                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                         SUPERIOR COURT OF NEW JERSEY
                                         APPELLATE DIVISION
                                         DOCKET NO. A-5442-16T1

STATE OF NEW JERSEY,
                                           APPROVED FOR PUBLICATION
      Plaintiff-Respondent,
                                                  June 6, 2018
v.
                                               APPELLATE DIVISION
STEPHEN MANDEL,

      Defendant-Appellant.


           Submitted May 30, 2018 – Decided June 6, 2018

           Before Judges Carroll, Mawla and DeAlmeida.

           On appeal from Superior Court of New Jersey,
           Law Division, Monmouth County, Municipal
           Appeal No. 16-067.

           King, Kitrick, Jackson &            McWeeney, LLC,
           attorneys   for    appellant          (Michael  D.
           Schaller, on the brief).

           Christopher J. Gramiccioni, Monmouth County
           Prosecutor, attorney for respondent (Mary R.
           Juliano, Assistant Prosecutor, of counsel
           and on the brief).

      The opinion of the court was delivered by

CARROLL, J.A.D.

      Defendant Stephen Mandel appeals the denial of his motion

to   suppress   evidence   seized   as   the   result   of   a   warrantless

search of his vehicle.      Defendant was charged with possession of

less than fifty grams of marijuana in violation of N.J.S.A.
2C:35-10(a)(4).        After     his   motion    to     suppress     was    denied,

defendant entered a conditional guilty plea in Howell Township

Municipal Court.        On de novo review, the Law Division judge

again found the search valid.

    The pertinent facts are as follows.                 Howell Township Police

Officer    David    Gilliland    stopped    defendant's       vehicle      after   he

observed it traveling in front of him with dark tinted windows.

Gilliland    approached    the    passenger      side    of    the   vehicle       and

conversed with defendant through the open passenger side window.

Gilliland asked defendant to produce his driver's license, and

inquired    about    his   driving     record.        During    this    exchange,

Gilliland leaned his head into the open passenger side window in

order to better hear defendant's responses over the noise of the

passing traffic.      While speaking to defendant, Gilliland smelled

the odor of marijuana coming from inside the vehicle.

    Gilliland informed defendant he smelled marijuana.                         Based

on this observation, Gilliland searched the car and found a

small quantity of marijuana under the passenger seat.                   Defendant

was charged with the disorderly persons offense of marijuana

possession, N.J.S.A. 2C:35-10(a)(4), and improper safety glass,

N.J.S.A. 39:3-75.

    Defendant filed a motion to suppress the marijuana in the

Howell Township Municipal Court.            Gilliland was the sole witness




                                        2                                   A-5442-16T1
to testify at the motion hearing.                           He explained that, after

stopping the vehicle, he approached it on the passenger side,

for safety reasons, to speak with defendant.                            He asked defendant

to    roll    down       the     passenger       window     and     produce      his   driving

credentials.            Gilliland "began to speak with [defendant] about

the     violation         and    began      to     detect    the       odor    of    marijuana

emanating from the interior compartment of the vehicle."                                Due to

the noise from the passing traffic, Gilliland leaned into the

open passenger window in order to hear defendant's responses to

his questions.            Gilliland admitted his head "broke the plane" of

the passenger's window when he momentarily leaned inside.                                      He

stated       he    could        not   recall       whether    he       first    smelled       the

marijuana         odor    before       or     after   he     leaned      into       defendant's

vehicle.

       The municipal court judge credited Gilliland's testimony,

finding it "reasonable" and devoid of "inconsistent statements."

During his testimony, the police motor vehicle recording (MVR)

video    of       the    traffic      stop,      captured    by    a   camera       mounted    in

Gilliland's vehicle, was played.                      The judge found that the MVR

showed Gilliland "could not have had his body in [defendant's

vehicle]      a     tremendous         amount,"       and    that      any     intrusion      was

limited to "part of his head" for "literally . . . seconds."




                                                  3                                    A-5442-16T1
       Noting       the     minimal    physical       intrusion      into    defendant's

vehicle, the reasonableness of Gilliland's explanation for doing

so, and the "plain smell" doctrine, the municipal court denied

the motion to suppress.                Defendant then entered a conditional

guilty plea to the marijuana charge,1 preserving his right to

seek de novo review in the Law Division.                           The municipal court

sentenced      defendant       to     pay   $33     in   court     costs,   $50    to   the

Violent Crimes Compensation Board, $75 to the Safe Neighborhood

fund, a $500 Drug Enforcement Demand Reduction penalty, and a

$50 lab fee.

       Defendant appealed the denial of his motion to suppress to

the    Law    Division.         Defendant          argued   the    marijuana      evidence

should       have    been    suppressed      because        probable   cause      for   the

search was furnished only after Gilliland impermissibly intruded

into     defendant's         vehicle    by     leaning       his    head    through     the

passenger window.

