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State v. Mandel

Superior Court of New Jersey, Appellate Division

June 6, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
STEPHEN MANDEL, Defendant-Appellant.

          Submitted May 30, 2 018

          On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 16-067.

          King, Kitrick, Jackson & McWeeney, LLC, attorneys for appellant (Michael D. Schaller, on the brief).

          Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

          Before Judges Carroll, Mawla and DeAlmeida.

          OPINION

          CARROLL, J.A.D.

         Defendant Stephen Mandel appeals the denial of his motion to suppress evidence seized as the result of a warrantless search of his vehicle. Defendant was charged with possession of less than fifty grams of marijuana in violation of N.J.S.A. 2C:35-10(a)(4). After his motion to suppress was denied, defendant entered a conditional guilty plea in Howell Township Municipal Court. On de novo review, the Law Division judge again found the search valid.

         The pertinent facts are as follows. Howell Township Police Officer David Gilliland stopped defendant's vehicle after he observed it traveling in front of him with dark tinted windows. Gilliland approached the passenger side of the vehicle and conversed with defendant through the open passenger side window. Gilliland asked defendant to produce his driver's license, and inquired about his driving record. During this exchange, Gilliland leaned his head into the open passenger side window in order to better hear defendant's responses over the noise of the passing traffic. While speaking to defendant, Gilliland smelled the odor of marijuana coming from inside the vehicle.

         Gilliland informed defendant he smelled marijuana. Based on this observation, Gilliland searched the car and found a small quantity of marijuana under the passenger seat. Defendant was charged with the disorderly persons offense of marijuana possession, N.J.S.A. 2C:35-10(a)(4), and improper safety glass, N.J.S.A. 39:3-75.

         Defendant filed a motion to suppress the marijuana in the Howell Township Municipal Court. Gilliland was the sole witness to testify at the motion hearing. He explained that, after stopping the vehicle, he approached it on the passenger side, for safety reasons, to speak with defendant. He asked defendant to roll down the passenger window and produce his driving credentials. Gilliland "began to speak with [defendant] about the violation and began to detect the odor of marijuana emanating from the interior compartment of the vehicle." Due to the noise from the passing traffic, Gilliland leaned into the open passenger window in order to hear defendant's responses to his questions. Gilliland admitted his head "broke the plane" of the passenger's window when he momentarily leaned inside. He stated he could not recall whether he first smelled the marijuana odor before or after he leaned into defendant's vehicle.

         The municipal court judge credited Gilliland's testimony, finding it "reasonable" and devoid of "inconsistent statements." During his testimony, the police motor vehicle recording (MVR) video of the traffic stop, captured by a camera mounted in Gilliland's vehicle, was played. The judge found that the MVR showed Gilliland "could not have had his body in [defendant's vehicle] a tremendous amount, " and that any intrusion was limited to "part of his head" for "literally . . . seconds."

         Noting the minimal physical intrusion into defendant's vehicle, the reasonableness of Gilliland's explanation for doing so, and the "plain smell" doctrine, the municipal court denied the motion to suppress. Defendant then entered a conditional guilty plea to the marijuana charge, [1] preserving his right to seek de novo review in the Law Division. The municipal court sentenced defendant to pay $33 in court costs, $50 to the Violent Crimes Compensation Board, $75 to the Safe Neighborhood fund, a $500 Drug Enforcement Demand Reduction penalty, and a $50 lab fee.

         Defendant appealed the denial of his motion to suppress to the Law Division. Defendant argued the marijuana evidence should have been suppressed because probable cause for the search was furnished only after Gilliland impermissibly intruded into defendant's vehicle by leaning his head through the passenger window.

         The Law Division judge determined that Gilliland's placement of his head through defendant's passenger window constituted a search. However, the judge concluded the search was reasonable because "credible evidence on this record reveals that the officer placed his head ...


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