State v. Katz, DOCKET NO. A-3954-18T3

STATE OF NEW JERSEY, Plaintiff-Appellant, v. DANIEL T. KATZ, Defendant-Respondent.

DOCKET NO. A-3954-18T3

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted October 17, 2019

November 13, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Gooden Brown and Mawla.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 18-06-0790.

Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for appellant (Carey J. Huff, Assistant Prosecutor, of counsel and on the briefs).

The Law Offices of Jonathan F. Marshall, and Helmer Conley & Kasselman, PA, attorneys for respondent (James Fagen and Patricia B. Quelch, of counsel and on the brief).

PER CURIAM

By leave granted, the State appeals from the April 2, 2019 Law Division order granting defendant's motion to suppress evidence seized from his vehicle during a warrantless search following a motor vehicle stop. We affirm.

A Monmouth County grand jury returned a two-count indictment against defendant, charging him with fourth-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(3); and first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(10)(a). Defendant moved to suppress the CDS that formed the evidential basis for the charges. At the suppression hearing conducted on March 12, 2019, the following testimony was elicited from the two uniformed police officers involved in the encounter, Patrick Brady and Devin Corso.

On August 8, 2017, the officers were working together in Wall Township in a marked patrol vehicle driven by Corso. Brady, who had "[a]pproximately seven years" of experience as a "patrolman" in Wall Township, and an additional two years of similar law enforcement experience in New Hampshire, was training Corso, who had recently completed his basic training at the Police Academy and was "a month and a half" into "[his] field training." At approximately 1:40 a.m., near the corner of Marconi Road and Monmouth Boulevard, the officers observed a green 2001 Acura with "[t]he middle brakelight . . . out on the vehicle[,]" in contravention of N.J.S.A. 39:3-66, requiring that lamps be maintained in good working order. They subsequently conducted a motor vehicle stop on Belmar Boulevard, activating the mobile video recorder (MVR).¹

As they approached the vehicle on the passenger side, the officers observed one occupant, the driver, later identified as defendant. Corso questioned defendant about his earlier activities, his intended destination, and his driving and arrest history. Defendant responded he was on his way home from his uncle's house, he had "like two points on [his license,]" and he had previously been arrested for "[p]ot." Upon obtaining defendant's driving credentials, Corso returned to the patrol car with Brady to verify defendant's credentials. While walking back to the patrol car, Brady said to Corso, "can you smell that," referring to an odor of raw marijuana "coming from somewhere inside [defendant's] vehicle." Brady told Corso he could also detect the odor of "Black and [M]ild" cigars inside the vehicle. Brady described a Black and Mild cigar as "a little cheap cigar[,]" used "to inhale marijuana" or to "try to mask"the smell of marijuana. Additionally, while looking inside defendant's vehicle, the officers observed "a[n] electronic vape pen," generally used "for nicotine" or "to ingest marijuana."

Brady testified the presence of the Black and Mild cigar and the vape pen, in conjunction with the odor of marijuana, suggested to him that "the vape pen was being used to ingest marijuana." Brady explained "[u]sually[,] if someone[ is] using tobacco, either a cigar or a cigarette, they're not going to use a vape pen to ingest nicotine because they're already smoking a cigar or a cigarette." Brady testified he had "seized marijuana" approximately one hundred times and was "familiar with [how] marijuana smell[ed]," in that it had "a distinct odor." He clarified that he detected the odor of marijuana emanating from defendant's "whole vehicle," including its trunk. On the other hand, Corso "thought" he smelled "a little" odor of raw marijuana while standing at defendant's passenger side window, but could not "tell where [the smell] was coming from before it made it to the window." Corso, like Brady, had been "taught the smell of marijuana" while training at the Police Academy.