       The     Law        Division     judge        determined      that     Gilliland's

placement       of    his    head     through       defendant's      passenger     window

constituted a search.               However, the judge concluded the search

was reasonable because "credible evidence on this record reveals




1
   The tinted window charge, N.J.S.A. 39:3-75, was dismissed as
part of the plea agreement and is not at issue in this appeal.



                                               4                                  A-5442-16T1
that   the    officer    placed    his    head    inside    the      window     of   the

vehicle in order to better hear the defendant."

       The Law Division judge also noted that, due to the dark

tint on defendant's rear window, the MVR video could not confirm

whether      Gilliland's    head     broke       the   plane         of   defendant's

passenger window.        Thus, the judge found that any such intrusion

was minimal and reasonable.              The court also concluded the odor

of   marijuana      provided   sufficient        probable    cause        to    justify

Gilliland's search of the vehicle.               Noting that the suppression

issue was the discrete question presented and that defendant's

conditional guilty plea became effective as a matter of law, the

Law Division judge imposed the same fines and penalties as the

municipal court.        This appeal followed.

       On    appeal,    defendant     raises      a    single        issue     for   our

consideration:

             POINT ONE

             THE EVIDENCE MUST BE SUPPRESSED BECAUSE THE
             PATROLMAN   ILLEGALLY  INTRUDED   INTO   THE
             VEHICLE PRIOR TO ESTABLISHING PROBABLE CAUSE
             AND THEREFORE WAS NOT LEGALLY IN THE
             SMELLING AREA AT THE TIME HE PURPORTEDLY
             SMELLED CONTRABAND.

       "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.'"



                                          5                                    A-5442-16T1
State    v.   Boone,    ___    N.J.    ___,    ___   (2017)    (slip    op.      at   16)

(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)).                       We owe no

deference, however, to conclusions of law made by trial courts

in    suppression      decisions,      which    we   instead      review    de    novo.

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

       Like its federal counterpart, Article I, Paragraph 7 of the

New Jersey Constitution protects against "unreasonable searches

and     seizures"    and      generally    requires       a   warrant      issued     on

"probable cause."          N.J. Const. art. I, ¶ 7; see U.S. Const.

amend.    IV.   "[A]    warrantless       search     is   presumptively       invalid"

unless the State establishes the search falls into "one of the

'few specifically established and well-delineated exceptions to

the warrant requirement.'"             State v. Gonzales, 227 N.J. 77, 90

(2016) (citation omitted).

       One    such   exception    is    the    "plain     view"   doctrine,       which

allows seizures without a warrant if an officer is "lawfully

. . . in the area where he observed and seized the incriminating

item or contraband, and it [is] immediately apparent that the




                                           6                                  A-5442-16T1
seized item is evidence of a crime."                  Id. at 101.        "In addition,

the federal courts have recognized a '"plain smell" doctrine,'

which   'is   simply     a   logical      extension         of    the    "plain     view"

doctrine,'     and   'allows       a    law       enforcement     officer    to     seize

evidence of a crime' without a search warrant."                     State v. Myers,

442    N.J.   Super.   287,       296    n.4       (App.   Div.    2015)    (citations

omitted).     "[T]he United States Supreme Court and other federal

courts have long 'recognized that the odor of an illegal drug

can be highly probative in establishing probable cause for a

search.'"     Ibid. (citation omitted).

       Our courts have 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)

(alteration in original) (quoting State v. Nishina, 175 N.J.

502, 516-17 (2003)).              The "smell of marijuana emanating from

[an] automobile" establishes "probable cause [for an officer] to

believe that it contain[s] contraband."                     Myers, 442 N.J. Super.

at 296 (quoting State v. Pena-Flores, 198 N.J. 6, 30 (2009));

see also State v. Guerra, 93 N.J. 146, 150 (1983).

       In the present case, the State contends Gilliland's slight

intrusion inside the vehicle's window for the sole purpose of

better hearing defendant did not constitute a search.                        Defendant




                                              7                                  A-5442-16T1
disagrees, and argues the search was illegal because the officer

was not lawfully in the "smelling area" when he purportedly

detected the odor of marijuana and developed the probable cause

to seize it.

       "A simple observation into the interior of an automobile by

a    police    officer     located          outside        the    automobile      is     not     a

'search' within the meaning of the Fourth Amendment."                                  State v.

Reininger, 430 N.J. Super. 517, 534 (App. Div. 2013) (quoting

State v. Foley, 218 N.J. Super. 210, 215 (App. Div. 1987)).

Thus,    it    follows     that        an     officer       standing         outside     of     an

automobile      who     smells    the        odor     of    marijuana        emanating        from

within it has not conducted a "search."

