NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2213-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CLIFTON L. HOLLEY, a/k/a ANTHONY L. HOLLEY, and ANTHIONY L. HOLLEY,
Defendant-Appellant. ______________________________
Submitted May 26, 2020 – Decided July 9, 2020
Before Judges Sumners and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 17-06-1217.
Neil Law, attorneys for appellant (Durann A. Neil, Jr., on the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (Mario Christopher Formica, Deputy First Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Following denial of his motion to suppress evidence seized in a
warrantless motor vehicle stop, defendant Clifton Holley pled guilty to third-
degree possession of controlled dangerous substances with the intent to
distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2); third-degree resisting arrest by
force, N.J.S.A. 2C:29-2(a); fourth-degree throwing bodily fluids at a law
enforcement officer, N.J.S.A. 2C:12-13; and second-degree offer of benefit to a
public servant, N.J.S.A. 2C:27-11(a).1 Defendant was sentenced to an aggregate
prison term of eight years with parole ineligibility for three-and-a-half years.
In his appeal, defendant argues:
POINT I
THE WARRANTLESS MOTOR VEHICLE STOP VIOLATED [DEFENDANT]'S RIGHTS UNDER THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION.
A. The Investigative Detention of [Defendant] Violated His Constitutional Rights Because There Was No Reasonable Suspicion of Criminal Activity.
B. There Was No Probable Cause to Arrest [Defendant] . . . and Search His Motor Vehicle.
1 He also pled guilty to other offenses under two unrelated indictments, which are not the subject of this appeal. A-2213-18T1 2 POINT II
THE TRIAL COURT ERRED IN NOT SUPPRESSING ALL DERIVATIVE EVIDENCE OBTAINED BY THE STATE FOLLOWING UNLAWFUL DETAINMENT AS IT IS FRUIT OF THE POISONOUS TREE.
Based upon our standard of review, we affirm the suppression order.
I
At the motion to suppress hearing, the State presented the testimony of
Egg Harbor Township Police Officers William Burns and Robert Sheppard
regarding the roadside warrantless stop and search of defendant's person and
vehicle on December 8, 2016, at approximately 11:28 p.m. In addition, the State
presented the motor vehicle recording (MVR) from Burns' police car which
filmed the stop of defendant's car and the officers' subsequent encounter with
defendant.2 Defendant neither testified nor presented any witnesses.
Burns, a five-year patrolman with the police department, was on routine
patrol in a marked patrol car on Black Horse Pike when he observed defendant's
car traveling with only one operable headlight, a violation of N.J.S.A. 39:3-66.
Burns made a U-turn and activated his overhead lights and pulled over
defendant's car to the side of the road. Burns stated upon approaching the car,
2 The DVD was not part of the record provided to this court. A-2213-18T1 3 he saw defendant – the only person in the car – light a cigarette. At Burns'
request, defendant turned over his driver's license, an insurance card, and a
registration card. 3 He also noted seeing cigarillos, which are commonly used to
smoke marijuana, inside the car.
Burns returned to his patrol car and radioed the police dispatcher to run a
check on defendant's license. After stating defendant's name to the dispatcher,
Burns received a call on his cell phone from Sheppard, telling him to "be careful"
based on Sheppard's previous dealings with defendant. Burns also noticed the
insurance card was temporary and had expired sixty days earlier.
When Burns returned to defendant's car, the audio of the MVR indicates
he questioned defendant about the expired insurance card, then asked: "Does
anyone smoke weed in this car?" Burns testified by that time he was able to
smell marijuana because defendant was no longer smoking a cigarette. Burns
also indicated he smelled a faint odor of alcohol coming from defendant's breath.
Defendant denied marijuana had been smoked in the car. Burns then ordered
defendant out of the car and requested back-up. After Sheppard and another
officer arrived shortly thereafter, a search of Burn's person revealed $1206 in
small denominations in his waistband. The search continued, resulting in the
3 The car was owned by defendant's uncle. A-2213-18T1 4 recovery of "a little pouch" made of plastic hanging down defendant's torso from
a string connected to his shirt button, containing cocaine, heroin, and
prescription medication.4
On cross-examination, Burns acknowledged no marijuana was found in
the car or on defendant, and he could not pinpoint if the marijuana odor was
coming from defendant's person or inside the car. He also stated that he put his
head fully and partially inside defendant's car during his questioning of
defendant about unexpired insurance card.
Sheppard, a twelve-year veteran of the police department, confirmed his
phone call to Burns after hearing Burns' radio dispatch regarding defendant. He
testified he searched the interior of defendant's vehicle; finding no contraband
but "detect[ing] a faint odor of marijuana lingering inside the vehicle."
