SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2213-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CLIFTON L. HOLLEY, a/k/a

ANTHONY L. HOLLEY, and

ANTHIONY L. HOLLEY,

Defendant-Appellant.

______________________________

Submitted May 26, 2020 – Decided July 9, 2020

Before Judges Sumners and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment No. 17-06-1217.

Neil Law, attorneys for appellant (Durann A. Neil, Jr., 

on the brief).

Damon G. Tyner, Atlantic County Prosecutor, attorney 

for respondent (Mario Christopher Formica, Deputy 

First Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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.
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Following denial of his motion to suppress evidence seized in a 

warrantless motor vehicle stop, defendant Clifton Holley pled guilty to thirddegree possession of controlled dangerous substances with the intent to 

distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2); third-degree resisting arrest by 

force, N.J.S.A. 2C:29-2(a); fourth-degree throwing bodily fluids at a law 

enforcement officer, N.J.S.A. 2C:12-13; and second-degree offer of benefit to a 

public servant, N.J.S.A. 2C:27-11(a).

1 Defendant was sentenced to an aggregate 

prison term of eight years with parole ineligibility for three-and-a-half years. 

In his appeal, defendant argues:

POINT I

THE WARRANTLESS MOTOR VEHICLE 

STOP VIOLATED [DEFENDANT]'S RIGHTS 

UNDER THE FOURTH AMENDMENT OF 

THE UNITED STATES CONSTITUTION AND 

ARTICLE 1, PARAGRAPH 7 OF THE NEW 

JERSEY CONSTITUTION.

A. The Investigative Detention of [Defendant] 

Violated His Constitutional Rights Because 

There Was No Reasonable Suspicion of Criminal 

Activity.

B. There Was No Probable Cause to Arrest 

[Defendant] . . . and Search His Motor Vehicle. 

 

1

 He also pled guilty to other offenses under two unrelated indictments, which 

are not the subject of this appeal.
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POINT II

THE TRIAL COURT ERRED IN NOT 

SUPPRESSING ALL DERIVATIVE 

EVIDENCE OBTAINED BY THE STATE 

FOLLOWING UNLAWFUL DETAINMENT 

AS IT IS FRUIT OF THE POISONOUS TREE.

Based upon our standard of review, we affirm the suppression order. 

I

At the motion to suppress hearing, the State presented the testimony of 

Egg Harbor Township Police Officers William Burns and Robert Sheppard 

regarding the roadside warrantless stop and search of defendant's person and 

vehicle on December 8, 2016, at approximately 11:28 p.m. In addition, the State 

presented the motor vehicle recording (MVR) from Burns' police car which 

filmed the stop of defendant's car and the officers' subsequent encounter with 

defendant.2 Defendant neither testified nor presented any witnesses.

Burns, a five-year patrolman with the police department, was on routine 

patrol in a marked patrol car on Black Horse Pike when he observed defendant's

car traveling with only one operable headlight, a violation of N.J.S.A. 39:3-66. 

Burns made a U-turn and activated his overhead lights and pulled over 

defendant's car to the side of the road. Burns stated upon approaching the car, 

 

2

 The DVD was not part of the record provided to this court. 
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he saw defendant – the only person in the car – light a cigarette. At Burns' 

request, defendant turned over his driver's license, an insurance card, and a 

registration card.3 He also noted seeing cigarillos, which are commonly used to 

smoke marijuana, inside the car.

Burns returned to his patrol car and radioed the police dispatcher to run a 

check on defendant's license. After stating defendant's name to the dispatcher,

Burns received a call on his cell phone from Sheppard, telling him to "be careful"

based on Sheppard's previous dealings with defendant. Burns also noticed the 

insurance card was temporary and had expired sixty days earlier.

When Burns returned to defendant's car, the audio of the MVR indicates 

he questioned defendant about the expired insurance card, then asked: "Does 

anyone smoke weed in this car?" Burns testified by that time he was able to 

smell marijuana because defendant was no longer smoking a cigarette. Burns 

also indicated he smelled a faint odor of alcohol coming from defendant's breath. 

Defendant denied marijuana had been smoked in the car. Burns then ordered 

defendant out of the car and requested back-up. After Sheppard and another 

officer arrived shortly thereafter, a search of Burn's person revealed $1206 in 

small denominations in his waistband. The search continued, resulting in the 

 

3

 The car was owned by defendant's uncle. 
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recovery of "a little pouch" made of plastic hanging down defendant's torso from

a string connected to his shirt button, containing cocaine, heroin, and 

prescription medication.

4

On cross-examination, Burns acknowledged no marijuana was found in 

the car or on defendant, and he could not pinpoint if the marijuana odor was 

coming from defendant's person or inside the car. He also stated that he put his 

head fully and partially inside defendant's car during his questioning of 

defendant about unexpired insurance card. 

