STATE OF NEW JERSEY v. STEPHEN MANDEL

Annotate this Case

(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5442-16T1

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
June 6, 2018
v.
APPELLATE DIVISION
STEPHEN MANDEL,

Defendant-Appellant.

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

CARROLL, J.A.D.

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
N.J.S.A.
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

possession,
N.J.S.A. 2C:35-10(a)(4), and improper safety glass,

N.J.S.A. 39:3-75.

Defendant filed a motion to suppress the marijuana in the

Howell Township Municipal Court. Gilliland was the sole witness

2 A-5442-16T1
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

vehicle.

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."

3 A-5442-16T1
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

passenger window.

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

1
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.

4 A-5442-16T1
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

consideration:

POINT ONE

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
SMELLED CONTRABAND.

"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.'"

5 A-5442-16T1
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.

Gamble,
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

6 A-5442-16T1
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,
175 N.J.
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

7 A-5442-16T1
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.

Reininger,
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.

Levy,
217 F. Supp. 3d 643, 665 (E.D.N.Y. 2016); State v.

Epperson,
703 P.2d 761, 764, 768-69 (Kan. 1985); Commonwealth v.

Podgurski,
436 N.E 2d 150, 152-53 (Mass. 1982); People v.

8 A-5442-16T1
Chapman,
621 N.Y.S.2d 568, 569 (N.Y. App. Div. 1995); People v.

Aquino,
500 N.Y.S.2d 677, 678-79 (N.Y. App. Div. 1986); State v.

Hendricks,
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

diminished." Podgurski,
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

9 A-5442-16T1
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

omitted).

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

grounds,
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:

10 A-5442-16T1
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.

Affirmed.

11 A-5442-16T1

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