A database search of defendant's credentials revealed defendant had previously been charged with drug possession and distribution as well as burglary. Corso then asked defendant to step out of the vehicle, and defendantcomplied. Corso said to defendant, "[a]ll right, so here's the deal - I'm getting the odor of marijuana coming from your car." Defendant replied there was "definitely" no odor of marijuana in his vehicle, and refused to consent to a search of his vehicle. Corso then proceeded to search the passenger compartment of defendant's vehicle over defendant's objection. During the search, Corso found no marijuana in the passenger compartment, but the "electronic vape pen" contained remnants of oil in the cartridge. Because Corso did not find the "raw marijuana" he "had smelled" in "the passenger[] compartment of the vehicle[,]" he continued to search the trunk. Upon opening the trunk, Corso discovered THC² gummy candies in sealed packages, sealed mason jars containing raw marijuana, and a latched Yeti brand cooler. According to Brady, there was no odor of marijuana emanating from the sealed packages found beside the cooler to justify defendant's apparent "nervous[ness]."

Corso then proceeded to open the cooler and found more packages of THC gummy candies, more mason jars of raw marijuana, and multiple vacuumed sealed bags of raw marijuana. According to Corso, "the smell [of marijuana]was stronger when [he] opened [the cooler.]" After discovering the contraband, defendant was placed under arrest. The logged evidence recovered from defendant's vehicle included (1) sealed mason jars filled with raw marijuana; (2) small bags of raw marijuana; (3) large vacuum sealed bags of raw marijuana; (4) loose marijuana in the cooler; (5) packages of THC gummy candies; (6) packages of THC chocolates; (7) THC oil in a jar; (8) THC vape pen cartridges; and (9) at least $1000 in cash.

Following the hearing, on April 2, 2019, the judge entered an order granting "[d]efendant's [m]otion to [s]uppress all evidence found in [defendant's] vehicle." In an accompanying written opinion, the judge determined that while "the vehicle stop was proper, the officers lacked probable cause to search [defendant's] vehicle, including its trunk[.]" As to the initial stop, the judge explained that because "the video recording showed evidence that [defendant's] center brake lights were malfunctioning as he drove toward Belmar Boulevard, the officers possessed reasonable suspicion that [defendant] committed a motor vehicle offense," justifying the motor vehicle stop.³

Turning to the warrantless search of the vehicle, the judge determined the "officers' suspicion that [defendant] possessed CDS in his vehicle's interior and trunk did not rise to the level of probable cause" for three reasons:

First, due to the alleged smell of marijuana, Black & Mild cigars, and the vape-pen near the front passenger's seat, the officers possessed independent reasonable suspicion to extend the time of the vehicle stop and look into [defendant's] driver's license information and criminal history. However, under the second prong of the analysis, the initial search of the vehicle's front, passenger, and back seats were impermissible under Officer Brady's erroneous application of the "plain smell" doctrine. Lastly, even if the [c]ourt were to hypothetically treat the search of the vehicle's interior as constitutionally proper, the [c]ourt finds that Officer Corso lacked probable cause to believe that additional contraband would be found within [defendant's] trunk.

Focusing first on the probable cause required "under the 'plain smell' doctrine to believe that marijuana could be found within the vehicle[,]" the judge elaborated:

Although Officer Brady was capable of distinguishing between the odors of burned and raw marijuana due to his experience as a law enforcement officer and allegedly detected the odor of marijuana immediately upon approaching the passenger's side, . . . Officers Brady and Corso could not verify whether the discovered odor near the passenger's seat was that of marijuana; thus, the officers' reasonable suspicion that [defendant] possessed marijuana did not elevate to the probable cause needed to justify the officers' warrantless search of the vehicle. The officers could not find any remnants of marijuana near the passenger's side of the vehicle. Although Officer Brady testified that [defendant's] vape-pen near the passenger's seat could have been used to ingest marijuana, the testimony has not eliminated the reasonable possibility that [defendant] could have used the vape-pen to instead ingest nicotine. To support his point that [defendant] allegedly used the vape-pen to ingest marijuana, Officer Brady claimed that the vape-pen cartridges contained hashish oil, but the State never introduced the laboratory-tested vape-pen into evidence to confirm the Officer's sense of smell. Furthermore, the alleged odor of marijuana could have reasonably been the burnt odor of the Black & Mild[] cigars, which also function to mask the smell of [marijuana]. Taking all the factual circumstances into consideration, the [c]ourt finds that Officers Brady and Corso at most had reasonable suspicion of [defendant's] CDS possession, not probable cause.

Furthermore, "even...