                                NOT FOR PUBLICATION WITHOUT THE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-3954-18T3

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

DANIEL T. KATZ,

     Defendant-Respondent.
_____________________________

                    Submitted October 17, 2019 – Decided November 13, 2019

                    Before Judges Gooden Brown and Mawla.

                    On appeal from an interlocutory order of the Superior
                    Court of New Jersey, Law Division, Monmouth
                    County, Indictment No. 18-06-0790.

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for appellant (Carey J. Huff,
                    Assistant Prosecutor, of counsel and on the briefs).

                    The Law Offices of Jonathan F. Marshall, and Helmer
                    Conley & Kasselman, PA, attorneys for respondent
                    (James Fagen and Patricia B. Quelch, of counsel and on
                    the brief).

PER CURIAM
      By leave granted, the State appeals from the April 2, 2019 Law Division

order granting defendant's motion to suppress evidence seized from his vehicle

during a warrantless search following a motor vehicle stop. We affirm.

      A Monmouth County grand jury returned a two-count indictment against

defendant, charging him with fourth-degree possession of a controlled

dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(3); and first-degree

possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(10)(a).

Defendant moved to suppress the CDS that formed the evidential basis for the

charges.   At the suppression hearing conducted on March 12, 2019, the

following testimony was elicited from the two uniformed police officers

involved in the encounter, Patrick Brady and Devin Corso.

      On August 8, 2017, the officers were working together in Wall Township

in a marked patrol vehicle driven by Corso. Brady, who had "[a]pproximately

seven years" of experience as a "patrolman" in Wall Township, and an additional

two years of similar law enforcement experience in New Hampshire, was

training Corso, who had recently completed his basic training at the Police

Academy and was "a month and a half" into "[his] field training."              At

approximately 1:40 a.m., near the corner of Marconi Road and Monmouth

Boulevard, the officers observed a green 2001 Acura with "[t]he middle brake


                                                                         A-3954-18T3
                                      2
light . . . out on the vehicle[,]" in contravention of N.J.S.A. 39:3-66, requiring

that lamps be maintained in good working order. They subsequently conducted

a motor vehicle stop on Belmar Boulevard, activating the mobile video recorder

(MVR).1

      As they approached the vehicle on the passenger side, the officers

observed one occupant, the driver, later identified as defendant.          Corso

questioned defendant about his earlier activities, his intended destination, and

his driving and arrest history. Defendant responded he was on his way home

from his uncle's house, he had "like two points on [his license,]" and he had

previously been arrested for "[p]ot."       Upon obtaining defendant's driving

credentials, Corso returned to the patrol car with Brady to verify defendant's

credentials. While walking back to the patrol car, Brady said to Corso, "can you

smell that," referring to an odor of raw marijuana "coming from somewhere

inside [defendant's] vehicle." Brady told Corso he could also detect the odor of

"Black and [M]ild" cigars inside the vehicle. Brady described a Black and Mild

cigar as "a little cheap cigar[,]" used "to inhale marijuana" or to "try to mask"


1
   Brady testified the MVR "records audio and visual," and the microphone
connected to the MVR was attached to Corso's lapel. Brady explained that the
MVR also captures thirty seconds of video before the patrol car's emergency
lights are engaged. The MVR was played at the hearing during Brady's
testimony.
                                                                          A-3954-18T3
                                        3
the smell of marijuana. Additionally, while looking inside defendant's vehicle,

the officers observed "a[n] electronic vape pen," generally used "for nicotine"

or "to ingest marijuana."

      Brady testified the presence of the Black and Mild cigar and the vape pen,

in conjunction with the odor of marijuana, suggested to him that "the vape pen

was being used to ingest marijuana." Brady explained "[u]sually[,] if someone[

is] using tobacco, either a cigar or a cigarette, they're not going to use a vape

pen to ingest nicotine because they're already smoking a cigar or a cigarette."

Brady testified he had "seized marijuana" approximately one hundred times and

was "familiar with [how] marijuana smell[ed]," in that it had "a distinct odor."

He clarified that he detected the odor of marijuana emanating from defendant's

"whole vehicle," including its trunk. On the other hand, Corso "thought" he

smelled "a little" odor of raw marijuana while standing at defendant's passenger

side window, but could not "tell where [the smell] was coming from before it

made it to the window." Corso, like Brady, had been "taught the smell of

marijuana" while training at the Police Academy.

