SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3581-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY DESIR,

Defendant-Appellant.

__________________________

Argued November 30, 2020 – Decided 

Before Judges Fasciale and Mayer.

On appeal from the Superior Court of New Jersey, 

Law Division, Bergen County, Municipal Appeal No. 

008-04-18.

Santo T. Alampi argued the cause for appellant 

(Alampi & De Marrais, attorneys; Santo T. Alampi, on 

the brief).

Craig A. Becker, Assistant Prosecutor, argued the 

cause for respondent (Mark Musella, Bergen County 

Prosecutor, attorney; Craig A. Becker, 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NOT FOR PUBLICATION WITHOUT THE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.

December 22, 2020
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Defendant Jeffrey Desir appeals from a March 11, 2019 order of the Law 

Division finding him guilty of three drug-related offenses after a de novo 

review of the record from the municipal court proceeding in accordance with 

Rule 3:23-8. We affirm. 

We summarize the facts from the municipal court proceeding. On April 

3, 2017, Officer Gil Maynard saw a man using his cellphone while driving. 

According to the officer, the driver "had his cell phone in his hand, and it was 

up to be seen . . . . [H]e was holding it in his right hand as he was driving." 

Maynard was unable to recall if the driver was talking on the speakerphone but 

"remember[ed] seeing the illumination of the cell phone . . . ." Based on these 

observations, the officer initiated a traffic stop. Prior to stopping the car, 

Maynard noticed the "license plate frame obstruct[ed] . . . a clear view of [the] 

license plate," in violation of New Jersey law. In reviewing the driver's 

credentials, Maynard identified the driver as Desir.

As Officer Maynard approached the vehicle, he "could smell the odor of 

marijuana," which he identified based on his police academy training. When 

Maynard asked about the marijuana smell, defendant said he smoked 

marijuana earlier. The officer asked defendant to step out of the car and called 

for backup. According to Maynard, defendant "was trembling, as if he was 

nervous." 
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Officer Maynard advised defendant that he would conduct a search the 

car based on the marijuana smell. During the search, defendant waited with 

Officer Joseph Windt, who responded to Maynard's call for backup. 

Officer Maynard's search produced a "bag of greenish-brown vegetation" 

under the driver's seat, "a small envelope of rolling papers" hidden in the 

center console, and "a large amount of money . . . located in the glove 

compartment." The officer confronted defendant with these findings and saw 

defendant "grabbing at his pants . . . specifically in the groin area. And every 

time [defendant] pulled on his pants, [Officer Maynard] could smell marijuana, 

. . . which made [him] believe that there was something hidden in his pants." 

Defendant was arrested and taken to the police station. 

At the station, Officer Maynard searched defendant. Although the 

officer found nothing initially, he continued to smell marijuana. In accordance 

with standard police procedure, Maynard attempted to remove defendant's belt. 

As soon as the officer grasped the belt, defendant spun towards Maynard and 

grabbed him. Because he continued to resist removal of his belt, additional 

officers had to restrain defendant. 

A higher-ranking officer intervened and spoke with defendant,

instructing him to cooperate. Defendant reached down into his pants and 

"pulled out three bags. One clear bag containing a . . . white, powdery 
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substance, with rocks in it that looked like . . . crack cocaine . . . [a]nd then . . . 

two smaller bags of a green vegetation which [Maynard] believed to be 

marijuana." 

Defendant was charged with the following offenses: operating a vehicle 

while in possession of narcotics, N.J.S.A. 39:4-49.1; improper use of a cell 

phone while driving, N.J.S.A. 39:4-97.3; delaying traffic, N.J.S.A. 39:4-56; 

improper display or obstruction of a license plate, N.J.S.A. 39:3-33; failure to 

wear a seatbelt, N.J.S.A. 39:76.2(f); possession of marijuana, N.J.S.A. 2C:35-

10(a)(4); possession of drug paraphernalia, N.J.S.A. 2C:36-2; resisting arrest, 

N.J.S.A. 2C:29-2(a)(1); and failure to turn over a controlled dangerous 

substance (CDS), N.J.S.A. 2C:36-10(c)(5). 

