NOT FOR PUBLICATION WITHOUT THE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-1806-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMIE COOPER,
Defendant-Appellant.
_________________________
Submitted September 22, 2025 – Decided October 1, 2025
Before Judges Sabatino and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Municipal Appeal No. 08-08-
22.
Galantucci & Patuto, attorneys for appellant (Richard
G. Potter, of counsel and on the briefs).
Sahil K. Kabse, Acting Sussex County Prosecutor,
attorney for respondent (Shaina Brenner, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).PER CURIAM
The present appeal in this driving while intoxicated ("DWI") case stems
from a remand to the Law Division we had ordered in our December 19, 2024
opinion addressing defendant's original appeal. State v. Jamie Cooper, Docket
No. A-1727-23 (App. Div. Dec. 19, 2024). We incorporate by reference the
facts and procedural history recited in that opinion.
Briefly stated, defendant's prosecution arises out of State Trooper Andre
Almeida's stop of his motor vehicle at about 7:00 p.m. on April 28, 2021 on
Route 15 in Frankford Township. Trooper Almeida observed defendant's
vehicle speeding at 64 miles per hour in a 45 five mile per hour zone. When
defendant was stopped and opened his driver's side window, Almeida noticed
the odors of both alcohol and burnt marijuana. He testified there were
"approximately four" passengers in the vehicle.
In his municipal court testimony, Trooper Almeida noted how during his
initial encounter with defendant, defendant was "questioning everything" and
"debating the speed" of his vehicle. Defendant insisted "he wasn't going that
fast," which made Almeida believe defendant was "unaware of how fast he [was]
traveling," and further identified this as "a sign of impairment, as well."
2 A-1806-24Almeida instructed defendant to get out of the vehicle. According to
Almeida, he smelled the odor of burnt marijuana on defendant's breath, although
he did not recall smelling alcohol at that point. The officer did not perceive that
defendant was staggering, stuttering, slurring, crying, or laughing
inappropriately.
Almeida asked defendant to take a field sobriety test. Defendant refused
to take the field test and said he would rather be tested on a breathalyzer.
Almeida explained that defendant would be free to drive if the field test
demonstrated he was not impaired, but defendant again refused.
At that point, Almeida arrested defendant and read him a Miranda
warning.1 After arresting defendant, Almeida spoke with the other passengers
and did not notice the odor of alcohol or marijuana emanating from any of them.
He then took defendant to the police station.
At the station, defendant refused to submit to the breathalyzer.
Consequently, the officer issued five tickets, charging defendant with (1) DWI,
N.J.S.A. 39:4-50; (2) speeding, N.J.S.A. 39:4-98; (3) refusal to submit to
1 Miranda v. Arizona, 384 U.S. 436 (1966).
3 A-1806-24chemical test, N.J.S.A. 39:4-50.4a; (4) refusal to consent to take samples of
breath, N.J.S.A. 39:4-50.2; and (5) careless driving, N.J.S.A. 39:4-97.
Defendant moved to dismiss the charges, because, he argued, Trooper
Almeida had insufficient grounds to demand his submission to a sobriety test
and lacked probable cause to arrest him. The municipal judge denied the motion
and concluded that Almeida had sufficient basis to believe at the scene that
defendant had committed DWI. The judge noted:
I believe the Trooper took all of the correct action[s]
and he certainly had probable cause to stop the
defendant and that he had reasonable belief that a
violation took place, and under the totality of the
circumstances, the alcohol, odor of marijuana, the
speeding, refusal to take the roadside test, all of that led
the Trooper to believe that the defendant was, in fact,
under the influence of alcohol, and therefore, believes
he should continue the investigation because that's what
they're doing, which he did. Based on all of these facts,
I am going to deny the motion before the [c]ourt.
Thereafter, defendant pled guilty to DWI, speeding, and refusal to submit
to a chemical test. The other two motor vehicle tickets were dismissed pursuant
to a plea agreement. The municipal judge sentenced defendant to a one-year
suspension of his driver's license, forty-eight hours of confinement in the
Intoxicated Driver Resource Center, thirty days of community service, a two-
year use of an interlock device, plus various monetary sanctions and costs.
4 A-1806-24Defendant challenged his conviction in the Law Division. Upon de novo
review of the record, the Law Division judge issued an order on December 7,
2023 which rejected defendant's argument that the trooper lacked a reasonable
articulable suspicion that he had been driving while under the influence. The
Law Division judge identified the following articulable reasons that supported
a finding of reasonable suspicion: (1) speeding; (2) the odor of alcohol in the
vehicle; (3) the odor of burnt marijuana in the vehicle; (4) defendant's
confrontational demeanor; (5) the odor of marijuana from defendant's breath;
and (6) refusal to submit to field sobriety tests. The Law Division therefore
affirmed defendant's municipal convictions and reimposed the same sentence.
