State v. VanderveerState v. Vanderveer
On leave granted, the state appeals from an order of the Law Division granting defendant Theodore Vanderveer‘s motion to suppress. We reverse.
The relevant facts developed at the suppression hearing may be summarized as follows. On August 5, 1993, Sheriff‘s Officers John McDonald and Chris Fagan were executing an arrest warrant for N.R. of 1215 Monroe Avenue, Asbury Park. That warrant had
The two officers left the vehicle. Two young women were standing near the curb, eight to twelve feet from the porch of 1215 Monroe Avenue. The officers walked up to the porch, which had a number of steps. Officer McDonald advised N.R. he had a warrant for his arrest and that he was under arrest. While on the porch, Officer McDonald detected a strong odor of burnt marijuana. By priоr training and experience, Officer McDonald was familiar with the distinctive odor of burnt and raw marijuana. The odor was only noticed while on the porch and the smell emanated from the area wherе defendant and N.R. were standing. The porch was approximately six to eight feet deep and fourteen to sixteen feet wide. No other individual had been observed near the porch.
N.R. was placed under arrest and searched. No contraband was discovered. No burnt marijuana or contraband was observed in the immediate area. Officer McDonald then patted down defendant, who was wеaring military style camouflage pants and had several items in each pocket. After the pat-down, Officer McDonald requested that defendant empty his pockets. Defendant was observed to bе shaking and nervous. While emptying his front left-hand pocket, defendant dropped an object to the floor of the porch. Officer McDonald retrieved the dropped tissue and unravelled it. It contаined a folded-up dollar bill, which when unfolded by the officer, revealed two other pieces of paper that contained a white powdery substance. Based on the officer‘s training and exрerience, Officer McDonald believed the substance to be cocaine and placed defendant under arrest.
Officer McDonald testified on rebuttal that the Sheriff‘s officers did not receive dispatches concerning complaints of criminal activity when assigned to the warrant squad and in the process of serving warrants.
The motiоn judge, implicitly accepting the testimony of Officer McDonald, granted the motion to suppress. The motion judge concluded that the odor of burnt marijuana in the open air, not confined to a motor vehicle, did not provide probable cause to conduct a search. We disagree.
Probable cause is a well-founded suspicion that a criminal offense has been or is being committed. State v. Burnett, 42 N.J. 377, 201 A.2d 39 (1964). It is mоre than bare suspicion but less than legal evidence necessary to convict beyond a reasonable doubt. State v. Waltz, 61 N.J. 83, 87, 293 A.2d 167 (1972). Whether probable cause existed is to be determined by the objective reasonableness standard. State v. Bruzzese, 94 N.J. 210, 219-221, 463 A.2d 320 (1983), cert. denied 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed. 2nd 695 (1984).
In State v. Judge, 275 N.J. Super. 194, 201, 645 A.2d 1224 (App.Div. 1994), we recognized that the odor of burnt marijuana gave rise to an inference to lead a police officer of ordinary prudence and experience to entertain a strong suspicion that additional contraband was present. In Judge, the odor of burnt marijuana emanated from an automobile. See also, State v. Guerra, 93 N.J. 146, 150, 459 A.2d 1159 (1983) (Strong odor of raw unburned marijuana that could not have emanated from small suitcase in an automobile‘s interior provided probable cause to state police to search trunk for evidence of contraband.)
We discern no basis to draw a distinction between an automobile and the limited area of an open porch to a private two-family residence measuring eight by sixteen feet. What we said in State v. Judge would therefore have equal applicability here.
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/оr 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), rev‘d 102 N.J. 64 [505 A.2d 941] (1986);
N.J.S.A. 2C:35-10 . Therefore, the smell of burnt marijuana alone suggested a breach of law.
[State v. Judge, supra, 275 N.J. Super. at 201, 645 A.2d 1224].
Officer McDonald, by prior training and experience, was familiar with the odor of burnt as well as raw marijuana. He did not waver in asserting that there was a strong odor of marijuana where defendant and N.R. were standing on the front porch. The odor of marijuana is very distinctive. When no contraband was found on N.R., who was searched incident to the execution of an arrest warrant, the officer‘s attention naturally turned to defendant. Probable cause existed that a criminal offense had been committed and that additional contraband might be present. Officer McDonald was permitted to search for contraband of the offense. The fact that cocaine turned up instead of marijuana does not invalidate the search.
Other courts have upheld the validity of warrantless searches based on the detection of the odor of marijuana or marijuana smoke as providing рrobable cause, standing alone, for a search where the law enforcement officer who detects the odor has experience in identifying marijuana by smell. See generally, Annotation, Odor of Narcotics As Providing Probable Cause For a Warrantless Search, 5 A.L.R. 4th 681 (1981) and the cases collected
In State v. Cross, 23 Or. App. 536, 543 P.2d 48 (1975), a case bearing a striking similarity to the facts here, a police officer was dispatched to a local shopping area parking lot to invеstigate damage by a vehicle to a light pole. Defendant, though not involved in the accident, was present at the request of the driver of the involved vehicle, who was defendant‘s girlfriend. While talking facе-to-face with the girl and defendant for a substantial period, the officer concluded that he smelled a light to medium odor of marijuana emanating from defendant. During the conversation, defendant had removed, folded and placed two jackets that he had been wearing upon the seat of his motorcycle. The officer told defendant of his suspicions. Defendant responded that the officеr probably smelled patchouli oil, which he had previously put on that day. The officer answered “No, I recognized those smells.” He searched the folded jackets, finding thirteen hand-rolled marijuana cigarettes in one of the pockets. The officer then searched defendant and found, in his trouser pocket, a vial containing a white powder substance which was later identified as cocаine. The court held that the officer had probable cause to make the search because the officer smelled the odor of marijuana emanating from the clothing and person of dеfendant.
The order granting the motion to suppress is vacated and the matter is remanded.