                                NOT FOR PUBLICATION WITHOUT THE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-3009-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JONATHAN L. HIGGINS,

     Defendant-Appellant.
___________________________

                   Submitted March 25, 2019 – Decided April 5, 2019

                   Before Judges Sabatino and Mitterhoff.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 16-11-
                   1733.

                   Leon Matchin, attorney for appellant.

                   Andrew C. Carey, Middlesex County Prosecutor,
                   attorney for respondent (Patrick F. Galdieri, II,
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      This appeal concerns search-and-seizure issues. After a motor vehicle

stop, police seized without a warrant over fifty grams of marijuana from the

trunk of the car of defendant Jonathan L. Higgins. The State charged him with

various drug related offenses. Defendant filed a motion to suppress the seized

items, which the trial court denied.

      Defendant then entered into a negotiated guilty plea to fourth-degree

possession of marijuana, N.J.S.A. 2C:35-10(a)(3), which resulted in him

receiving a one-year term of probation with special conditions. Pursuant to Rule

3:5-7(d), defendant now appeals the denial of his suppression motion. We

affirm.

      The record from the suppression hearing shows that a Carteret patrol

officer spotted defendant driving his car erratically at about 10:30 p.m. on April

8, 2016. The officer saw defendant make a wide turn, almost collide head-on

with another car, fail to signal before turning onto another street, and then run a

stop sign.

      After signaling defendant to stop his car, the officer went to the driver's

side window and smelled the odor of raw marijuana. The officer directed

defendant to step out of the car.      The officer asked defendant where the

marijuana he was smelling was located.          Defendant pointed to an open


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                                        2
compartment under the dashboard. The officer found under the dashboard a

baggie with under fifty grams of marijuana. The officer and his back-up officer

also found rolling papers in the back seat and a scale.

      After the baggie was removed, the officers detained defendant, but

continued to smell marijuana emanating from the car. The lead officer told

defendant that he was still smelling the marijuana even after searching the

passenger cabin entirely and deduced it had to be in the trunk. The officer then

opened the trunk, and immediately continued to smell marijuana. He found

inside the trunk a drawstring beach bag. Inside the beach bag were several bags

of marijuana and a glass jar containing marijuana.          The officers arrested

defendant and confiscated the marijuana.

      On appeal, defendant raises this sole argument in his brief:

            THE EVIDENCE RECOVERED FROM THE TRUNK
            MUST BE SUPPRESSED BECAUSE THE POLICE
            LACKED PROBABLE CAUSE TO SEARCH THE
            TRUNK.

      When reviewing a trial court's ruling on a motion to suppress evidence,

we "must uphold the factual findings underlying the trial court's decision so long

as the findings are supported by sufficient credible evidence in the record." State

v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted). Even if we

may have reached a different conclusion, we give deference to the factual

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                                        3
findings of the trial judge who was "substantially influenced by his opportunity

to hear and see the witnesses and to have the 'feel' of the case." Id. at 244; see

also State v. Gonzales, 227 N.J. 77, 101 (2016) (applying the same review

standard). However, we review the trial court's conclusions of law de novo.

Elders, 192 N.J. at 252-53.

      It is well established that to comply with the federal and New Jersey

Constitutions, law enforcement officials generally must obtain a warrant before

conducting a search of the person or private property of an individual, unless a

recognized exception to the warrant requirement applies. State v. Witt, 223 N.J.

409, 422 (2015).      One of those recognized exceptions is the so-called

"automobile exception." Ibid. (citing Pennsylvania v. Labron, 518 U.S. 938,

940 (1996)).

      The search in this case, which occurred in 2016, is governed by our State

Supreme Court's seminal 2015 opinion in Witt. As interpreted in Witt, the

automobile exception allows a police officer to "conduct a warrantless search of

a motor vehicle if it is 'readily mobile' and the officer has 'probable cause' to

believe that the vehicle contains contraband or evidence of an offense." Ibid.

(quoting Labron, 518 U.S. at 940). These principles in Witt revised prior New

Jersey case law construing the automobile exception more restrictively, based


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                                        4
upon assessment of exigent circumstances. See State v. Peña-Flores, 198 N.J. 6

(2009), overruled by Witt, 223 N.J. 409 (reinstating and prospectively applying

the automobile search standard from State v. Alston, 88 N.J. 211 (1981)).

        In the present case, the motion judge, Judge Joseph L. Rea, applied the

principles of Witt and concluded in his oral opinion that the elements of the

automobile exception were satisfied here. We agree. Judge Rea expressly found

the narrative of the sole witness who testified at the suppression hearing, Officer

John Moody, to be "extremely credible." In making that credibility finding, the

judge rightly noted Officer Moody's extensive training and experience as a

patrol officer, entailing "hundreds of cases involving marijuana or drugs in a

car."    We defer to the judge's credibility findings concerning the officer's

account. We further note that the judge viewed the officer's "body-cam" video

recording of the motor vehicle stop, which is substantially consistent with the

officer's testimony. 1

        Given Officer Moody's clear familiarity with the smell of marijuana, his

testimony describing the odor of marijuana persistently emanating from



1
   As part of our review of this appeal, we reviewed the video recording
ourselves, and discern nothing that clearly and materially contradicts the judge's
findings or the officer's testimony. See State v. S.S., 229 N.J. 360, 364-65
(2017).
                                                                           A-3009-17T3
                                        5
defendant's car was logically deemed by the trial court to provide a credible

justification for searching the interior of defendant's car. The detection of that

odor stemmed from, as Witt requires, "unforeseeable and spontaneous

circumstances." 223 N.J. at 450. The police had no particular reason to believe

defendant was transporting marijuana before pulling him over.

      The plain smell of the marijuana furnished probable cause to search the

interior of the vehicle. Once the officers found and confiscated the scale and a

small amount of marijuana from the interior cabin of the car, and the strong odor

nevertheless persisted, they had a valid basis to extend their search into the

trunk. See State v. Guerra, 93 N.J. 146, 149-51 (1983) (similarly upholding a

car trunk search based upon an unexplained strong odor of marijuana not

emanating from the car's passenger cabin); see also State v. Walker, 213 N.J.

281, 290 (2013) (noting that the smell of marijuana itself can provide probable

cause that additional contraband might be present). The expanded search into

the trunk here was justified under the circumstances and did not require a

warrant.

      We reject defendant's implication that the police in this case were required

to call in a canine unit or impound his car and obtain a warrant to search its trunk

at a later time. We do not read Witt to require the police to delay a search in the


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                                         6
circumstances presented here, given the inherent mobility of the vehicle and the

persisting odor that justified the discovery and immediate confiscation of the

marijuana at the roadside.    Under Witt, the automobile exception does not

evaporate "merely because 'the particular occupants of the vehicle may have

been removed from the car, arrested, or otherwise restricted in their freedom of

movement[.]'" 223 N.J. at 428 (quoting Alston, 88 N.J. at 234). Therefore,

defendant's being detained after the first baggie was found does not operate to

nullify the continued search under the automobile exception.

      Defendant's freedom of movement was not unduly curtailed by the

roadside stop and car search, which was promptly and efficiently conducted and

soundly based upon probable cause. We do not suggest that the police have an

automatic right to search a motorist’s trunk for drugs every time they stop a car

and suspect criminality, but the situation here justified the warrantless on -the-

spot entry.

      Affirmed.




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