                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Al though 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-2354-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CORNELIUS C. COHEN,

     Defendant-Appellant.
______________________________

                    Submitted February 5, 2020 – Decided April 20, 2020

                    Before Judges Koblitz and Gooden Brown.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 16-10-
                    0162.

                    Hunt Hamlin & Ridley, attorneys for appellant
                    (Raymond Louis Hamlin, of counsel and on the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Sarah C. Hunt, Deputy Attorney General,
                    of counsel and on the brief).

PER CURIAM
       Following the denial of his motion to suppress evidence seized from his

vehicle without a warrant after a motor vehicle stop, defendant entered a

conditional negotiated guilty plea, R. 3:9-3(f), to second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b). He was sentenced in accordance

with the plea agreement to five years' imprisonment, with the mandatory three-

and-one-half-years of parole ineligibility. See N.J.S.A. 2C:43-6(c).

       Defendant now appeals from the December 24, 2018 judgment of

conviction, raising the following points for our consideration:

             POINT ONE:

             THE MOTION COURT'S RULING FINDING THAT
             [STATE V. KAHLON 1] PERMIT[]S THE SEARCH
             OF THE ENTIRE AUTOMOBILE UPON THE
             SMELL OF MARIJUANA WAS IN ERROR.

             POINT TWO:

             THE STATE FAILED TO ESTABLISH THAT
             THERE WERE EXIGENT CIRCUMSTANCES THAT
             WOULD SUPPORT THE WARR[A]NTLESS
             SEARCH OF DEFENDANT'S AUTOMOBILE.

                   A.   IN ASSESSING WHETHER THE
                   STOP     AND    SEARCH    WAS
                   PREPLANNED, THE MOTION COURT
                   ERR[]ED IN FINDING THAT THE
                   VERIFICATION       OF     THE
                   CONFIDENTIAL       INFORMANT'S

1
    172 N.J. Super. 331 (App. Div. 1980).
                                                                       A-2354-18T2
                                       2
                    INFORMATION PERMITTED THE
                    STATE TROOPERS TO SEARCH THE
                    AUTOMOBILE.

                    B.  THE MOTION COURT'S FINDING
                    THAT TWO STATE TROOPERS
                    INDEPEND[E]NTLY SMELLED RAW
                    MARIJUANA        IS        NOT
                    DETERMINATIVE AS TO WHETHER
                    THE STOP AND SEARCH OF THE
                    AUTOMOBILE WAS PREPLANNED.

We affirm.

        At the hearing on the suppression motion, State Police Detective Joseph

Czech and Trooper Charles Travis IV testified for the State. Trooper Caitlin

Brennan and Najah2 Baker testified for the defense. Czech, an eleven-year

veteran assigned to the State Police Trafficking Unit, testified that in January of

2016, a confidential informant (CI) who had provided reliable information to

other detectives in the past notified him that defendant was trafficking weapons

between the Carolinas and New Jersey. The CI stated defendant used two

different vehicles to transport the weapons "to the Essex . . . as well as Middlesex

County area[s]," and provided a description of the vehicles, including the license

plate numbers. Czech's investigation revealed that the vehicles, a gray Infiniti

G35 and a black Honda Civic, were registered to defendant and Baker,


2
    Alternate spellings of Najah appear in the record.
                                                                            A-2354-18T2
                                         3
respectively.      The investigation also confirmed that the Honda Civic had

traveled through the southern states in November 2015.

      On January 15, 2016, the CI notified Czech that defendant was "en route

to one of the Carolinas" and "would be returning" to New Jersey on Sunday,

"January 17th." As a result, Czech entered "[t]he license plates of both vehicles"

into "various [law enforcement] databases" so that he would be notified by "[t]he

Regional Operations Intelligence Center [ROIC]" if either license plate "was

r[u]n by another officer or . . . picked up by an automated reader." In addition,

Czech's supervisor "sent out an e-mail to State Police stations" to "be on the

lookout [BOLO] for the[] vehicles" being operated by defendant or Baker.

However, the e-mail only directed recipients to "notify [Czech] or other unit

members if they . . . came across the vehicle[s]." Subsequently, Czech was

notified by the ROIC and Travis that the Honda Civic was located and responded

to the location.

      Travis, a nine-year veteran trooper, testified that he was aware of the

BOLO from the e-mail being "forwarded to . . . [his] work e-mail" and

"disseminated at rol[l] call." According to Travis, during his shift on January

17, he observed the Honda Civic identified in the BOLO "swerve[] over the

lines" "several times" as it "entered the turnpike northbound," leading him to


                                                                          A-2354-18T2
                                        4
suspect that the driver was operating the vehicle under the influence of alcohol.

