Submitted May 30, 2 018
appeal from Superior Court of New Jersey, Law Division,
Monmouth County, Municipal Appeal No. 16-067.
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).
Judges Carroll, Mawla and DeAlmeida.
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.
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.
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.
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
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."
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,
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.
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
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 ...