                                NOT FOR PUBLICATION WITHOUT THE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-3705-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LEE CLAX, a/k/a
CHRISTOPHER CLAX,

     Defendant-Appellant.
__________________________

                    Submitted February 27, 2019 – Decided March 18, 2019

                    Before Judges Koblitz and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 17-08-
                    1203.

                    Starkey, Kelly, Kenneally, Cunningham & Turnbach,
                    attorneys for appellant (Clifford P. Yannone, on the
                    brief).

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for respondent (Monica do
                    Outeiro, Assistant Prosecutor, of counsel; Kenneth R.
                    Paulus, Jr., Legal Assistant, on the brief).
PER CURIAM

      Defendant Lee Clax appeals from an April 17, 2018 judgment of

conviction, focusing on a December 20, 2017 order denying his motion to

suppress evidence. We affirm.

      Defendant was charged with third-degree possession of cocaine, N.J.S.A.

2C:35-10(a)(1), and second-degree possession of cocaine with intent to

distribute, N.J.S.A. 2C:35-5(b)(2). After defendant's motion to suppress the

drug evidence was denied, defendant pled guilty to second-degree possession of

cocaine with intent to distribute.      In accordance with a negotiated plea,

defendant was sentenced to serve nine years in prison subject to a fifty-one-

month period of parole ineligibility.

      The hearing on the suppression motion took place over four days.

Testifying for the State was Captain Thomas Rizzo of the Howell Township

Police Department. Defendant did not present any witnesses at the suppression

hearing.

      According to Captain Rizzo, he and his partner, Patrolman Travis Horton,

were observing an area in the Township for suspected criminal activity. During

their watch, the officers saw a green minivan tailgating another car. The officers

were unable to see the driver of the minivan because the windows were tinted.


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                                        2
As they followed the minivan, the officers saw the vehicle drift almost a foot

over the fog line, which is the line separating the traveled portion of the road

from the shoulder of the road.

      The officers then signaled the minivan to pull over. When the officers

approached the stopped minivan, Captain Rizzo recognized an odor of raw

marijuana coming from the passenger side of the car.         When Rizzo started

speaking to the driver, he smelled burnt marijuana. According to Rizzo, the

smell seemed to "emanate to the ceiling of the vehicle" and from the cloth seats

in the minivan.       As Patrolman Horton approached the driver's side of the

minivan, he noticed the odor of marijuana and saw a cigarette lighter in the

driver's side door.

      In response to the officers' questions, defendant, who was the driver of the

minivan, denied smoking marijuana in the car. Defendant said he was the only

person who drove the minivan and stated he never smoked inside the car.

      Rizzo, who had significant experience and training in detecting the odor

of marijuana, did not believe defendant's statements. Rizzo decided to search

the minivan without a warrant for the source of the odor. Rizzo started his search

on the passenger side of the minivan because that was the area where he first

smelled marijuana. Underneath the front passenger seat, Rizzo found a "large


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                                        3
. . . clear cellophane package of a white powder." He suspected the powder was

cocaine.

       In his inspection of the minivan, Horton found an empty blunt cigar

wrapper and a small amount of marijuana seeds and stems on the passenger side

floor. The officers also found $2971 in cash hidden in a shoe located behind the

front seats.

       Defendant was arrested at the scene.        Rizzo and Horton called for

additional officers. One of the arriving officers had a K-9 dog. The K-9 dog

performed a drug sniff and alerted to two locations inside the minivan:

underneath the front passenger seat where the white powder was found and

directly behind the front seats where the cash was found.

       Only after defendant was transported to the police station did Rizzo learn

defendant had a previous drug conviction. At the time of defendant's arrest,

neither officer was aware that defendant had a prior conviction for drug dealing.

       Because defendant was not the owner of the minivan,1 defendant's name

was not available through a license plate search.       The officers discovered

defendant's name from his driver's license. Captain Rizzo explained the license

plate associated with the minivan had been run nine times between May 6, 2015


1
    The minivan was owned by defendant's sister.
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                                        4
and June 9, 2017, the date of defendant's arrest. The minivan was stopped on

May 6, 2015 for having illegal tinted windows. Defendant was not issued a

summons on that occasion and was warned that tinted windows were a motor

vehicle violation. According to Rizzo, a vehicle may not necessarily be stopped

after every license plate check because the officer may receive an emergency

call, it was unsafe to pull the vehicle over, or the officer lost sight of the vehicle.

      In addition to the testimony of Captain Rizzo, the judge reviewed

photographs of the minivan and a motor vehicle recording showing the search

of the minivan. The judge denied defendant's motion to suppress the drug

evidence. Finding Captain Rizzo's testimony to be credible, even in the face of

vigorous cross-examination by defense counsel, the judge determined the police

were justified in stopping defendant's van for one of several motor vehicle

violations committed by defendant that evening.

      During the course of the lawful motor vehicle stop, the judge found the

officers had a reasonable suspicion of an unlawful activity unrelated to the

traffic offenses. In this case, the officers detected the odor of marijuana. Based

on the smell of marijuana, the judge concluded the officers were permitted to

broaden their search for additional contraband.




