               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-0180-18T4

STATE OF NEW JERSEY,

     Plaintiff-Appellant,             APPROVED FOR PUBLICATION

                                               May 3, 2019
v.
                                          APPELLATE DIVISION
JUAN RODRIGUEZ,

     Defendant-Respondent.
___________________________

           Argued April 8, 2019 – Decided May 3, 2019

           Before Judges Sabatino, Sumners and Mitterhoff.

           On appeal from Superior Court of New Jersey, Law
           Division, Somerset County, Indictment No. 18-04-
           0195.

           Paul H. Heinzel, Assistant Prosecutor, argued the
           cause for appellant (Michael H. Robertson, Somerset
           County Prosecutor, attorney; Paul H. Heinzel and
           Alexander C. Mech, Assistant Prosecutor, of counsel
           and on the briefs).

           John P. Morris argued the cause for respondent.

           Zachary G. Markarian, Assistant Deputy Public
           Defender, argued the cause for amicus curiae Office of
           the Public Defender (Joseph E. Krakora, Public
           Defender, attorney; Zachary G. Markarian, of counsel
           and on the brief).
            Jane C. Schuster, Deputy Attorney General, argued the
            cause for amicus curiae Attorney General (Gurbir S.
            Grewal, Attorney General, attorney; Jane C. Schuster,
            of counsel and on the brief).

      The opinion of the court was delivered by

SABATINO, P.J.A.D.

      In State v. Witt, 223 N.J. 409, 415 (2015), the Supreme Court revised

the standards under New Jersey law governing police searches of motor

vehicles that have been lawfully stopped at the roadside. The Court held such

nonconsensual roadside searches may be conducted without a warrant if: (1)

the police have probable cause to believe the vehicle contains evidence of

criminal activity; and (2) the situation arose from unforeseeable and

spontaneous circumstances. Id. at 446-48.

      In the present roadside search case, the trial court suppressed bags of

marijuana and other incriminating evidence police officers found within a

vehicle driven by defendant, which they had stopped for traffic violations. The

court construed Witt to disallow a warrantless on-the-spot roadside search

where the police at the scene have sufficient grounds to have the vehicle towed

away and impounded. The court ruled the police in such circumstances, absent

valid consent, need to obtain a warrant in order to search the vehicle's interior.

      We reverse the suppression order. We hold the police officers were not

required to impound defendant's vehicle in order to search it under the

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circumstances presented. The officers had the discretion to proceed instead

with a warrantless roadside search, because the two critical elements of Witt,

i.e., probable cause and spontaneity, were satisfied. In addition, there was no

unreasonable delay in the officers making their decision to proceed with the

search at the scene.

                                          I.

                                          A.

      The State has charged defendant Juan Rodriguez in a one-count

indictment with first-degree possession of a controlled dangerous substance,

namely marijuana in a quantity of at least twenty-five pounds, with the intent

to   manufacture,      distribute,   or   dispense   it,    N.J.S.A.     2C:35-5(a)(1)

and -5(b)(10)(a). As we will explain in more detail, the bags of marijuana and

other contraband were seized during a roadside stop without a warrant from a

vehicle that defendant had been driving.

      Defendant moved to suppress the seized items.                    The trial court

conducted a suppression hearing at which one of the police officers who had

been involved in the search testified. The court was also provided with the

motor vehicle recordings ("MVRs") from two squad cars of responding police

officers, which filmed portions of the events.             The court also reviewed




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transcripts of the audio portions of the MVRs and several photographs and

documents.

                                        B.

          The pertinent facts that emerged at the suppression hearing were

substantially undisputed by the parties.

          On January 1, 2018, Police Officer Kevin Olah of Warren Township was

in a marked patrol vehicle at a gas station on Martinsville Road in Basking

Ridge. At approximately 2:07 a.m., Officer Olah observed a white Jeep Grand

Cherokee with an Alabama license plate drive past. He noticed the Jeep's

passenger-side headlight was out.              He thereafter observed several air

fresheners hanging from the rearview mirror, in violation of the traffic laws.

