                                NOT FOR PUBLICATION WITHOUT THE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-5422-17T4

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

AARON L. WILLIAMSON,

     Defendant-Respondent.
_____________________________

                    Argued November 29, 2018 – Decided February 25, 2019

                    Before Judges O'Connor and Whipple.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 18-01-
                    0002.

                    Sarah D. Brigham, Deputy Attorney General, argued
                    the cause for appellant (Gurbir S. Grewal, Attorney
                    General, attorney; Sarah D. Brigham, of counsel and on
                    the brief).

                    Thomas R. Ashley argued the cause for respondent.

PER CURIAM
       On leave granted, the State appeals from a May 30, 2018 order granting

in part defendant Aaron Williamson's motion to suppress. The State challenges

the suppression of evidence found after a search of defendant's car trunk. We

affirm.

       On September 9, 2016, two plain-clothed New Jersey State Police

Detectives, Scott Tetzlaff and Robert Kilmurray, were conducting surveillance

in an unmarked car in a service area off the turnpike. Defendant was driving a

rental car he obtained about five hours before pulling into the service area.

Defendant parked in the lot furthest away from the service area building, but

about twenty feet from the officers. Defendant exited his car, walked to the

service area, and when he returned to his car, he lit a hand-rolled cigar. When

one of the officers opened a police vehicle door he smelled burnt marijuana.

Both officers approached defendant and identified themselves.       Defendant

admitted to "smoking weed." Then the officers arrested him and searched his

car.

       Tetzlaff opened the driver's side door and found a container with about

fifty suspected oxycodone pills. Kilmurray searched the passenger side and

found two small bags of marijuana in the center console, which the motion judge

found to be consistent with personal use.     After removing the marijuana,


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                                      2
Kilmurray asserted he still smelled an "overwhelming" scent of raw marijuana.

Tetzlaff did not testify on direct examination to smelling raw marijuana when

he opened the driver's side door and on cross-examination was not sure whether

the raw marijuana smell dissipated when the two small bags were removed.

Kilmurray found no other contraband in the interior of the vehicle and expanded

his search to the trunk. On cross-examination, Kilmurray admitted he could not

smell raw marijuana through the closed trunk, but testified the smell returned

when he opened the trunk. In the trunk, Kilmurray found a laundry bag with

suspected heroin. He found no additional marijuana in the car.

      The motion judge suppressed the evidence from the trunk because the

State did not prove the officers were justified in expanding the scope of the

search based on the contraband found in the car's interior. The motion judge

determined Kilmurray's uncorroborated testimony about smelling raw marijuana

did not provide a sufficient basis to expand the search. The motion judge

rejected Kilmurray's testimony because Tetzlaff could not testify to the same

"overwhelming" smell of raw marijuana. Moreover, the motion judge noted

defendant possessed the rental car for only five hours before it was searched.

The motion judge upheld the search of the car's interior under the search incident

to arrest exception.


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                                        3
       When we review a court's decision on a motion to suppress, we defer to

the trial court's factual and credibility findings, "'so long as those findings are

supported by sufficient credible evidence in the record.'" State v. Hamlett, 449

N.J. Super. 159, 169 (App. Div. 2017) (quoting State v. Handy, 206 N.J. 39, 44

(2011)). We defer "because the 'findings of the trial judge . . . are substantially

influenced by his [or her] opportunity to hear and see the witnesses and to have

the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Reece,

222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).

"An appellate court should disregard those findings only when a trial court's

findings of fact are clearly mistaken." State v. Hubbard, 222 N.J. 249, 262

(2015). Legal conclusions are reviewed de novo. Hamlett, 449 N.J. Super. at

169.

       We agree with the motion judge the essential question was whether the

officers had a sufficient basis to expand the search to the trunk. In State v.

Patino, our Supreme Court explained discovery of a user amount of marijuana

in the interior of a vehicle is alone not suggestive of a larger amount of

contraband in the trunk. 83 N.J. 1, 13 (1980). There, officers pulled the

defendant over and observed a small amount of marijuana on the floor of the

front seat and a marijuana cigarette. Id. at 5-6. The Court found the officer was


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                                        4
justified in searching the car's interior but not the trunk. Id. at 12; see also State

v. Murray, 151 N.J. Super. 300, 307 (App. Div. 1977) (holding an observation

of a "roach clip" and vials of hashish in a car's interior did not provide sufficient

probable cause to remove the driver's seat and open a container underneath).