After hearing counsel's arguments, the motion judge reserved her decision
and allowed the submission of post-hearing briefs. Eight days later on April 26,
2018, the judge issued an order and rendered an oral decision denying
defendant's motion.
4 The pouch contained twenty-four grams of cocaine, twenty-six wax folds of heroin, seven Oxycodone pills of ten milligrams, and three Oxycodone pills of seven-and-a-half milligrams. A-2213-18T1 5 The judge determined the State proved by a preponderance of evidence
the warrantless search and seizure conducted by Burns and Sheppard was
constitutionally permissible. Her finding was based upon her assessment the
officers gave credible testimony because it was consistent with their police
reports and her viewing of the MVR during the hearing and later in chambers
when she was contemplating her decision.
Pointing to State v. Bernokeits, where this court recognized "[a] motor
vehicular violation, no matter how minor, justifies a stop without any reasonable
suspicion that the motorist committed a crime or other unlawful act[,]" the judge
found Burns had a right to stop defendant's car because of the headlight
violation. 423 N.J. Super 365, 370 (App. Div. 2011) (citations omitted). The
judge then determined Burns had the right under State v. Nishina, to search
defendant and his car based on his credible testimony that he smelled marijuana
from inside the car because "the smell of marijuana itself constitutes probable
cause 'that a criminal offense ha[s] been committed and that additional
contraband might be present.'" 175 N.J. 502, 515-16 (2003) (quoting State v.
Vanderveer, 285 N.J.
Free access — add to your briefcase to read the full text and ask questions with AI
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-2213-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CLIFTON L. HOLLEY, a/k/a ANTHONY L. HOLLEY, and ANTHIONY L. HOLLEY,
Defendant-Appellant. ______________________________
Submitted May 26, 2020 – Decided July 9, 2020
Before Judges Sumners and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 17-06-1217.
Neil Law, attorneys for appellant (Durann A. Neil, Jr., on the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (Mario Christopher Formica, Deputy First Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Following denial of his motion to suppress evidence seized in a
warrantless motor vehicle stop, defendant Clifton Holley pled guilty to third-
degree possession of controlled dangerous substances with the intent to
distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2); third-degree resisting arrest by
force, N.J.S.A. 2C:29-2(a); fourth-degree throwing bodily fluids at a law
enforcement officer, N.J.S.A. 2C:12-13; and second-degree offer of benefit to a
public servant, N.J.S.A. 2C:27-11(a).1 Defendant was sentenced to an aggregate
prison term of eight years with parole ineligibility for three-and-a-half years.
In his appeal, defendant argues:
POINT I
THE WARRANTLESS MOTOR VEHICLE STOP VIOLATED [DEFENDANT]'S RIGHTS UNDER THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION.
A. The Investigative Detention of [Defendant] Violated His Constitutional Rights Because There Was No Reasonable Suspicion of Criminal Activity.
B. There Was No Probable Cause to Arrest [Defendant] . . . and Search His Motor Vehicle.
1 He also pled guilty to other offenses under two unrelated indictments, which are not the subject of this appeal. A-2213-18T1 2 POINT II
THE TRIAL COURT ERRED IN NOT SUPPRESSING ALL DERIVATIVE EVIDENCE OBTAINED BY THE STATE FOLLOWING UNLAWFUL DETAINMENT AS IT IS FRUIT OF THE POISONOUS TREE.
Based upon our standard of review, we affirm the suppression order.
I
At the motion to suppress hearing, the State presented the testimony of
Egg Harbor Township Police Officers William Burns and Robert Sheppard
regarding the roadside warrantless stop and search of defendant's person and
vehicle on December 8, 2016, at approximately 11:28 p.m. In addition, the State
presented the motor vehicle recording (MVR) from Burns' police car which
filmed the stop of defendant's car and the officers' subsequent encounter with
defendant.2 Defendant neither testified nor presented any witnesses.
Burns, a five-year patrolman with the police department, was on routine
patrol in a marked patrol car on Black Horse Pike when he observed defendant's
car traveling with only one operable headlight, a violation of N.J.S.A. 39:3-66.
Burns made a U-turn and activated his overhead lights and pulled over
defendant's car to the side of the road. Burns stated upon approaching the car,
2 The DVD was not part of the record provided to this court. A-2213-18T1 3 he saw defendant – the only person in the car – light a cigarette. At Burns'
request, defendant turned over his driver's license, an insurance card, and a
registration card. 3 He also noted seeing cigarillos, which are commonly used to
smoke marijuana, inside the car.