A municipal court trial took place on February 28, 2018. Officers 

Maynard and Windt testified on behalf of the State. Defendant, represented by 

counsel, testified on his own behalf. After hearing the testimony and 

considering the evidence, the municipal court judge found defendant not guilty 

of possessing marijuana, delaying traffic, and failing to wear a seatbelt. 

However, the municipal court judge found defendant guilty of the remaining 

charges. He determined the officers' testimony to be credible and defendant's 

testimony "somewhat incoherent," "all over the place," and "absolutely 

incredible." The municipal court judge sentenced defendant to one-year 
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probation, suspended his license for two years, and imposed $3,491 in fines, 

fees, and court costs.

Defendant appealed his municipal court conviction to the Superior 

Court, Law Division. Before the Law Division judge, defendant, represented 

by new counsel, moved for the first time to suppress the physical evidence

seized by Officer Maynard. On November 2, 2018, the Law Division judge 

conducted a trial de novo. 

The Law Division judge issued a March 11, 2019 order and written 

decision, reversing defendant's convictions for improper display or obstruction 

of a license plate, resisting arrest, and improper use of a cell phone while 

driving. He upheld defendant's convictions for possession of drug 

paraphernalia, failure to turn over CDS, and operation of a motor vehicle while 

in possession of narcotics. Collectively, the Law Division judge sentenced 

defendant to one year of probation, two years' suspension of defendant's New 

Jersey driving privileges and $3,491 in fines, fees, and court costs.

On appeal, defendant raises the following arguments:

Point I

DEFENDANT/APPELLANT DID SHOW GOOD 

CAUSE WARRANTING CONSIDERATION OF

DEFENDANT/APPELLANT’S SUPPRESSION

MOTION.
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Point II

DEFENDANT/APPELLANT WAS IMPROPERLY 

STOPPED ON APRIL 3, 2017 AND COUNSEL 

SHOULD HAVE MADE AN APPROPRIATE 

MOTION TO DISMISS AND SUPPRESS.

Point III

ASSUMING ARGUENDO THAT THE INITIAL 

MOTOR VEHICLE STOP WAS VALID, THE 

WARRENTLES SEARCH OF THE MOTOR

VEHICLE WAS ILLEGAL.

"[A]ppellate review of a municipal appeal to the Law Division is limited 

to 'the action of the Law Division and not that of the municipal court.'" State 

v. Hannah, 448 N.J. Super. 78, 94 (App. Div. 2016) (quoting State v. Palma, 

219 N.J. 584, 591-92 (2014)). "In reviewing a trial court's decision on a 

municipal appeal, we determine whether sufficient credible evidence in the 

record supports the Law Division's decision." State v. Monaco, 444 N.J. 

Super. 539, 549 (App. Div. 2016). We must "determine whether the findings 

made could reasonably have been reached on sufficient credible evidence 

present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). "When the 

reviewing court is satisfied that the findings and result meet this criterion, its 

task is complete and it should not disturb the result . . . ." Ibid.

A review of a municipal court conviction by the Superior Court is 

conducted de novo on the record. R. 3:23-8. The Superior Court should defer 
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to the municipal court's credibility findings. State v. Locurto, 157 N.J. 463, 

470-71 (1999) (citing Johnson, 42 N.J. at 161-62). However, "[o]n a de novo 

review on the record, the reviewing court . . . is obliged to make independent 

findings of fact and conclusions of law, determining defendant's guilt 

independently but for deference to the municipal court's credibility findings."

Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 3:23-8 (2021). 

We first consider defendant's argument that the Law Division judge 

erred in refusing to consider the motion to suppress evidence despite his 

failure to raise the issue in the municipal court.1 He asserts there was good 

cause to excuse the failure to file a motion to suppress because he relied on his 

municipal court counsel, "was unaware of the procedural require[ments] with 

respect to such a motion," and did not know the failure to raise such a motion 

would constitute a waiver of that argument. 

