State v. JudgeState v. Judge
This is аn appeal by the State from an order suppressing evidence seized from an automobile. The issue raised is whether
I
The essential facts are not in dispute. On March 24, 1992, New Jersey State Troopers Acevedo and Fortunato operаted a stationary radar on Interstate 78, in Pohatcong Township. At 12:36 a.m., a motor vehicle operated by defendant was clocked on radar traveling at 67 miles per hour in a 55 mile per hour zone. Based on the radar reading, defendant‘s vehicle was pursued and stopped for speeding. While the vehicle was parked on the shoulder of the highway, Trooper Acevedo approached the driver‘s side as Trooper Fortunato approached the passenger side. Each trooper was using a flashlight for illumination. The vehicle contained two passengers: James Francis was in the front seat аnd Rodolfo Avalos was in the rear seat.
Defendant opened the driver‘s window, and Trooper Acevedo informed the occupants why the vehicle had been stopped. As he stood beside the opened window waiting for defendant to produce his driver‘s license and registration, Trooper Acevеdo “detected the odor of burnt marijuana.” He relied on his training and experience in identifying the odor. After smelling the odor of burnt marijuana, Trooper Acevedo ordered defendant-driver to exit the vehicle. The defendant was searched “looking for the source of the burnt marijuana.” No contraband was found on his person.
Francis was then directed to exit the vehicle and he, too, was searched by Trooper Acevedo while Trooper Fortunato was with defendant at the rear of defendant‘s vehicle. A metal smoking pipe containing burnt marijuana residue was found in Francis‘s right front pocket. Avalos was also directed to exit the vehicle
After the three occupants were removed from the vehicle and searched, Troоper Acevedo returned his focus to the vehicle. A small plastic bag containing greenish-brown vegetation was found in plain view on the console. Two partially smoked marijuana cigarettes were also in plain view on the console. Trooper Acevedo then opened a gym bag found on the back seat and seized a large plastic bag which contained two smaller bags of suspected marijuana. Defendant admitted the gym bag belonged to him. Shortly thereafter, defendant signed a consent to search the trunk of the vehicle. A tan gym bag found in the trunk contained six plastic bags of suspected marijuana. A scale was found in the gym bag as well. Neither of the occupants admitted ownership of the tan gym bag or its contents. Defendant was under the continuous observation and supervision of Trooper Fortunato during the entire search of the passengers and the motor vehicle.
Defendant was issued a summons for speeding, failing to keep to the right, and possession of marijuana in a motor vehicle. He was also charged with possession of more than fifty grams of marijuana, and possession of a scale as drug paraphernalia. Subsequently, he was indicted for fourth-degree possession of marijuana,
State Trooper Acevedo testified that he could not determine how long prior to the stop, marijuana had been smoked which created the odor of burnt marijuana he smelled. He was asked by the judge:
THE COURT: Well, in other words, I — from what you smelled on this occasion — was what yоu smelled — were you able to determine whether it had been recent — was it the smoke of recently smoked marijuana, or was it just a stale odor in the car? THE WITNESS: I don‘t believe it can really be distinguished, unless it was just burned at that time where you have a strong odor —
THE COURT: That‘s what I‘m trying to find out, whether you —
THE WITNESS: I couldn‘t distinguish whether it was present recently, or not, your Honor.
When granting the suppression motions, the judge stated:
I‘m not persuaded by a preponderance of the evidence that what was detected here was of a sufficient magnitude when it came to an odor of burnt marijuana to establish probable cause to order — start ordering occupants of the vehicle out of the vehiclе and searching them for further marijuana.
So, therefore, this Court finds that under the circumstances in this case, the State has not met its burden of establishing the facts for probable cause to search the occupants of the vehicle.
The judge also found the consent search was not sufficiently attenuated so аs to avoid being tainted by the searches conducted without probable cause.
II
It is undisputed that stopping defendant‘s motor vehicle for speeding satisfied the “articulable and reasonable suspicion” requirement of Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1979). See also State v. Casimono, 250 N.J. Super. 173, 178, 593 A.2d 827 (App.Div. 1991), certif. denied, 127 N.J. 558, 606 A.2d 370, cert. denied, ___ U.S. ___, 112 S.Ct. 1978, 118 L.Ed.2d 577 (1992).
It is well established that a warrantless search is presumed to be invalid. State v. Bruzzese, 94 N.J. 210, 218, 463 A.2d 320 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984); State v. Valencia, 93 N.J. 126, 133, 459 A.2d 1149 (1983). The burden is upon the Stаte to prove the validity of a warrantless search by a preponderance of the evidence. State v. Patino, 83 N.J. 1, 13, 414 A.2d 1327 (1980); State v. Whittington, 142 N.J. Super. 45, 51-52, 359 A.2d 881 (App.Div. 1976). Additionally,
The State has urged that the searсhes of defendant and the passenger compartment of the vehicle were incident to a lawful arrest of defendant, a recognized exception to the warrant requirement. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) and State v. Alston, 88 N.J. 211, 232-233, 440 A.2d 1311 (1981). The State argues further that the arrest of defendant was lawful based on the plain smell doctrine, which is akin to the plain view exception, see State v. Bruzzese, supra, 94 N.J. at 218, 463 A.2d 320, as well as the automobile exception recognized initially in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and reaffirmed in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); State v. Esteves, 93 N.J. 498, 505-507, 461 A.2d 1128 (1983); State v. Alston, supra, 88 N.J. at 230-231, 440 A.2d 1311.
