SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3705-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEE CLAX, a/k/a 

CHRISTOPHER CLAX,

Defendant-Appellant.

__________________________

Submitted February 27, 2019 – Decided

Before Judges Koblitz and Mayer. 

On appeal from Superior Court of New Jersey, Law 

Division, Monmouth County, Indictment No. 17-08-

1203.

Starkey, Kelly, Kenneally, Cunningham & Turnbach,

attorneys for appellant (Clifford P. Yannone, on the 

brief).

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for respondent (Monica do 

Outeiro, Assistant Prosecutor, of counsel; Kenneth R.

Paulus, Jr., Legal Assistant, on the brief). 

NOT FOR PUBLICATION WITHOUT THE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.

March 18, 2019
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PER CURIAM

Defendant Lee Clax appeals from an April 17, 2018 judgment of 

conviction, focusing on a December 20, 2017 order denying his motion to 

suppress evidence. We affirm.

Defendant was charged with third-degree possession of cocaine, N.J.S.A. 

2C:35-10(a)(1), and second-degree possession of cocaine with intent to 

distribute, N.J.S.A. 2C:35-5(b)(2). After defendant's motion to suppress the 

drug evidence was denied, defendant pled guilty to second-degree possession of 

cocaine with intent to distribute. In accordance with a negotiated plea,

defendant was sentenced to serve nine years in prison subject to a fifty-onemonth period of parole ineligibility.

The hearing on the suppression motion took place over four days. 

Testifying for the State was Captain Thomas Rizzo of the Howell Township 

Police Department. Defendant did not present any witnesses at the suppression 

hearing.

According to Captain Rizzo, he and his partner, Patrolman Travis Horton, 

were observing an area in the Township for suspected criminal activity. During 

their watch, the officers saw a green minivan tailgating another car. The officers 

were unable to see the driver of the minivan because the windows were tinted. 
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As they followed the minivan, the officers saw the vehicle drift almost a foot 

over the fog line, which is the line separating the traveled portion of the road 

from the shoulder of the road. 

The officers then signaled the minivan to pull over. When the officers 

approached the stopped minivan, Captain Rizzo recognized an odor of raw 

marijuana coming from the passenger side of the car. When Rizzo started 

speaking to the driver, he smelled burnt marijuana. According to Rizzo, the 

smell seemed to "emanate to the ceiling of the vehicle" and from the cloth seats 

in the minivan. As Patrolman Horton approached the driver's side of the 

minivan, he noticed the odor of marijuana and saw a cigarette lighter in the 

driver's side door. 

In response to the officers' questions, defendant, who was the driver of the 

minivan, denied smoking marijuana in the car. Defendant said he was the only 

person who drove the minivan and stated he never smoked inside the car. 

Rizzo, who had significant experience and training in detecting the odor

of marijuana, did not believe defendant's statements. Rizzo decided to search 

the minivan without a warrant for the source of the odor. Rizzo started his search 

on the passenger side of the minivan because that was the area where he first 

smelled marijuana. Underneath the front passenger seat, Rizzo found a "large 
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. . . clear cellophane package of a white powder." He suspected the powder was 

cocaine.

In his inspection of the minivan, Horton found an empty blunt cigar 

wrapper and a small amount of marijuana seeds and stems on the passenger side

floor. The officers also found $2971 in cash hidden in a shoe located behind the 

front seats. 

Defendant was arrested at the scene. Rizzo and Horton called for 

additional officers. One of the arriving officers had a K-9 dog. The K-9 dog 

performed a drug sniff and alerted to two locations inside the minivan: 

underneath the front passenger seat where the white powder was found and 

directly behind the front seats where the cash was found. 

Only after defendant was transported to the police station did Rizzo learn 

defendant had a previous drug conviction. At the time of defendant's arrest, 

neither officer was aware that defendant had a prior conviction for drug dealing. 

Because defendant was not the owner of the minivan,1 defendant's name 

was not available through a license plate search. The officers discovered 

defendant's name from his driver's license. Captain Rizzo explained the license 

plate associated with the minivan had been run nine times between May 6, 2015 

 

1

 The minivan was owned by defendant's sister.
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and June 9, 2017, the date of defendant's arrest. The minivan was stopped on 

May 6, 2015 for having illegal tinted windows. Defendant was not issued a 

summons on that occasion and was warned that tinted windows were a motor 

vehicle violation. According to Rizzo, a vehicle may not necessarily be stopped 

after every license plate check because the officer may receive an emergency 

call, it was unsafe to pull the vehicle over, or the officer lost sight of the vehicle. 

