SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2896-17T3

STATE OF NEW JERSEY, 

Plaintiff-Respondent,

v.

JOSEPH A. BROWN,

Defendant-Appellant.

____________________________

Argued November 18, 2019 – Decided

Before Judges Fasciale and Mitterhoff. 

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment Nos. 16-08-2417, 

17-04-0900, 17-05-1425, and 17-06-1601.

Peter Thomas Blum, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Peter Thomas Blum, of 

counsel and on the brief).

Emily M. M. Pirro, Special Deputy Attorney General/

Acting Assistant Prosecutor, argued the cause for 

respondent (Theodore N. Stephens II, Acting Essex 

County Prosecutor, attorney; Frank J. Ducoat, Special 

NOT FOR PUBLICATION WITHOUT THE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 10, 2019
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Deputy Attorney General/Acting Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM 

After pleading guilty, defendant appeals from four counts of seconddegree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); one count 

fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); one count second-degree 

eluding, N.J.S.A. 2C:29-2(b); one count third-degree possession of a controlled 

dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1); 

and five counts of second-degree possession of a firearm while committing a 

CDS offense, N.J.S.A. 2C:39-4.1(a). Defendant challenges the denial of two 

motions to suppress evidence seized at different times: one during a traffic stop;

and the other about six months later, during a foot chase after a drug transaction. 

We affirm. 

On appeal, defendant argues:

POINT I

THE TWO GUNS FOUND INSIDE THE CONSOLE 

OF [DEFENDANT'S] CAR SHOULD HAVE BEEN 

SUPPRESSED BECAUSE THE PROSECUTOR

FAILED TO PRESENT ANY EVIDENCE THAT THE 

SEARCHING OFFICER - - WHO DID NOT TESTIFY 

- - HAD ACTED REASONABLY IN BREAKING 

THE CONSOLE TO LOOK INSIDE. U.S. CONST.

AMENDS. IV, XIV; N.J. CONST. ART. I, PARA. 7. 
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POINT II

THE DENIAL OF SUPPRESSION SHOULD BE 

REVERSED BECAUSE THE PROSECUTOR 

FAILED TO JUSTIFY THE STOP THAT RESULTED 

IN THE DISCOVERY OF THE GUN. U.S. CONST.

AMENDS. IV, XIV; N.J. CONST. ART. I, PARA. 7.

A. The Prosecutor Failed to Prove Reasonable 

Suspicion to Justify the Stop in the Absence of Any 

Testimony From The Surveillance Officer and of Any 

Adequately Detailed Hearsay as to What the 

Surveillance Officer Had Observed. 

B. The Suspicionless Stop Was the Proximate Cause 

of [Defendant's] Tossing of the Gun, Requiring It to Be 

Suppressed. 

POINT III

ALTERNATIVELY, A NEW SUPPRESSION 

HEARING SHOULD OCCUR BECAUSE THE 

HEARING [JUDGE] DEPRIVED [DEFENDANT] OF 

DUE PROCESS BY ACCEPTING UNRELIABLE

HEARSAY ABOUT THE SURVEILLANCE 

OFFICER'S OBSERVATIONS AND BY NOT 

REQUIRING AN EXPLANATION FOR THAT 

OFFICER'S ABSENCE. U.S. CONST. AMEND. XIV; 

N.J. CONST. ART. I, PARA. 1.

"[O]n appellate review, a trial [judge's] factual findings in support of

granting or denying a motion to suppress must be upheld when 'those findings 

are supported by sufficient credible evidence in the record.'" State v. S.S., 229 

N.J. 360, 374 (2017) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)). We 
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"accord deference to those factual findings because they '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. Lamb, 218 

N.J. 300, 313 (2014) (quoting State v. Elders, 192 N.J. 224, 243 (2007) (citation 

omitted)). This court "should not disturb a trial [judge's] factual findings unless 

those findings are 'so clearly mistaken that the interests of justice demand 

intervention and correction.'" S.S., 229 N.J. at 374 (quoting Gamble, 218 N.J. 

at 425). But the trial judge's interpretation of the law and "the consequences 

that flow from established facts are not entitled to any special deference." 

