How much of my car can the police search if they pull me over and smell marijuana?
How much of my car can the police search when they pull me over and smell weed? Can they rip my car apart???
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
The appellate division answer this question on December 12, 2017 in State v. Houston.The issue: did the search of your car once you were arrested at the scene “transcended all bounds of reasonableness“? When the officer, unsuccessful to that point in uncovering additional contraband, commenced interfering with the structural integrity of the vehicle itself, the search he was conducting transcended all bounds of reasonableness.”???
Here are the facts of the case:
New Jersey State Police (NJSP) Detective Joseph Palach and Trooper Frederick Peters were on patrol in Newark when they spotted defendant’s car, a Cadillac SUV, make a turn into the parking lot of a housing complex without signaling. As the car turned, Palach observed the windows were tinted. Defendant parked the car in a legal parking spot, and the officers conducted a motor vehicle stop for the observed motor vehicle infraction.
Palach approached the car and observed defendant was not wearing a seat belt. He also detected the smell of burnt marijuana once defendant lowered the window. The officers removed defendant from the car and placed him under arrest after a search of his person produced five prescription Endocet pills, along with a large sum of money. Defendant was placed between the officers’ car and his own, and Palach began to search the vehicle’s passenger compartment, as other officers, including NJSP Detective Christopher Durning, arrived. Palach found a “half-smoked marijuana cigarette” in the ashtray and detected the odor of raw marijuana. He opened a backpack that was on the back seat, behind the driver’s seat, and found two Tupperware containers of marijuana, a digital scale and a plastic bag containing other smaller plastic bags. Palach also found a bottle in the backpack containing seventy-one Endocet pills similar in nature to those found on defendant.
In addition, two baby bottles were found in the “driver’s side front seat pocket sleeve.” Defendant admitted these contained promethazine with codeine, a prescription legend drug. Defendant acknowledged that he “paid for” the vehicle, although it was legally owned by his sister.
After noticing the dashboard air vents “did not line up” properly, Palach “popped out [the cover] from the dashboard” and shone his flashlight into the space. He found a .40 caliber handgun. Meanwhile, Durning was in the rear area of the vehicle. He removed plastic paneling above the rear wheel well and found two packages of marijuana in a “void.” The officers took defendant from the scene and his car was towed.
The motion judge found Palach’s credibility “waned on multiple occasions on cross-examination,” and that his testimony was “less credible.” She found that Durning was credible, and she discounted Peters’ testimony because he denied seeing the critical elements of the search while he guarded defendant.
Case law review of the “reasonableness of any search” of a car at a motor vehicle stop:
As we see it, the question is whether the search exceeded the permissible scope pursuant to the automobile exception. We acknowledge that the Witt Court did not specifically address the issue, and the law seems somewhat unsettled.
Clearly, once probable cause is established, police may search the passenger compartment of the vehicle. In Witt, supra, 223 N.J. at 416, after arresting the defendant for driving while intoxicated, police searched for intoxicants and found a gun in the center console of the car. In Alston, 88 N.J. at 216- 17, after seeing shotgun shells in the glove compartment when the defendant opened it to retrieve his credentials, police returned to the car, seized the shells, and three other weapons — a sawed- off shotgun in a bag under the passenger’s seat, a revolver in a holster under the front seat, and a revolver secreted in the backseat. The Court concluded that under the circumstances presented, the detectives had “probable cause to search the passenger compartment.” Id. at 232.
The law seems relatively settled regarding closed containers found in the passenger compartment. See Kevin G. Byrnes, N.J. Arrest, Search & Seizure § 17:2-3 at 457 (2017-18) (“Seizure of luggage and other sealed containers from an automobile subject to a warrantless search under the automobile exception is normally allowed.”). One case the State relies on for support is Esteves. There, police were dispatched to investigate the possible robbery of a store and, after confirming none had occurred, observed a handgun between the front seats of a car parked nearby. 93 N.J. at 501. Attempting to find the owner of the car, police questioned the defendant and his compatriot as they left the store. Ibid. Defendant’s compatriot having admitted ownership of the car, the defendant offered to obtain his identification from the vehicle and his compatriot/owner gave one officer the keys. Ibid. Police opened the door and seized the gun, which was a starter’s pistol, and began to search the car for identification. Id. at 502. They found drugs in a film canister in the compatriot’s shaving kit, and more drugs in the defendant’s knapsack. Ibid.
Applying the automobile exception, id. at 505, the Court concluded police had probable cause to search for weapons “given that they were investigating a weapons offense, and had already discovered what appeared to be a weapon.” Id. at 506. Additionally, the Court considered a “second factor,” namely “[l]egitimate precaution [that] justifies routine police procedures not designed as pretexts to discover evidence.” Ibid. The Court explained:
We are satisfied that probable cause existed for the officers to search the car and to take reasonable precautions for their own safety. They had been advised of a possible robbery and had seen what appeared to be a pistol in the car. When, in addition, neither [defendant] could produce satisfactory identification, the police had a sufficient basis to search the automobile for weapons or to obtain identification. Nor was the extent of the search unreasonable. The scope of a warrantless search of an automobile is defined by the object of the search and the places where there is probable cause to believe that it may be found. Under these circumstances, the police had probable cause and therefore a right to search as they did. They found no other weapons or satisfactory identification in the front or in the glove compartment. The shaving kit could reasonably have contained either weapons, shells or I.D., and so the police had the right to check it. In doing that they came upon the pills in the foil packet in the film container and two other pills in the bottom of the kit. [Id. at 507-08 (citations omitted) (emphasis added).]
