State of New Jersey v. David N. Vega

• Court: New Jersey Superior Court Appellate Division
• Decided: March 25, 2024
• Docket: A-3527-21
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3527-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID N. VEGA,

Defendant-Appellant. __________________________

Submitted March 11, 2024 – Decided March 25, 2024

Before Judges Sabatino and Chase. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 20-10-0228.

Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Austin J. Howard, Assistant Deputy Public Defender, of counsel and on the briefs).

William A. Daniel, Union County Prosecutor, attorney for respondent (Milton Samuel Leibowitz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM This appeal concerns a warrantless police search of a car, which revealed

marijuana in the center console and a firearm in a backpack found in the trunk.

Defendant David N. Vega was charged with possessory drug and firearm

offenses and moved to suppress the evidence. After an evidentiary hearing, the

trial court denied his motion. Defendant entered a plea agreement, preserving

his right to appeal the denial of the suppression motion. Based on the holding

in State v. Cohen, 254 N.J. 308, 321 (2023), decided after defendant was

sentenced, we reverse the denial of defendant's suppression motion of the

firearm, vacate his conviction and sentence, and remand for further proceedings

consistent with this opinion.

I.

On January 23, 2020, Rahway police officers Detective Scott Maloney,

Detective Anthony Tilton, and Detective Sergeant Michael Twerdak observed a

car speeding, failing to use its turn signal, and failing to maintain its lane, so

they initiated a traffic stop. The officers approached the car, and Detective

Tilton asked defendant, the driver, for his identification and paperwork.

Detective Maloney testified the smell of burnt marijuana was emanating from

A-3527-21 2 the open driver's side window. 1 Detective Maloney testified to the burnt

marijuana smell continuing when defendant exited the vehicle, and the odor of

raw marijuana lingering in the vehicle after defendant walked away. Detective

Tilton conducted field sobriety tests, which defendant failed. Defendant told

the officers his insurance information was on the passenger seat of his vehicle.

Detective Maloney looked for it on and around the passenger seat as well as in

the glove box. Maloney located some insurance information, but it was expired.

Defendant was arrested for driving under the influence and transported to

the police station by Detective Tilton. Due to the smell of raw marijuana coming

from the car's interior, Detective Maloney and Detective Sergeant Twerdak

searched the vehicle. In the center console, Detective Maloney found a plastic

prescription bottle containing a plastic bag of raw marijuana. He opened, then

closed and then reopened the bottle and a small bag containing green vegetation

was removed. Detective Maloney smelled the bag and identified the odor as

marijuana. The bag was then placed in the prescription bottle and left on the

front seat, where it remained for the remainder of the search. Based on the smell

1 The facts giving rise to this case predate the Legislature's 2021 passage of the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act ("CREAMMA"), N.J.S.A. 24:61-31 to -56, which specifically eliminated the odor or possession of marijuana in amounts for personal use as a basis for reasonable articulable suspicion of a crime. A-3527-21 3 of the marijuana in the car's interior compared to the small amount found in the

console, Detective Maloney believed there was more marijuana in the vehicle,

and the officers continued the search. While Detective Sergeant Twerdak

continued to search the car's interior, Detective Maloney opened its trunk and

observed a backpack, some luggage, other containers, and the same odor of raw

marijuana. Detective Maloney opened the backpack to find a Glock nine-

millimeter handgun with a loaded magazine and both a box and a plastic baggie

containing additional nine-millimeter ammunition. Continuing to smell raw

marijuana, he searched the other luggage and the remainder of the trunk, spare

tire area, and under the hood, but found nothing else.

On cross-examination, Detective Maloney testified he believed the odor

of marijuana was a valid exception to the requirement of a warrant to search the

entire vehicle, including the trunk, "[u]p until the point where I wouldn't . . .

smell any more marijuana or suspect any more criminal activity[.]" He also

testified that at no time did either officer ask the defendant about marijuana, and

at no time did the defendant tell either officer he had been smoking marijuana.

He conceded he did not obtain the defendant's consent to search the car and he

did not see any marijuana in plain view. He testified he left the bottle on the

A-3527-21 4 driver's seat during the rest of the search, while continuing to smell marijuana

in the car's interior.

After reviewing the officers' BWC footage, the court asked the parties to

present additional testimonial evidence. At the second hearing, the State called

Detective Sergeant Twerdak. He testified to his training on controlled

dangerous substances ("CDS"), including the odors of raw and burnt marijuana,

and his experience with CDS investigations. He then testified to the events

leading up to the traffic stop. Detective Sergeant Twerdak testified to observing

defendant moving slowly when exiting the vehicle and to observing Tilton's

administration of field sobriety tests. He testified when he moved toward the

driver's side of the vehicle and its open window, he "could smell an odor of

alcohol[] as well as . . . [r]aw marijuana." At that point, he could not pinpoint

the location of the smell.

