Pot smell permitted search here
STATE
v.
TYJON A. WILLIAMS a/k/a
TYJOU WILLIAMS,
Defendant-Respondent.
Submitted October 17, 2019 – Decided October 24, 2019
Before Judges Alvarez and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 18-04-
0512.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4223-18T1
PER CURIAM
By leave granted, the State appeals a March 25, 2019 Law Division order
suppressing the evidence against defendant Tyjon Williams. See R. 2:2-4. We
now reverse.
At the hearing, only the arresting officers testified. New Brunswick Police
Officers Justin Meccia and Richard Reed were operating an unmarked patrol car
on January 29, 2018, at 11:24 p.m., when they noticed a black Acura parked at
the intersection in a high-crime area. The officers ran the license plate number
through their computer and learned the registered owner's driver's license
privileges had been suspended.
The officers made a U-turn, and followed the Acura. After it turned right,
the officers activated their lights. The vehicle, driven by defendant, stopped in
an area described by one of the officers as a residential parking lot. Defendant
lives in one of the homes or apartments adjoining the area where he parked.
Both officers testified, corroborated by the mobile video recording played
in court during the hearing, that defendant when stopped immediately walked
towards them asking "what I do wrong?" On the video, one of the officers
responds that defendant was driving with a suspended license. Defendant was
repeatedly instructed by both officers to return to his car. He continued to
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approach and was arrested for obstruction. While searching his person incident
to the arrest, the officers discovered $729 in cash. Both officers noted that
defendant smelled of marijuana. Meccia specifically recalled the odor was of
raw marijuana.
After placing defendant in the rear of their vehicle, the officers
approached defendant's car. A voice is heard on the recording commenting "a
strong odor in the back seat" emanated from the vehicle. A bag containing
thirty-three grams of raw marijuana and a Tupperware container with plastic
baggies were discovered underneath the passenger seat.
The judge found the facts, generally undisputed, as we have described
them including that defendant was initially arrested for obstruction, N.J.S.A.
2C:29-1, for which he was not formally charged, because of his failure to obey
police commands. In contrast to the testimony, however, the judge described
the area where defendant came to a stop as a driveway.
The judge granted the motion as a matter of law because "the vehicle was
not mobile at that time . . . [and] defendant was already in custody." Since the
vehicle was parked "in the driveway[,]" and he opined that the officers had
secured the scene, he concluded no exception to the warrant requirement
applied.
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The State's sole point on appeal is:
THE TRIAL COURT ERRONEOUSLY
SUPPRESSED EVIDENCE FOUND IN
DEFENDANT'S CAR FOLLOWING A VALID AND
UNFOR[E]SEEABLE MOTOR VEHICLE STOP,
FOLLOWED BY DEFENDANT'S FAILURE TO
OBEY AN ORDER OF THE POLICE AND
CREDIBLE EVIDENCE OF A STRONG SMELL OF
MARIJUANA EM[A]NATING FROM THE CAR.
To restate the issue, the question posed is whether the automobile
exception to the Fourth Amendment's warrant requirement applies. It is well-
established that the Fourth Amendment of the United States Constitution and
Article I, Paragraph 7 of the New Jersey Constitution, require police to obtain
warrants before making searches and seizures. Warrantless searches and
seizures are presumptively invalid. See State v. Rodriguez, 459 N.J. Super. 13,
20 (App. Div. 2019).
In State v. Witt, 223 N.J. 409 (2015), the Court "announced . . . a sharp
departure from a more narrow construction of the automobile exception."
Rodriguez, 459 N.J. Super. at 21. As Rodriguez explains, the Witt decision
observed that the "multi-factor exigent circumstances test" of prior case law was
"difficult to apply with consistency, particularly for law enforcement officers on
patrol, and placed upon them 'unrealistic and impracticable burdens.'" Ibid.
(citing Witt, 223 N.J. at 414-15). The Court in Witt restated the test to authorize
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automobile searches where "(1) the police have probable cause to believe the
vehicle contains evidence of a criminal offense; and (2) the circumstances giving
rise to probable cause are unforeseeable and spontaneous." Id. at 22 (citing Witt,
223 N.J. at 447-48).
In this case, the police had a reasonable and articulable suspicion that a
driver was violating motor vehicle laws, and thus stopped the Acura because the
registered owner's license was suspended. State v. Dunbar, 229 N.J. 521, 533
(2017). Defendant's subsequent conduct of approaching police despite being
repeatedly commanded to return to his car, established probable cause for an
arrest for obstruction. Once arrested, both officers smelled a strong odor of
marijuana on defendant's person. Thus, the police had probable cause to search
the vehicle for drugs. The strong odor of marijuana emanating from the car
bolstered the probable cause for the officers to lawfully search the passenger
compartment.
The circumstances which gave rise to this search were clearly unforeseen
and spontaneous. It makes no difference here, contrary to the Law Division
judge's conclusion, that defendant drove his car to a residential parking area
adjacent to his home. An unlicensed driver, like a drunken driver, cannot defeat
enforcement of the motor vehicle laws by entering a restricted parking area, such
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as the one in this case. See State v. Nikola, 359 N.J. Super. 573, 586 (App. Div.
2003) (finding that defendant's entry into an open garage did not prevent her
warrantless arrest for driving while intoxicated, N.J.S.A. 39:4-50).
After defendant was lawfully arrested, the officers smelled marijuana on
his person, giving rise to probable cause to search his vehicle. The fact that the
smell of marijuana from the car was noticeable before the officers entered the
vehicle simply added an additional factor contributing to probable cause.
The three rationales that anchor the current automobile exception apply in
this case. See Witt, 223 N.J. at 422-23 ("(1) the inherent mobility of the vehicle;
(2) the lesser expectation of privacy in an automobile compared to a home; and
(3) the recognition that a Fourth Amendment intrusion occasioned by a prompt
search based on probable cause is not necessarily greater than a prolonged
detention of the vehicle and its occupants while the police secure a warrant.")
(internal citations omitted).
The vehicle continued to be mobile regardless of its location off-street. In
the same way it pulled into the residential parking area, it could have as easily
pulled out. The proximity of the parking area to defendant's home did not create
a reasonable expectation of privacy that took the search out of the automobile
exception. The intrusion upon defendant's privacy was no different regardless
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of the location – here it was still, essentially, a roadside stop. See Witt, 223 N.J.
at 422-23.
The officers were not obligated to obtain a warrant because defendant had
been taken into custody and was seated in the back of the police car, or because
the arrest was made after he parked his vehicle in an open area near his home.
The judge's observation that the scene was "secured" has little meaning in this
case. The automobile exception as defined in Witt applies. The motion should
not have been granted.
Reversed.
