                                NOT FOR PUBLICATION WITHOUT THE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-0377-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TYREK R. BURGESS, a/k/a
TYRLL BURGESS,

     Defendant-Appellant.
______________________________

                    Submitted December 12, 2018 – Decided March 27, 2019

                    Before Judges Accurso and Moynihan.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 15-01-0002.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Stephen P. Hunter, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Steven A. Yomtov, Deputy Attorney
                    General, of counsel and on the brief).

PER CURIAM
      Defendant Tyrek R. Burgess appeals from the trial court's denial of his

motion to suppress evidence. His sole argument is:

            THE WARRANTLESS SEARCH OF THE TRUNK
            WAS UNCONSTITUTIONAL BECAUSE THE
            STATE FAILED IN ITS BURDEN TO ESTABLISH A
            LEGITIMATE INVENTORY SEARCH UNDER NEW
            YORK LAW SINCE THE OFFICER'S TESTIMONY
            CLEARLY INDICATED THAT THE PURPOSE OF
            THE SEARCH AT THE POLICE PRECINCT WAS
            TO    FIND   EVIDENCE    OF    A   CRIME.
            ADDITIONALLY, THE TRIAL COURT WRONGLY
            FOUND PROBABLE CAUSE TO SEARCH THE
            TRUNK     BECAUSE     NEW    YORK    LAW
            RECOGNIZES THAT THE SMELL OF MARIJUANA
            IN THE PASSENGER COMPARTMENT DOES NOT
            AUTOMATICALLY PROVIDE PROBABLE CAUSE
            TO SEARCH THE TRUNK.

Based on our review of the record in light of the applicable law, we affirm the

trial court's determination, supported by sufficient credible evidence, that the

evidence was properly seized pursuant to an inventory search.

      At the suppression hearing, a New York City Police Department (NYPD)

officer assigned to the Thirty-third Precinct's Anti-Crime Team testified that

defendant was observed making "a sudden move to try and attempt to drive down

a one-way street" at 12:45 a.m. in an area of New York City the officer described

as "a large narcotic area" for both possession and distribution of drugs. The

officer testified defendant "crossed over into the opposite lane, and when he


                                                                         A-0377-17T2
                                       2
went to go make the turn, he started to make the turn then quickly turned back

and then came back into his original lane of travel." The officer, accompanied

by a sergeant and another officer with whom he was riding in an unmarked

police vehicle, stopped the vehicle that defendant was driving for an unsafe-

lane-change traffic violation; he also believed the driver may have been

intoxicated.

      As the testifying officer approached the vehicle, he, based on his "prior

experience with marijuana arrests and training in the [police] academy,"

immediately smelled the odor of raw marijuana 1 when he approached the

passenger's open window.      The officer overheard defendant tell the other

officers who had approached the driver's side he did not have a driver's license.

      The testifying officer then searched the passenger compartment after

defendant and the passenger were ordered out of the vehicle. In the center

console, he found three pharmacy bottles2 containing, respectively, "[one]

hundred hydromorphone pills, [forty-five] oxymorphone pills and [twenty-


1
   The State, in its merits brief, stated the officer "smelled the odor of burnt
marijuana." Nothing in the record supports this contention. All other references
are to the odor of raw marijuana.
2
   The officer differentiated these containers that "resembled the bottles [seen]
in the pharmacy" – that did not have a patient's name on the label – from "the
clear orange bottles that are typically given to people that have prescriptions."
                                                                         A-0377-17T2
                                       3
eight] oxycodone pills."     Although defendant told the officers there was a

prescription for the pills in the car, the officers never found one.

       Defendant and the passenger were arrested for criminal possession of a

controlled substance, placed in different police vehicles and transported to the

police precinct. One of the officers drove defendant's car back to a secure lot at

the precinct, a practice the testifying officer described as a common NYPD

procedure.

      One of the officers involved in the stop and arrest conducted what the

testifying officer characterized as an inventory search; the testifying officer

assisted. He described the process: "basically you go through the vehicle to

itemize everything inside of it . . . so people's property doesn't get lost and you

can keep track of everything in the vehicle." He said they would voucher any

contraband or evidence of a crime found during the inventory.

      The inventory search yielded a small amount of marijuana in the back seat

and several pharmacy bottles in the trunk. One orange prescription bottle was

also found; the officer could not remember where that was located in the vehicle.