          Olah followed the Jeep on Liberty Corner Road. As the Jeep took the

eastbound entrance ramp for Interstate 78, Olah initiated a motor vehicle stop.

A few minutes later, Police Officer Thomas Clarke arrived at the scene to

assist.

          Olah approached the passenger side of the vehicle and began speaking

with the driver, the Jeep's sole occupant. The driver presented a California

driver's license that identified him as Juan Rodriguez. Olah smelled the odor

of raw marijuana emanating from the Jeep. He also noticed several small

pieces of marijuana on the front passenger seat. Defendant told Olah that he



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did not own the vehicle. He claimed he had borrowed the Jeep from a friend

earlier that evening, and was on his way back from Pennsylvania, where he

had gone to see a woman.

      Olah returned to his patrol car and conducted a computer check on

defendant. The check revealed that defendant's driver's license was suspended.

Olah approached the Jeep again and spoke with defendant about the odor of

marijuana.    Defendant told the officer that others might have smoked

marijuana in the Jeep earlier that day.

      Olah then instructed defendant to get out of the Jeep.     He searched

defendant, but found nothing of evidential value. The officer then presented

defendant with a standard consent-to-search form and read it to him.

Defendant denied consent. Defendant then signed the form and acknowledged

his denial.

      Although defendant was not yet arrested, he sat in the back of a patrol

car while Officers Olah and Clarke searched the Jeep.            Olah found

approximately $5,600 in one-hundred dollar bills between the center console

and the dashboard and $4,920 in twenty-dollar bills in the center console.

Olah also discovered $15,000 in Western Union money order receipts in t he

center console.




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      According to Olah, the odor of marijuana became stronger as he moved

toward the Jeep's rear cargo area. He accordingly searched that cargo area,

which was contiguous with and not separate from the passenger area. There

Olah spotted and seized a large, brown cardboard box, which he described as

emanating an "overwhelming" odor of raw marijuana.

      Olah asked defendant if the box was his, which defendant denied.

Defendant claimed he did not know what was inside of the box and that it had

already been in the Jeep when he borrowed it from his friend. At this point,

another police officer arrived on the scene to provide additional backup.

      Olah opened the box, which was taped and glued shut. Inside the box,

Olah discovered twenty-seven plastic bags. Each bag had approximately one

pound of what was suspected to be marijuana. Defendant was then placed

under arrest.

      The motion judge noted that the police report documented a tow dispatch

at 2:42:58 a.m., less than a minute after defendant's arrest at 2:42:02 a.m. The

police photographed the scene, and an officer remained with the Jeep until a

tow truck arrived. All of the evidence was secured in the Jeep during the tow

to the police headquarters. Officer Clarke followed closely behind the tow

truck with his MVR activated, so as to ensure the security of the contraband

and to document the contraband's chain of custody.



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       The tow truck parked the Jeep at police headquarters.       Officer Olah

removed the evidence from the Jeep and took it into headquarters. The tow

truck took the Jeep to the towing lot, and Olah completed an impound report. 1

       Olah then field tested the contents of one of the bags, and the test

yielded a positive result for marijuana.       All told, the twenty-seven bags

contained approximately twenty-eight pounds of marijuana.

       Defendant was escorted to the processing room at the police station. A

search of his person yielded $220 in cash. At approximately 3:31 a.m., Olah

issued defendant Miranda2 warnings.         Defendant initialed and signed the

Miranda form, but invoked his right to remain silent.

       Officer Olah and a police detective counted and took photographs of all

of the recovered currency. The cash totaled $10,740. The Western Union

money order receipts totaling $15,000 were also photographed and logged into

evidence.

                                       C.

       Upon considering these events, the trial court issued an order and written

opinion on July 27, 2018, granting defendant's motion to suppress the drugs


1
   Defendant does not contend any break in the chain of custody of the seized
items.
2
    Miranda v. Arizona, 384 U.S. 436 (1966).