      A database search of defendant's credentials revealed defendant had

previously been charged with drug possession and distribution as well as

burglary. Corso then asked defendant to step out of the vehicle, and defendant


                                                                         A-3954-18T3
                                       4
complied. Corso said to defendant, "[a]ll right, so here's the deal – I'm getting

the odor of marijuana coming from your car." Defendant replied there was

"definitely" no odor of marijuana in his vehicle, and refused to consent to a

search of his vehicle.       Corso then proceeded to search the passenger

compartment of defendant's vehicle over defendant's objection. During the

search, Corso found no marijuana in the passenger compartment, but the

"electronic vape pen" contained remnants of oil in the cartridge. Because Corso

did not find the "raw marijuana" he "had smelled" in "the passenger[]

compartment of the vehicle[,]" he continued to search the trunk. Upon opening

the trunk, Corso discovered THC2 gummy candies in sealed packages, sealed

mason jars containing raw marijuana, and a latched Yeti brand cooler.

According to Brady, there was no odor of marijuana emanating from the sealed

packages   found    beside    the   cooler   to   justify   defendant's   apparent

"nervous[ness]."

      Corso then proceeded to open the cooler and found more packages of THC

gummy candies, more mason jars of raw marijuana, and multiple vacuumed

sealed bags of raw marijuana. According to Corso, "the smell [of marijuana]


2
  THC or delta-9-tetrahydrocannabinol is "the main ingredient that produces the
psychoactive effect" in marijuana. Marijuana, DEA (Oct. 7, 2019, 2:13 PM),
https://www.dea.gov/factsheets/marijuana.
                                                                           A-3954-18T3
                                        5
was stronger when [he] opened [the cooler.]" After discovering the contraband,

defendant was placed under arrest.      The logged evidence recovered from

defendant's vehicle included (1) sealed mason jars filled with raw marijuana; (2)

small bags of raw marijuana; (3) large vacuum sealed bags of raw marijuana;

(4) loose marijuana in the cooler; (5) packages of THC gummy candies; (6)

packages of THC chocolates; (7) THC oil in a jar; (8) THC vape pen cartridges;

and (9) at least $1000 in cash.

      Following the hearing, on April 2, 2019, the judge entered an order

granting "[d]efendant's [m]otion to [s]uppress all evidence found in

[defendant's] vehicle."    In an accompanying written opinion, the judge

determined that while "the vehicle stop was proper, the officers lacked probable

cause to search [defendant's] vehicle, including its trunk[.]" As to the initial

stop, the judge explained that because "the video recording showed evidence

that [defendant's] center brake lights were malfunctioning as he drove toward

Belmar Boulevard, the officers possessed reasonable suspicion that [defendant]

committed a motor vehicle offense," justifying the motor vehicle stop.3


3
   Defendant challenges the initial stop as unlawful, arguing it constituted a
pretext, "when considered in conjunction with [the] Wall Township Police
Department's quota system." Defendant asserts "the [motion judge]'s finding is
contrary to State v. Sutherland, 231 N.J. 429, 445 (2018), wherein the Court
                                                                  (continued)
                                                                          A-3954-18T3
                                       6
      Turning to the warrantless search of the vehicle, the judge determined the

"officers' suspicion that [defendant] possessed CDS in his vehicle's interior and

trunk did not rise to the level of probable cause" for three reasons:

              First, due to the alleged smell of marijuana, Black &
              Mild cigars, and the vape-pen near the front passenger's
              seat, the officers possessed independent reasonable
              suspicion to extend the time of the vehicle stop and look
              into [defendant's] driver's license information and
              criminal history. However, under the second prong of
              the analysis, the initial search of the vehicle's front,
              passenger, and back seats were impermissible under
              Officer Brady's erroneous application of the "plain
              smell" doctrine. Lastly, even if the [c]ourt were to
              hypothetically treat the search of the vehicle's interior
              as constitutionally proper, the [c]ourt finds that Officer
              Corso lacked probable cause to believe that additional
              contraband would be found within [defendant's] trunk.

