SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3954-18T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DANIEL T. KATZ,

Defendant-Respondent.

_____________________________

Submitted October 17, 2019 – Decided

Before Judges Gooden Brown and Mawla.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Monmouth 

County, Indictment No. 18-06-0790.

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for appellant (Carey J. Huff, 

Assistant Prosecutor, of counsel and on the briefs).

The Law Offices of Jonathan F. Marshall, and Helmer 

Conley & Kasselman, PA, attorneys for respondent 

(James Fagen and Patricia B. Quelch, of counsel and on 

the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

November 13, 2019
2

A-3954-18T3

By leave granted, the State appeals from the April 2, 2019 Law Division 

order granting defendant's motion to suppress evidence seized from his vehicle 

during a warrantless search following a motor vehicle stop. We affirm.

A Monmouth County grand jury returned a two-count indictment against 

defendant, charging him with fourth-degree possession of a controlled 

dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(3); and first-degree 

possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(10)(a). 

Defendant moved to suppress the CDS that formed the evidential basis for the 

charges. At the suppression hearing conducted on March 12, 2019, the 

following testimony was elicited from the two uniformed police officers 

involved in the encounter, Patrick Brady and Devin Corso. 

On August 8, 2017, the officers were working together in Wall Township 

in a marked patrol vehicle driven by Corso. Brady, who had "[a]pproximately 

seven years" of experience as a "patrolman" in Wall Township, and an additional 

two years of similar law enforcement experience in New Hampshire, was 

training Corso, who had recently completed his basic training at the Police 

Academy and was "a month and a half" into "[his] field training." At 

approximately 1:40 a.m., near the corner of Marconi Road and Monmouth 

Boulevard, the officers observed a green 2001 Acura with "[t]he middle brake 
3

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light . . . out on the vehicle[,]" in contravention of N.J.S.A. 39:3-66, requiring 

that lamps be maintained in good working order. They subsequently conducted 

a motor vehicle stop on Belmar Boulevard, activating the mobile video recorder 

(MVR).1 

As they approached the vehicle on the passenger side, the officers 

observed one occupant, the driver, later identified as defendant. Corso 

questioned defendant about his earlier activities, his intended destination, and 

his driving and arrest history. Defendant responded he was on his way home 

from his uncle's house, he had "like two points on [his license,]" and he had 

previously been arrested for "[p]ot." Upon obtaining defendant's driving 

credentials, Corso returned to the patrol car with Brady to verify defendant's 

credentials. While walking back to the patrol car, Brady said to Corso, "can you 

smell that," referring to an odor of raw marijuana "coming from somewhere 

inside [defendant's] vehicle." Brady told Corso he could also detect the odor of 

"Black and [M]ild" cigars inside the vehicle. Brady described a Black and Mild 

cigar as "a little cheap cigar[,]" used "to inhale marijuana" or to "try to mask" 

1

 Brady testified the MVR "records audio and visual," and the microphone 

connected to the MVR was attached to Corso's lapel. Brady explained that the 

MVR also captures thirty seconds of video before the patrol car's emergency 

lights are engaged. The MVR was played at the hearing during Brady's 

testimony. 
4

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the smell of marijuana. Additionally, while looking inside defendant's vehicle, 

the officers observed "a[n] electronic vape pen," generally used "for nicotine"

or "to ingest marijuana." 

Brady testified the presence of the Black and Mild cigar and the vape pen, 

in conjunction with the odor of marijuana, suggested to him that "the vape pen 

was being used to ingest marijuana." Brady explained "[u]sually[,] if someone[

is] using tobacco, either a cigar or a cigarette, they're not going to use a vape 

pen to ingest nicotine because they're already smoking a cigar or a cigarette." 

Brady testified he had "seized marijuana" approximately one hundred times and 

was "familiar with [how] marijuana smell[ed]," in that it had "a distinct odor." 

He clarified that he detected the odor of marijuana emanating from defendant's

"whole vehicle," including its trunk. On the other hand, Corso "thought" he 

smelled "a little" odor of raw marijuana while standing at defendant's passenger 

side window, but could not "tell where [the smell] was coming from before it 

made it to the window." Corso, like Brady, had been "taught the smell of 

marijuana" while training at the Police Academy. 