In addition, "[a]s the vehicle was going through the toll plaza" for "the

Woodbridge area, . . . the E-ZPass reader indicated unpaid tolls."        Travis

continued to "follow[] the vehicle" onto "parkway north" and, based on the

violations, conducted a motor vehicle stop "around [milepost] 137." Brennan

assisted with the stop as "a back-up trooper."

      Defendant was identified as the driver of the vehicle, and Baker was

identified as the front seat passenger. Upon approaching the vehicle, Travis

detected "[a] strong odor of raw marijuana" emanating from the vehicle and

observed "multiple air fresheners hanging from the rearview mirror," indicating

an attempt "to mask the [marijuana] odor."       Additionally, while requesting

defendant's driving credentials, Travis "observed greenish-brown vegetation on

[defendant's] beard and . . . shirt," believed to be marijuana residue. After

defendant and Baker confirmed that neither was a medical marijuana user,

Travis ordered them out of the vehicle, placed them under arrest, and conducted

a search of the vehicle to ascertain the source of the marijuana odor while other

officers responded to the scene, one of whom also detected the odor of marijuana

emanating from the vehicle.




                                                                         A-2354-18T2
                                       5
      During the search, Travis found a spent 9mm shell casing in a shot glass

inside the glove compartment of the vehicle's interior. After completing the

search of the passenger compartment with negative results for marijuana, Travis

proceeded to search "the engine compartment" because "[m]arijuana can fit in

the engine compartment" and "will get sucked into the air . . . vents." There,

Travis found "[a] black canvas bag" containing a "shotgun" along "the firewall

of the engine . . . where it meets the partition for the passenger compartment."

Inside "a smaller bag" on "the driver's side in the same location up against . . .

the firewall," he found "a revolver." Proceeding to the trunk, Travis found a

"duffle bag" inside the trunk containing "various calibers of ammunition,"

including hollow point bullets.

      The entire encounter was recorded on the dash-cam video recording in

Travis's patrol car, which "start[ed] recording" once Travis activated his

overhead emergency lights to conduct the stop. The dash-cam video was played

during the hearing and viewed by the judge. After the search, Travis transported

defendant back to the State Police barracks and issued him "[m]otor vehicle

violation[] summonses" for "failure to pay tolls" and "failure to maintain . . .

lane of travel." Based on the seizure of the two firearms and the hollow point

bullets, defendant was subsequently indicted for two counts of second-degree


                                                                          A-2354-18T2
                                        6
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:39-

5(c)(1); and fourth-degree possession of a prohibited device, N.J.S.A. 2C:39-

3(f).

        For the defense, Trooper Brennan testified at the hearing that she "had

been speaking with Travis" on the Turnpike during her shift on January 17, when

"he abruptly took off." She followed him and served as a back-up during the

motor vehicle stop, but did not know the reason for the stop and had no

recollection of receiving the BOLO. In turn, Baker testified that when they were

stopped on January 17, neither she nor defendant had consumed marijuana or

had marijuana in their possession. She also provided her E-ZPass records for

the period in question, which were moved into evidence.

        Following the hearing, the judge denied defendant's motion. In a written

decision, the judge credited Travis's testimony, which was corroborated by the

dash-cam video, applied the governing principles, and concluded that the search

was legally justified. First, citing State v. Smith, 306 N.J. Super. 370, 380 (App.

Div. 1997), the judge determined that "based on his training and experience,"

Travis's observation of defendant's "failure to maintain his lane of traffic"

"indicated possible intoxication" and "provided him with an 'articulable and




                                                                           A-2354-18T2
                                        7
reasonable suspicion that the driver committed a motor vehicle offense.'" The

judge added

              Travis also testified he observed . . . [d]efendant drive
              through the EZ Pass lane without paying the toll.
              Specifically, when . . . [d]efendant drove through the
              EZ Pass lane, the toll sign indicated "No Toll Paid." To
              contradict this observation, . . . [d]efendant provided
              the [c]ourt with . . . Baker's EZ Pass records and argued
              the toll was paid. Based on the [c]ourt's review and
              interpretation of the records, it appears . . . Baker's EZ
              Pass account had a negative balance on January 17,
              2016. The records also indicate the toll charged on
              January 17, 2016 was not actually recorded as paid until
              January 21, 2016, two days after a prepaid payment of
              $50.00 posted to the account. . . .

