On appeal from Superior Court, Law Division, Warren County.
Before Judges J.h. Coleman and Thomas.
The opinion of the court was delivered by COLEMAN, P.J.A.D.
This is an appeal by the State from an order suppressing evidence seized from an automobile. The issue raised is whether the smell of burnt marijuana, by a trained and experienced State Trooper, emanating from the passenger compartment of a legally stopped motor vehicle, created probable cause to believe that a violation of law had been or was being committed. The Judge found probable cause was not established. We disagree and reverse.
The essential facts are not in dispute. On March 24, 1992, New Jersey State Troopers Acevedo and Fortunato operated a stationary radar on Interstate 78, in Pohatcong Township. At 12:36 a.m., a motor vehicle operated by defendant was clocked on radar traveling at 67 miles per hour in a 55 mile per hour zone. Based on the radar reading, defendant's vehicle was pursued and stopped for speeding. While the vehicle was parked on the shoulder of the highway, Trooper Acevedo approached the driver's side as Trooper Fortunato approached the passenger side. Each trooper was using a flashlight for illumination. The vehicle contained two passengers: James Francis was in the front seat and Rodolfo Avalos was in the rear seat.
Defendant opened the driver's window, and Trooper Acevedo informed the occupants why the vehicle had been stopped. As he stood beside the opened window waiting for defendant to produce his driver's license and registration, Trooper Acevedo "detected the odor of burnt marijuana." He relied on his training and experience in identifying the odor. After smelling the odor of burnt marijuana, Trooper Acevedo ordered defendant-driver to exit the vehicle. The defendant was searched "looking for the source of the burnt marijuana." No contraband was found on his person.
Francis was then directed to exit the vehicle and he, too, was searched by Trooper Acevedo while Trooper Fortunato was with defendant at the rear of defendant's vehicle. A metal smoking pipe containing burnt marijuana residue was found in Francis's right front pocket. Avalos was also directed to exit the vehicle and he was searched. A metal smoking pipe shaped like a cigarette was seized from his shirt pocket by Trooper Acevedo. It also contained marijuana residue.*fn1
After the three occupants were removed from the vehicle and searched, Trooper Acevedo returned his focus to the vehicle. A small plastic bag containing greenish-brown vegetation was found in plain view on the console. Two partially smoked marijuana cigarettes were also in plain view on the console. Trooper Acevedo then opened a gym bag found on the back seat and seized a large plastic bag which contained two smaller bags of suspected marijuana. Defendant admitted the gym bag belonged to him. Shortly thereafter, defendant signed a consent to search the trunk of the vehicle. A tan gym bag found in the trunk contained six plastic bags of suspected marijuana. A scale was found in the gym bag as well. Neither of the occupants admitted ownership of the tan gym bag or its contents. Defendant was under the continuous observation and supervision of Trooper Fortunato during the entire search of the passengers and the motor vehicle.
Defendant was issued a summons for speeding, failing to keep to the right, and possession of marijuana in a motor vehicle. He was also charged with possession of more than fifty grams of marijuana, and possession of a scale as drug paraphernalia. Subsequently, he was indicted for fourth-degree possession of marijuana, N.J.S.A. 2C:35-5(b)(11), and third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1).
State Trooper Acevedo testified that he could not determine how long prior to the stop, marijuana had been smoked which created the odor of burnt marijuana he smelled. He was asked by the Judge:
THE COURT: Well, in other words, I -- from what you smelled on this occasion -- was what you smelled -- were you able to determine whether it had been recent -- was it the smoke of recently smoked marijuana, or was it just a stale odor in the car?
THE WITNESS: I don't believe it can really be distinguished, unless it was just burned at that time ...