These were in addition to the three bottles found in the center console. Among

the items inventoried were "paraphernalia with residue," Tylenol, naproxen, and




                                                                           A-0377-17T2
                                         4
amphetamine in the trunk.     The narcotics found "were taken into [police]

custody and then vouchered as arrest evidence."

      Unknown to the NYPD officers at the time of their search, the pharmacy

bottles had been taken during a drugstore robbery in New Jersey that resulted in

defendant's indictment for first-degree armed robbery, N.J.S.A. 2C:15-1(a)(2)

(counts one, two, three and four); fourth-degree aggravated assault with a

firearm, N.J.S.A. 2C:12-1(b)(4) (counts five, six, seven and eight); second-

degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count nine); and

second-degree possession of a handgun for an unlawful purpose, N.J.S.A.

2C:39-4(a) (count 10). Following the trial court's denial of the motion to

suppress, defendant pleaded guilty to first-degree armed robbery, N.J.S.A.

2C:15-1(a)(2) (count one).

      The trial court, applying New York law, 3 found the motor vehicle stop,

removal of the driver and passenger from the vehicle, search of the passenger

compartment and impoundment of the vehicle were lawful.4 The court, finding


3
  The parties agreed, in that the NYPD officers had no knowledge of the New
Jersey robbery and there was no evidence of any cooperative effort between
police in New York and New Jersey, the motion to suppress would be analyzed
under New York law. See State v. Mollica, 114 N.J. 329, 347-53 (1989).
4
   Defendant does not challenge these police actions; he challenges only the
search of the trunk.
                                                                        A-0377-17T2
                                       5
the inventory search "was conducted pursuant to standardized procedure,"

considered:

              the length of the time between the search and the listing
              and the property. [The court] looked at whether or not
              there were detailed and careful records in this matter
              and [found] that according to [the testifying officer’s]
              testimony that the inventory search was undertaken and
              that he categorized everything in the vehicle, item by
              item, and he generated an inventory property sheet.

                    He described how a contraband was vouchered as
              evidence of a crime immediately after being
              inventoried. He also described how each vouchered
              item was stated on the same date as the inventory.

      Defendant argues the State has the burden to establish that the officer's

motive in conducting the inventory search was not to discover incriminating

evidence, an issue not addressed by the trial court. He contends the police

wanted to continue searching the vehicle and removed it to the precinct for that

purpose; the search of the trunk was not an inventory search; and, inasmuch as

probable cause did not exist to search the trunk, the trial court erred in denying

his motion.

      Our review of a trial court's decision on a motion to suppress evidence is

limited. State v. Vargas, 213 N.J. 301, 326-27 (2013). We are obliged to uphold

a motion judge's factual findings that are supported by sufficient credible

evidence in the record. State v. Rockford, 213 N.J. 424, 440 (2013); State v.

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                                         6
Diaz-Bridges, 208 N.J. 544, 565 (2011). "Those findings warrant particular

deference when they are '"substantially influenced by [the trial judge's]

opportunity to hear and see the witnesses and to have the 'feel' of the case, which

the reviewing court cannot enjoy."'" Rockford, 213 N.J. at 440 (alteration in

original) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). We "consider

whether the motion to suppress was properly decided based on the evidence

presented at that time." State v. Jordan, 115 N.J. Super. 73, 76 (App. Div. 1971).

We need not, however, give deference to a trial court's interpretation of the law;

we review legal issues de novo. Vargas, 213 N.J. at 327.

      An inventory search, an exception to the warrant requirement, People v.

Galak, 610 N.E.2d 362, 365 (N.Y. 1993), allows police officers to search an

automobile "to properly catalogue the contents of the item[s] searched," People

v. Johnson, 803 N.E.2d 385, 387 (N.Y. 2003). As here, an inventory search may

occur "[f]ollowing a lawful arrest of the driver of an automobile that must then

be impounded."      Ibid.   "The specific objectives of an inventory search,

particularly in the context of a vehicle, are to protect the property of the

defendant, to protect the police against any claim of lost property, and to protect

police personnel and others from any dangerous instruments." Ibid. (citing

Florida v. Wells, 495 U.S. 1, 4 (1990)).


