On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-08-1252.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 2, 2009
Before Judges Lisa and Reisner.
By leave granted, the State appeals from a trial court order dated April 25, 2008, granting the defendants' motion to suppress evidence seized during a search of their car. Defendant Vernett Shaw cross-appeals, also by leave granted, from the denial of his motion to suppress evidence seized during a search of his person following his arrest. We affirm the trial court's order suppressing evidence found during the vehicle search. We remand for reconsideration of Shaw's suppression motion concerning the search of his person.
Defendants were arrested on February 24, 2007, after the State Police found marijuana in a car driven by defendant Green and in which defendant Shaw was a passenger. Following their arrest, they were taken to the State Police barracks, where a search of Shaw's person also revealed a small quantity of marijuana hidden in his socks. Defendants moved to suppress the evidence.
At the suppression hearing, the State presented one witness, the State Trooper who first stopped defendants' automobile. The State also presented a videotape of the stop, recorded from the trooper's vehicle.
On direct examination, Trooper Lewis Locchetto testified that on February 24, 2007, he was patrolling the Turnpike on the night shift, from 6:00 p.m. to 6:00 a.m. At about 9:40 p.m.,*fn1 he was driving down a specially-designated entrance ramp leading from the barracks to the southbound Turnpike when he observed defendants' car tailgating another vehicle in the far left lane of the Turnpike. Believing that defendants' vehicle was being driven in an unsafe manner, Locchetto waited for the vehicle to move into the center lane, and then signaled defendants' car to pull over by activating his overhead lights. After "about a minute and a half," defendants' vehicle pulled over onto the right shoulder of the Turnpike, at a point about "a mile and a half" from the State Police barracks and not far from Turnpike Exit 4. According to Locchetto, it was dark out and the traffic was "light."
Locchetto approached the passenger side of the car, using his flashlight to look for possible weapons in the car and also looking for places where drugs might be hidden. He signaled the passenger to roll down his window, and, as soon as the window was open, the trooper "immediately" detected a "very strong" odor of raw marijuana. After obtaining the driver's license and registration, and further visually inspecting the car's interior through the open window, the trooper "got the driver out of the vehicle" and searched him "for CDS."
Locchetto also called for back-up officers, based on the strong smell of marijuana coming from the car. After searching the driver, Locchetto secured him in the back seat of his patrol car. He then approached the passenger, removed him from the vehicle and searched him as well. At that point, the trooper told the passenger that he "smelled the odor of raw marijuana in the car" and advised him that "I'm gonna search you and I'm gonna search the car." The trooper then secured the passenger in the rear of the patrol car, while he waited for back-up to arrive. Neither defendant was handcuffed at that point, although they were both placed in the back of the patrol car "for [the trooper's] safety."
During this entire time, including while the passenger was alone in defendants' car, the trooper left the key in the ignition of defendants' car and left the engine running. He testified that it was part of his training to leave the heat or air-conditioning on in a suspect vehicle, because sometimes marijuana is hidden in the vents and the flowing air would assist the troopers in detecting the smell. Two back-up troopers arrived at about 10:00 p.m. and at that point, without seeking a search warrant, Locchetto and Trooper Howell began searching defendants' car.*fn2 Locchetto and Howell initially found a small amount of marijuana in the front of the car, after which they returned to Locchetto's patrol car, handcuffed the two defendants, and formally placed them under arrest.
According to Locchetto, even with the doors open to the night air and even after the small amount of drugs was removed, the car continued to emit a strong smell of raw marijuana. They continued their search and eventually found a much larger package of marijuana hidden in the trunk. The troopers also suspected that drugs might be hidden in the console. Accordingly, during the search which lasted about forty minutes, Locchetto took the time to telephone, from the roadside, a "fellow trooper in Maryland who knows about center consoles and traps. And I asked him questions about that." Acting on this trooper's advice, he continued the search but found no drugs in or around the console.
On cross-examination, defense counsel asked the trooper about his "understanding of the procedure of the State Police of New Jersey in obtaining a warrant to search an automobile?" The trooper explained that "during a roadside stop, when you smell the odor of raw marijuana and/or burnt marijuana, you can search that car" without a warrant. Accordingly, neither Locchetto nor either of the two backup officers considered the possibility of applying for a search warrant. Asked if he felt "in danger" at any time during the search, he responded that his backup was "20 miles away" and until they arrived, he secured defendants in the rear of his patrol car for his own safety and to prevent them from possibly destroying evidence inside their vehicle. However, he did not start to search the car until the backup officers arrived, fifteen to twenty minutes later. He did not think of calling for a warrant during that hiatus "because that's not our procedure."
Asked again if he felt "in . . . danger, that the search had to be done right then and there," he responded that one is "always in danger with the traffic going by." However, he also admitted it was a rural section of the Turnpike, traffic was light, and the officers were searching the car "for about an hour" on the side of the highway. When asked why they did not have the car towed to the State Police barracks and searched there, he responded "that's not what we do."
In arguing the suppression motion, the defense contended that the State had not presented evidence of exigent circumstances to justify the warrantless search, as required by State v. Dunlap, 185 N.J. 543 (2006), and State v. Cooke, 163 N.J. 657 (2000). They also contended that the State Police policy to never apply for a warrant, telephonic or otherwise, was contrary to well-established case law. Further, they argued that the manner in which the troopers conducted their search demonstrated that they had no real safety concerns about spending extended amounts of time on the shoulder of the Turnpike, and they were not "even thinking of exigent circumstances." Based on State v. Birkenmeier, 185 N.J. 552 (2006), and prior cases, the State argued that the fact of a "roadside stop" always provides the necessary exigent circumstances to justify a warrantless search.
In a lengthy oral opinion placed on the record immediately after the hearing, the trial judge concluded that the State had failed to prove exigent circumstances so as to justify searching the car without a warrant. Based on a detailed review of the facts before her, the judge's analysis contrasted the theoretical reasons for allowing warrantless roadside ...