(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-5442-16T1
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
June 6, 2018
Submitted May 30, 2018 – Decided June 6, 2018
Before Judges Carroll, Mawla and DeAlmeida.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Municipal
Appeal No. 16-067.
King, Kitrick, Jackson & McWeeney, LLC,
attorneys for appellant (Michael D.
Schaller, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel
and on the brief).
The opinion of the court was delivered by
Defendant Stephen Mandel appeals the denial of his motion
to suppress evidence seized as the result of a warrantless
search of his vehicle. Defendant was charged with possession of
less than fifty grams of marijuana in violation of
2C:35-10(a)(4). After his motion to suppress was denied,
defendant entered a conditional guilty plea in Howell Township
Municipal Court. On de novo review, the Law Division judge
again found the search valid.
The pertinent facts are as follows. Howell Township Police
Officer David Gilliland stopped defendant's vehicle after he
observed it traveling in front of him with dark tinted windows.
Gilliland approached the passenger side of the vehicle and
conversed with defendant through the open passenger side window.
Gilliland asked defendant to produce his driver's license, and
inquired about his driving record. During this exchange,
Gilliland leaned his head into the open passenger side window in
order to better hear defendant's responses over the noise of the
passing traffic. While speaking to defendant, Gilliland smelled
the odor of marijuana coming from inside the vehicle.
Gilliland informed defendant he smelled marijuana. Based
on this observation, Gilliland searched the car and found a
small quantity of marijuana under the passenger seat. Defendant
was charged with the disorderly persons offense of marijuana
N.J.S.A. 2C:35-10(a)(4), and improper safety glass,
Defendant filed a motion to suppress the marijuana in the
Howell Township Municipal Court. Gilliland was the sole witness
to testify at the motion hearing. He explained that, after
stopping the vehicle, he approached it on the passenger side,
for safety reasons, to speak with defendant. He asked defendant
to roll down the passenger window and produce his driving
credentials. Gilliland "began to speak with [defendant] about
the violation and began to detect the odor of marijuana
emanating from the interior compartment of the vehicle." Due to
the noise from the passing traffic, Gilliland leaned into the
open passenger window in order to hear defendant's responses to
his questions. Gilliland admitted his head "broke the plane" of
the passenger's window when he momentarily leaned inside. He
stated he could not recall whether he first smelled the
marijuana odor before or after he leaned into defendant's
The municipal court judge credited Gilliland's testimony,
finding it "reasonable" and devoid of "inconsistent statements."
During his testimony, the police motor vehicle recording (MVR)
video of the traffic stop, captured by a camera mounted in
Gilliland's vehicle, was played. The judge found that the MVR
showed Gilliland "could not have had his body in [defendant's
vehicle] a tremendous amount," and that any intrusion was
limited to "part of his head" for "literally . . . seconds."
Noting the minimal physical intrusion into defendant's
vehicle, the reasonableness of Gilliland's explanation for doing
so, and the "plain smell" doctrine, the municipal court denied
the motion to suppress. Defendant then entered a conditional
guilty plea to the marijuana charge,1 preserving his right to
seek de novo review in the Law Division. The municipal court
sentenced defendant to pay $33 in court costs, $50 to the
Violent Crimes Compensation Board, $75 to the Safe Neighborhood
fund, a $500 Drug Enforcement Demand Reduction penalty, and a
$50 lab fee.
Defendant appealed the denial of his motion to suppress to
the Law Division. Defendant argued the marijuana evidence
should have been suppressed because probable cause for the
search was furnished only after Gilliland impermissibly intruded
into defendant's vehicle by leaning his head through the
The Law Division judge determined that Gilliland's
placement of his head through defendant's passenger window
constituted a search. However, the judge concluded the search
was reasonable because "credible evidence on this record reveals
The tinted window charge,
N.J.S.A. 39:3-75, was dismissed as
part of the plea agreement and is not at issue in this appeal.
that the officer placed his head inside the window of the
vehicle in order to better hear the defendant."