Rule 7:5-2(d), governing motions to suppress evidence, provides: 

"Unless otherwise ordered by the court for good cause, defendant's failure to 

make a pretrial motion to the municipal court pursuant to this rule shall 

constitute a waiver of any objection during trial to the admission of the 

evidence on the ground that the evidence was unlawfully obtained." In 

1

 Contrary to plaintiff's assertion, the Law Division judge considered 

defendant's arguments on the merits despite his failure to file a motion to 

suppress evidence in the municipal court proceeding.
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addition, "issues not raised below will not be considered" unless "the issue is 

of special significance to the litigant, to the public, or to the achievement of 

substantial justice, and the record is sufficiently complete to permit its 

adjudication . . . ." Borough of Keyport v. Maropakis, 332 N.J. Super. 210, 

216 (App. Div. 2000) (first citing Brock v. Pub. Serv. Elec. & Gas Co., 149 

N.J. 378, 391 (1997) and then citing Alan J. Cornblatt, P.A. v. Barrow, 153 

N.J. 218, 230 (1998)). 

Here, the Law Division judge found defendant "had the opportunity to 

raise the suppression issue before the [municipal] court but failed to do so" and 

failed to establish good cause to excuse his misstep, rendering it inappropriate 

for the suppression issue to be raised for the first time on the appeal to the Law 

Division. 

Nevertheless, the Law Division judge considered the merits of a motion 

to suppress the physical evidence as if it had been raised in the municipal court 

proceeding. Defendant argued the traffic stop was improper because there was 

no "articulable and reasonable suspicion" supporting the stop. The Law 

Division judge concluded that had the suppression motion been presented in 

municipal court, "the illumination of [defendant's] phone while in his hand 

provided adequate reasonable suspicion to justify an investigatory stop." He 

further explained that while there "might have [been] some speculative 
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innocent explanation" why light was radiating from the phone, defendant's 

conduct could also be reasonably "consistent with illegal conduct." 

"Law enforcement officers 'may stop motor vehicles where they have a 

reasonable or articulable suspicion that a motor vehicle violation has 

occurred.'" State v. Barrow, 408 N.J. Super. 509, 517 (App. Div. 2009) 

(quoting State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990)). 

Reasonable suspicion is present when an officer is "able to point to specific 

and articulable facts which, taken together with rational inferences from those 

facts, reasonably warrant that intrusion." Ibid. (quoting Terry v. Ohio, 392 

U.S. 1, 21 (1968)). Reasonable suspicion is less burdensome than a 

preponderance of the evidence or probable cause but must be more "than an 

'inchoate or unparticularized suspicion' or 'hunch.'" Ibid. (quoting United 

States v. Sokolow, 490 U.S. 1, 7 (1989)). In other words, "[t]he State need not 

prove that the suspected motor vehicle violation has in fact occurred, only that 

the officer has a reasonable, articulable, and objective basis for justifying the 

stop." Id. at 518 (citing Locurto, 157 N.J. at 470).

N.J.S.A. 39:4-97.3 provides:

The use of a wireless telephone or electronic 

communication device by an operator of a moving 

motor vehicle on a public road or highway shall be 

unlawful except when the telephone is a hands-free 

wireless telephone or the electronic communication 
10 A-3581-18T1

device is used hands-free, provided that its placement 

does not interfere with the operation of federally 

required safety equipment and the operator exercises a 

high degree of caution in the operation of the motor 

vehicle. 

"In evaluating the facts giving rise to the officer's suspicion of criminal 

activity, courts are to give weight to 'the officer's knowledge and experience' 

as well as 'rational inferences that could be drawn from the facts objectively 

and reasonably viewed in light of the officer's expertise.'" State v. Citarella, 

154 N.J. 272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)). 

An officer may still have reasonable suspicion even if the acts could be 

construed as "purely innocent" so long as "a reasonable person would find the 

actions are consistent with guilt." Id. at 279-280 (quoting Arthur, 149 N.J. at 

11).

