Before Judges Brochin, Eichen and Wecker.
The opinion of the court was delivered by: Brochin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 1999
On appeal from Superior Court of New Jersey, Law Division, Gloucester County.
Argued November 4, 1999 - Decided
Before Judges Brochin, Eichen and Wecker.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
After a jury trial, defendant Richard Gary Holland was convicted of possession of more than fifty grams of marijuana (N.J.S.A. 2C:35-10(a)(3)) and possession of more than one ounce but less than five pounds of marijuana with the intent to distribute it (N.J.S.A. 2C:35-5(a)(1)). He was sentenced to two years' probation conditioned on 100 hours of community service and to mandatory penalties totaling $1,175 and the suspension of his driver's license. He challenges the trial court's denial of his pretrial motion to suppress evidence against him on the ground that it was the product of an illegal, warrantless search. He also asserts that his sentence is excessive.
In a separate, unrelated case, defendant Michael Califano was charged with the disorderly persons offense of possessing fifty grams or less of marijuana (N.J.S.A. 2C:35-10(a)(4)). He moved before trial in the Manasquan municipal court to suppress the evidence against him on the ground that it was the product of an illegal, warrantless search. After the denial of his motion, defendant was admitted into the conditional discharge program and the conditions of the discharge were stayed pending appeal. On appeal, the Superior Court, Law Division, reaffirmed the denial of his motion. Mr. Califano challenges that ruling.
Mr. Holland's and Mr. Califano's cases were presented to us on two successive calendars. The only connection between them is that in each of the cases a policeman knocked on the exterior door of a residence because he smelled the odor of burning marijuana emanating from the residence and one or more policemen observed contraband when they entered the residence without a warrant. We have consolidated the two cases solely for the purpose of deciding them by this opinion because they both present similar legal questions.
The residence which the police entered in the Holland case is one of two adjoining duplex apartments. A Glassboro policeman responded to one of the two duplexes to assist an emergency ambulance crew. While he was on the porch that was common to the two units, he smelled a strong odor of burning marijuana coming from the other duplex apartment. A second Glassboro policeman also arrived to assist the ambulance crew. He, too, smelled marijuana. Two other policemen were summoned and came to the scene to help investigate the source of the odor of burning marijuana.
After the medical emergency had been dealt with and the ambulance had left or was about to leave, two of the police officers stationed themselves outside the back door of the apartment from which the marijuana smell was emanating. Two other policemen approached the front door. They stood on the front porch outside the door and one of them announced, "Glassboro police, could you open the door please." The policemen heard talking and laughing through the open window. One person, later identified as defendant, was seen going to a freezer toward the back of the house. He then ran out of the house through the back door *fn1 and was apprehended and placed under arrest. In reply to a question from the police, he confirmed that there was someone else in the house.
Two of the policemen then entered the house. Inside they observed various items of drug paraphernalia in plain view. While the police were on the first floor of the house, a man came down the stairs. The police detained him and took him outside. He told the police he was unsure whether there was anyone else in the house.
The police went upstairs. On the second floor, they saw a large number of glassine bags of various sizes, a scale, and green vegetable material which they suspected was marijuana. On the top floor, they saw a room that was fitted out for growing marijuana. On the way to the basement, they found a handgun case in plain view with a loaded gun inside. When they reached the basement, they found another room fitted out with a rotating light on a timer, irrigation lines, and growing pots to grow marijuana. They then opened the freezer to which they had seen ...