On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Hunterdon County, Indictment No. 08-09-00205-S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Ashrafi.
Defendant Ricardo Webb and co-defendant Brian Bennett were charged in a two count indictment with two second-degree offenses: money laundering, N.J.S.A. 2C:21-25(a) and N.J.S.A. 2C:2-6, and conspiracy, N.J.S.A. 2C:5-2. The two were stopped for a traffic violation when the police noted the odor of raw marijuana. Arresting the defendants, the police searched the vehicle and its contents without a warrant. The trial court granted defendant's motion to suppress the evidence seized in the warrantless search. By leave granted, the State appeals, arguing the search was proper, and exigent circumstances were presented so that the warrantless search falls within the automobile exception to the warrant requirement. We disagree and affirm.
The facts were elicited from the arresting officer, who was the sole witness testifying at the suppression hearing. The times of the various events stated below were taken from a video, recorded by a dashboard mounted motor vehicle recorder in the patrol car. The video tape was admitted into evidence.
On May 5, 2005, Patrol Corporal Joseph Greco of the Readington Township Police Department, while working the 6:00 p.m. to 6:00 a.m. night shift, responded to a central dispatch radio call from a citizen who reported an erratic driver in a white Chevrolet Suburban with a New York license plate traveling west on Route 202, then turning southbound onto Old York Road. When Greco received the call at 2:20 a.m., he was approximately 200 yards from that intersection and immediately proceeded to the area. He saw a white Suburban turning east from Old York Road onto Pleasant Run Road. When Greco pulled out, the Suburban "accelerated very quickly." Greco was driving sixty miles an hour in an effort to cut off the Suburban and effectuate a stop. The posted speed limit on rural, residential Pleasant Run Road is twenty-five miles per hour.
Greco stopped the Suburban, approached the driver, later determined to be defendant, and requested he produce his credentials. Greco testified, "As soon as [defendant] opened up the window, I smelled marijuana, raw marijuana, coming from inside the car. It was really strong."
Greco radioed for back-up, which arrived at 2:32 a.m. That evening, three police officers, including Greco, were on duty in Readington Township. The other two duty officers, Sergeant Campbell and Patrolman Corsentino, responded to Greco's request.
Greco told defendant he smelled marijuana and asked if there was marijuana in the car. Defendant said no and was asked to step out of the car to the front of the vehicle, where the officers read him his Miranda*fn1 rights. Greco then approached Bennett, the passenger, asked him to step to the rear of the car and queried what he knew about marijuana in the vehicle. Bennett did not respond and also, was read his rights.
Defendant and Bennett were detained and standing behind the Suburban when Greco began to search the interior of the vehicle. In the back seat, Greco found "a backpack filled with cash[,]" which he seized at 2:39 a.m. The sum seized was $104,990. Patrolman Corsentino handcuffed defendant and Greco handcuffed Bennett. The two were arrested and placed in separate patrol cars. The officers continued to search the vehicle and its contents.
Greco called the canine unit requesting a trained drug-sniffing dog. Sergeant Izzo, Readington's on-call detective, arrived at 3:22 a.m. and Sheriff's Officer Pino arrived with the county canine at 3:59 a.m. Pino requested the backpack be returned to the back seat of the Suburban. The canine reacted to the backpack; however, no marijuana was found in defendant's vehicle. The Suburban was impounded, and the defendants were taken to the police station for processing at 4:24 a.m.*fn2 Neither Greco nor the two back-up officers applied for a search warrant.
In a written opinion, the trial court concluded the evidence must be suppressed. The court considered the totality of the circumstances, in light of the three-pronged test set forth in State v. Peña-Flores, 198 N.J. 6, 28 (2009). The court found the State had not shown the impracticality of obtaining a warrant and, therefore, had not satisfied the necessary exigent circumstances justifying a warrantless search of defendant's vehicle.
We granted the State's motion for leave to appeal. The State argues the trial court erred in suppressing the seized evidence as the automobile exception to the warrant requirement ...