Gamble, 218 N.J. at 425. Instead, we review legal conclusions de novo. Lamb, 

218 N.J. at 313. 

A.

We begin by addressing the denial of defendant's first motion to suppress. 

As part of that motion, defendant argued that the judge should have suppressed

two of the handguns seized from defendant's vehicle after police performed a 

traffic stop. We conclude that the stop was valid, that probable cause existed, 

and that two exceptions to the warrant requirement apply. 

Police stopped the car after they observed it swerve and make a right turn 

without signaling. As police approached the car, they detected an odor of 
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marijuana. As a result, police ordered the four passengers out of the vehicle, 

one by one, and patted them down, starting with defendant and ending with the 

front seat passenger. Upon patting down the last passenger, Detective Jose Perez 

noticed bullets on the passenger seat in plain view. Detective Perez then called

for backup. 

When the other officer units arrived, Detective Allen noticed⸺in plain 

view⸺"the buttocks of a gun . . . protruding from the console of the vehicle." 

The detectives placed the four men in handcuffs and called for a crime scene 

unit. The crime scene officer took pictures of the inside of the vehicle, including 

inside the console, in which the officer noticed two additional handguns. That

officer also discovered a cigar wrapper inside the car, which Detective Perez

said is used to wrap marijuana. 

The Fourth Amendment of the United States Constitution and Article I, 

paragraph 7 of the New Jersey Constitution protects individuals from 

unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, 

¶ 7. Warrantless searches are "presumptively unreasonable," and thus, "the State 

bears the burden of proving the validity of a warrantless search." State v. 

Cushing, 226 N.J. 187, 199 (2016). Generally, evidence seized in violation of 

the warrant requirement must be suppressed. Mapp v. Ohio, 367 U.S. 643, 655
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(1961); In Interest of J.A., 233 N.J. 432, 446 (2018). "To be valid, a warrantless 

search must fit into a recognized exception to the warrant requirement." 

Cushing, 226 N.J. at 199 (citing State v. Watts, 223 N.J. 503, 513 (2015)). 

The first applicable exception to the warrant requirement—the automobile 

exception—authorizes a police officer to conduct a warrantless on-scene search 

of a motor vehicle only when police have probable cause to believe the vehicle 

contains contraband or evidence of an offense and circumstances giving rise to 

this probable cause are "unforeseeable and spontaneous." State v. Witt, 223 N.J. 

409, 447 (2015). The judge found, in accordance with Witt, that police had 

probable cause to believe that the vehicle contained contraband or evidence of 

an offense and that the circumstances giving rise to probable cause were 

"unforeseeable and spontaneous." Indeed, the record demonstrates that police 

had probable cause to believe the vehicle contained contraband. Moreover, the 

judge found that as police pulled defendant over for a motor vehicle violation, 

they saw bullets, a handgun, and evidence of marijuana use in plain view. 

The plain view doctrine—the second applicable exception—allows police 

to seize contraband without a warrant. State v. Mann, 203 N.J. 328, 341 (2010). 

The doctrine has a three-prong test. "First, the police officer must be lawfully 

in the viewing area." State v. Bruzzese, 94 N.J. 210, 236 (1983). Second, the 
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officer's discovery of the evidence must be "inadvertent[], meaning that he did 

not know in advance where evidence was located nor intend[ed] beforehand to 

seize it." Bruzzese, 94 N.J. at 236 (internal quotations and citation omitted). 

Third, "it has to be immediately apparent to the police that the items in plain 

view were evidence of crime, contraband, or otherwise subject to seizure." 

Bruzzese, 94 N.J. at 236 (internal quotations and citation omitted). There is no 

expectation of privacy in areas visible through windows to a police officer

outside of the vehicle. State v. Reininger, 430 N.J. Super. 517, 534 (App. Div. 