      Focusing first on the probable cause required "under the 'plain smell'

doctrine to believe that marijuana could be found within the vehicle[,]" the judge

elaborated:




found a stop based upon a similar misinterpretation of N.J.S.A. 39:3-66 to be
invalid and suppressed all evidence seized." However, defendant did not file a
cross-motion for leave to appeal on that issue. "Without cross-appealing, a party
may argue points the trial court either rejected or did not address, so long as
those arguments are in support of the trial court's order." State v. Eldakroury,
439 N.J. Super. 304, 307 n.2 (App. Div. 2015). Here, the motion judge explicitly
rejected defendant's challenge to the motor vehicle stop. Nonetheless, we
decline to address the argument in the absence of a cross-appeal because we do
not deem the argument to be "in support of the trial court's order." Ibid.
                                                                           A-3954-18T3
                                          7
            Although Officer Brady was capable of distinguishing
            between the odors of burned and raw marijuana due to
            his experience as a law enforcement officer and
            allegedly detected the odor of marijuana immediately
            upon approaching the passenger's side, . . . Officers
            Brady and Corso could not verify whether the
            discovered odor near the passenger's seat was that of
            marijuana; thus, the officers' reasonable suspicion that
            [defendant] possessed marijuana did not elevate to the
            probable cause needed to justify the officers'
            warrantless search of the vehicle. The officers could
            not find any remnants of marijuana near the passenger's
            side of the vehicle. Although Officer Brady testified
            that [defendant's] vape-pen near the passenger's seat
            could have been used to ingest marijuana, the testimony
            has not eliminated the reasonable possibility that
            [defendant] could have used the vape-pen to instead
            ingest nicotine. To support his point that [defendant]
            allegedly used the vape-pen to ingest marijuana,
            Officer Brady claimed that the vape-pen cartridges
            contained hashish oil, but the State never introduced the
            laboratory-tested vape-pen into evidence to confirm the
            Officer's sense of smell. Furthermore, the alleged odor
            of marijuana could have reasonably been the burnt odor
            of the Black & Mild[] cigars, which also function to
            mask the smell of [marijuana]. Taking all the factual
            circumstances into consideration, the [c]ourt finds that
            Officers Brady and Corso at most had reasonable
            suspicion of [defendant's] CDS possession, not
            probable cause.

      Furthermore, "even assuming . . . the officers had probable cause to search

the interior of the vehicle under the 'plain smell' doctrine," the judge did "not

find the officers' testimony that the odor of marijuana extended the scope of the

vehicle search to the trunk believable." Expressly rejecting Brady's testimony,

                                                                         A-3954-18T3
                                       8
the judge stated he could not "solely rely on Officer Brady's say-so as to whether

the odor in the vehicle was allegedly that of marijuana." 4 The judge also rejected

Corso's claims based on his "lack of experience in detecting marijuana odors

and the high unlikelihood that [he] detected any smell of marijuana arising from

the trunk[,]" considering "the secured location of the marijuana."

      The judge explained:

            Officer Corso, a new law enforcement officer with very
            limited on-the-road experience, solely executed the
            search of the front and back portions of [defendant's]
            vehicle without Officer Brady's assistance. Due to
            Officer Corso's lack of experience, his ability to
            distinguish between the odors of different types of CDS
            was not as refined as Officer Brady's experienced sense
            of smell. Additionally, . . . [Officer Corso] responded
            to Officer Brady's concern about the odor of raw
            marijuana by noting that he "thought" he smelled a
            "little bit" of the CDS. The language suggests some
            level of uncertainty as to whether marijuana could be
            found at all in the vehicle . . . .

                  Furthermore, . . . . [e]ven if Officer Corso
            determined that a "little bit" of the marijuana odor arose
            from the vape-pens and the discarded cigars near the

4
   During the hearing, when Brady was given one of the large vacuum sealed
bags of raw marijuana, contained inside a marked evidence bag, he agreed that
it "still smell[ed] like marijuana through both bags" despite "a year and a half of
drying out." He explained, however, that "the smell was stronger" when they
first discovered the marijuana in the trunk of defendant's car. In juxtaposition
to this testimony, the parties stipulated that "[w]hen [the] testimony was
completed, the judge came off the bench, picked up the bags of marijuana,
brought them to his nose and smelled them."
                                                                           A-3954-18T3
                                        9
            front passenger's seat, the existence of a small amount
            of marijuana near the front passenger's seat is
            insufficient evidence of probable cause to search the
            trunk of the vehicle. . . . In addition, the [c]ourt does
            not understand how Officer Corso was able to trace the
            alleged odor of marijuana to the trunk of the vehicle
            [because] . . . . most of the CDS products . . . were
            wrapped, vacuum-sealed, and stored in a secure, high-
            end, and latched cooler. . . . According to the officers'
            testimonies, the only CDS products that could have
            been found outside of the cooler were gummy candies,
            which emitted no odor, and a small mason jar, which
            was firmly sealed. Due to the multiple barriers
            surrounding the seized marijuana, the [c]ourt finds
            incredulous that Officer Corso was able to sense the
            marijuana in the trunk.

