On Appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by O'Brien, J.A.D.
[197 NJSuper Page 185] Pursuant to leave granted, the State appeals from an interlocutory order of the trial judge which requires police officers to
submit their olfactory senses to examination and to participate in an experiment (or series of experiments) to test their olfactory senses. We reverse.
The home of defendants Jay Robert and Terri Rasch (Rasch) had been under surveillance as a site of a suspected drug operation. On January 27, 1984, police officers followed a vehicle which they observed leave the driveway of the Rasch residence. Noting that it was exceeding the posted speed limit and weaving across the center line, they stopped the vehicle. The car was driven by its owner, defendant Anthony Bucci (Bucci), and was occupied by a passenger, Charlotte A. Hart (Hart).
Allegedly one of the officers smelled a strong odor of marijuana coming from the interior of the vehicle. The driver was asked to step out of the vehicle and was searched. A clear plastic bag containing a small quantity of marijuana and a small vial containing a white residue were found in his right hand. Bucci was placed under arrest for possession of controlled dangerous substances.
A search of the car's interior revealed another vial containing a white powder residue and the remains of burned marijuana cigarettes in the ashtray. There was still a strong odor of unburned marijuana coming from the interior of the car. The passenger Hart who, according to the police report, "now had permission to drive the vehicle and who does drive the vehicle on a daily basis," consented to a search of the trunk of the vehicle. Allegedly she had been advised that she had the right to refuse but she denies that. A green plastic trash bag containing five one-pound bags of marijuana was found in the trunk. Hart was then also placed under arrest.
After being advised of their Miranda rights, both Hart and Bucci gave statements to the police. Bucci told the police officers that the marijuana had been purchased at the Rasch residence for $650 a pound. Based upon the statements from Bucci and Hart, a warrant was obtained for the search of the
Rasch home. As a result of that search, drugs, drug paraphernalia and explosive devices were found on the premises.
The Raschs were indicted for possession of a variety of destructive devices, failure to report possession of explosives, possession of and possession with intent to distribute a variety of controlled dangerous substances and possession of a prohibited weapon. Bucci and Hart were indicted for possession of and possession with intent to distribute controlled dangerous substances. All proceedings relating to Hart were adjourned upon her entry into the pretrial intervention program.
The Raschs and Bucci filed motions to suppress the evidence seized. They also moved for a form of discovery which led to entry of the ...