                                NOT FOR PUBLICATION WITHOUT THE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-4223-18T1

STATE OF NEW JERSEY,

           Plaintiff-Appellant,

v.

TYJON A. WILLIAMS a/k/a
TYJOU WILLIAMS,

           Defendant-Respondent.


                    Submitted October 17, 2019 – Decided October 24, 2019

                    Before Judges Alvarez and Suter.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 18-04-
                    0512.

                    Christopher L.C. Kuberiet, Acting Middlesex County
                    Prosecutor, attorney for appellant (Joie D. Piderit,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

                    Joseph E. Krakora, Public Defender, attorney for
                    respondent (Marcia H. Blum, Assistant Deputy Public
                    Defender, of counsel and on the brief).
PER CURIAM

      By leave granted, the State appeals a March 25, 2019 Law Division order

suppressing the evidence against defendant Tyjon Williams. See R. 2:2-4. We

now reverse.

      At the hearing, only the arresting officers testified. New Brunswick Police

Officers Justin Meccia and Richard Reed were operating an unmarked patrol car

on January 29, 2018, at 11:24 p.m., when they noticed a black Acura parked at

the intersection in a high-crime area. The officers ran the license plate number

through their computer and learned the registered owner's driver's license

privileges had been suspended.

      The officers made a U-turn, and followed the Acura. After it turned right,

the officers activated their lights. The vehicle, driven by defendant, stopped in

an area described by one of the officers as a residential parking lot. Defendant

lives in one of the homes or apartments adjoining the area where he parked.

      Both officers testified, corroborated by the mobile video recording played

in court during the hearing, that defendant when stopped immediately walked

towards them asking "what I do wrong?" On the video, one of the officers

responds that defendant was driving with a suspended license. Defendant was

repeatedly instructed by both officers to return to his car. He continued to


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approach and was arrested for obstruction. While searching his person incident

to the arrest, the officers discovered $729 in cash. Both officers noted that

defendant smelled of marijuana. Meccia specifically recalled the odor was of

raw marijuana.

      After placing defendant in the rear of their vehicle, the officers

approached defendant's car. A voice is heard on the recording commenting "a

strong odor in the back seat" emanated from the vehicle. A bag containing

thirty-three grams of raw marijuana and a Tupperware container with plastic

baggies were discovered underneath the passenger seat.

      The judge found the facts, generally undisputed, as we have described

them including that defendant was initially arrested for obstruction, N.J.S.A.

2C:29-1, for which he was not formally charged, because of his failure to obey

police commands. In contrast to the testimony, however, the judge described

the area where defendant came to a stop as a driveway.

      The judge granted the motion as a matter of law because "the vehicle was

not mobile at that time . . . [and] defendant was already in custody." Since the

vehicle was parked "in the driveway[,]" and he opined that the officers had

secured the scene, he concluded no exception to the warrant requirement

applied.


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                                       3
      The State's sole point on appeal is:

            THE    TRIAL    COURT     ERRONEOUSLY
            SUPPRESSED    EVIDENCE     FOUND    IN
            DEFENDANT'S CAR FOLLOWING A VALID AND
            UNFOR[E]SEEABLE MOTOR VEHICLE STOP,
            FOLLOWED BY DEFENDANT'S FAILURE TO
            OBEY AN ORDER OF THE POLICE AND
            CREDIBLE EVIDENCE OF A STRONG SMELL OF
            MARIJUANA EM[A]NATING FROM THE CAR.

      To restate the issue, the question posed is whether the automobile

exception to the Fourth Amendment's warrant requirement applies. It is well-

established that the Fourth Amendment of the United States Constitution and

Article I, Paragraph 7 of the New Jersey Constitution, require police to obtain

warrants before making searches and seizures.          Warrantless searches and

seizures are presumptively invalid. See State v. Rodriguez, 459 N.J. Super. 13,

20 (App. Div. 2019).

      In State v. Witt, 223 N.J. 409 (2015), the Court "announced . . . a sharp

departure from a more narrow construction of the automobile exception."

Rodriguez, 459 N.J. Super. at 21. As Rodriguez explains, the Witt decision

observed that the "multi-factor exigent circumstances test" of prior case law was

"difficult to apply with consistency, particularly for law enforcement officers on

patrol, and placed upon them 'unrealistic and impracticable burdens.'" Ibid.

(citing Witt, 223 N.J. at 414-15). The Court in Witt restated the test to authorize

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                                        4
automobile searches 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." Id. at 22 (citing Witt,

223 N.J. at 447-48).

      In this case, the police had a reasonable and articulable suspicion that a

driver was violating motor vehicle laws, and thus stopped the Acura because the

registered owner's license was suspended. State v. Dunbar, 229 N.J. 521, 533

(2017). Defendant's subsequent conduct of approaching police despite being

repeatedly commanded to return to his car, established probable cause for an

arrest for obstruction. Once arrested, both officers smelled a strong odor of

marijuana on defendant's person. Thus, the police had probable cause to search

the vehicle for drugs. The strong odor of marijuana emanating from the car

bolstered the probable cause for the officers to lawfully search the passenger

compartment.

      The circumstances which gave rise to this search were clearly unforeseen

and spontaneous. It makes no difference here, contrary to the Law Division

judge's conclusion, that defendant drove his car to a residential parking area

adjacent to his home. An unlicensed driver, like a drunken driver, cannot defeat

enforcement of the motor vehicle laws by entering a restricted parking area, such


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                                        5
as the one in this case. See State v. Nikola, 359 N.J. Super. 573, 586 (App. Div.

2003) (finding that defendant's entry into an open garage did not prevent her

warrantless arrest for driving while intoxicated, N.J.S.A. 39:4-50).

      After defendant was lawfully arrested, the officers smelled marijuana on

his person, giving rise to probable cause to search his vehicle. The fact that the

smell of marijuana from the car was noticeable before the officers entered the

vehicle simply added an additional factor contributing to probable cause.

      The three rationales that anchor the current automobile exception apply in

this case. See Witt, 223 N.J. at 422-23 ("(1) the inherent mobility of the vehicle;

(2) the lesser expectation of privacy in an automobile compared to a home; and

(3) the recognition that a Fourth Amendment 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.")

(internal citations omitted).

      The vehicle continued to be mobile regardless of its location off-street. In

the same way it pulled into the residential parking area, it could have as easily

pulled out. The proximity of the parking area to defendant's home did not create

a reasonable expectation of privacy that took the search out of the automobile

exception. The intrusion upon defendant's privacy was no different regardless


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                                        6
of the location – here it was still, essentially, a roadside stop. See Witt, 223 N.J.

at 422-23.

      The officers were not obligated to obtain a warrant because defendant had

been taken into custody and was seated in the back of the police car, or because

the arrest was made after he parked his vehicle in an open area near his home.

The judge's observation that the scene was "secured" has little meaning in this

case. The automobile exception as defined in Witt applies. The motion should

not have been granted.

      Reversed.




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