                                NOT FOR PUBLICATION WITHOUT THE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-2213-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CLIFTON L. HOLLEY, a/k/a
ANTHONY L. HOLLEY, and
ANTHIONY L. HOLLEY,

     Defendant-Appellant.
______________________________

                   Submitted May 26, 2020 – Decided July 9, 2020

                   Before Judges Sumners and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Indictment No. 17-06-1217.

                   Neil Law, attorneys for appellant (Durann A. Neil, Jr.,
                   on the brief).

                   Damon G. Tyner, Atlantic County Prosecutor, attorney
                   for respondent (Mario Christopher Formica, Deputy
                   First Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Following denial of his motion to suppress evidence seized in a

warrantless motor vehicle stop, defendant Clifton Holley pled guilty to third-

degree possession of controlled dangerous substances with the intent to

distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2); third-degree resisting arrest by

force, N.J.S.A. 2C:29-2(a); fourth-degree throwing bodily fluids at a law

enforcement officer, N.J.S.A. 2C:12-13; and second-degree offer of benefit to a

public servant, N.J.S.A. 2C:27-11(a).1 Defendant was sentenced to an aggregate

prison term of eight years with parole ineligibility for three-and-a-half years.

      In his appeal, defendant argues:

                   POINT I

                   THE WARRANTLESS MOTOR VEHICLE
                   STOP VIOLATED [DEFENDANT]'S RIGHTS
                   UNDER THE FOURTH AMENDMENT OF
                   THE UNITED STATES CONSTITUTION AND
                   ARTICLE 1, PARAGRAPH 7 OF THE NEW
                   JERSEY CONSTITUTION.

                   A. The Investigative Detention of [Defendant]
                   Violated His Constitutional Rights Because
                   There Was No Reasonable Suspicion of Criminal
                   Activity.

                   B. There Was No Probable Cause to Arrest
                   [Defendant] . . . and Search His Motor Vehicle.


1
  He also pled guilty to other offenses under two unrelated indictments, which
are not the subject of this appeal.
                                                                           A-2213-18T1
                                         2
                    POINT II

                    THE TRIAL COURT ERRED IN NOT
                    SUPPRESSING        ALL     DERIVATIVE
                    EVIDENCE OBTAINED BY THE STATE
                    FOLLOWING UNLAWFUL DETAINMENT
                    AS IT IS FRUIT OF THE POISONOUS TREE.

Based upon our standard of review, we affirm the suppression order.

                                        I

       At the motion to suppress hearing, the State presented the testimony of

Egg Harbor Township Police Officers William Burns and Robert Sheppard

regarding the roadside warrantless stop and search of defendant's person and

vehicle on December 8, 2016, at approximately 11:28 p.m. In addition, the State

presented the motor vehicle recording (MVR) from Burns' police car which

filmed the stop of defendant's car and the officers' subsequent encounter with

defendant.2 Defendant neither testified nor presented any witnesses.

       Burns, a five-year patrolman with the police department, was on routine

patrol in a marked patrol car on Black Horse Pike when he observed defendant's

car traveling with only one operable headlight, a violation of N.J.S.A. 39:3-66.

Burns made a U-turn and activated his overhead lights and pulled over

defendant's car to the side of the road. Burns stated upon approaching the car,


2
    The DVD was not part of the record provided to this court.
                                                                        A-2213-18T1
                                        3
he saw defendant – the only person in the car – light a cigarette. At Burns'

request, defendant turned over his driver's license, an insurance card, and a

registration card. 3 He also noted seeing cigarillos, which are commonly used to

smoke marijuana, inside the car.

       Burns returned to his patrol car and radioed the police dispatcher to run a

check on defendant's license. After stating defendant's name to the dispatcher,

Burns received a call on his cell phone from Sheppard, telling him to "be careful"

based on Sheppard's previous dealings with defendant. Burns also noticed the

insurance card was temporary and had expired sixty days earlier.

       When Burns returned to defendant's car, the audio of the MVR indicates

he questioned defendant about the expired insurance card, then asked: "Does

anyone smoke weed in this car?" Burns testified by that time he was able to

smell marijuana because defendant was no longer smoking a cigarette. Burns

also indicated he smelled a faint odor of alcohol coming from defendant's breath.

Defendant denied marijuana had been smoked in the car. Burns then ordered

defendant out of the car and requested back-up. After Sheppard and another

officer arrived shortly thereafter, a search of Burn's person revealed $1206 in

small denominations in his waistband. The search continued, resulting in the


3
    The car was owned by defendant's uncle.
                                                                          A-2213-18T1
                                        4
recovery of "a little pouch" made of plastic hanging down defendant's torso from

a string connected to his shirt button, containing cocaine, heroin, and

prescription medication.4

      On cross-examination, Burns acknowledged no marijuana was found in

the car or on defendant, and he could not pinpoint if the marijuana odor was

coming from defendant's person or inside the car. He also stated that he put his

head fully and partially inside defendant's car during his questioning of

defendant about unexpired insurance card.