Concluding the officers "lacked probable cause to believe that evidence of

marijuana would be found in both the interior and trunk of [defendant's]

vehicle[,]" and "impermissibly extended the scope of the search to the trunk of

the vehicle[,]" the judge granted defendant's suppression motion, and this appeal

followed.

      On appeal, the State argues "[t]he trial court erred in concluding . . . it

could not rely solely upon Officer Brady's smelling of marijuana to support

probable cause to search the vehicle." The State "submits the trial court's

conclusions that further actions were needed are in error because the smell of

raw marijuana alone was sufficient to provide probable cause." The State

continues "[t]he probable cause was further augmented by the time of day . . .

                                                                         A-3954-18T3
                                      10
and defendant's prior arrests for possession and distribution, which the officers

knew about before the search."

      Our review of the trial court's decision on a motion to suppress is limited.

State v. Robinson, 200 N.J. 1, 15 (2009). "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, 232 N.J. 417,

425-26 (2017) (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)). "The governing

principle, then, is that '[a] trial court's findings should be disturbed only if they

are so clearly mistaken that the interests of justice demand intervention and

correction.'" Robinson, 200 N.J. at 15 (alteration in original) (quoting State v.

Elders, 192 N.J. 224, 244 (2007)).           "We owe no deference, however, to

conclusions of law made by trial courts in deciding suppression motions, which

we instead review de novo." State v. Brown, 456 N.J. Super. 352, 358-59 (App.

Div. 2018) (citing State v. Watts, 223 N.J. 503, 516 (2015)).


                                                                             A-3954-18T3
                                        11
      Applying that de novo standard of review to the trial court's legal

conclusions, "[w]e review this appeal in accordance with familiar principles of

constitutional law." State v. Robinson, 228 N.J. 529, 543 (2017). "Both the

United States Constitution and the New Jersey Constitution guarantee an

individual's right to be secure against unreasonable searches or seizures." State

v. Minitee, 210 N.J. 307, 318 (2012) (citing U.S. Const. amend. IV; N.J. Const.

art. I, ¶ 7). Thus, searches and seizures conducted without a warrant "are

presumptively invalid as contrary to the United States and the New Jersey

Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004) (citing State v. Patino,

83 N.J. 1, 7 (1980)). As such, "the State must demonstrate by a preponderance

of the evidence[,]" id. at 20 (quoting State v. Wilson, 178 N.J. 7, 13 (2003)),

that "[the search] falls within one of the few well-delineated exceptions to the

warrant requirement." Id. at 19-20 (quoting State v. Maryland, 167 N.J. 471,

482 (2001) (alteration in original)). "Thus, we evaluate the evidence presented

at the suppression hearing in light of the trial court's findings of fact to determine

whether the State met its burden." Id. at 20.

      The exception invoked in this case to justify the warrantless search is the

automobile exception to the warrant requirement. Pursuant to State v. Witt, 223

N.J. 409 (2015), officers may now conduct a warrantless, nonconsensual search


                                                                              A-3954-18T3
                                         12
during a lawful roadside stop "in situations where: (1) the police have probable

cause to believe the vehicle contains evidence of a criminal offense; and (2) the

circumstances giving rise to probable cause are unforeseeable and spontaneous."

State v. Rodriguez, 459 N.J. Super. 13, 22 (App. Div. 2019) (citing Witt, 223

N.J. at 447-48). "New Jersey courts have [long] 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) (quoting State v. Nishina, 175 N.J. 502, 515-16 (2003))

(internal quotation marks omitted); accord, e.g., State v. Pena-Flores, 198 N.J.

6, 30 (2009); State v. Birkenmeier, 185 N.J. 552, 563 (2006); State v. Guerra,

93 N.J. 146, 150-51 (1983); State v. Legette, 441 N.J. Super. 1, 15 (App. Div.

2015); State v. Myers, 442 N.J. Super. 287, 295-96 (App. Div. 2015); 5 State v.

