On certification to the Superior Court, Appellate Division.
For reversal -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock and O'Hern. For affirmance -- None. The opinion of the Court was delivered by Handler, J.
This case raises the issue of whether police who, upon lawfully stopping an automobile, detect a strong odor of raw unburned marijuana emanating therefrom, may remove the vehicle to police headquarters and then search the automobile after obtaining permission over the telephone from a judge to conduct such a search.
Under the facts of this case, we hold that the warrantless search of the automobile, including particularly its trunk and the packages found therein, was justified by probable cause and the "automobile exception" to the written warrant requirement, and therefore was constitutionally valid. We hold further that, although the telephone authorization to search was invalid in light of our decisions today in the companion cases of State v. Valencia, 93 N.J. 126 (1983) and State v. Apostolis, 93 N.J. 143 (1983), its invalidity does not otherwise affect the validity of the search of the automobile and its contents.
On March 20, 1979 at approximately 10:50 p.m., State Troopers Robert Rice and Eric Willhouse were patrolling the New Jersey Turnpike. They noticed a car travelling northbound with
its left taillight out and pulled the car over to issue a warning. The car had Michigan license plates and was driven by defendant Albert Guerra. There was also a passenger, John Mallon. Mr. Guerra produced a Rhode Island driver's license and the agreement under which the car had been rented in Florida the previous day. While interviewing Guerra as to why he, Guerra, and not Mallon, was driving the automobile as required by the rental contract, Trooper Rice detected a strong odor of raw unburned marijuana emanating from the interior of the car. He shined his flashlight into the car seeking to find the source of the odor. Trooper Rice saw only a small overnight suitcase which he concluded could not have been the source of the odor. Rice then informed Guerra and Mallon that he suspected that there was marijuana in the car. He sought their consent to open the trunk, but they refused. The two defendants and their car were then taken to the Moorestown State Police station.
At the suppression hearing the defendants offered a slightly different version of the facts. They claimed that Rice, upon approaching the car and asking for the driver's credentials, said that the car was "hanging low in the trunk" and that he wanted to look in the trunk. Guerra added that Rice commented to his partner Willhouse, "It looks like we got a load here." Mallon testified that on the trip to Moorestown he observed that the taillights of the rented car were working.
At the station the defendants were confined to the reception area while the officers sought a telephonic search warrant. At that time Rice handed Guerra a warning for a defective taillight. Guerra testified that this marked his first knowledge of the defective light. At about 1:00 a.m., March 21, Rice called a Superior Court Judge in Salem County and asked for a warrant to search the car. The judge authorized the search over the telephone. At 1:35 a.m. Rice executed the warrant and opened the trunk of the car. Rice testified to seeing "white clear plastic bags" of marijuana. A moment later he described the package as being "white plastic." He added that when he sliced open the bags, he did not see any talc powder, which is often
used to disguise marijuana's odor. The three bales and three bags contained marijuana weighing a total of 176.5 pounds. Guerra and Mallon were then placed under arrest.
Defendant moved to suppress the evidence found in the packages, arguing that it was seized subject to an unlawful search. The court denied this motion. It found the warrantless search of the automobile trunk and its contents to be justified because the smell of "the marijuana, coupled with the vehicle riding low certainly constituted probable cause to search the trunk." Further, the court, applying the reasoning of Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), found that "if a warrantless search could have been made at the scene, it could have been made at the barracks." The Appellate Division in an unreported per curiam opinion reversed the trial court's denial of defendant's motion to suppress. It focused upon the telephonic search warrant and reasoned that insufficient grounds existed for its issuance in place of a written warrant. Therefore, the search of the packages in the vehicle's trunk conducted at the police ...