Sheppard, a twelve-year veteran of the police department, confirmed his 

phone call to Burns after hearing Burns' radio dispatch regarding defendant. He 

testified he searched the interior of defendant's vehicle; finding no contraband 

but "detect[ing] a faint odor of marijuana lingering inside the vehicle."

After hearing counsel's arguments, the motion judge reserved her decision 

and allowed the submission of post-hearing briefs. Eight days later on April 26, 

2018, the judge issued an order and rendered an oral decision denying 

defendant's motion. 

 

4

 The pouch contained twenty-four grams of cocaine, twenty-six wax folds of 

heroin, seven Oxycodone pills of ten milligrams, and three Oxycodone pills of 

seven-and-a-half milligrams. 
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The judge determined the State proved by a preponderance of evidence 

the warrantless search and seizure conducted by Burns and Sheppard was 

constitutionally permissible. Her finding was based upon her assessment the 

officers gave credible testimony because it was consistent with their police 

reports and her viewing of the MVR during the hearing and later in chambers 

when she was contemplating her decision. 

Pointing to State v. Bernokeits, where this court recognized "[a] motor 

vehicular violation, no matter how minor, justifies a stop without any reasonable 

suspicion that the motorist committed a crime or other unlawful act[,]" the judge 

found Burns had a right to stop defendant's car because of the headlight

violation. 423 N.J. Super 365, 370 (App. Div. 2011) (citations omitted). The 

judge then determined Burns had the right under State v. Nishina, to search

defendant and his car based on his credible testimony that he smelled marijuana

from inside the car because "the smell of marijuana itself constitutes probable 

cause 'that a criminal offense ha[s] been committed and that additional 

contraband might be present.'" 175 N.J. 502, 515-16 (2003) (quoting State v. 

Vanderveer, 285 N.J. Super. 475, 479 (App. Div. 1995)).

The judge rejected defendant's contention that Burns made an illegal 

search of his car by putting his head inside the car which enabled him to 
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allegedly smell the marijuana odor. Based upon her review of the MVR, she 

determined there was no constitutional violation because Burns, who 

approached defendant's car from the passenger's side to avoid traffic, "put[] his 

head in and out of [the] car for the purpose of having a conversation with the 

defendant and asking . . . defendant to — and giving . . . defendant the

opportunity, frankly, to produce [an unexpired insurance card] which he did not 

seem to have."

5

 The judge commented further that at no time did she see Burns 

"put his head into the car entirely to conduct a search of the car."

II

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 

 

5

 The judge's decision gave some attention to finding defendant's reliance on an 

unpublished decision was misplaced. Because unpublished decisions have no 

precedential value, Rule 1:36-3, we do not discuss the judge's reasoning. 
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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)).

Applying the de novo standard of review to the motion judge'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 
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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 (alteration in original) (quoting State v. 

Maryland, 167 N.J. 471, 482 (2001)). "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 

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) (internal quotation marks omitted) (quoting Nishina, 

175 N.J. at 515-16 (2003)). Thus, in the context of a warrantless automobile 

search, the "smell of marijuana emanating from the automobile [gives] the 
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officer probable cause to believe that it contain[s] contraband." State v. PenaFlores, 198 N.J. 6, 30 (2009) (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)).

Defendant maintains there was no reasonable suspicion of criminal 

activity to warrant the search of his person and car. He specifically asserts 

"Burns' suspicion of criminal activity [was] entirely absent of objective facts of 

criminal behavior to justify the warrantless detention of [him]." Defendant 

contends Burns' observation of "the pack of . . . cigars that he associates with 

'somebody that’s smoking marijuana," caused him to have a "hunch" defendant 

had smoked marijuana. Defendant contends "Burns attempts to justify his 

detection of the odor of marijuana upon his second interaction with [defendant]
11 A-2213-18T1

because [defendant] was no longer smoking a cigarette." He contends "Burns'

. . . smell of marijuana can []only be considered a subjective hunch because there 

was no observation indicative of the same[,]" since "[t]here was no marijuana."

The motion judge found that based upon the officers' credible testimony

and their reports, and the MVR, there was probable cause to search defendant 

and the interior of his car under the "plain smell" doctrine following an 

unchallenged motor vehicle stop due to an inoperable headlight. Defendant has 

not persuaded us to adopt his interpretation of the facts and dismiss the judge's 

findings. Under our deferential standard of review, we are satisfied the judge's 

factual findings are based upon credible evidence in the record and we will not 

disturb them. We further conclude the judge properly applied those facts to the 

law governing warrantless searches following the probable cause stop of 

defendant for a motor vehicle violation.

Affirmed.