NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.
A-3705-17T2 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
A-3705-17T2 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. A-3705-17T2 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.
A-3705-17T2 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.
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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.
A-3705-17T2 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
A-3705-17T2 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. A-3705-17T2 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.
A-3705-17T2 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 . . .
A-3705-17T2 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.
A-3705-17T2 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
A-3705-17T2 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
A-3705-17T2 9 defendant's suppression motion, we discern no basis to disturb the trial court's
decision.
Affirmed.
A-3705-17T2 10