Burns returned to his patrol car and radioed the police dispatcher to run a
check on defendant's license. After stating defendant's name to the dispatcher,
Burns received a call on his cell phone from Sheppard, telling him to "be careful"
based on Sheppard's previous dealings with defendant. Burns also noticed the
insurance card was temporary and had expired sixty days earlier.
When Burns returned to defendant's car, the audio of the MVR indicates
he questioned defendant about the expired insurance card, then asked: "Does
anyone smoke weed in this car?" Burns testified by that time he was able to
smell marijuana because defendant was no longer smoking a cigarette. Burns
also indicated he smelled a faint odor of alcohol coming from defendant's breath.
Defendant denied marijuana had been smoked in the car. Burns then ordered
defendant out of the car and requested back-up. After Sheppard and another
officer arrived shortly thereafter, a search of Burn's person revealed $1206 in
small denominations in his waistband. The search continued, resulting in the
3 The car was owned by defendant's uncle. A-2213-18T1 4 recovery of "a little pouch" made of plastic hanging down defendant's torso from
a string connected to his shirt button, containing cocaine, heroin, and
prescription medication.4
On cross-examination, Burns acknowledged no marijuana was found in
the car or on defendant, and he could not pinpoint if the marijuana odor was
coming from defendant's person or inside the car. He also stated that he put his
head fully and partially inside defendant's car during his questioning of
defendant about unexpired insurance card.
Sheppard, a twelve-year veteran of the police department, confirmed his
phone call to Burns after hearing Burns' radio dispatch regarding defendant. He
testified he searched the interior of defendant's vehicle; finding no contraband
but "detect[ing] a faint odor of marijuana lingering inside the vehicle."
After hearing counsel's arguments, the motion judge reserved her decision
and allowed the submission of post-hearing briefs. Eight days later on April 26,
2018, the judge issued an order and rendered an oral decision denying
defendant's motion.
4 The pouch contained twenty-four grams of cocaine, twenty-six wax folds of heroin, seven Oxycodone pills of ten milligrams, and three Oxycodone pills of seven-and-a-half milligrams. A-2213-18T1 5 The judge determined the State proved by a preponderance of evidence
the warrantless search and seizure conducted by Burns and Sheppard was
constitutionally permissible. Her finding was based upon her assessment the
officers gave credible testimony because it was consistent with their police
reports and her viewing of the MVR during the hearing and later in chambers
when she was contemplating her decision.
Pointing to State v. Bernokeits, where this court recognized "[a] motor
vehicular violation, no matter how minor, justifies a stop without any reasonable
suspicion that the motorist committed a crime or other unlawful act[,]" the judge
found Burns had a right to stop defendant's car because of the headlight
violation. 423 N.J. Super 365, 370 (App. Div. 2011) (citations omitted). The
judge then determined Burns had the right under State v. Nishina, to search
defendant and his car based on his credible testimony that he smelled marijuana
from inside the car because "the smell of marijuana itself constitutes probable
cause 'that a criminal offense ha[s] been committed and that additional
contraband might be present.'" 175 N.J. 502, 515-16 (2003) (quoting State v.
Vanderveer, 285 N.J. Super. 475, 479 (App. Div. 1995)).
The judge rejected defendant's contention that Burns made an illegal
search of his car by putting his head inside the car which enabled him to
A-2213-18T1 6 allegedly smell the marijuana odor. Based upon her review of the MVR, she
determined there was no constitutional violation because Burns, who
approached defendant's car from the passenger's side to avoid traffic, "put[] his
head in and out of [the] car for the purpose of having a conversation with the
defendant and asking . . . defendant to — and giving . . . defendant the
opportunity, frankly, to produce [an unexpired insurance card] which he did not
seem to have."5 The judge commented further that at no time did she see Burns
"put his head into the car entirely to conduct a search of the car."
II
Our review of the trial court's decision on a motion to suppress is limited.
State v. Robinson, 200 N.J. 1, 15 (2009). "An appellate court reviewing a
motion to suppress evidence in a criminal case must uphold the factual findings
underlying the trial court's decision, provided that those findings are 'supported
by sufficient credible evidence in the record.'" State v. Boone, 232 N.J. 417,
425-26 (2017) (quoting State v. Scriven, 226 N.J. 20, 40 (2016)). We do so
"because those findings 'are substantially influenced by [an] opportunity to hear
and see the witnesses and to have the "feel" of the case, which a reviewing court
5 The judge's decision gave some attention to finding defendant's reliance on an unpublished decision was misplaced. Because unpublished decisions have no precedential value, Rule 1:36-3, we do not discuss the judge's reasoning. A-2213-18T1 7 cannot enjoy.'" State v. Gamble, 218 N.J. 412, 424-25 (2014) (alteration in
original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "The governing
principle, then, is that '[a] trial court's findings should be disturbed only if they
are so clearly mistaken that the interests of justice demand intervention and
correction.'" Robinson, 200 N.J. at 15 (alteration in original) (quoting State v.