2013). 

The judge found Detective Perez credible. At the suppression hearing, 

Detective Perez stated that as he approached the rear of the vehicle he "smelled 

a strong odor of marijuana coming out of the vehicle." He said that Detective 

Allen, the other officer with him, asked defendant who was smoking, and 

defendant stated that he "just finished smoking a blunt." The smell of marijuana 

itself constitutes probable cause. State v. Vanderveer, 285 N.J. Super. 475, 479 

(App. Div. 1995); State v. Rodriguez, 459 N.J. Super. 13, 25 (App. Div. 2019) 

(denying suppression of evidence discovered during a warrantless automobile 

search because the officer smelled raw marijuana); see also State v. Nishina, 175 

N.J. 502, 517-18 (2003) (finding probable cause to search the defendant's 
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vehicle where police smelled marijuana on defendant's person, discovered drug 

paraphernalia on the defendant's person, and observed in plain view a plastic 

bag protruding from the console). The judge noted that the "strong smell of 

marijuana" gave probable cause that there was contraband in the vehicle. 

Defendant argues that the guns discovered during the vehicle search 

should be suppressed because the officer who broke the console did not testify. 

However, Detective Perez's credible testimony established that probable cause 

existed. "Probable cause exists where the facts and circumstances within . . . 

[the officers'] knowledge and of which they had reasonably trustworthy 

information [are] sufficient in themselves to warrant a man of reasonable caution 

in the belief that an offense has been or is being committed." Schneider v. 

Simonini, 163 N.J. 336, 361 (2000) (alterations in original) (citations and 

internal quotations omitted). Detective Perez himself smelled the marijuana that 

led to the initial pat down of the passengers. He himself was the one who spotted

the bullet on the front seat, suggesting that there was likely to be more evidence 

of illegal activity found in the car. That Detective Perez himself did not conduct 

the search that rendered two additional handguns is irrelevant, as he can testify 

to the probable cause that led to the search of the automobile. 
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B.

We now turn to the second incident six months later, which led to the 

recovery of another gun. On this point, defendant maintains that the police 

lacked reasonable suspicion to stop him. Like the earlier suppression motion, 

probable cause existed. 

Lieutenant Whitaker responded to complaints of narcotics transactions. 

He was conducting surveillance from an "[u]nconventional vehicle" in "plain 

clothes," with an arrest team nearby. Lieutenant Whitaker observed two 

individuals, one later identified as defendant, engage in an exchange of money 

for CDS. After the exchange of drugs, the other man was approached by police

and dropped an item to the ground, which police seized and identified as heroin. 

Police followed defendant as he walked away. They were in unmarked 

vehicles, but wore badges and tactical vests with "POLICE" on the front and

back. The officers exited their vehicle and announced they were police as they 

approached defendant, who fled on foot. Detective James Cosgrove and 

Detective Anthony, who were contacted by Lieutenant Whitaker, followed 

defendant in their vehicle. They observed defendant reach into his pocket as he 

ran. As defendant ran alongside the car, Detectives Cosgrove and Anthony 

observed defendant remove a black handgun from either his waistband or jacket, 
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and continue to run while holding it in his hand. The detectives then witnessed 

defendant throw the gun over a gate and into an alleyway. Police arrested 

defendant, searched him incident to arrest, and seized a container of marijuana 

from his jacket pocket. 

"[P]olice officers must obtain a warrant . . . before searching a person's 

property, unless the search 'falls within one of the recognized exceptions to the 

warrant requirement.'" State v. DeLuca, 168 N.J. 626, 631 (2001) (quoting State 

v. Cooke, 163 N.J. 657, 664 (2000)). An investigatory stop—like here—is a 

valid exception "if it is based on 'specific and articulable facts which, taken 

together with rational inferences from those facts,' give rise to a reasonable 

suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126-27 (2002) 

(quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). The parameters for an 

investigatory stop are well-established.