A database search of defendant's credentials revealed defendant had

previously been charged with drug possession and distribution as well as 

burglary. Corso then asked defendant to step out of the vehicle, and defendant 
5

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complied. Corso said to defendant, "[a]ll right, so here's the deal – I'm getting 

the odor of marijuana coming from your car." Defendant replied there was 

"definitely" no odor of marijuana in his vehicle, and refused to consent to a 

search of his vehicle. Corso then proceeded to search the passenger 

compartment of defendant's vehicle over defendant's objection. During the

search, Corso found no marijuana in the passenger compartment, but the

"electronic vape pen" contained remnants of oil in the cartridge. Because Corso

did not find the "raw marijuana" he "had smelled" in "the passenger[] 

compartment of the vehicle[,]" he continued to search the trunk. Upon opening 

the trunk, Corso discovered THC2 gummy candies in sealed packages, sealed 

mason jars containing raw marijuana, and a latched Yeti brand cooler. 

According to Brady, there was no odor of marijuana emanating from the sealed

packages found beside the cooler to justify defendant's apparent 

"nervous[ness]." 

Corso then proceeded to open the cooler and found more packages of THC

gummy candies, more mason jars of raw marijuana, and multiple vacuumed 

sealed bags of raw marijuana. According to Corso, "the smell [of marijuana] 

2

 THC or delta-9-tetrahydrocannabinol is "the main ingredient that produces the 

psychoactive effect" in marijuana. Marijuana, DEA (Oct. 7, 2019, 2:13 PM), 

https://www.dea.gov/factsheets/marijuana.
6

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was stronger when [he] opened [the cooler.]" After discovering the contraband, 

defendant was placed under arrest. The logged evidence recovered from 

defendant's vehicle included (1) sealed mason jars filled with raw marijuana; (2) 

small bags of raw marijuana; (3) large vacuum sealed bags of raw marijuana;

(4) loose marijuana in the cooler; (5) packages of THC gummy candies; (6) 

packages of THC chocolates; (7) THC oil in a jar; (8) THC vape pen cartridges;

and (9) at least $1000 in cash. 

Following the hearing, on April 2, 2019, the judge entered an order 

granting "[d]efendant's [m]otion to [s]uppress all evidence found in 

[defendant's] vehicle." In an accompanying written opinion, the judge 

determined that while "the vehicle stop was proper, the officers lacked probable 

cause to search [defendant's] vehicle, including its trunk[.]" As to the initial 

stop, the judge explained that because "the video recording showed evidence 

that [defendant's] center brake lights were malfunctioning as he drove toward 

Belmar Boulevard, the officers possessed reasonable suspicion that [defendant] 

committed a motor vehicle offense," justifying the motor vehicle stop.

3

 

3

 Defendant challenges the initial stop as unlawful, arguing it constituted a 

pretext, "when considered in conjunction with [the] Wall Township Police 

Department's quota system." Defendant asserts "the [motion judge]'s finding is 

contrary to State v. Sutherland, 231 N.J. 429, 445 (2018), wherein the Court 

(continued)
7

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Turning to the warrantless search of the vehicle, the judge determined the 

"officers' suspicion that [defendant] possessed CDS in his vehicle's interior and 

trunk did not rise to the level of probable cause" for three reasons:

First, due to the alleged smell of marijuana, Black & 

Mild cigars, and the vape-pen near the front passenger's 

seat, the officers possessed independent reasonable 

suspicion to extend the time of the vehicle stop and look 

into [defendant's] driver's license information and 

criminal history. However, under the second prong of 

the analysis, the initial search of the vehicle's front, 

passenger, and back seats were impermissible under 

Officer Brady's erroneous application of the "plain 

smell" doctrine. Lastly, even if the [c]ourt were to 

hypothetically treat the search of the vehicle's interior 

as constitutionally proper, the [c]ourt finds that Officer 

Corso lacked probable cause to believe that additional 

contraband would be found within [defendant's] trunk.

Focusing first on the probable cause required "under the 'plain smell' 

doctrine to believe that marijuana could be found within the vehicle[,]" the judge 

elaborated:

found a stop based upon a similar misinterpretation of N.J.S.A. 39:3-66 to be 

invalid and suppressed all evidence seized." However, defendant did not file a 

cross-motion for leave to appeal on that issue. "Without cross-appealing, a party 

may argue points the trial court either rejected or did not address, so long as 

those arguments are in support of the trial court's order." State v. Eldakroury, 

439 N.J. Super. 304, 307 n.2 (App. Div. 2015). Here, the motion judge explicitly 

rejected defendant's challenge to the motor vehicle stop. Nonetheless, we 

decline to address the argument in the absence of a cross-appeal because we do 

not deem the argument to be "in support of the trial court's order." Ibid. 
8

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Although Officer Brady was capable of distinguishing 

