may search every part of the
vehicle, including containers, in which there is probable cause
to believe that the object of the search may be found." Esteves,
supra,
93 N.J. at 508 n.3.
Despite this clear statement, we used a different rationale
to justify a warrantless search of the defendant's gym bag in
State v. Judge,
275 N.J. Super. 194 (App. Div. 1994). There, we
concluded that police had probable cause to search the defendant's
automobile based upon the smell of burnt marijuana. Id. at 202.
However, Judge, later Justice, Coleman writing for the panel found
a different basis upon which to permit the search of the contents
of a gym bag found on the rear seat, namely, that it was a search
incident to a lawful arrest. Id. at 205.
The State argues that in this case, the extensive search was
permissible because the troopers possessed sufficient probable
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cause to search behind the wheel well panels and air vents. It
relies upon State v. Guerra,
93 N.J. 146 (1983). There, police
observed a motor vehicle violation, stopped the car and detected
a strong odor of raw marijuana. Id. at 149. After the driver and
passenger refused to consent to a search, police took them and the
car to the police station. Ibid. Police applied for and obtained
a telephonic search warrant, and found nearly two hundred pounds
of marijuana in the trunk. Id. at 149-50.
The Court affirmed the search even though the telephonic
warrant was deficient. Id. at 152. It concluded that the police
had probable cause to search the trunk because the strong smell
of marijuana was not emanating from the passenger compartment or
a small suitcase in the car's interior. Id. at 150.
Guerra stands in contrast to State v. Patino,
83 N.J. 1
(1980). There, the police officer stopped a car and saw a small
amount of marijuana on the floor next to the front seat. Id. at
5. A search of the passenger area revealed no other incriminating
evidence. Id. at 6. After ordering the defendant to open the
trunk, the officer found cocaine inside a shopping bag. Ibid.
Rejecting the State's argument that the search of the trunk
was justified under the automobile exception, the Court said: "A
police officer must not only have probable cause to believe that
the vehicle is carrying contraband but the search must be
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reasonable in scope. It is widely recognized that a search,
although validly initiated, may become unreasonable because of its
intolerable intensity and scope." Id. at 10-11 (citations omitted)
(emphasis added). The Court held:
The State must produce facts which lead a
trooper to conclude that the search of the
entire vehicle was based upon probable cause.
In this regard, the State failed to satisfy
its burden. The presence of a small amount of
marijuana, consistent with personal use, does
not provide a trooper with probable cause to
believe that larger amounts of marijuana or
other contraband are being transported.
[Id. at 13.]
The Patino Court cited approvingly to our decision in State
v. Murray,
151 N.J. Super. 300 (App. Div.), certif. denied,
75 N.J. 541 (1977). Id. at 11. In Murray, police observed a "roach
clip" and vials of hashish after stopping the defendants' van.
Id. at 303-04. A search of the cab area produced no other evidence,
but police removed the driver's seat to access the area under a
sink behind the cab. Id. at 305. They found an attaché case
under the sink, used a knife to force its lock and found a large
amount of hashish. Ibid.
We concluded the officer's search of the passenger portion
and the rear of the van was justified. Id. at 306. We held,
however, "that when the officer, unsuccessful to that point in
uncovering additional contraband, commenced interfering with the
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structural integrity of the vehicle itself, the search he was
conducting transcended all bounds of reasonableness." Id. at 307
(emphasis added).
The principles we distill from this rather unsettled
landscape lead to the following conclusions. Pursuant to the
automobile exception, the troopers in this case had authority to
conduct a search of the passenger compartment of the vehicle based
upon probable cause. Witt, supra,
223 N.J. at 450.2 Having found
the partially smoked marijuana cigarette, as well as the baby
bottles filled with suspected CDS in the passenger compartment,
they had probable cause to search the contents of the backpack.
Esteves, supra,
93 N.J. at 508 n.3.
However, the search could go no further unless specific
probable cause supported a reasonable belief that more drugs would
be found in the specific places searched. Id. at 508. In Guerra,
supra,
93 N.J. at 150, the Court concluded police had specific
probable cause to believe that the trunk contained the source of
the marijuana odor the trooper continued to smell. In Patino,
supra,
83 N.J. at 13 (emphasis added), the Court concluded the
2
Because the issue was not raised, we specifically do not address
whether the fact that defendant's car was lawfully parked in the
lot of a residential complex, and was not stopped on the open
roadway, affects application of the automobile exception.
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State failed to demonstrate "the search of the entire vehicle was
based upon probable cause."
Critical to the State's argument is the conclusion that the
smell of raw marijuana, as distinguished from burnt marijuana,
coupled with the troopers' training and experience, justified the
parking lot search of every nook and cranny where marijuana might
be secreted in defendant's car. However, the only witness who
testified about the smell of raw marijuana was Palach; Peters only
stated that he smelled burnt marijuana on approaching the vehicle.
In finding the recovery of the "burnt marijuana 'blunt'" was "valid
pursuant to a search incident to arrest," the judge noted Palach
"smelled raw marijuana." However, she did not specifically accept
that as a fact and expressly found Palach's testimony was "less
credible."
In any event, we conclude Witt cannot be read so broadly as
to authorize the balance of the search in this case. In Witt,
supra,
223 N.J. at 431-32, the Court recognized there was "a
limited exigency to the warrant requirement" under the Alston
standard, premised on "unforeseeability and spontaneity," the
inherent mobility of the vehicle and the unanticipated
circumstances that led to probable cause. The Court recognized
that the automobile exception applied only to "on-scene
warrantless searches," not based upon "fake exigencies," and that
13 A-0023-17T3
officers who towed and impounded the car needed to secure a warrant
before conducting a further search of the vehicle when practicable
to do so. Id. at 449.3
The State's argument would essentially ignore this cautionary
language and adopt the federal standard that "probable cause to
search a vehicle 'alone satisfies the automobile exception to the
Fourth Amendment's warrant requirement.'" Id. at 422 (quoting
Maryland v. Dyson,
527 U.S. 465, 467,
119 S. Ct. 2013, 2014,
144 L. Ed. 2d 442, 445 (1999)). The Witt Court rejected such an
approach.
In short, we conclude that the automobile exception did not
authorize the troopers to remove the wheel well panels and air
vents — to engage upon a search that "transcended all bounds of
reasonableness," Murray, supra,
151 N.J. Super. at 307. None of
3
We do not specifically conclude that police may not conduct a
search of the car on the scene simply because there exist grounds
to impound the vehicle. As one commentator noted,
It is unclear whether the inevitability of
vehicle impoundment under the circumstances
requires that police forego an on-scene
search. If the vehicle will be impounded and
there is no immediate need to search the
vehicle, should the police expose themselves,
the motorist and the general public to the
dangers and inconveniences inherent in
conducting a search on a roadway?
[Byrnes, supra, § 17:2-1 at 449.]
14 A-0023-17T3
the cases cited by the State authorizes such conduct. We reverse
that portion of the order that suppressed the evidence seized from
the backpack found on the rear seat of defendant's car; we
otherwise affirm the order.
Affirmed in part; reversed in part. The matter is remanded
to the Law Division for further proceedings consistent with this
opinion.
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