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                                        7
and other contraband seized in the roadside stop. The court found the motor

vehicle stop itself was justified, as defendant conceded. However, the court

ruled the police needed a warrant in order to search the Jeep under the

circumstances presented.

      Specifically, the trial court rejected the State's reliance upon the

automobile exception to the constitutional warrant requirement.         The court

accepted defendant's contention that, as the situation unfolded at the roadside,

it was clear that the Jeep was going to be towed and impounded. The court

noted in this regard that defendant lacked a valid driver's license, was secured

in the back of a police car, and "the registered owner of the vehicle was not

available or on sight." The court found "there was no indication to believe that

the [Jeep] or its contents would be subject to being removed, tampered with, or

otherwise disturbed before a warrant could be obtained."              In addition,

defendant had declined to give his consent to a search of the Jeep.

      Given these circumstances, the trial court found no exigency present that

could justify an immediate warrantless search of the Jeep's interior. Instead,

the court's opinion signifies that the police should have impounded the Jeep

and procured a warrant in order to search it.




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                                       D.

      The prosecution moved for leave to appeal the suppression ruling, which

this court granted. At our invitation, the Attorney General filed an amicus

brief in further support of the prosecutor's arguments, while the Office of the

Public Defender filed an amicus brief supporting private defense counsel's

opposition.3

      The State argues the trial court strayed from the tenets of Witt in

requiring the police to demonstrate exigency in order to justify a warrantless

roadside search in a situation where, as here, the police spontaneously have

probable cause to believe a vehicle contains evidence of criminal activity. The

defense lawyers counter that Witt does not permit the police to violate a

motorist's privacy interests by conducting a warrantless nonconsensual

roadside search of a vehicle that clearly is going to be impounded.

                                       II.

      As the trial court appropriately recognized, the Fourth Amendment of

the United States Constitution and Article I, paragraph 7 of the New Jersey

Constitution limit the ability of government officials to search private property

without a search warrant. Warrantless searches and seizures are presumptively

3
  We express our appreciation to the Attorney General and the Office of the
Public Defender for their thoughtful submissions and their helpful
participation in the appellate oral argument.


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                                       9
invalid unless the State shows the search was justified under one of the

specific judicially recognized exceptions to the warrant requirement. State v.

Pineiro, 181 N.J. 13, 19 (2004); State v. Maryland, 167 N.J. 471, 482 (2001);

see also Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

      As we have noted, the State has invoked in this case what is known as

the "automobile exception" to the warrant requirement. 4 The exception derives

from a longstanding judicial recognition of: (1) the inherent mobility of motor

vehicles; (2) the generally diminished expectation of privacy in a vehicle as

compared with a home; and (3) the practical reality that the "intrusion

occasioned by a prompt search based on probable cause is not necessarily

greater than a prolonged detention of the vehicle and its occupants while the

police secure a warrant." Witt, 223 N.J. at 422-23.

      Our Supreme Court in Witt announced in 2015 a sharp departure from a

more narrow construction of the automobile exception the Court had

previously adopted in State v. Pena-Flores, 198 N.J. 6 (2009), and in State v.

Cooke, 163 N.J. 657 (2000).     Under those earlier formulations, the police

needed to have exigent circumstances to conduct a warrantless, nonconsensual

4
   We do not consider, and the State has not advanced on appeal, other
hypothetical exceptions to the warrant requirement the State did not invoke in
the trial court, such as the "inevitable discovery" doctrine. See State v.
Robinson, 200 N.J. 1, 20 (2009) (disfavoring appellate reliance on arguments
not raised below).


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                                      10
roadside search of a vehicle. In Pena-Flores, the Court expressed a multi-

factor test to evaluate whether such exigent circumstances were present,

including such factors as the time of day, the location of the stop, the ratio of

police officers to suspects, and several other variables. 198 N.J. at 29.