                    Thus . . . [d]efendant's efforts to impeach the
              credibility of Trooper Travis with the EZ-Pass records
              is misplaced . . . .

      The judge also dismissed defendant's attempt to discredit Travis's

testimony with Brennan's. In that regard, the judge found

              Brennan's testimony ancillary to the core issues of this
              case. According to . . . Brennan, she and . . . Travis
              were parked next to each other on the Turnpike when
              . . . Travis quickly drove off. At this time, . . . Brennan
              was unaware as to why . . . Travis unexpectedly drove
              off. . . . Brennan decided to follow . . . Travis as back
              up. However, . . . Brennan had no reason to focus her
              attention on the vehicle pursued by . . . Travis because
              she was unaware of who . . . Travis was pursuing, or
              why. In addition to . . . Brennan's lack of knowledge,
              she was physically unable to observe . . . [d]efendant's
              vehicle as she traveled behind . . . Travis. As a result,

                                                                            A-2354-18T2
                                          8
            . . . Brennan was unable to provide testimony regarding
            the validity of the motor vehicle stop.

      The judge posited that "the core issue of th[e] motion [was] whether the

smell of raw marijuana was actually detected."          Despite the fact that "no

marijuana was found in the vehicle," the judge found "Travis's testimony that he

smelled raw marijuana" credible, explaining

                   After removing . . . [d]efendant and . . . Baker
            from the vehicle, . . . Travis begins the search of the
            vehicle. At this time, an unidentified detective walks
            up to . . . Travis. . . . Travis introduces himself and
            explains to the detective he is searching the vehicle
            after detecting raw marijuana. At 22:18 of the [dash-
            cam video], the unidentified detective confirms the
            smell of raw marijuana by saying, "yeah, you can really
            smell it." Then, at 22:36 of the [dash-cam video], . . .
            Travis is unsuccessful in his search for marijuana and
            states quietly he doesn't know why there isn't
            marijuana, and maybe . . . [d]efendant had the
            marijuana in the car earlier. . . .

                   Although no marijuana was subsequently found
            in the vehicle . . . , this [c]ourt finds Trooper Travis'[s]
            credibility coupled with the corroboration of the
            unidentified detective enough to support probable
            cause of the search by a preponderance of the evidence.
            First, as evidenced by the [dash-cam video], . . . Travis
            and the unidentified detective were meeting for the first
            time before conducting the search. The unidentified
            detective's corroboration of the raw marijuana smell
            was unsolicited by . . . Travis, and there is no evidence
            to suggest the two preplanned the conversation to
            support the search as a result of the notice.


                                                                           A-2354-18T2
                                         9
      In specifically addressing the impact of the notification contained in the

BOLO, the judge reasoned

            Although . . . Travis was made aware of . . . [d]efendant
            and alleged weapon trafficking prior to making the
            motor vehicle stop, this [c]ourt finds the stop and
            subsequent warrantless search were independent of the
            notification. . . . Travis'[s] motive for following . . .
            [d]efendant is inconsequential as the analysis of the
            stop is based solely on the objective facts involving the
            motor vehicle violations observed. Here, . . . Travis
            observed . . . [d]efendant committing motor vehicle
            violations. When the smell of raw marijuana was
            detected, a warrantless search became permissible to
            locate the marijuana. [Kahlon, 172 N.J. Super. at 338].

      The judge concluded

            Travis had an articulable and reasonable suspicion
            [that] . . . [d]efendant committed motor vehicle
            violations. Once . . . [d]efendant's vehicle was lawfully
            stopped, . . . Travis's detection of the odor of raw
            marijuana emanating from the vehicle was
            unforeseeable and spontaneous, permitting a
            warrantless search of the entire vehicle.

      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

                                                                          A-2354-18T2
                                       10
"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)). This deferential

standard of review applies even if the trial court's factual findings are "based on

both a video recording and eyewitness testimony." State v. S.S., 229 N.J. 360,

374 (2017) (citing State v. Elders, 192 N.J. 224, 248 (2007)).

      "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 Elders, 192 N.J. at 244). "[A] trial court's factual findings should not

be overturned merely because an appellate court disagrees with the inferences

drawn and the evidence accepted by the trial court or because it would have

reached a different conclusion." S.S., 229 N.J. at 374. "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)).