Detective Sergeant Twerdak testified that after defendant was arrested, he

and Maloney searched the vehicle because "[defendant] was placed under arrest

for . . . driving while intoxicated[] as well as[] the smell of marijuana." He

testified the smell remained after defendant had been removed, and it was

coming "[f]rom the inside of the vehicle." He testified to observing Detective

Maloney search the front driver-side area of the car and finding the prescription

A-3527-21 5 bottle. He estimated the bottle contained "approximately an eighth of an ounce"

of marijuana. As he and Detective Maloney continued to search the car's

interior, he continued to smell raw marijuana, and even after the interior search

was complete, he believed there was still more marijuana in the vehicle because

he thought based on the smell there may be "more like an ounce of marijuana".

Detective Sergeant Twerdak testified that after Detective Maloney opened

the trunk, he still smelled the odor of raw marijuana, and he observed Detective

Maloney open the backpack to find the handgun and ammunition, which

Detective Sergeant Twerdak secured in an evidence bag. Detective Sergeant

Twerdak testified the smell of marijuana continued as Detective Maloney

continued the search, and it was emanating from "[t]he interior of the vehicle

. . . in the trunk and it was . . . throughout the vehicle." He testified the search

continued because the smell of marijuana was still present. He testified to the

preservation of footage from his BWC, and the State submitted it into evidence

as S-2 and S-3. The BWC footage was then played for the court, with Detective

Sergeant Twerdak narrating.

In a written opinion, the motion judge found the officers' testimony they

smelled marijuana prior to finding the bottle in the center console credible, even

though they did not openly discuss the smell at that time. This credibility was

A-3527-21 6 bolstered by the officers' continued search after believing the continued odor

could not be attributed to the small amount found in the bottle.

The court applied the automobile exception to the marijuana found in the

center console. However, it declined to apply the automobile exception to the

firearm found in the trunk because even though the court believed the officers

had probable cause to continue the search for the source of the odor, the BWC

footage showed the interior search had not been exhausted before Maloney

opened the trunk. The court held the search of the trunk was therefore illegal.

Nonetheless, the court admitted the evidence found in the trunk anyway under

the doctrine of inevitable discovery, reasoning expansion of the search to

include the trunk would have been inevitable after no additional marijuana was

found during the remainder of the interior search.

On appeal, defendant argues the court should have granted his motion to

suppress the evidence found in the car's trunk because the police lacked probable

cause to search it. 2 He argues the automobile exception did not apply to the

trunk because the police never had probable cause to search the trunk based on

the odor emanating from the car's interior. He also argues the inevitable

2 Defendant does not challenge the admission of the evidence found in the car's center console. A-3527-21 7 discovery exception should not apply because the search of the trunk lacked

probable cause, without regard to whether it was initiated during or after the

completed interior search.

II.

Appellate review of a trial court's factual findings on a motion to suppress

is deferential "so long as those findings are supported by sufficient credible

evidence in the record." State v. Goldsmith, 251 N.J. 384, 398 (2022) (internal

quotations omitted). The findings will not be disturbed "unless they are so

clearly mistaken that the interests of justice demand intervention and

correction." State v. Cohen, 254 N.J. 308, 319 (2023) (internal quotations

omitted). By contrast, the legal conclusions drawn from those facts are subject

to de novo review. State v. Hubbard, 222 N.J. 249, 263 (2015). Therefore,

whether the probable cause standard has been met is subject to de novo review.

State v. Diaz, 470 N.J. Super. 495, 532 (App. Div. 2022) (citing Ornelas v.

United States, 517 U.S. 690, 699 (1996)).

A.

Both the United States and New Jersey Constitutions protect citizens from

unreasonable searches. U.S. Const. amend. IV; N.J. Const. art. 1, 7. Where

police officers have not obtained a warrant prior to a search, the State must

A-3527-21 8 demonstrate, by a preponderance of the evidence, "the search falls within one of

the few well-delineated exceptions to the warrant requirement." Cohen, 254

N.J. at 319.

Under Federal law, the automobile exception permits the warrantless

search of a car if it is "readily mobile," and the officer has "probable cause" to

believe the vehicle contains contraband. State v. Witt, 223 N.J. 409, 422 (2015)

(quoting Pennsylvania v. Labron, 518 U.S. 938, 940 (1996)). In New Jersey,

the warrantless search of a car is permitted if 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."