      Patino is distinguishable from State v. Guerra. 93 N.J. 146 (1983). In

Guerra, an officer smelled raw marijuana after pulling over the defendant. Id.

at 149. A brief search of the car's interior did not reveal the source of the scent

or other contraband and the officers obtained a search warrant. Id. at 149-50.

The search revealed nearly 200 pounds of marijuana. Id. at 150. Although the

search warrant was defective, the automobile exception was met because the

officers corroborated their suspicions with testimony the trunk of the car was

sagging, indicating a large package was inside. Ibid. Thus, the officers were

justified to expand the scope of their search to the trunk. Id. at 150-51.

      Under Patino and Guerra, a vehicle search cannot be expanded to the trunk

unless probable cause supports a reasonable belief contraband will be found

there. This is consistent with principle from Terry v. Ohio that the scope of a

search is tethered to "the circumstances which rendered its initiation

permissible." 392 U.S. 1, 19 (1968). Here, because the motion judge discredited

testimony there was an overwhelming smell of raw marijuana, the officers were


                                                                              A-5422-17T4
                                          5
not justified in expanding the search beyond the car's interior. The motion judge

found the marijuana recovered from the car's interior was consistent with

personal use.   The record supports the judge's finding because Kilmurray

admitted he could not smell raw marijuana through the closed trunk and because

the State offered no other basis to support a reasonable belief there was

additional raw marijuana in the trunk.      We defer to the court's credibility

assessment. Moreover, we agree the automobile exception does not apply here,

where a vehicle was parked in a lot, and therefore not inherently mobile, and its

driver was outside the vehicle under arrest.1



1
  The Supreme Court, in State v. Witt and later in State v. Terry, clarified the
justifications for the automobile exception under the New Jersey Constitution.

            The automobile exception is premised on three
            rationales:

            (1) the inherent mobility of the vehicle, Carroll v.
            United States, 267 U.S. 132, 153 (1925);

            (2) the lesser expectation of privacy in an automobile
            compared to a home, California v. Carney, 471 U.S.
            386, 391-93 (1985); 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


                                                                         A-5422-17T4
                                        6
      The State argues expansion of the search was justified because the service

area was known for drug trafficking and fifty oxycodone pills were found.

However, Tetzlaff testified he and Kilmurray searched the trunk only because

Kilmurray still smelled an "overwhelming" scent of marijuana. We therefore

conclude the officers did not have probable cause to search the trunk because




            warrant, Chambers v. Maroney, 399 U.S. 42, 51-52
            (1970).

            [State v. Terry, 232 N.J. 218, 232-33 (2018) (quoting
            State v. Witt, 223 N.J. 409, 422 (2015)).]

Witt purported to do away with the exigency requirement of State v. Pena-
Flores, 198 N.J. 6 (2009), by returning to the framework established in State v.
Alston, 88 N.J. 211 (1981). Witt, 223 N.J. at 447. But it is not clear that any
analysis of exigency is totally excised from our search and seizure jurisprudence
because the Witt Court explained "[w]arrantless searches should not be based
on fake exigencies." Id. at 449.

      Moreover, under Witt, we still consider the extent to which the scope of
the automobile exception is proportionate to the circumstances presented. Here,
the officers only had probable cause to enter the passenger compartment of the
vehicle. Witt did not permit the search of the trunk because the defendant was
already under arrest and the vehicle's immobility diminished the situation's
exigency. Thus, "the automobile exception authorize[s] the warrantless search
of an automobile only when the police have probable cause to believe that the
vehicle contains contraband or evidence of an offense and the circumstances
giving rise to probable cause are unforeseeable and spontaneous." Id. at 447.
Relevant here, "[i]n the case of the parked car, if the circumstances giving rise
to probable cause were foreseeable and not spontaneous, the warrant
requirement applies." Id. at 448.

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                                       7
finding a user quantity of marijuana alone does not trigger an inference the

driver is carrying larger amounts of contraband. Patino, 83 N.J. at 12-13.

      Affirmed.




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