      The Court's opinion in Witt recognized that experience has shown the

multi-factor exigent circumstances test of Pena-Flores and Cooke was difficult

to apply with consistency, particularly for law enforcement officers on patrol,

and placed upon them "unrealistic and impracticable burdens." 223 N.J. at

414-15. In addition, research from one county had revealed that the average

time to procure a telephonic search warrant took nearly a full hour from the

inception of the call to its completion, with even longer average times for some

telephonic search warrants sought by the State Police. Id. at 436.

      These impediments caused the police to seek on-the-spot consent from

motorists to searches more frequently, a process which generated its own

difficulties and uncertainties. Id. at 442-43. Moreover, the Court found that

the Pena-Flores/Cooke standard of exigency "does not provide greater liberty

or security to New Jersey's citizens." Id. at 414.

      Based upon these and other considerations, the Court in Witt announced

a bright-line rule to govern roadside automobile searches henceforth in this

State. The approach in Witt prospectively reinstated various principles the



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Court had embraced thirty-four years earlier in State v. Alston, 88 N.J. 211

(1981). In the aftermath of Witt, the current law of this State 5 now authorizes

warrantless on-the-scene searches of motor vehicles 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. Witt, 223 N.J. at 447-48.

      In reinstating this more predictable test in Witt, the Court rejected

arguments that giving such warrantless search authority to the police is

unnecessary where the driver and any other occupants of the vehicle have been

secured.   As Justice Albin's majority opinion explained, the automobile

exception is not nullified "merely because 'the particular occupants of the

vehicle may have been removed from the [vehicle], arrested, or otherwise

restricted in their freedom of movement[.]'" Id. at 428 (quoting Alston, 88 N.J.

at 234).

      As a caveat to its holding, the Court in Witt did observe that if police do

choose to have a vehicle towed away and impounded, they will need a warrant

to search its interior at that later time, subject to possible routine inventory



5
  The roadside search in the present case occurred after the date of the Court's
September 24, 2015 opinion in Witt. Hence, the Witt standards apply.



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procedures that are not aimed at finding contraband. Id. at 448-49, 49 n.9.6

The defense in this case stresses this observation. In particular, the defense

argues that once the basis to impound a vehicle becomes clear, police officers

have no right to proceed with an on-the-spot roadside search, even if the

officers have probable cause of criminality that arose spontaneously. The trial

court essentially adopted that defense argument, by requiring officers to refrain

from an immediate warrantless search once the need to impound the vehicle is

obvious.

      We respectfully do not construe Witt to convey such a limitation upon

the automobile exception. Nothing in Witt states that a roadside search of a

vehicle based upon probable cause cannot be performed if the vehicle is going

to be impounded. We instead read Witt as affording police officers at the

scene the discretion to choose between searching the vehicle immediately if

they spontaneously have probable cause to do so, or to have the vehicle

removed and impounded and seek a search warrant later. 7




6
  Although not invoked by the State here, the Court's footnote in Witt also
contemplated the possibility of a lawful warrantless search in situations "based
on a true exigency." Ibid.
7
  There is also the possibility of obtaining a telephonic warrant, although the
Court in Witt noted that doing so can be time-consuming. Id. at 435-36.


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                                       13
      We are mindful the Court's opinion in Witt did comment that

"[w]arrantless searches should not be based on fake exigencies." Id. at 449.

The defense and the trial court appear to interpret this comment to mean that

warrantless roadside searches are allowable only if they are based on genuine

exigencies, regardless of the presence of probable cause. However, the Court's

comment about exigency must be considered in the full context of the

paragraph in Witt where it appears. In that paragraph, the Court explains that

it is parting from "federal jurisprudence that allows a police officer to conduct

a warrantless search at headquarters merely because he could have done so on

the side of the road." Id. at 448 (contrasting New Jersey's approach in Witt

from the federal approach in Chambers v. Maroney, 399 U.S. 42, 52 (1970)).

Quoting his previous dissent in Pena-Flores, Justice Albin's majority decision

in Witt adds that "'[w]hatever inherent exigency justifies a warrantless search

at the scene under the automobile exception certainly cannot justify the failure

to secure a warrant after towing and impounding the car' at headquarters when

it is practicable to do so." Id. at 448-49 (quoting Pena-Flores, 198 N.J. at 39

n.1 (Albin, J., dissenting)).