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                                          5
      The judge found it insignificant that Captain Rizzo first believed the smell

was raw marijuana but then determined the smell was burnt marijuana as he

moved closer to the interior of the minivan. According to the judge, the smell

of raw marijuana created an inference there was marijuana or other contraband

in the minivan and the smell of burnt marijuana created an inference that

someone had smoked marijuana recently inside the vehicle.             Under either

scenario, the judge held there was a suggestion that marijuana or other

contraband was inside the minivan. Based on Rizzo's testimony, the judge

concluded the officers had a reasonable suspicion to search the minivan

grounded on the odor of marijuana.

      In reviewing the automobile exception to the officers' search of the

minivan without a warrant, the judge determined the smell of marijuana gave

the police probable cause to believe an offense had been committed and there

might be evidence of contraband inside the minivan to permit the officers to

search the vehicle without a warrant.

      The judge rejected defendant's argument that prior license plate searches

of the minivan evidenced racial profiling by the Howell Township Police

Department. The judge explained defendant failed to meet his "heavy" burden

of demonstrating racial profiling and offered "no facts or any colorable claim . . .


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                                         6
that the Howell Township Police Department has an officially sanctioned or de

facto policy of selective enforcement against minorities."

      On appeal, defendant raises the following argument:

            THE TRIAL COURT ERRED IN DENYING
            [DEFENDANT]'S   MOTION   TO  SUPPRESS
            EVIDENCE BECAUSE THE AUTOMOBILE
            EXCEPTION TO THE WARRANT REQUIREMENT
            BASED ON THE PLAIN SMELL OF MARIJUANA
            WAS NOT SUPPORT[ED] BY SUFFICIENT
            EVIDENCE IN THE RECORD.

      In reviewing a motion to suppress, we "must uphold a trial court's factual

findings at a [motion to suppress] hearing when they are supported by sufficient

credible evidence in the record." State v. Hathaway, 222 N.J. 453, 467 (2015)

(citing State v. Elders, 192 N.J. 224, 244 (2007)). This is especially true when

the findings of the trial court are "substantially influenced by [its] opportunity

to hear and see the witnesses and to have the 'feel' of the case." Elders, 192 N.J.

at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). The trial court's

legal conclusions are entitled to no special deference, and are reviewed de novo.

State v. Gandhi, 201 N.J. 161, 176 (2010).

      "A motor vehicular violation, no matter how minor, justifies a stop

without any reasonable suspicion that the motorist has committed a crime or

other unlawful act." State v. Bernokeits, 423 N.J. Super. 365, 370 (App. Div.


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                                        7
2011) (citing Delaware v. Prouse, 440 U.S. 648, 663 (1979)). The State does

not need to prove that the motor vehicle violation occurred, only that "the police

lawfully stopped the car." State v. Heisler, 422 N.J. Super. 399, 413 (App. Div.

2011) (quoting State v. Williamson, 138 N.J. 302, 304 (1994)).

      The automobile exception "authorize[s] [a] warrantless search . . . 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." State v. Witt, 223 N.J. 409, 447 (2015)

(citing State v. Alston, 88 N.J. 211, 233 (1981)). Probable cause "requires

nothing more than a practical, common-sense decision whether, given all the

circumstances . . . there is a fair probability that contraband or evidence of a

crime will be found in a particular place." State v. Nishina, 175 N.J. 502, 515

(2003) (quoting State v. Johnson, 171 N.J. 192, 214 (2002)).

      "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) (quoting Nishina, 175 N.J. at 515-16). The odor of marijuana

gives rise to probable cause to conduct a warrantless search in the immediate




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                                        8
area from where the smell emanated. State v. Myers, 442 N.J. Super. 287, 297,

n.5 (App. Div. 2015).

      Once an officer smells burnt marijuana emanating from a vehicle, the

officer has probable cause to arrest the driver, as well as to search the vehicle

incident to arrest. State v. Judge, 275 N.J. Super. 194, 202-03 (App. Div. 1994).

There is no requirement that suspected marijuana be found during the search.

See State v. Vanderveer, 285 N.J. Super. 475, 479 (App. Div. 1995) (holding

the difference in the drugs found – cocaine rather than marijuana – does not

invalidate a search based on the odor of burnt marijuana, even where no

marijuana was found).

      In this case, the officers stopped defendant's minivan for assorted motor

vehicle violations, including having tinted windows, N.J.S.A. 39:3-74, failing

to maintain a lane, N.J.S.A. 39:4-88(b), and tailgating, N.J.S.A. 39:4-89.

Defendant was the sole occupant of the vehicle when it was pulled over. As the

officers approached the minivan, they detected the odor of marijuana. Based on

the smell of marijuana, it was objectively reasonable for the officers to search

defendant's minivan.

      Having reviewed the testimony presented at the suppression hearing and

according deference to the judge's credibility findings related to the denial of


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                                       9
defendant's suppression motion, we discern no basis to disturb the trial court's

decision.

      Affirmed.




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