                                                                           A-0377-17T2
                                        7
      Defendant correctly asserts the principle emphasized by the United States

Supreme Court that "an inventory search must not be a ruse for a general

rummaging in order to discover incriminating evidence." Wells, 495 U.S. at 4.

To guard against police "rummaging," New York courts have held police

agencies should conduct inventory searches pursuant to "an established

procedure clearly limiting the conduct of individual officers that assures that the

searches are carried out consistently and reasonably." Galak, 610 N.E.2d at 365.

These procedures should be standardized so as to limit officers' discretion.

Johnson, 803 N.E.2d at 387. The trial court made detailed findings, based on

the testimony of the officer which it often noted was credible, that the inventory

of defendant's vehicle complied with established procedures.

      We also recognize that, under New York law, "[w]hile incriminating

evidence may be a consequence of an inventory search, it should not be its

purpose." Ibid. But we do not agree that the record supports defendant's

contention that the officer's "testimony clearly established that the purpose of

the search at the police precinct was to gather incriminating evidence,

specifically the marijuana that [he] believed he smelled in the passenger

compartment." Defendant cites to one portion of the officer's testimony to

buttress his argument:


                                                                           A-0377-17T2
                                        8
            [Assistant Prosecutor]: Now how about any marijuana
            in the passenger compartment of the vehicle?

            [Officer]: On the initial search there was not.

            [Assistant Prosecutor]:     And what do you mean by
            initial search?

            [Officer]: The initial search was quick. After we found
            the pills, due to the quantity of the pills, we didn't want
            to stay there too long, being in some cases that cars are
            often followed if there's a large amount of narcotics in
            them, or maybe not necessarily a large amount but an
            amount that can add up to a large amount of money for
            them. And those pills, from my experience, go for
            about $30 a pill. So it's about $5,000 of narcotics.

            [Assistant Prosecutor]: Just in what you found in the
            center console.

            [Officer]: Yeah, correct.

            [Assistant Prosecutor]: Okay. So can you explain to
            the court why it wouldn't be prudent to conduct a search
            at that location?

            [Officer]: Just in case there's another vehicle following
            or something. We weren't sure. We just wanted to, you
            know, we had what we had and then we were just going
            to bring it back to the precinct.

      Defendant does not cite to other parts of the officer's testimony that clarify

the officer did not mean the "initial search" was followed by a pretextual

continuation of that search. The officer's first reference to an "initial search"

echoed the assistant prosecutor's use of that term in a preceding question, "Was

                                                                            A-0377-17T2
                                         9
there any currency located during the initial search of the vehicle?" The officer

was simply conveying what was and was not found during the on-scene search.

The assistant prosecutor's poor phraseology lent to the contextual confusion –

now relied upon by defendant – when she asked the officer "why it wouldn't be

prudent to conduct a search at that location?" In reply, the officer did not state

reasons for not immediately searching the vehicle. He, instead, reiterated the

reasons they did not want to stay on scene: the quantity and value of the drugs

they found and the danger that defendant's car, which carried a large cache of

drugs, was being followed by an accomplice's car. Contrary to defendant's

position that the officer intended to continue the pretextual search of the vehicle,

the officer said, "we had what we had and then we were just going to bring it

back to the precinct."

      The trial court noted the early-morning hour of the stop and found,

considering

              the officer's safety that he testified to, that when you
              have vehicles based on his experience that contain large
              sums of narcotics or narcotics with a high street value,
              that there could be someone following that vehicle. So
              . . . for those reasons, the officer had reason to impound
              the vehicle and take it back to the station.

Although the court confusingly adopted the assistant prosecutor's line of

questioning when it stated, "this [c]ourt certainly is not going to second guess

                                                                            A-0377-17T2
                                         10
an officer serving an employment as to whether or not it was safe for that officer

to remain on the scene and conduct a search on the scene," and interjected that

it found probable cause for the search, a close review of the record reveals the

court upheld the inventory search fully acknowledging that an inventory search

could not be a "ruse" for "rummaging" and its primary purpose could not be the

recovery of incriminating evidence.

      Only a contorted reading of the officer's testimony supports defendant's

argument. Nothing in the officer's testimony indicates that he intended to further

search for marijuana at the precinct. As he said, they discovered a large quantity

of pills and "had what they had." Inasmuch as the record supports the trial

court's denial of defendant's motion to suppress, we affirm.




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                                       11