In addition to the testimony of Captain Rizzo, the judge reviewed 

photographs of the minivan and a motor vehicle recording showing the search 

of the minivan. The judge denied defendant's motion to suppress the drug 

evidence. Finding Captain Rizzo's testimony to be credible, even in the face of 

vigorous cross-examination by defense counsel, the judge determined the police 

were justified in stopping defendant's van for one of several motor vehicle 

violations committed by defendant that evening. 

During the course of the lawful motor vehicle stop, the judge found the 

officers had a reasonable suspicion of an unlawful activity unrelated to the 

traffic offenses. In this case, the officers detected the odor of marijuana. Based 

on the smell of marijuana, the judge concluded the officers were permitted to 

broaden their search for additional contraband. 
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The judge found it insignificant that Captain Rizzo first believed the smell 

was raw marijuana but then determined the smell was burnt marijuana as he 

moved closer to the interior of the minivan. According to the judge, the smell 

of raw marijuana created an inference there was marijuana or other contraband 

in the minivan and the smell of burnt marijuana created an inference that 

someone had smoked marijuana recently inside the vehicle. Under either 

scenario, the judge held there was a suggestion that marijuana or other 

contraband was inside the minivan. Based on Rizzo's testimony, the judge 

concluded the officers had a reasonable suspicion to search the minivan 

grounded on the odor of marijuana. 

In reviewing the automobile exception to the officers' search of the 

minivan without a warrant, the judge determined the smell of marijuana gave 

the police probable cause to believe an offense had been committed and there 

might be evidence of contraband inside the minivan to permit the officers to 

search the vehicle without a warrant. 

The judge rejected defendant's argument that prior license plate searches 

of the minivan evidenced racial profiling by the Howell Township Police 

Department. The judge explained defendant failed to meet his "heavy" burden 

of demonstrating racial profiling and offered "no facts or any colorable claim . . .
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that the Howell Township Police Department has an officially sanctioned or de 

facto policy of selective enforcement against minorities."

On appeal, defendant raises the following argument:

THE TRIAL COURT ERRED IN DENYING 

[DEFENDANT]'S MOTION TO SUPPRESS 

EVIDENCE BECAUSE THE AUTOMOBILE 

EXCEPTION TO THE WARRANT REQUIREMENT 

BASED ON THE PLAIN SMELL OF MARIJUANA 

WAS NOT SUPPORT[ED] BY SUFFICIENT 

EVIDENCE IN THE RECORD.

In reviewing a motion to suppress, we "must uphold a trial court's factual 

findings at a [motion to suppress] hearing when they are supported by sufficient 

credible evidence in the record." State v. Hathaway, 222 N.J. 453, 467 (2015) 

(citing State v. Elders, 192 N.J. 224, 244 (2007)). This is especially true when 

the findings of the trial court are "substantially influenced by [its] opportunity 

to hear and see the witnesses and to have the 'feel' of the case." Elders, 192 N.J. 

at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). The trial court's 

legal conclusions are entitled to no special deference, and are reviewed de novo. 

State v. Gandhi, 201 N.J. 161, 176 (2010).

"A motor vehicular violation, no matter how minor, justifies a stop 

without any reasonable suspicion that the motorist has committed a crime or 

other unlawful act." State v. Bernokeits, 423 N.J. Super. 365, 370 (App. Div. 
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2011) (citing Delaware v. Prouse, 440 U.S. 648, 663 (1979)). The State does 

not need to prove that the motor vehicle violation occurred, only that "the police 

lawfully stopped the car." State v. Heisler, 422 N.J. Super. 399, 413 (App. Div. 

2011) (quoting State v. Williamson, 138 N.J. 302, 304 (1994)). 

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. 

281, 290 (2013) (quoting Nishina, 175 N.J. at 515-16). The odor of marijuana 

gives rise to probable cause to conduct a warrantless search in the immediate 
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area from where the smell emanated. State v. Myers, 442 N.J. Super. 287, 297, 

n.5 (App. Div. 2015). 

Once an officer smells burnt 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 burnt marijuana, even where no 

marijuana was found).

In this case, the officers stopped defendant's minivan for assorted motor 

vehicle violations, including having tinted windows, N.J.S.A. 39:3-74, failing

to maintain a lane, N.J.S.A. 39:4-88(b), and tailgating, N.J.S.A. 39:4-89. 

Defendant was the sole occupant of the vehicle when it was pulled over. As the 

officers approached the minivan, they detected the odor of marijuana. Based on 

the smell of marijuana, it was objectively reasonable for the officers to search 

defendant's minivan.

Having reviewed the testimony presented at the suppression hearing and 

according deference to the judge's credibility findings related to the denial of 
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defendant's suppression motion, we discern no basis to disturb the trial court's

decision. 

Affirmed.