Having reviewed the record, we are satisfied there was sufficient 

credible evidence in the record to support the Law Division judge's finding 

reasonable suspicion to stop defendant's car. Officer Maynard, who was 

deemed credible by the municipal court judge, testified he saw defendant 

holding an illuminated phone while driving. As noted by the Law Division 

judge, although there may have been innocent explanation for the phone's 

illumination, the facts presented were reasonably consistent with conduct 
11 A-3581-18T1

prohibited under N.J.S.A. 39:4-97.3 and therefore it was not unreasonable for 

Officer Maynard to stop defendant's car.

We next consider defendant's argument that if the stop was valid, the 

officer lacked probable cause to search his car.2 In reviewing the record, we 

disagree the officer lacked probable cause to search defendant's car.

The automobile exception "authorize[s] [a] warrantless search . . . when 

the police have probable cause to believe that the vehicle contains contraband 

or evidence of an offense and the circumstances giving rise to probable cause 

are unforeseeable and spontaneous." State v. Witt, 223 N.J. 409, 447 (2015) 

(citing State v. Alston, 88 N.J. 211, 233 (1981)). Probable cause "requires 

nothing more than a practical, common-sense decision whether, given all the 

circumstances . . . there is a fair probability that contraband or evidence of a 

crime will be found in a particular place." State v. Nishina, 175 N.J. 502, 515 

(2003) (quoting State v. Johnson, 171 N.J. 192, 214 (2002)).

"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. 

2

 Defendant failed to raise this argument before the municipal court judge and 

the Law Division judge. We consider defendant's substantive assertion but 

note, in accordance with Rule 2:6-1 and Rule 7:5-2(d), the argument was 

waived. 
12 A-3581-18T1

281, 290 (2013) (quoting Nishina, 175 N.J. at 516-17). The odor of marijuana 

gives rise to probable cause to conduct a warrantless search in the immediate 

area from where the smell emanated. State v. Myers, 442 N.J. Super. 287, 297, 

n.5 (App. Div. 2015). 

Once an officer smells marijuana emanating from a vehicle, the officer 

has probable cause to arrest the driver, as well as to search the vehicle incident 

to arrest. State v. Judge, 275 N.J. Super. 194, 202-03 (App. Div. 1994). There 

is no requirement that suspected marijuana be found during the search. See

State v. Vanderveer, 285 N.J. Super. 475, 479 (App. Div. 1995) (holding the 

difference in the drugs found – cocaine rather than marijuana – does not 

invalidate a search based on the odor of marijuana, even where no marijuana 

was found).

Here, Officer Maynard stopped defendant's car based on a reasonable 

suspicion that defendant was using his cell phone while driving. As the officer 

approached defendant's car, he detected an odor of raw marijuana. Maynard 

asked about the source of the smell and defendant admitted he smoked 

marijuana earlier. Officer Maynard then explained he was going to search

defendant's car based on the marijuana smell and that search found suspected 

drugs, drug paraphernalia, and a large amount of cash.
13 A-3581-18T1

Having reviewed the testimony, we are satisfied that had a motion 

challenging the warrantless search of defendant's car been presented to the 

municipal court judge, the motion would have been denied based upon Officer 

Maynard's credible testimony and application of the "plain smell" doctrine.

Further, defendant present no evidence that he had a license to legally 

possess marijuana for medical use pursuant to the New Jersey Compassionate 

Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-1 to -16. Moreover, 

the CUMMA did not replace the "plain smell" doctrine. Rather, the CUMMA 

"create[d] a limited exception allowing possession of marijuana for medical 

use by qualifying patients who obtain the appropriate registry identification 

card." Myers, 442 N.J. Super. at 298, 303 (holding the odor of marijuana gave 

police probable cause to arrest defendant absent any indication that defendant,

or anyone in his car, was a registered qualifying patient or otherwise 

authorized to possess medical marijuana). 

Defendant's remaining arguments lack sufficient merit to warrant 

discussion in a written opinion. R. 2:11-(e)(2).

Affirmed.