       Less    clear,    however,           is    whether        an   officer    conducts       a

search by momentarily placing his head into an open car window.

In    New     Jersey,    no   reported            case     appears      to     address        this

question.       However, other courts that have ruled on the issue

have generally held this "constitute[s] a 'search' for Fourth

Amendment purposes."             United States v. Ryles, 988 F.2d 13, 15

(5th Cir. 1993); accord, e.g., United States v. Montes-Ramos,

347 F. App'x 383, 388-390 (10th Cir. 2009); United States v.

Levy,   217     F.    Supp.      3d    643,       665      (E.D.N.Y.     2016); State           v.

Epperson, 703 P.2d 761, 764, 768-69 (Kan. 1985); Commonwealth v.

Podgurski,      436     N.E.2d        150,       152-53     (Mass.     1982);     People        v.




                                                  8                                    A-5442-16T1
Chapman, 621 N.Y.S.2d 568, 569 (N.Y. App. Div. 1995); People v.

Aquino, 500 N.Y.S.2d 677, 678-79 (N.Y. App. Div. 1986); State v.

Hendricks, 948 P.2d 740, 743 (Or. Ct. App. 1997).

       These courts emphasize there is "a legitimate expectation

of     privacy      in    the     interior          of    a     motor      vehicle,    however

diminished."          Podgurski, 436 N.E.2d at 153.                        When the officer

"pierced the airspace inside the vehicle," he "intruded inside a

space     that,       under      most     circumstances,              is   protected      by     a

legitimate expectation of privacy."                        Ryles, 988 F.2d at 15.               In

doing so, the officer "conduct[ed] a[n] . . . inspection of what

would otherwise be hidden . . . ."                        Aquino, 500 N.Y.S.2d at 679.

The expectation of privacy is enhanced "in those areas which

would    be    otherwise         free    from   observation            except    by   physical

intrusion of some sort."                  Podgurski, 436 N.E.2d at 153.                        "By

inserting       his      head    into     the   interior         of     the"    vehicle,       the

officer "was allowed to observe and smell what he otherwise

would not have been able to observe or smell from a lawful

vantage point.           That was a search."              Hendricks, 948 P.2d at 743.

       Assuming without deciding that Gilliland conducted a search

by momentarily placing his head in defendant's open window, this

does    not    end    our       analysis.       Rather,          we    reiterate      that     the

federal       and    state      constitutions            only   proscribe       "unreasonable

searches and seizures."                 "What is reasonable depends upon all of




                                                9                                      A-5442-16T1
the    circumstances          surrounding         the    search        or    seizure       and    the

nature       of    the     search      or   seizure     itself."            United       States    v.

Montoya       de     Hernandez,          473    U.S.     531,        537    (1985)        (citation

omitted).

       Courts look to the purpose behind an officer's actions when

determining whether a search was reasonable.                                     See Ryles, 988

F.2d at 15-16 (holding that an officer placing his head inside a

vehicle       or     opening       a    vehicle's       door    did        not    constitute       an

unreasonable search because the trooper had just discovered that

the    driver        was    unlicensed         and     possibly       intoxicated          and    was

trying       to    determine        whether      one    of     the    vehicle's          passengers

could drive the vehicle).                      Thus, courts confronted with the

issue have found it reasonable for an officer to place his head

into     a        vehicle     to       have    effective        communications             with     a

passenger.          See e.g., id. at 15-16; United States v. Pierre, 958

F.2d 1304, 1309-10 (5th Cir. 1992) (en banc); Lewis v. State,

949    N.E.2d        1243,    1245       (Ind.    2011);       People        v.    Vasquez,       483

N.Y.S.2d          244,   245-46        (N.Y.   App.     Div.     1984),          aff'd    on   other

grounds, 489 N.E.2d 757 (N.Y. 1985).

       We find the rationale of these cases persuasive.                                    The Law

Division judge thus correctly concluded that Gilliland's slight,

momentary intrusion inside the car window was reasonable, based

on his finding that:




                                                 10                                        A-5442-16T1
            The credible evidence on this record reveals
            that the officer placed his head inside the
            window of the vehicle in order to better
            hear the defendant.      That is what the
            officer said in his testimony. And based on
            the traffic noise recorded throughout the
            MVR . . . this Court as the court below
            found, that testimony credible.

    Moreover,    there      was   no     evidence    that    the      purpose    of

Gilliland   placing   his    head   in      the   window   was   to    sniff    the

vehicle cabin for marijuana.           The MVR corroborated the officer's

testimony regarding the need to hear defendant over the traffic

noise, and demonstrated that his intrusion into the vehicle was

minimal and not unreasonable.

    Affirmed.




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