Chapman, 332 N.J. Super. 452, 471 (App. Div. 2000); State v. Vanderveer, 285

N.J. Super. 475, 479 (App. Div. 1995); State v. Judge, 275 N.J. Super. 194, 201

(App. Div. 1994); State v. Sarto, 195 N.J. Super. 565, 574 (App. Div. 1984);

State v. Kahlon, 172 N.J. Super. 331, 338 (App. Div. 1980).



5
  "[A]bsent evidence the person suspected of possessing or using marijuana has
a registry identification card, detection of marijuana by the sense of smell, or by
the other senses, provides probable cause to believe that the crime of unlawful
possession of marijuana has been committed." Myers, 442 N.J. Super. at 303.
                                                                           A-3954-18T3
                                       13
      These and other decisions have "'repeatedly recognized that' . . . the

detection of that smell satisfies the probable-cause requirement." Walker, 213

N.J. at 287-88 & n.1. Thus, in the context of a warrantless automobile search,

the "smell of marijuana emanating from the automobile [gives] the officer

probable cause to believe that it contain[s] contraband." Pena-Flores, 198 N.J.

at 30 (citation omitted).    However, "[a] police officer must not only have

probable cause to believe that the vehicle is carrying contraband but the search

must be reasonable in scope." Patino, 83 N.J. at 10. In that regard, "[i]t is

widely recognized that a search, although validly initiated, may become

unreasonable because of its intolerable intensity and scope." Id. at 10-11 (citing

Terry v. Ohio, 392 U.S. 1, 19 (1968)). Thus, "the scope of the search must be

'strictly tied to and justified by' the circumstances which rendered its initiation

permissible." Terry, 392 U.S. at 19 (quoting Warden, Md. Penitentiary v.

Hayden, 387 U.S. 294, 310 (1967) (Fortas, J., concurring)).

      Here, the motion judge expressly found that even assuming "the officers

had probable cause to search the interior of the vehicle under the 'plain smell'

doctrine," the judge did not believe the officers' testimony that the odor of

marijuana extended to the trunk of the vehicle. We "must give deference to the

trial court's credibility findings[,]" Walker, 213 N.J. at 290, particularly since


                                                                           A-3954-18T3
                                       14
those findings are supported by sufficient credible evidence in the record.

Notably, Brady testified that before Corso opened the cooler, there was no odor

of marijuana emanating from the sealed packages found inside the trunk next to

the cooler to justify defendant's apparent "nervous[ness]."       This testimony

contradicted Brady's earlier testimony that upon initially approaching the

passenger side of defendant's vehicle, he had detected the odor of marijuana

emanating from the "whole vehicle," including the trunk.          Further, Corso

testified that when he first approached the passenger side of defendant's vehicle,

he "thought" he smelled "a little" odor of raw marijuana but the odor "was

stronger when [he] opened [the cooler.]"

      Contrary to the State's assertion, these facts are distinguishable from the

facts in Kahlon. There, after conducting a motor vehicle stop and detecting the

odor of "burning marijuana" when the "defendant opened his window to exhibit

his [driving] credentials[,]" the defendant ultimately admitted to the officer he

had been "smoking marijuana." Kahlon, 172 N.J. Super. at 336. A subsequent

search of the interior of the vehicle uncovered "a half-burned marijuana

cigarette[,]" "a clear plastic bag filled with . . . approximately [one-half] ounce

of marijuana and a package of cigarette wrapping papers." Ibid. When the

officer continued to search the back seat where a passenger had been seated, "he


                                                                           A-3954-18T3
                                       15
noticed the very heavy odor of unburned marijuana," but found "no potential

marijuana containers." Id. at 337. We held that the officer's "inability to

pinpoint the source" of the odor emanating "from the rear of the [defendant's]

vehicle, together with the marijuana already found in the car," established

probable cause to extend the search to the trunk of the car, where he discovered

approximately thirty pounds of marijuana in a torn plastic bag located inside a

partially opened cardboard box. Id. at 338.

      Here, because "[n]othing found in the interior of the passenger area or in

the conduct of [defendant] generated any suspicion of a drug cache in the

trunk[,]" the "search was purely investigatory and the seizure a product of luck

and hunch, a combination of insufficient constitutional ingredients." Patino, 83

N.J. at 12 (citation omitted). "[T]he State bears a heavy burden of demonstrating

the probable cause which justifies the search." Id. at 13. Here, given the judge's

credibility findings, the State failed to satisfy its heavy burden to demonstrate

that there was a reasonable basis to extend the search to the trunk of defendant's

vehicle.

      Affirmed.




                                                                          A-3954-18T3
                                       16
