SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 18T1 STATE OF NEW JERSEY, Plaintiff

- Appellant,

v. TYJON A. WILLIAMS a/k/a TYJOU WILLIAMS, Defendant

- Respondent.

Submitted October 17 , 2019

– Decided Before Judges Alvarez and Suter

. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 18

- 04

- 0512. Christopher L.C. Kub eriet, Acting Middlesex County Prosecutor, attorney for appellant (Joie D. Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for r espondent (Marcia H. Blum, Ass istant Deputy Public Defender, of counsel and 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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.

October 24, 20192 A

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PER CURIAM By leave granted, the State appeals a March 25, 2019 Law Division order
suppress ing the evidence against defendant Tyjon Williams. See R. 2:2

- 4. We

now reverse. At the hearing, on ly the arresting officers testified. New Brunswick Police
O fficers Justin Meccia and Richard Reed were operating an unmarked patrol car on January 29, 2018 , at 11:24 p.m., when they noticed a black Acura parked at the intersection in a high

- crime area. T he officers ran the license plate number through their computer and learned the registered owner's driver's license privileges had been suspended. The officers made a U

- turn, and followed the Acura . A fter it turned right, the officers activated their lig hts. The vehicle, driven by defendant, stopped in

an area described by one of the officers as a residential parking lot. Defendant lives in one of the homes or apartments adjoining the area where he parked. Both officers testified, corroborated by the mo bile video recording played
in court during the hearing, that defendant when stopped immediately walked towards the m asking "what I do wrong ? " O n the video, o ne of the officer s respond s that d e fendant was driving with a suspended license . D efendant was

r epeatedly instructed by both officers to return to his car . He continued to3 A

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approach and was arrested for obstr uction . W hile search ing his person incident to the arrest, the officers discovered $7 29 in cash. B oth officers noted that
defendant smelled of marijuana . Meccia specifically recalled the odor was of raw marijuana. After placing defendant in the rear of their vehicle, the officers approached defendant's car. A voice is heard on the recording commenting "a strong odor in the back seat" emanated from the vehicle. A bag containing thirty

- three grams of raw marijuana and a Tupperware container with plastic baggies were discovered underneath the passenger seat. The judge found the facts, generally undisputed, as we have described them including th at defendant was initially arrested fo r obstruction, N.J.S.A. 2C:29

- 1 , for which he was not formally charged, because of his failure to obey police commands. In contrast to the testimony, however, t he judge described the area where defendant came to a sto p as a driveway. The judge granted the motion as a matter of law because "the vehicle was not mobile at that time . . . [and] defendant was already in custody." Since the vehicle was parked "in the driveway[,]" and he opined that the officers had secured the scene, he concluded no exception to th e warrant requirement applied.4 A

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The State's sole point on appeal is:
THE TRIAL COURT ERRONEOUSLY SUPPRESSED EVIDENCE FOUND IN DEFENDANT'S CAR FOLLOWING A VALID AND UNFOR[E]SEEABLE MOTOR VEHICLE STOP, FOLLOWED BY D EFENDANT'S FAILURE TO OBEY AN ORDER OF THE POLICE AND CREDIBLE EVIDENCE OF A STRONG SMELL OF MARIJUANA EM[A]NATING FROM THE CAR.
T o restate t he issue , the question posed is whether the automobile exception to the Fourth Amendment's warrant requirement ap plies. It is well

established that the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution , require police to obtain
warrants be for e making searches and seizures . Wa rrantless searches and seizures are presumptively invalid. See State v. Rodriguez , 459 N.J. Super. 13, 20 (App. Div. 2019).
In State v. Witt , 223 N.J. 409 (2015), the Court "announced

. . . a sharp departure from a more narrow construction of the automobile exception." Rodriguez , 459 N.J. Super. at 21. As Rodriguez explains, the Witt decision observed that the "multi

- factor exigent circumstances test" of prior case law was "difficult to apply with consistency, particularly for law enforcement officers on patrol, and placed upon them ' unrealistic and impracticable burdens.'" I bi d. (citing Witt , 223 N.J. at 414

- 15). T he Court in Witt restated the test to authorize5 A

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automobile searches where "(1) the police have probable cause to believe the vehicle contains evidence of a criminal offens e; and (2) the circumstances giving rise to probable cause are unforeseeable and spontaneous." Id. at 22 (citing Witt , 223 N.J. at 447

- 48)

. In this case, the police had a reasonable and articulable suspicion that a driver was violating motor vehicle laws , and thus stop ped the Acura because the registered owner's license was suspended

. State v. Dunbar , 229 N.J. 521, 533 (2017). Defendant's subsequent conduct of approaching police despite being repeatedly commanded to return to his car, e s tablish ed probab le cause for an arrest for obstruction. Once arrested, both officers smelled a strong odor of marijuana on defendant' s person . Thus , the police had probable cause to search the vehicle for drugs

. T he str o ng odor of marijuana emanating from the car
bolst ered the probable cause for the officers to lawfully search the passenger compartment. The circumstances which gave rise to this search were clearly unforeseen and spontaneous. It makes no difference here, contrary to the Law Division judge's conclusion, that defendant drove hi s car to a residential parking area adjacent to his home . An unlicensed driver, like a drunken driver, cannot defeat enforcement of the motor vehicle laws by entering a restricted parking area, such6 A

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as the one in this case. See Sta te v. Nikola , 359 N.J. Super. 573, 586 (App. Div. 2003) (finding that defendant's entry into an open garage did not prevent her warrantless arrest for driving while intoxicated, N.J.S.A. 39:4

- 50). After defendant was lawfully arrested , the officers smelled marijuana on his person, giving rise to probable cause to search his vehicle. Th e fact th at the smell of marijuana from the car was noticeable before the officers entered the vehicle simply added an additional factor contributing to probable cause. The t hree rationales that anchor the current automobile exception apply in this case. See Witt , 223 N.J. at 422

- 23 ("(1) the inherent mobility of the vehicle; (2) the lesser expectation of privacy in an automobile compared to a home; and (3) the recognition th at a Fourth Amendment intrusion occasioned by a prompt search based on probable cause is not necessarily greater than a prolonged detention of the vehicle and its occupants while the police secure a warrant.") ( i nternal citations omitted). The vehicle cont inued to be mobi le regardless of its location off

- street . In the same way it pulled into the residential parking area , it could have as easily pulled out. Th e proximity of the parking area to defendant' s home did not create

a reasonable expectation of pr ivacy that took the search out of the automobile exception. T he intrusion upon defendant's privacy was no different regardless7 A

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of the location

– here it was still, essentially, a roadside stop

. See Witt , 223 N.J.
at 422

- 23.
Th e officers were not obligat ed to obtain a warr a n t because defendant had been taken into custody and was seated in the back of the police car , or because the arrest was made after he parked his vehicle in an open area near his home

. The judge's observation that the scene was "secure d" has little meaning in this

case. The automobile exception as defined in Witt applies. Th e motion should not have been granted. Reversed.