Regarding the knapsack, the Court cited United States v. Ross, 456 U.S. 798, 824, 102 S. Ct. 2157, 2172, 72 L. Ed. 2d 572, 593 (1982)), decided after the search in the case, and explained in a footnote “that once probable cause exists to search the interior of a motor vehicle, the police may search every part of the vehicle, including containers, in which there is probable cause to believe that the object of the search may be found.” Esteves, supra, 93 N.J. at 508 n.3.
Despite this clear statement, we used a different rationale to justify a warrantless search of the defendant’s gym bag in State v. Judge, 275 N.J. Super. 194 (App. Div. 1994). There, we concluded that police had probable cause to search the defendant’s automobile based upon the smell of burnt marijuana. Id. at 202. However, Judge, later Justice, Coleman writing for the panel found a different basis upon which to permit the search of the contents of a gym bag found on the rear seat, namely, that it was a search incident to a lawful arrest. Id. at 205.
The State argues that in this case, the extensive search was permissible because the troopers possessed sufficient probable cause to search behind the wheel well panels and air vents. It relies upon State v. Guerra, 93 N.J. 146 (1983). There, police observed a motor vehicle violation, stopped the car and detected a strong odor of raw marijuana. Id. at 149. After the driver and passenger refused to consent to a search, police took them and the car to the police station. Ibid. Police applied for and obtained a telephonic search warrant, and found nearly two hundred pounds of marijuana in the trunk. Id. at 149-50.
The Court affirmed the search even though the telephonic warrant was deficient. Id. at 152. It concluded that the police had probable cause to search the trunk because the strong smell of marijuana was not emanating from the passenger compartment or a small suitcase in the car’s interior. Id. at 150.
Guerra stands in contrast to State v. Patino, 83 N.J. 1 (1980). There, the police officer stopped a car and saw a small amount of marijuana on the floor next to the front seat. Id. at 5. A search of the passenger area revealed no other incriminating evidence. Id. at 6. After ordering the defendant to open the trunk, the officer found cocaine inside a shopping bag. Ibid.
Rejecting the State’s argument that the search of the trunk was justified under the automobile exception, the Court said: “A police officer must not only have probable cause to believe that the vehicle is carrying contraband but the search must be reasonable in scope. It is widely recognized that a search, although validly initiated, may become unreasonable because of its intolerable intensity and scope.” Id. at 10-11 (citations omitted) (emphasis added). The Court held: The State must produce facts which lead a trooper to conclude that the search of the entire vehicle was based upon probable cause. In this regard, the State failed to satisfy its burden. The presence of a small amount of marijuana, consistent with personal use, does not provide a trooper with probable cause to believe that larger amounts of marijuana or other contraband are being transported.[Id. at 13.] The Patino Court cited approvingly to our decision in State v. Murray, 151 N.J. Super. 300 (App. Div.), certif. denied, 75 N.J. 541 (1977). Id. at 11. In Murray, police observed a “roach clip” and vials of hashish after stopping the defendants’ van. Id. at 303-04. A search of the cab area produced no other evidence, but police removed the driver’s seat to access the area under a sink behind the cab. Id. at 305. They found an attaché case under the sink, used a knife to force its lock and found a large amount of hashish. Ibid. We concluded the officer’s search of the passenger portion and the rear of the van was justified. Id. at 306. We held, however, “that when the officer, unsuccessful to that point in uncovering additional contraband, commenced interfering with the structural integrity of the vehicle itself, the search he was conducting transcended all bounds of reasonableness.” Id. at 307 (emphasis added).
In any event, we conclude Witt cannot be read so broadly as to authorize the balance of the search in this case. In Witt, supra, 223 N.J. at 431-32, the Court recognized there was “a limited exigency to the warrant requirement” under the Alston standard, premised on “unforeseeability and spontaneity,” the inherent mobility of the vehicle and the unanticipated circumstances that led to probable cause. The Court recognized that the automobile exception applied only to “on-scene warrantless searches,” not based upon “fake exigencies,” and that officers who towed and impounded the car needed to secure a warrant before conducting a further search of the vehicle when practicable to do so. Id. at 449. The State’s argument would essentially ignore this cautionary language and adopt the federal standard that “probable cause to search a vehicle ‘alone satisfies the automobile exception to the Fourth Amendment’s warrant requirement.'” Id. at 422 (quoting Maryland v. Dyson, 527 U.S. 465, 467, 119 S. Ct. 2013, 2014, 144 L. Ed. 2d 442, 445 (1999)). The Witt Court rejected such an approach. In short, we conclude that the automobile exception did not authorize the troopers to remove the wheel well panels and air vents — to engage upon a search that “transcended all bounds of reasonableness,” Murray, supra, 151 N.J. Super. at 307. None of the cases cited by the State authorizes such conduct. We reverse that portion of the order that suppressed the evidence seized from the backpack found on the rear seat of defendant’s car; we otherwise affirm the order.