between the odors of burned and raw marijuana due to

his experience as a law enforcement officer and 

allegedly detected the odor of marijuana immediately 

upon approaching the passenger's side, . . . Officers 

Brady and Corso could not verify whether the 

discovered odor near the passenger's seat was that of 

marijuana; thus, the officers' reasonable suspicion that 

[defendant] possessed marijuana did not elevate to the 

probable cause needed to justify the officers' 

warrantless search of the vehicle. The officers could 

not find any remnants of marijuana near the passenger's 

side of the vehicle. Although Officer Brady testified 

that [defendant's] vape-pen near the passenger's seat 

could have been used to ingest marijuana, the testimony 

has not eliminated the reasonable possibility that 

[defendant] could have used the vape-pen to instead 

ingest nicotine. To support his point that [defendant] 

allegedly used the vape-pen to ingest marijuana, 

Officer Brady claimed that the vape-pen cartridges 

contained hashish oil, but the State never introduced the 

laboratory-tested vape-pen into evidence to confirm the 

Officer's sense of smell. Furthermore, the alleged odor 

of marijuana could have reasonably been the burnt odor 

of the Black & Mild[] cigars, which also function to 

mask the smell of [marijuana]. Taking all the factual 

circumstances into consideration, the [c]ourt finds that 

Officers Brady and Corso at most had reasonable 

suspicion of [defendant's] CDS possession, not 

probable cause. 

Furthermore, "even assuming . . . the officers had probable cause to search 

the interior of the vehicle under the 'plain smell' doctrine," the judge did "not 

find the officers' testimony that the odor of marijuana extended the scope of the 

vehicle search to the trunk believable." Expressly rejecting Brady's testimony, 
9

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the judge stated he could not "solely rely on Officer Brady's say-so as to whether 

the odor in the vehicle was allegedly that of marijuana."4 The judge also rejected 

Corso's claims based on his "lack of experience in detecting marijuana odors 

and the high unlikelihood that [he] detected any smell of marijuana arising from 

the trunk[,]" considering "the secured location of the marijuana." 

The judge explained:

Officer Corso, a new law enforcement officer with very 

limited on-the-road experience, solely executed the 

search of the front and back portions of [defendant's] 

vehicle without Officer Brady's assistance. Due to 

Officer Corso's lack of experience, his ability to 

distinguish between the odors of different types of CDS 

was not as refined as Officer Brady's experienced sense 

of smell. Additionally, . . . [Officer Corso] responded 

to Officer Brady's concern about the odor of raw 

marijuana by noting that he "thought" he smelled a 

"little bit" of the CDS. The language suggests some 

level of uncertainty as to whether marijuana could be 

found at all in the vehicle . . . .

Furthermore, . . . . [e]ven if Officer Corso 

determined that a "little bit" of the marijuana odor arose 

from the vape-pens and the discarded cigars near the 

4

 During the hearing, when Brady was given one of the large vacuum sealed 

bags of raw marijuana, contained inside a marked evidence bag, he agreed that 

it "still smell[ed] like marijuana through both bags" despite "a year and a half of 

drying out." He explained, however, that "the smell was stronger" when they 

first discovered the marijuana in the trunk of defendant's car. In juxtaposition 

to this testimony, the parties stipulated that "[w]hen [the] testimony was 

completed, the judge came off the bench, picked up the bags of marijuana, 

brought them to his nose and smelled them." 
10 A-3954-18T3

front passenger's seat, the existence of a small amount 

of marijuana near the front passenger's seat is 

insufficient evidence of probable cause to search the 

trunk of the vehicle. . . . In addition, the [c]ourt does 

not understand how Officer Corso was able to trace the 

alleged odor of marijuana to the trunk of the vehicle 

[because] . . . . most of the CDS products . . . were 

wrapped, vacuum-sealed, and stored in a secure, highend, and latched cooler. . . . According to the officers' 

testimonies, the only CDS products that could have 

been found outside of the cooler were gummy candies, 

which emitted no odor, and a small mason jar, which 

was firmly sealed. Due to the multiple barriers 

surrounding the seized marijuana, the [c]ourt finds 

incredulous that Officer Corso was able to sense the 

marijuana in the trunk. 

 

Concluding the officers "lacked probable cause to believe that evidence of 

marijuana would be found in both the interior and trunk of [defendant's]

vehicle[,]" and "impermissibly extended the scope of the search to the trunk of 

the vehicle[,]" the judge granted defendant's suppression motion, and this appeal 

followed.