Elders, 192 N.J. 224, 244 (2007)). "We owe no deference, however, to
conclusions of law made by trial courts in deciding suppression motions, which
we instead review de novo." State v. Brown, 456 N.J. Super. 352, 358-59 (App.
Div. 2018) (citing State v. Watts, 223 N.J. 503, 516 (2015)).
Applying the de novo standard of review to the motion judge's legal
conclusions, "[w]e review this appeal in accordance with familiar principles of
constitutional law." State v. Robinson, 228 N.J. 529, 543 (2017). "Both the
United States Constitution and the New Jersey Constitution guarantee an
individual's right to be secure against unreasonable searches or seizures." State
v. Minitee, 210 N.J. 307, 318 (2012) (citing U.S. Const. amend. IV; N.J. Const.
art. I, ¶ 7). Thus, searches and seizures conducted without a warrant "are
presumptively invalid as contrary to the United States and the New Jersey
Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004) (citing State v. Patino,
83 N.J. 1, 7 (1980)). As such, "the State must demonstrate by a preponderance
A-2213-18T1 8 of the evidence[,]" id. at 20 (quoting State v. Wilson, 178 N.J. 7, 13 (2003)),
that "[the search] falls within one of the few well-delineated exceptions to the
warrant requirement[,]" id. at 19-20 (alteration in original) (quoting State v.
Maryland, 167 N.J. 471, 482 (2001)). "Thus, we evaluate the evidence presented
at the suppression hearing in light of the trial court's findings of fact to determine
whether the State met its burden." Id. at 20.
The exception invoked in this case to justify the warrantless search is the
automobile exception to the warrant requirement. Pursuant to State v. Witt, 223
N.J. 409 (2015), officers may now conduct a warrantless, nonconsensual search
during a lawful roadside stop "in situations where: (1) the police have probable
cause to believe the vehicle contains evidence of a criminal offense; and (2) the
circumstances giving rise to probable cause are unforeseeable and spontaneous."
State v. Rodriguez, 459 N.J. Super. 13, 22 (App. Div. 2019) (citing Witt, 223
N.J. at 447-48). "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) (internal quotation marks omitted) (quoting Nishina,
175 N.J. at 515-16 (2003)). Thus, in the context of a warrantless automobile
search, the "smell of marijuana emanating from the automobile [gives] the
A-2213-18T1 9 officer probable cause to believe that it contain[s] contraband." State v. Pena-
Flores, 198 N.J. 6, 30 (2009) (citation omitted).
However, "[a] police officer must not only have probable cause to believe
that the vehicle is carrying contraband but the search must be reasonable in
scope." Patino, 83 N.J. at 10. In that regard, "[i]t is widely recognized that a
search, although validly initiated, may become unreasonable because of its
intolerable intensity and scope." Id. at 10-11 (citing Terry v. Ohio, 392 U.S. 1,
19 (1968)). Thus, "the scope of the search must be 'strictly tied to and justified
by' the circumstances which rendered its initiation permissible." Terry, 392 U.S.
at 19 (quoting Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 310 (1967)
(Fortas, J., concurring)).
Defendant maintains there was no reasonable suspicion of criminal
activity to warrant the search of his person and car. He specifically asserts
"Burns' suspicion of criminal activity [was] entirely absent of objective facts of
criminal behavior to justify the warrantless detention of [him]." Defendant
contends Burns' observation of "the pack of . . . cigars that he associates with
'somebody that’s smoking marijuana," caused him to have a "hunch" defendant
had smoked marijuana. Defendant contends "Burns attempts to justify his
detection of the odor of marijuana upon his second interaction with [defendant]
A-2213-18T1 10 because [defendant] was no longer smoking a cigarette." He contends "Burns'
. . . smell of marijuana can []only be considered a subjective hunch because there
was no observation indicative of the same[,]" since "[t]here was no marijuana."
The motion judge found that based upon the officers' credible testimony
and their reports, and the MVR, there was probable cause to search defendant
and the interior of his car under the "plain smell" doctrine following an
unchallenged motor vehicle stop due to an inoperable headlight. Defendant has
not persuaded us to adopt his interpretation of the facts and dismiss the judge's
findings. Under our deferential standard of review, we are satisfied the judge's
factual findings are based upon credible evidence in the record and we will not
disturb them. We further conclude the judge properly applied those facts to the
law governing warrantless searches following the probable cause stop of
defendant for a motor vehicle violation.
Affirmed.
A-2213-18T1 11