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State v. Tibby

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 28, 2007

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
PAUL O. TIBBY, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-09-0897.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 6, 2007

Before Judges Winkelstein and Fuentes.

By leave granted, the State appeals from the order of the trial court suppressing a bag of marijuana found inside the trunk of defendant's car. The court found that the initial motor vehicle stop was lawfully made upon probable cause, and that defendant (the driver) and his passenger were properly arrested for possession of a separate bag of marijuana found inside the passenger compartment of the vehicle.

The court held, however, that the police needed to obtain a warrant to search the car's trunk, because the police had taken possession of the car through impoundment, thereby negating the exigent circumstances ordinarily associated with the mobile nature of motor vehicles. The motion judge made the following findings in support of his ruling.

On June 30th [2006], in the Township of Berkley Heights, at about 4:10 p.m. Officer DeSimoni stopped a vehicle being driven by Mr. Tibby. There was an individual in the passenger seat named Zion Roach, who gave his name as Devine Zion to the police initially. The officer had previously observed the vehicle, that the passenger was not wearing a seat belt.

Upon approach to the vehicle, the officer observed a strong odor of raw marijuana, observed a bag with a green leafy substance, a clear plastic bag with a green leafy substance in it at the feet of the driver. While the officer moved around to the other side to speak to the passenger, that [ ] bag was no longer in view. The officer suspected that it was marijuana.

The passenger was taken out of the vehicle. The driver was still in the vehicle. The officer reached underneath the seat, pulled that plastic bag out that he believed had been secreted there and pushed further back, and his suspicions were further confirmed by those closer observations. Mr. Tibby was then taken out of the vehicle and brought to the back of the vehicle.

Both defendants were given Miranda warnings, handcuffed after a pat down search. Officer DeSimoni then went back in the vehicle through the passenger side, went toward the back seat. He smelled a stronger odor of marijuana, pushed down the top of the back seat and was able to get an even greater aroma of raw marijuana, then opened the back seat, saw a bag, investigated, looked inside the bag and found what he believed what was later determined to be one-half pound of marijuana.

Based on these findings, the court held that the State had "ample time to apply for a warrant once [the car] had been in police custody."

Accepting the motion judge's factual findings, and in light of prevailing legal standards, we reverse. In State v. Dunlap, 185 N.J. 543, 549 (2006), the Supreme Court reaffirmed the threshold test for the proper application of the automobile exception to the constitutional requirement of a warrant as a condition precedent to a lawful search: (1) the existence of probable cause; and (2) exigent circumstances. A determination of these elements requires a fact-sensitive analysis.

In State v. Birkenmeier, 185 N.J. 552, 556 (2006), the police, acting on a tip from an informant, stopped defendant's car. As they approached the car, the police detected a strong odor of marijuana and observed a laundry tote bag on the front passenger seat of the car. Ibid. The Court in Birkenmeier held that these facts "sufficed to provide the probable cause and exigent circumstances needed for the invocation of the automobile exception and the ensuing search of the passenger compartment of defendant's car." Id. at 563.

Finally, in State v. Alston, 88 N.J. 211, 233 (1981), our Supreme Court incorporated the principle articulated by the United States Supreme Court in Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed. 2d 419, 426 (1970):

[T]here is "no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment."

Here, as the motion judge found, the police had probable cause to search the interior of the car based on the strong odor of marijuana, which increased in intensity as the officer got closer to the backseat hatch that provided limited entry to the car's trunk. Under these circumstances, the officer's use of this entry portal to access the bag of marijuana was lawful.

The fact that the car had been rendered immobile as a consequence of the arrests of its occupants, did not detract from the inherent exigency associated with the automobile stop.

Reversed and remanded.

20070628

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