The Law Division judge also noted that, due to the dark
tint on defendant's rear window, the MVR video could not confirm
whether Gilliland's head broke the plane of defendant's
passenger window. Thus, the judge found that any such intrusion
was minimal and reasonable. The court also concluded the odor
of marijuana provided sufficient probable cause to justify
Gilliland's search of the vehicle. Noting that the suppression
issue was the discrete question presented and that defendant's
conditional guilty plea became effective as a matter of law, the
Law Division judge imposed the same fines and penalties as the
municipal court. This appeal followed.
On appeal, defendant raises a single issue for our
THE EVIDENCE MUST BE SUPPRESSED BECAUSE THE
PATROLMAN ILLEGALLY INTRUDED INTO THE
VEHICLE PRIOR TO ESTABLISHING PROBABLE CAUSE
AND THEREFORE WAS NOT LEGALLY IN THE
SMELLING AREA AT THE TIME HE PURPORTEDLY
"An appellate court reviewing a motion to suppress evidence
in a criminal case must uphold the factual findings underlying
the trial court's decision, provided that those findings are
'supported by sufficient credible evidence in the record.'"
State v. Boone, ___ N.J. ___, ___ (2017) (slip op. at 16)
(quoting State v. Scriven,
226 N.J. 20, 40 (2016)). We do so
"because those findings 'are substantially influenced by [an]
opportunity to hear and see the witnesses and to have the "feel"
of the case, which a reviewing court cannot enjoy.'" State v.
218 N.J. 412, 424-25 (2014) (alteration in original)
(quoting State v. Johnson,
42 N.J. 146, 161 (1964)). We owe no
deference, however, to conclusions of law made by trial courts
in suppression decisions, which we instead review de novo.
State v. Watts,
223 N.J. 503, 516 (2015).
Like its federal counterpart, Article I, Paragraph 7 of the
New Jersey Constitution protects against "unreasonable searches
and seizures" and generally requires a warrant issued on
"probable cause." N.J. Const. art. I, ¶ 7; see U.S. Const.
amend. IV. "[A] warrantless search is presumptively invalid"
unless the State establishes the search falls into "one of the
'few specifically established and well-delineated exceptions to
the warrant requirement.'" State v. Gonzales,
227 N.J. 77, 90
(2016) (citation omitted).
One such exception is the "plain view" doctrine, which
allows seizures without a warrant if an officer is "lawfully
. . . in the area where he observed and seized the incriminating
item or contraband, and it [is] immediately apparent that the
seized item is evidence of a crime." Id. at 101. "In addition,
the federal courts have recognized a '"plain smell" doctrine,'
which 'is simply a logical extension of the "plain view"
doctrine,' and 'allows a law enforcement officer to seize
evidence of a crime' without a search warrant." State v. Myers,
442 N.J. Super. 287, 296 n.4 (App. Div. 2015) (citations
omitted). "[T]he United States Supreme Court and other federal
courts have long 'recognized that the odor of an illegal drug
can be highly probative in establishing probable cause for a
search.'" Ibid. (citation omitted).
Our 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.'" State v. Walker,
213 N.J. 281, 290 (2013)
(alteration in original) (quoting State v. Nishina,
502, 516-17 (2003)). The "smell of marijuana emanating from
[an] automobile" establishes "probable cause [for an officer] to
believe that it contain[s] contraband." Myers,
442 N.J. Super.
at 296 (quoting State v. Pena-Flores,
198 N.J. 6, 30 (2009));
see also State v. Guerra,
93 N.J. 146, 150 (1983).
In the present case, the State contends Gilliland's slight
intrusion inside the vehicle's window for the sole purpose of
better hearing defendant did not constitute a search. Defendant
disagrees, and argues the search was illegal because the officer
was not lawfully in the "smelling area" when he purportedly
detected the odor of marijuana and developed the probable cause
to seize it.
"A simple observation into the interior of an automobile by
a police officer located outside the automobile is not a
'search' within the meaning of the Fourth Amendment." State v.