      Sheppard, a twelve-year veteran of the police department, confirmed his

phone call to Burns after hearing Burns' radio dispatch regarding defendant. He

testified he searched the interior of defendant's vehicle; finding no contraband

but "detect[ing] a faint odor of marijuana lingering inside the vehicle."

      After hearing counsel's arguments, the motion judge reserved her decision

and allowed the submission of post-hearing briefs. Eight days later on April 26,

2018, the judge issued an order and rendered an oral decision denying

defendant's motion.




4
  The pouch contained twenty-four grams of cocaine, twenty-six wax folds of
heroin, seven Oxycodone pills of ten milligrams, and three Oxycodone pills of
seven-and-a-half milligrams.
                                                                            A-2213-18T1
                                        5
      The judge determined the State proved by a preponderance of evidence

the warrantless search and seizure conducted by Burns and Sheppard was

constitutionally permissible. Her finding was based upon her assessment the

officers gave credible testimony because it was consistent with their police

reports and her viewing of the MVR during the hearing and later in chambers

when she was contemplating her decision.

      Pointing to State v. Bernokeits, where this court recognized "[a] motor

vehicular violation, no matter how minor, justifies a stop without any reasonable

suspicion that the motorist committed a crime or other unlawful act[,]" the judge

found Burns had a right to stop defendant's car because of the headlight

violation. 423 N.J. Super 365, 370 (App. Div. 2011) (citations omitted). The

judge then determined Burns had the right under State v. Nishina, to search

defendant and his car based on his credible testimony that he smelled marijuana

from inside the car because "the smell of marijuana itself constitutes probable

cause 'that a criminal offense ha[s] been committed and that additional

contraband might be present.'" 175 N.J. 502, 515-16 (2003) (quoting State v.

Vanderveer, 285 N.J. Super. 475, 479 (App. Div. 1995)).

      The judge rejected defendant's contention that Burns made an illegal

search of his car by putting his head inside the car which enabled him to


                                                                         A-2213-18T1
                                       6
allegedly smell the marijuana odor. Based upon her review of the MVR, she

determined there was no constitutional violation because Burns, who

approached defendant's car from the passenger's side to avoid traffic, "put[] his

head in and out of [the] car for the purpose of having a conversation with the

defendant and asking . . . defendant to — and giving . . . defendant the

opportunity, frankly, to produce [an unexpired insurance card] which he did not

seem to have."5 The judge commented further that at no time did she see Burns

"put his head into the car entirely to conduct a search of the car."

                                        II

      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


5
  The judge's decision gave some attention to finding defendant's reliance on an
unpublished decision was misplaced. Because unpublished decisions have no
precedential value, Rule 1:36-3, we do not discuss the judge's reasoning.
                                                                          A-2213-18T1
                                        7
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)).

      Applying the de novo standard of review to the motion judge'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


                                                                             A-2213-18T1
                                         8
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 (alteration in original) (quoting State v.

Maryland, 167 N.J. 471, 482 (2001)). "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

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) (internal quotation marks omitted) (quoting Nishina,

175 N.J. at 515-16 (2003)). Thus, in the context of a warrantless automobile

search, the "smell of marijuana emanating from the automobile [gives] the


                                                                              A-2213-18T1
                                          9
officer probable cause to believe that it contain[s] contraband." State v. Pena-

Flores, 198 N.J. 6, 30 (2009) (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)).

      Defendant maintains there was no reasonable suspicion of criminal

activity to warrant the search of his person and car. He specifically asserts

"Burns' suspicion of criminal activity [was] entirely absent of objective facts of

criminal behavior to justify the warrantless detention of [him]." Defendant

contends Burns' observation of "the pack of . . . cigars that he associates with

'somebody that’s smoking marijuana," caused him to have a "hunch" defendant

had smoked marijuana.        Defendant contends "Burns attempts to justify his

detection of the odor of marijuana upon his second interaction with [defendant]


                                                                          A-2213-18T1
                                       10
because [defendant] was no longer smoking a cigarette." He contends "Burns'

. . . smell of marijuana can []only be considered a subjective hunch because there

was no observation indicative of the same[,]" since "[t]here was no marijuana."

      The motion judge found that based upon the officers' credible testimony

and their reports, and the MVR, there was probable cause to search defendant

and the interior of his car under the "plain smell" doctrine following an

unchallenged motor vehicle stop due to an inoperable headlight. Defendant has

not persuaded us to adopt his interpretation of the facts and dismiss the judge's

findings. Under our deferential standard of review, we are satisfied the judge's

factual findings are based upon credible evidence in the record and we will not

disturb them. We further conclude the judge properly applied those facts to the

law governing warrantless searches following the probable cause stop of

defendant for a motor vehicle violation.

      Affirmed.




                                                                          A-2213-18T1
                                       11