On appeal, the State argues "[t]he trial court erred in concluding . . . it 

could not rely solely upon Officer Brady's smelling of marijuana to support 

probable cause to search the vehicle." The State "submits the trial court's 

conclusions that further actions were needed are in error because the smell of 

raw marijuana alone was sufficient to provide probable cause." The State 

continues "[t]he probable cause was further augmented by the time of day . . . 
11 A-3954-18T3

and defendant's prior arrests for possession and distribution, which the officers 

knew about before the search." 

Our review of the trial court's decision on a motion to suppress is limited. 

State v. Robinson, 200 N.J. 1, 15 (2009). "An appellate court reviewing a 

motion to suppress evidence in a criminal case must uphold the factual findings

underlying the trial court's decision, provided that those findings are 'supported 

by sufficient credible evidence in the record.'" State v. Boone, 232 N.J. 417, 

425-26 (2017) (quoting State v. Scriven, 226 N.J. 20, 40 (2016)). We do so 

"because those findings 'are substantially influenced by [an] opportunity to hear 

and see the witnesses and to have the "feel" of the case, which a reviewing court 

cannot enjoy.'" State v. Gamble, 218 N.J. 412, 424-25 (2014) (alteration in 

original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "The governing 

principle, then, is that '[a] trial court's findings should be disturbed only if they 

are so clearly mistaken that the interests of justice demand intervention and 

correction.'" Robinson, 200 N.J. at 15 (alteration in original) (quoting State v. 

Elders, 192 N.J. 224, 244 (2007)). "We owe no deference, however, to 

conclusions of law made by trial courts in deciding suppression motions, which 

we instead review de novo." State v. Brown, 456 N.J. Super. 352, 358-59 (App. 

Div. 2018) (citing State v. Watts, 223 N.J. 503, 516 (2015)).
12 A-3954-18T3

Applying that de novo standard of review to the trial court's legal 

conclusions, "[w]e review this appeal in accordance with familiar principles of 

constitutional law." State v. Robinson, 228 N.J. 529, 543 (2017). "Both the 

United States Constitution and the New Jersey Constitution guarantee an 

individual's right to be secure against unreasonable searches or seizures." State 

v. Minitee, 210 N.J. 307, 318 (2012) (citing U.S. Const. amend. IV; N.J. Const.

art. I, ¶ 7). Thus, searches and seizures conducted without a warrant "are 

presumptively invalid as contrary to the United States and the New Jersey 

Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004) (citing State v. Patino, 

83 N.J. 1, 7 (1980)). As such, "the State must demonstrate by a preponderance 

of the evidence[,]" id. at 20 (quoting State v. Wilson, 178 N.J. 7, 13 (2003)), 

that "[the search] falls within one of the few well-delineated exceptions to the 

warrant requirement." Id. at 19-20 (quoting State v. Maryland, 167 N.J. 471, 

482 (2001) (alteration in original)). "Thus, we evaluate the evidence presented 

at the suppression hearing in light of the trial court's findings of fact to determine 

whether the State met its burden." Id. at 20.

The exception invoked in this case to justify the warrantless search is the 

automobile exception to the warrant requirement. Pursuant to State v. Witt, 223 

N.J. 409 (2015), officers may now conduct a warrantless, nonconsensual search 
13 A-3954-18T3

during a lawful roadside stop "in situations where: (1) the police have probable 

cause to believe the vehicle contains evidence of a criminal offense; and (2) the 

circumstances giving rise to probable cause are unforeseeable and spontaneous." 

State v. Rodriguez, 459 N.J. Super. 13, 22 (App. Div. 2019) (citing Witt, 223 

N.J. at 447-48). "New Jersey courts have [long] recognized that the smell of 

marijuana itself constitutes probable cause that a criminal offense ha[s] been 

committed and that additional contraband might be present." State v. Walker, 

213 N.J. 281, 290 (2013) (quoting State v. Nishina, 175 N.J. 502, 515-16 (2003))

(internal quotation marks omitted); accord, e.g., State v. Pena-Flores, 198 N.J. 

6, 30 (2009); State v. Birkenmeier, 185 N.J. 552, 563 (2006); State v. Guerra, 

93 N.J. 146, 150-51 (1983); State v. Legette, 441 N.J. Super. 1, 15 (App. Div. 

2015); State v. Myers, 442 N.J. Super. 287, 295-96 (App. Div. 2015);5 State v. 