      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


                                                                           A-2354-18T2
                                       11
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 conduct a warrantless, nonconsensual search

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


                                                                              A-2354-18T2
                                         12
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). See also State v. Alston, 88 N.J. 211, 230-31 (1981).

      "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); 3 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);

Kahlon, 172 N.J. Super. at 338.




3
  "[A]bsent evidence the person suspected of possessing or using marijuana has
a [medical use marijuana] 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-2354-18T2
                                      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)).

      Applying those principles here, we conclude that the judge's factual

findings are amply supported by the record and his legal conclusions are sound.

As "a trained and experienced State Trooper," Travis's detection of the odor of

raw marijuana "emanating from the passenger compartment of a legally stopped

motor vehicle, created probable cause to believe that a violation of law had been


                                                                           A-2354-18T2
                                       14
or was being committed" and justified the ensuing search. Myers, 442 N.J.

Super. at 297. Indeed, the detection of the odor of raw marijuana after stopping

the vehicle, in conjunction with Travis's observation of marijuana residue on

defendant's beard and shirt, as well as several air fresheners hanging from the

rearview   mirror,   were    objectively    unforeseeable    and    unanticipated

circumstances that gave rise to probable cause to justify a warrantless search.

      Defendant argues that the judge's ruling that the "[t]roopers' search of the

entire automobile based on the smell of raw marijuana" was justified did "not

comport with the holding in Kahlon or our case law concerning automobile

searches and the smell of marijuana." Accordingly, defendant "contends that

the search of the trunk and hood was unreasonable and all evidence obtained

from said search should be suppressed." We disagree.

      In Kahlon, 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." 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


                                                                          A-2354-18T2
                                      15
search the back seat where a passenger had been seated, "he 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.

      Likewise, in Guerra, after pulling a car over on the Turnpike for an

inoperable taillight, a trooper "detected a strong odor of raw unburned marijuana

emanating from the interior of the car." 93 N.J. at 149. Upon concluding that a

small overnight suitcase in the car's interior "could not have been the source of

the odor," a subsequent search of the trunk uncovered plastic bags containing

marijuana. Id. at 149-50. Citing Kahlon with approval, our Supreme Court

upheld the trial court's denial of the defendant's suppression motion, holding that

under the automobile exception to the warrant requirement, the trooper "had

probable cause to search the trunk for evidence of contraband" once he

determined that "the small suitcase in the car's interior" could not have been the

source of the "strong odor of marijuana." Id. at 150.


                                                                           A-2354-18T2
                                       16
      Here, we are satisfied that Travis's detection of a strong odor of raw

marijuana in the car's interior and inability to locate the source after searching

the interior justified extending the search to the trunk and the engine

compartment where, as Travis explained, the odor of marijuana could travel

through the air vents into the vehicle's interior. "The scope of a warrantless

search of an automobile is defined by the object of the search and the places

where there is probable cause to believe that it may be found." State v. Esteves,

93 N.J. 498, 508 (1983) (citing Guerra, 93 N.J. at 151). The fact that the search

uncovered firearms and ammunition, instead of marijuana, does not invalidate

the search. See Vanderveer, 285 N.J. Super. at 479 ("The fact that cocaine

turned up instead of marijuana does not invalidate the [warrantless] search.").

      Defendant also argues that "the fact that two State Troopers independently

smelled raw marijuana is of no significance in refuting . . . [d]efendant['s]

contention that [the] stop and search of the automobile was preplanned" and

"thus unreasonable."     According to defendant, "the facts of this case"

"highlight[] that the true intent of the troopers was to search the entire

automobile for . . . weapons" as a result of the CI's tip. However, the existence

of a parallel investigation into defendant's suspected firearms trafficking is

irrelevant. "[T]he proper inquiry for determining the constitutionality of a


                                                                          A-2354-18T2
                                       17
search and seizure is whether the conduct of the law enforcement officer who

undertook the search was objectively reasonable, without regard to his or her

underlying motives or intent." State v. Kennedy, 247 N.J. Super. 21, 27 (App.

Div. 1991).    "The fact that the officer does not have the state of mind

hypothesized by the reasons which provide the legal justification for the search

and seizure does not invalidate the action taken, so long as the circumstances,

viewed objectively, support the police conduct."     Id. at 28 (citing State v.

Bruzzese, 94 N.J. 210, 220 (1984)). Accord State v. Bacome, 228 N.J. 94, 103

(2017).

      Affirmed.




                                                                        A-2354-18T2
                                      18