Witt, 223 N.J. at 448 (quoting State v. Alston, 88 N.J. 211, 233 (1981)).

Probable cause "requires 'a practical, common[-]sense determination whether,

given all of the circumstances, there is a fair probability that contraband or

evidence of a crime will be found.'" State v. Myers, 442 N.J. Super. 287, 301

(App. Div. 2015) (quoting State v. Moore, 181 N.J. 40, 46 (2004)).

Even though the odor of marijuana alone could, prior to CREAMMA,

constitute probable cause to search a car's interior, "a search which is reasonable

at its inception may [nonetheless] violate the Fourth Amendment by virtue of its

intolerable intensity and scope." Cohen, 253 N.J. at 320 (quoting Terry v. Ohio,

A-3527-21 9 392 U.S. 1, 18 (1968)). For example, in State v. Patino, our Supreme Court held

the search of a car's trunk impermissibly exceeded its scope when the officer

observed and recovered a small amount of marijuana in a car's interior, but then

expanded his search to the trunk and discovered cocaine. 83 N.J. 1, 6 (1980).

The Patino Court held officers must "provide justification to extend the . . .

search further than the persons of the occupants or the interior of the car." Id.

at 14-15.

By contrast, in State v. Guerra, extension of a search to a car's trunk was

found lawful after the odor of marijuana too strong to indicate an amount capable

of being contained in the car's interior gave rise to probable cause to search the

trunk. 93 N.J. 146, 150 (1983). However, in that case, the officers also observed

the car's trunk area was "hanging low," prompting the search of that specific

area. Id. at 149.

The Supreme Court recently applied this scope of the search principle in

Cohen, a pre-CREMMA case. There the Court affirmed the requirement for

additional facts beyond "simply detecting the smell of marijuana from the

interior of the car" to create probable cause to extend a search to other areas of

the vehicle. 254 N.J. at 324. There, after stopping the defendant's car for a

motor vehicle violation and approaching the car, officers detected the "general

A-3527-21 10 smell" of then-illegal raw marijuana, although they could not pinpoint a specific

area within the car as the source of that odor. Id. at 325. After they searched

the passenger compartment and found no drugs, they searched the trunk and

under the hood, discovering two guns under the hood. Id. at 315. The Court

invalidated the search that went beyond the passenger compartment. Id. at 327.

The Court posited had the officer in that case indicated a smell "of such

magnitude as to necessarily emanate from a large cargo space such as a trunk,

the question of probable cause would have been closer." Id. at 325.

Nevertheless, it specifically stated, "a generalized smell of raw marijuana does

not justify a search of every compartment of an automobile." Id. at 328.

Although we give deference to the findings of the court below that the

officers detected the odor of raw marijuana in the interior of the car, we also

note the officers opened the container of marijuana two times and removed the

baggie one time, then left the bottle on the front seat. The marijuana remained

inside the car as the search continued, providing an explanation for the odor's

continued presence. Detective Sergeant Twerdak testified he believed the odor

of the amount of marijuana in the prescription bottle found in the console did

not, on its own, create the smell, he testified he expected to find "at least an

ounce" of marijuana. However, nothing in the record reflects the generalized

A-3527-21 11 odor was such that the officers expected an amount of marijuana so large that it

could only have been contained in a large cargo area, such as the trunk, as was

the case in Guerra, and as was hypothetically posited by the Cohen Court.

Additionally, since no additional observations pointed to the trunk as a specific

source of the odor, the police lacked probable cause to extend the search to that

compartment. Therefore, the defendant's motion to suppress the weapon found

in the trunk should have been granted.

B.

Defendant also argues the trial court's application of the inevitable

discovery doctrine was an improper basis to admit the evidence found in the

car's trunk. The inevitable discovery doctrine provides an exception to the

general exclusionary rule that evidence obtained through an unlawful search

may not be presented at trial. State v. Sugar, 100 N.J. 214, 236-238 (1985). To

admit evidence under the exception, the State must prove, by clear and

convincing evidence, that

(1) proper, normal[,] and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would

A-3527-21 12 have occurred wholly independently of the discovery of such evidence by unlawful means.

[Id. at 238.] As discussed above, the facts of the case did not give rise to probable cause to

search the trunk. As such, the State cannot meet its burden to show the trunk

inevitably would have been searched using "proper, normal[,] and specific

investigatory procedures" and it may not rely on the inevitable discovery

exception to revive the admissibility of the suppressed evidence.

The court's order denying defendant's suppression motion is reversed, in

part, regarding the recovery of the firearm, and defendant's conviction and

sentence are vacated. The matter is remanded for further proceedings consistent

with this opinion. We do not retain jurisdiction.

A-3527-21 13