Defendant appealed to this court. As noted above, we remanded the case
to the Law Division to reconsider its analysis in light of the Cannabis
Regulatory, Enforcement Assistance, and Marketplace Modernization Act
("CREAMMA"), N.J.S.A. 24:6I-31 to -56. In particular, a provision within
CREAMMA declares that "[t]he odor of cannabis or burnt cannabis" shall not
"individually or collectively, constitute reasonable articulable suspicion of a
crime . . . ." N.J.S.A. 2C:35-10(c).
On remand, the Law Division judge again upheld defendant's convictions
in a January 31, 2025 oral ruling. In particular, the judge concluded that the
5 A-1806-24CREAMMA provision did not affect this case because a DWI offense is not a
"crime." The Law Division judge also noted that, even without relying on the
odor of marijuana, Trooper Almeida had multiple other sufficient grounds to
support the finding of reasonable suspicion.
In his present appeal, defendant presents the following arguments in his
brief:
POINT ONE
THE APPELLANT'S SUPPRESSION MOTION
SHOULD HAVE BEEN GRANTED BECAUSE
THERE WAS NO REASONABLE, ARTICULABLE
SUSPICION TO ASK THE APPELLANT TO
PERFORM STANDARDIZED FIELD SOBRIETY
TESTS, AND, THEREFORE, NO PROBABLE
CAUSE TO ARREST HIM.
POINT TWO
THE CANNABIS REGULATORY, ENFORCEMENT,
ASSISTANCE, AND MARKETPLACE
MODERNIZATION ACT ("CREAMMA"), N. J. S. A.
24:61-31 TO -56 AND N. J. S. A. 2C:35-10c WHICH
BECAME EFFECTIVE ON FEBRUARY 22, 2021
PROVIDED THAT THE ODOR OF CANNABIS OR
BURNT CANNABIS NO LONGER CONSTITUTE
REASONABLE SUSPICION OF A CRIME WHICH
ODOR WAS THE SOLE BASIS FOR ARRESTING
THE APPELLANT.
6 A-1806-24In considering these arguments, we apply what is known as the "two-court
principle" of appellate review for a Law Division ruling that affirms, de novo, a
municipal court's decision. State v. Locurto, 157 N.J. 463, 474 (1999). Under
that principle, "appellate courts ordinarily should not undertake to alter
concurrent findings of fact and credibility determinations made by two lower
courts absent a very obvious and exceptional showing of error." Ibid. (emphasis
added). No such "very obvious and exceptional" showing of error is presented
here.
As the Law Division judge aptly noted on remand, the CREAMMA
limitation on the evidential use of the odor of marijuana is confined to "crimes."
N.J.S.A. 2C:35-10(c). Our Criminal Code defines a "crime" as "[a]n offense
defined by this code or by any other statute of this State, for which a sentence
of imprisonment in excess of 6 months is authorized." N.J.S.A. 2C:1-4. A DWI
conviction is not a crime because even the most severe sentence for a third or
subsequent DWI offense "does not authorize a penalty of over six months'
confinement." State v. Denelsbeck, 225 N.J. 103, 120 (2016); see also N.J.S.A.
39:4-50(a)(3). Hence, CREAMMA does not, as a matter of law, preclude
reliance on the odor of marijuana as a ground for a finding of reasonable
articulable suspicion in this DWI case.
7 A-1806-24Defendant's other point on appeal, claiming the totality of the
circumstances could not support a finding of reasonable suspicion, is likewise
unavailing. We recognize that "in order to continue to detain a motorist once he
is asked to exit the vehicle, a police officer must have a reasonable, articulable
suspicion that the person is involved in criminal or unlawful activity beyond that
which initially justified the stop." State v. Bernokeits, 423 N.J. Super. 365, 371–
72 (App. Div. 2011) (citing State v. Davis, 104 N.J. 490, 504 (1986)) (emphasis
in original). Furthermore, the administration of a field sobriety test "may be
justified by a police officer's reasonable suspicion based on particularized,
articulable facts suggesting a driver's intoxication." Id. at 374. That same
principle extends beyond alcohol intoxication to a driver's impairment caused
by a substance such as marijuana. See State v. Bealor, 187 N.J. 574, 577-78
(2006).
As both the municipal judge and Law Division judge appropriately found,
the totality of circumstances here gave Trooper Almeida sufficient reasonable
suspicion to order a field sobriety test, and, when defendant refused, to arrest
him. Even if we were to ignore defendant's oppositional demeanor and his
insistence that he had not been speeding, the other factors cited by the two courts
provided ample justification for the officer's actions. Those factors included
8 A-1806-24defendant driving nearly twenty miles per hour over the speed limit, the odors
of both alcohol and marijuana emanating from the vehicle, the odor of marijuana
detected on defendant's breath, and his confrontational demeanor. We defer to
the municipal court's adoption of the trooper's narrative, as that court was best
suited to evaluate that witness's credibility. Locurto, 157 N.J. at 474-75.
Affirmed.
9 A-1806-24