The touchstone of the Fourth Amendment and Article I, paragraph 7 of the New Jersey Constitution is reasonableness. State v. Bruzzese, supra, 94 N.J. at 219-22, 463 A.2d 320. A search incident to an arrest without a warrant satisfies the standard of reasonableness only if probable cаuse existed. State v. Young, 87 N.J. 132, 142-143, 432 A.2d 874 (1981), State v. Novembrino, 105 N.J. 95, 105-06, 519 A.2d 820 (1987). Similarly, probable cause must be established to sustain a search under the automobile exception. State v. Pierce, 136 N.J. 184, 204, 642 A.2d 947; State v. Patino, supra, 83 N.J. at 15, 414 A.2d 1327.
III
Probable cause is a well grounded suspicion that a criminal offense has been or is being committed. State v. Burnett, 42 N.J. 377, 387, 201 A.2d 39 (1964). It is more than bare suspicion but less than legal evidence necessary to convict bеyond a reasonable doubt. State v. Waltz, 61 N.J. 83, 87, 293 A.2d 167 (1972); State v. Mark, 46 N.J. 262, 271, 216 A.2d 377 (1966).
State Trooper Acevedo was familiar with the characteristic odor of burnt marijuana. Once the trooper smelled burnt marijuana, a reasonable inference could be drawn that it was smoked recently by casual users of marijuana. Similarly, the smell of burnt marijuana gave “rise to an inference that would lead a police officer of ordinary prudence and experience conscientiously to entertain a strong suspicion that additional contraband is present in the ... automobile.” State v. Patino, supra, 83 N.J. at 12, 414 A.2d 1327. See also State v. Guerra, 93 N.J. 146, 150, 459 A.2d 1159 (1983); State v. Kahlon, 172 N.J. Super. 331, 338, 411 A.2d 1178 (App.Div. 1980), cert. denied sub nom., Kahlon v. New Jersey, 454 U.S. 818, 102 S.Ct. 97, 70 L.Ed.2d 88 (1981). Expressed another way, an odor of unburned marijuana creates an inference that marijuana is physically present in the vehicle. An odor of burnt marijuana creates an inference that marijuana is not only physically present in the vehicle, but that some of it has been smoked recently. The suspected marijuana could reasonably have been located in the passenger compartment and/or on the person of the occupants of the vehicle. To be sure, possession and/or use of marijuana in this State, in any amount, is illegal. State v. Tate, 198 N.J. Super. 285, 486 A.2d 1281 (App.Div. 1984), reversed, 102 N.J. 64, 505 A.2d 941 (1986);
In addition, it is a serious traffic offense for a driver to “operate a motor vehicle on any highway while knowingly having in his possession or in the motor vehicle, any controlled dangerous substance as classified in Schedules I, II, III, IV and V ...” of our Comprehensive Drug Reform Act of 1986,
Probablе cause determinations require an assessment of the totality of the circumstances in light of an objective reasonableness standard. State v. Novembrino, supra, 105 N.J. at 121, 519 A.2d 820. See also State v. Davis, 104 N.J. 490, 504, 517 A.2d 859 (1986); State v. Bruzzese, supra, 94 N.J. at 217, 463 A.2d 320. The total circumstances here involve a motor vehicle exceeding the speed limit by twelve miles per hour on an interstate superhighway at 12:36 a.m. The driver and the twо passengers were from Ohio; the vehicle was registered in the same state. While conversing with the driver, the trooper smelled the odor of burnt marijuana.
Unlike the smell of alcohol emanating from the passenger compartment of a stopped motor vehicle, or even on the breath of the driver, bоth of which might be lawful, using or possessing marijuana in a motor vehicle in New Jersey is a per se violation of the laws of this State. The trooper was entitled to apply “the factual and practical consideration of everyday life” on which reasonable and prudent persons act. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949). Thus, the smell of burnt marijuana under the total circumstances created a heightened and reasonable suspicion that an offense was being committed. We are persuaded that under the totality of the circumstances, probable cause was established.
We recognize that some jurisdictions require the police to establish hоw recently the marijuana had been smoked before probable cause can be established. People v. Hilber, 403 Mich. 312, 269 N.W.2d 159 (1978), is such a case, and the judge below relied upon its rationale in suppressing the evidence. This case suggests that a police officer who smells burnt marijuana in a motor vehicle can do nothing unless the officer can prove when it was smoked. We are persuaded not to handicap law enforcement
IV
Although no formal arrest of defendant was announced when he was directed to step out of the vеhicle, he was in reality under arrest for violating
Beyond that, the penalty for knowingly operating a motor vehicle on any highway of this State containing marijuana requires the imposition of a fine of “not less than $50.00” and the operator “shall forthwith forfeit his right to operate a motor vehicle for a period of two years....”
V
We are also satisfied that the search of the vehicle was justified under the automobile exception. State v. Alston, supra, 88 N.J. at 230-31, 440 A.2d 1311. The very same facts which constitute probable cause to arrest defendant for violating
The order suppressing the evidence is reversed. The matter is remanded to the Law Division to dispose of the charges.