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State v. Vanderveer

November 27, 1995


On appeal from Superior Court of New Jersey, Law Division, Monmouth County.

Approved for Publication November 27, 1995.

Before Judges Shebell, Wallace and Newman. The opinion of the court was delivered by Newman, J.A.D.

The opinion of the court was delivered by: Newman

The opinion of the court was delivered by NEWMAN, J.A.D.

On leave granted, the state appeals from an order of the Law Division granting defendant Theodore Vanderveer's motion to suppress. We reverse.

The relevant facts developed at the suppression hearing may be summarized as follows. On August 5, 1993, Sheriff's Officers John McDonald and Chris Fagan were executing an arrest warrant for N.R. of 1215 Monroe Avenue, Asbury Park. That warrant had been issued by a Superior Court Judge in connection with a failure to pay child support. At approximately 7 p.m., the officers pulled up in an unmarked vehicle and parked one house away from the Monroe Avenue address. While sitting in their unmarked vehicle, Officer McDonald observed N.R. on the front porch at 1215 Monroe Avenue, identifying him from a photo attached to the arrest warrant. Another individual was observed on the porch, later identified as defendant.

The two officers left the vehicle. Two young women were standing near the curb, eight to twelve feet from the porch of 1215 Monroe Avenue. The officers walked up to the porch, which had a number of steps. Officer McDonald advised N.R. he had a warrant for his arrest and that he was under arrest. While on the porch, Officer McDonald detected a strong odor of burnt marijuana. By prior training and experience, Officer McDonald was familiar with the distinctive odor of burnt and raw marijuana. The odor was only noticed while on the porch and the smell emanated from the area where defendant and N.R. were standing. The porch was approximately six to eight feet deep and fourteen to sixteen feet wide. No other individual had been observed near the porch.

N.R. was placed under arrest and searched. No contraband was discovered. No burnt marijuana or contraband was observed in the immediate area. Officer McDonald then patted down defendant, who was wearing military style camouflage pants and had several items in each pocket. After the pat-down, Officer McDonald requested that defendant empty his pockets. Defendant was observed to be shaking and nervous. While emptying his front left-hand pocket, defendant dropped an object to the floor of the porch. Officer McDonald retrieved the dropped tissue and unravelled it. It contained a folded-up dollar bill, which when unfolded by the officer, revealed two other pieces of paper that contained a white powdery substance. Based on the officer's training and experience, Officer McDonald believed the substance to be cocaine and placed defendant under arrest.

Defendant testified at the hearing. He stated that N.R., when told that he was going to be arrested on a warrant, asked if he could retrieve certain prescribed medication in his residence. According to defendant, both officers accompanied N.R. into the residence. While they did so, defendant went to his car, which was parked in front of the officers' vehicle, to get a cigarette. He returned to the porch. The officers left the residence and put N.R. in the police vehicle. Defendant was told that a report had been received complaining of marijuana smoking in the area. Based on that call, the Sheriff's officer searched defendant.

Officer McDonald testified on rebuttal that the Sheriff's officers did not receive dispatches concerning complaints of criminal activity when assigned to the warrant squad and in the process of serving warrants.

The motion Judge, implicitly accepting the testimony of Officer McDonald, granted the motion to suppress. The motion Judge concluded that the odor of burnt marijuana in the open air, not confined to a motor vehicle, did not provide probable cause to conduct a search. We disagree.

Probable cause is a well-founded suspicion that a criminal offense has been or is being committed. State v. Burnett, 42 N.J. 377, 201 A.2d 39 (1964). It is more than bare suspicion but less than legal evidence necessary to convict beyond a reasonable doubt. State v. Waltz, 61 N.J. 83, 87, 293 A.2d 167 (1972). Whether probable cause existed is to be determined by the objective reasonableness standard. State v. Bruzzese, 94 N.J. 210, 219-221, 463 A.2d 320 (1983), cert. denied 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2nd 695 (1984).

In State v. Judge, 275 N.J. Super. 194, 201, 645 A.2d 1224 (App. Div. 1994), we recognized that the odor of burnt marijuana gave rise to an inference to lead a police officer of ordinary prudence and experience to entertain a strong suspicion that additional contraband was present. In Judge, the odor of burnt marijuana emanated from an automobile. See also, State v. Guerra, 93 N.J. 146, 150, 459 A.2d 1159 (1983) (Strong odor of raw unburned marijuana that could not have emanated from small suitcase in an automobile's interior provided probable cause to state police to search trunk for evidence of contraband.)

We discern no basis to draw a distinction between an automobile and the limited area of an open porch to a private two-family residence measuring eight by sixteen feet. What we said in State v. ...

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