      Viewed in its proper context, the Court's reference in Witt to "fake

exigencies" signifies that the police cannot rely upon a contrived justification

to search an impounded vehicle without a warrant merely because the vehicle



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                                       14
could have been searched earlier at the roadside. The whole tenor of the Witt

opinion is to eliminate the need for police to establish "exigencies" at the

roadside to proceed with a warrantless search. Instead, the Court readopted a

bright-line rule, one that is predicated on the requirements of spontaneity and

probable cause. That is the test we are obligated to apply today.

      The Public Defender contends the position advocated by the State will

result in greater risks to the personal safety of police officers who attempt to

search a car at the side of the road, and will also cause a greater infringement

on the liberty and privacy of motorists.     Neither of those propositions is

inexorably true.

      In some instances, the police having probable cause will nevertheless

choose to wait to search the vehicle with a warrant at a later time because of

heavy traffic, poor lighting, weather conditions, security concerns, or other

practical considerations.   At times, officers may conduct only a cursory

inspection at the scene and seek to conduct a more extensive search post-

impoundment.

      Moreover, an immediate search will not necessarily lead to greater

infringements upon the personal liberty of all motorists. For example, in some

instances (albeit not this particular case), an on-the-spot search will turn up

nothing, and the stopped motorist may be free to drive away with only a traffic



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                                      15
citation. An inflexible rule of mandatory impoundment could impose greater

inconvenience upon motorists, particularly if the vehicle's owner, a relative, or

a friend of the motorist is nearby and able to come and remove the vehicle

from the scene.8 Id. at 415 (noting that if a vehicle is impounded, the period of

detention of its occupants "will be extended").

      That said, we do appreciate there are competing policy arguments

presented here concerning the appropriate scope of Witt, and fairly debatable

questions surrounding when impoundment should be the preferred course of

action. Even so, it is not our role as an intermediate appellate court to engraft

upon Witt an exception that was not expressed in the Court's detailed majority

opinion.9 State v. Hill, 139 N.J. Super. 548, 551 (App. Div. 1976) (noting our

limited role as an intermediate appellate court).


8
    We recognize in the present case, Officer Olah admitted on cross-
examination that he did not ask defendant if some other person was available
to drive the Jeep away. However, the circumstances did not readily indicate
that such a third party was likely to be nearby to remove the car. In particular,
defendant had a suspended California license, the Jeep was registered in
Alabama, according to defendant the Jeep was owned by a friend in New York,
and defendant used it to visit a woman in Pennsylvania.
9
   That said, we note the State has acknowledged at oral argument on appeal
that the police may not detain motorists for an unreasonable length of time
while deciding whether to impound the vehicle or not. See Rodriguez v.
United States, 575 U.S. ___, 135 S. Ct. 1609, 1612 (2015) (disallowing police
stops of motorists that exceed "the time needed to handle the matter"). Here,
no such unreasonable delay is apparent from the record.


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                                       16
      Consequently, we reverse the trial court's suppression order, which was

erroneously based upon a no-longer-required showing of exigency that the

Court repudiated in Witt.    The record here demonstrates the police at the

roadside had ample probable cause to believe the Jeep contained additional

quantities of marijuana and potentially other evidence of illegal activity. The

persisting smell of raw marijuana detected by Officer Olah – who the trial

court found to be a credible witness – supplied the police with probable cause

to search the rear cargo area within the Jeep from which the smell appeared to

be emanating. See State v. Myers, 442 N.J. Super. 287, 297 (App. Div. 2015)

(recognizing a police officer's detection of the odor of marijuana can suffice as

probable cause that an offense has been committed).            Furthermore, the

probable cause here arose spontaneously.

      In sum, the requirements of the automobile exception as set forth in Witt

were established in this case, and the warrantless roadside search of the Jeep

was thereby justified.

      Reversed and remanded. We do not retain jurisdiction.




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