Chapman, 332 N.J. Super. 452, 471 (App. Div. 2000); State v. Vanderveer, 285 

N.J. Super. 475, 479 (App. Div. 1995); State v. Judge, 275 N.J. Super. 194, 201 

(App. Div. 1994); State v. Sarto, 195 N.J. Super. 565, 574 (App. Div. 1984); 

State v. Kahlon, 172 N.J. Super. 331, 338 (App. Div. 1980).

5

 "[A]bsent evidence the person suspected of possessing or using marijuana has 

a registry identification card, detection of marijuana by the sense of smell, or by 

the other senses, provides probable cause to believe that the crime of unlawful 

possession of marijuana has been committed." Myers, 442 N.J. Super. at 303.
14 A-3954-18T3

These and other decisions have "'repeatedly recognized that' . . . the 

detection of that smell satisfies the probable-cause requirement." Walker, 213 

N.J. at 287-88 & n.1. Thus, in the context of a warrantless automobile search, 

the "smell of marijuana emanating from the automobile [gives] the officer 

probable cause to believe that it contain[s] contraband." Pena-Flores, 198 N.J. 

at 30 (citation omitted). However, "[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." Patino, 83 N.J. at 10. In that regard, "[i]t is 

widely recognized that a search, although validly initiated, may become 

unreasonable because of its intolerable intensity and scope." Id. at 10-11 (citing 

Terry v. Ohio, 392 U.S. 1, 19 (1968)). Thus, "the scope of the search must be 

'strictly tied to and justified by' the circumstances which rendered its initiation 

permissible." Terry, 392 U.S. at 19 (quoting Warden, Md. Penitentiary v. 

Hayden, 387 U.S. 294, 310 (1967) (Fortas, J., concurring)).

Here, the motion judge expressly found that even assuming "the officers 

had probable cause to search the interior of the vehicle under the 'plain smell' 

doctrine," the judge did not believe the officers' testimony that the odor of 

marijuana extended to the trunk of the vehicle. We "must give deference to the 

trial court's credibility findings[,]" Walker, 213 N.J. at 290, particularly since 
15 A-3954-18T3

those findings are supported by sufficient credible evidence in the record. 

Notably, Brady testified that before Corso opened the cooler, there was no odor 

of marijuana emanating from the sealed packages found inside the trunk next to 

the cooler to justify defendant's apparent "nervous[ness]." This testimony 

contradicted Brady's earlier testimony that upon initially approaching the 

passenger side of defendant's vehicle, he had detected the odor of marijuana 

emanating from the "whole vehicle," including the trunk. Further, Corso 

testified that when he first approached the passenger side of defendant's vehicle, 

he "thought" he smelled "a little" odor of raw marijuana but the odor "was 

stronger when [he] opened [the cooler.]" 

Contrary to the State's assertion, these facts are distinguishable from the 

facts in Kahlon. There, after conducting a motor vehicle stop and detecting the 

odor of "burning marijuana" when the "defendant opened his window to exhibit 

his [driving] credentials[,]" the defendant ultimately admitted to the officer he 

had been "smoking marijuana." Kahlon, 172 N.J. Super. at 336. A subsequent 

search of the interior of the vehicle uncovered "a half-burned marijuana 

cigarette[,]" "a clear plastic bag filled with . . . approximately [one-half] ounce 

of marijuana and a package of cigarette wrapping papers." Ibid. When the 

officer continued to search the back seat where a passenger had been seated, "he 
16 A-3954-18T3

noticed the very heavy odor of unburned marijuana," but found "no potential 

marijuana containers." Id. at 337. We held that the officer's "inability to 

pinpoint the source" of the odor emanating "from the rear of the [defendant's] 

vehicle, together with the marijuana already found in the car," established 

probable cause to extend the search to the trunk of the car, where he discovered 

approximately thirty pounds of marijuana in a torn plastic bag located inside a 

partially opened cardboard box. Id. at 338. 

Here, because "[n]othing found in the interior of the passenger area or in 

the conduct of [defendant] generated any suspicion of a drug cache in the 

trunk[,]" the "search was purely investigatory and the seizure a product of luck 

and hunch, a combination of insufficient constitutional ingredients." Patino, 83 

N.J. at 12 (citation omitted). "[T]he State bears a heavy burden of demonstrating 

the probable cause which justifies the search." Id. at 13. Here, given the judge's 

credibility findings, the State failed to satisfy its heavy burden to demonstrate 

that there was a reasonable basis to extend the search to the trunk of defendant's 

vehicle.

Affirmed.