430 N.J. Super. 517, 534 (App. Div. 2013) (quoting
State v. Foley,
218 N.J. Super. 210, 215 (App. Div. 1987)).
Thus, it follows that an officer standing outside of an
automobile who smells the odor of marijuana emanating from
within it has not conducted a "search."
Less clear, however, is whether an officer conducts a
search by momentarily placing his head into an open car window.
In New Jersey, no reported case appears to address this
question. However, other courts that have ruled on the issue
have generally held this "constitute[s] a 'search' for Fourth
Amendment purposes." United States v. Ryles,
988 F.2d 13, 15
(5th Cir. 1993); accord, e.g., United States v. Montes-Ramos,
347 F. App'x 383, 388-390 (10th Cir. 2009); United States v.
217 F. Supp. 3d 643, 665 (E.D.N.Y. 2016); State v.
703 P.2d 761, 764, 768-69 (Kan. 1985); Commonwealth v.
436 N.E 2d 150, 152-53 (Mass. 1982); People v.
621 N.Y.S.2d 568, 569 (N.Y. App. Div. 1995); People v.
500 N.Y.S.2d 677, 678-79 (N.Y. App. Div. 1986); State v.
948 P.2d 740, 743 (Or. Ct. App. 1997).
These courts emphasize there is "a legitimate expectation
of privacy in the interior of a motor vehicle, however
436 N.E 2d at 153. When the officer
"pierced the airspace inside the vehicle," he "intruded inside a
space that, under most circumstances, is protected by a
legitimate expectation of privacy." Ryles, 988 F.2d at 15. In
doing so, the officer "conduct[ed] a[n] . . . inspection of what
would otherwise be hidden . . . ." Aquino,
500 N.Y.S 2d at 679.
The expectation of privacy is enhanced "in those areas which
would be otherwise free from observation except by physical
intrusion of some sort." Podgurski,
436 N.E 2d at 153. "By
inserting his head into the interior of the" vehicle, the
officer "was allowed to observe and smell what he otherwise
would not have been able to observe or smell from a lawful
vantage point. That was a search." Hendricks, 948 P.2d at 743.
Assuming without deciding that Gilliland conducted a search
by momentarily placing his head in defendant's open window, this
does not end our analysis. Rather, we reiterate that the
federal and state constitutions only proscribe "unreasonable
searches and seizures." "What is reasonable depends upon all of
the circumstances surrounding the search or seizure and the
nature of the search or seizure itself." United States v.
Montoya de Hernandez,
473 U.S. 531, 537 (1985) (citation
Courts look to the purpose behind an officer's actions when
determining whether a search was reasonable. See Ryles, 988 F.2d at 15-16 (holding that an officer placing his head inside a
vehicle or opening a vehicle's door did not constitute an
unreasonable search because the trooper had just discovered that
the driver was unlicensed and possibly intoxicated and was
trying to determine whether one of the vehicle's passengers
could drive the vehicle). Thus, courts confronted with the
issue have found it reasonable for an officer to place his head
into a vehicle to have effective communications with a
passenger. See e.g., id. at 15-16; United States v. Pierre,
958 F.2d 1304, 1309-10 (5th Cir. 1992) (en banc); Lewis v. State,
949 N.E 2d 1243, 1245 (Ind. 2011); People v. Vasquez,
483 N.Y.S 2d 244, 245-46 (N.Y. App. Div. 1984), aff'd on other
489 N.E.2d 757 (N.Y. 1985).
We find the rationale of these cases persuasive. The Law
Division judge thus correctly concluded that Gilliland's slight,
momentary intrusion inside the car window was reasonable, based
on his finding that:
The credible evidence on this record reveals
that the officer placed his head inside the
window of the vehicle in order to better
hear the defendant. That is what the
officer said in his testimony. And based on
the traffic noise recorded throughout the
MVR . . . this Court as the court below
found, that testimony credible.
Moreover, there was no evidence that the purpose of
Gilliland placing his head in the window was to sniff the
vehicle cabin for marijuana. The MVR corroborated the officer's
testimony regarding the need to hear defendant over the traffic
noise, and demonstrated that his intrusion into the vehicle was
minimal and not unreasonable.