[A] police officer may conduct an investigatory stop of 

a person if that officer has particularized suspicion 

based upon an objective observation that the person 

stopped has been or is about to engage in criminal 

wrongdoing. The stop must be reasonable and justified 

by articulable facts; it may not be based on arbitrary 

police practices, the officer's subjective good faith, or a 

mere hunch.

[State v. Coles, 218 N.J. 322, 343 (2014) (internal 

quotations and citations omitted).] 
11 A-2896-17T3

The judge found that the officers had probable cause to arrest defendant 

based on the observations of Lieutenant Whitaker, who relayed to them that he 

witnessed defendant engage in a narcotics transaction. Detective Cosgrove 

testified that "[Lieutenant Whitaker] gave [officers] information regarding: 

[defendant], physical description, clothing description, height, weight, where 

he's positioned." The judge noted that "[a]t the very least, the officers had 

reasonable suspicion sufficient to stop and question [defendant], which ripens 

into probable cause on its own when [defendant] begins to flee after the officers 

announce themselves." 

As Detective Cosgrove followed defendant, he witnessed him "remove[] 

a black semiautomatic handgun from either his jacket or his waistband area, 

which [he] could then clearly see. And [defendant] continued running towards 

the house . . . with the gun in his hand." He saw defendant throw his gun over 

the gate. The judge emphasized that Detective Cosgrove's observations 

"provide[d] more than sufficient context for the officers to determine that 

[defendant] was involved in criminal activity." 

Detective Cosgrove testified that he personally saw defendant flee after 

defendant saw the police, adding weight to the already existing reasonable 

articulable suspicion. See State v. Citarella, 154 N.J. 272, 281 (1998). He 
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observed defendant throw the gun over a fence, certainly giving him reasonable 

suspicion to conduct an investigatory stop. Detective Cosgrove also gave 

detailed testimony describing the events of the stop, which was corroborated by 

video testimony. 

C.

Finally, defendant argues that his due process rights were violated because 

the judge relied on hearsay at a suppression hearing, specifically, that Detective 

Cosgrove testified to what Lieutenant Whitaker observed. We need not address 

this issue because defendant failed to raise a hearsay objection at the suppression 

hearing. State v. Robinson, 200 N.J. 1, 19 (2009); see also Nieder v. Royal 

Indem. Ins. Co., 62 N.J. 229, 234 (1973). Nevertheless, we make these brief 

remarks. 

N.J.R.E. 101(a)(2)(E) provides that at a suppression hearing, the rules of 

evidence "may be relaxed . . . to admit relevant and trustworthy evidence . . . 

[during] proceedings to determine the admissibility of evidence[.]" The New 

Jersey Supreme Court has emphasized that "hearsay is permissible in 

suppression hearings[.]" Watts, 223 N.J. at 519 n.4; see also State v. Gibson, 

429 N.J. Super. 456, 466 (App. Div. 2013) (noting that suppression hearings

"may include evidence inadmissible in the trial on the merits," and that "[t]he 
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Rules of Evidence do not apply in the suppression hearing, except as to N.J.R.E. 

403 and claims of privilege"). 

In State v. Williams, 404 N.J. Super. 147, 171 (App. Div. 2008), this court 

concluded that the defendant could not invoke his Sixth Amendment right to 

challenge the admission of hearsay during a suppression hearing because the 

right was "inapplicable" to the proceeding. See United States v. Raddatz, 447 

U.S. 667, 679 (1980) (emphasizing that "the process due at a suppression 

hearing may be less demanding and elaborate than the protections accorded the 

defendant at the trial itself"). Indeed, Detective Cosgrove's testimony was 

sufficiently reliable. Lieutenant Whitaker, the declarant, made the statements 

to his fellow police officers in the course of a narcotics investigation. Lieutenant 

Whitaker made the statements voluntarily during an investigation. He relayed

what he observed, which was corroborated by the video, the heroin found on the 

buyer, and defendant's possession of marijuana and a weapon.

Affirmed.