OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2670-97T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICHARD GARY HOLLAND,
Defendant-Appellant.
_________________________________________________________________
Submitted November 10, 1999 - Decided January 26, 2000
Before Judges Brochin, Eichen and Wecker.
On appeal from Superior Court of
New Jersey, Law Division, Gloucester
County.
Ivelisse Torres, Public Defender,
attorney for appellant (Peter N.
Milligan, Designated Counsel, of
counsel and on the brief).
Andrew N. Yurick, Gloucester County
Prosecutor, attorney for respondent
(Audrey M. Curwin, Assistant
Prosecutor, on the brief).
___________________________________________________________________
A-5641-97T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL J. CALIFANO,
Defendant-Appellant.
_________________________________________________________________
Argued November 4, 1999 - Decided
Before Judges Brochin, Eichen and Wecker.
On appeal from Superior Court of
New Jersey, Law Division, Monmouth
County.
Peter M. O'Mara argued the cause for
appellant.
Mark P. Stalford, Assistant Prosecutor,
argued the cause for respondent
(John Kaye, Monmouth County Prosecutor,
attorney; Mr. Stalford, of counsel and
on the brief).
The opinion of the court was delivered by
BROCHIN, J.A.D.
After a jury trial, defendant Richard Gary Holland was
convicted of possession of more than fifty grams of marijuana
(N.J.S.A. 2C:35-10(a)(3)) and possession of more than one ounce
but less than five pounds of marijuana with the intent to
distribute it (N.J.S.A. 2C:35-5(a)(1)). He was sentenced to two
years' probation conditioned on 100 hours of community service
and to mandatory penalties totaling $1,175 and the suspension of
his driver's license. He challenges the trial court's denial of
his pretrial motion to suppress evidence against him on the
ground that it was the product of an illegal, warrantless search.
He also asserts that his sentence is excessive.
In a separate, unrelated case, defendant Michael Califano
was charged with the disorderly persons offense of possessing
fifty grams or less of marijuana (N.J.S.A. 2C:35-10(a)(4)). He
moved before trial in the Manasquan municipal court to suppress
the evidence against him on the ground that it was the product of
an illegal, warrantless search. After the denial of his motion,
defendant was admitted into the conditional discharge program and
the conditions of the discharge were stayed pending appeal. On
appeal, the Superior Court, Law Division, reaffirmed the denial
of his motion. Mr. Califano challenges that ruling.
Mr. Holland's and Mr. Califano's cases were presented to us
on two successive calendars. The only connection between them is
that in each of the cases a policeman knocked on the exterior
door of a residence because he smelled the odor of burning
marijuana emanating from the residence and one or more policemen
observed contraband when they entered the residence without a
warrant. We have consolidated the two cases solely for the
purpose of deciding them by this opinion because they both
present similar legal questions.
After the medical emergency had been dealt with and the ambulance had left or was about to leave, two of the police officers stationed themselves outside the back door of the apartment from which the marijuana smell was emanating. Two other policemen approached the front door. They stood on the front porch outside the door and one of them announced, "Glassboro police, could you open the door please." The policemen heard talking and laughing through the open window. One person, later identified as defendant, was seen going to a freezer toward the back of the house. He then ran out of the house through the back doorSee footnote 11 and was apprehended and placed under arrest. In reply to a question from the police, he confirmed that there was someone else in the house.
Two of the policemen then entered the house. Inside they observed various items of drug paraphernalia in plain view. While the police were on the first floor of the house, a man came down the stairs. The police detained him and took him outside. He told the police he was unsure whether there was anyone else in the house.
The police went upstairs. On the second floor, they saw a large number of glassine bags of various sizes, a scale, and green vegetable material which they suspected was marijuana. On the top floor, they saw a room that was fitted out for growing marijuana. On the way to the basement, they found a handgun case in plain view with a loaded gun inside. When they reached the basement, they found another room fitted out with a rotating light on a timer, irrigation lines, and growing pots to grow marijuana. They then opened the freezer to which they had seen defendant go before leaving the house. Inside the freezer, they found two large clear plastic bags containing what they suspected was marijuana.
On the basis of what they had observed, the police then obtained a search warrant and retrieved the evidence they had seen. The only items which they took before obtaining a warrant were the gun and gun case.
Defendant Holland contends that the United States and New Jersey Constitutions forbade the police to enter the residence without a warrant. He also asserts that once inside, they had no legal right to range throughout the house and, particularly, that they had no legal right to open the freezer.
-2-
Both the State and defendant Califano proceeded in both the municipal court and the Law Division on the assumption that the State could not successfully rely on the consent to enter given by the woman who answered the policeman's knock on the door because the State could not show that she knew that she had the right to refuse to admit him. See State v. Johnson, 68 N.J. 349 (1975). On that assumption, which we accept for the purpose of our decision, the issue before us is whether the policeman's entry was authorized by what he knew before he went in.
As the United States Supreme Court has acknowledged, "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed.2d 752, 764 (1972). Accordingly, it is well established that "searches and seizures inside a home without a warrant are presumptively unreasonable," Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed.2d 639, 651 (1980), and hence
"prohibited by the Fourth Amendment, absent probable cause and exigent circumstances."
Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S. Ct. 2091, 2097, 80 L. Ed.2d 732, 743 (1984).
See also State v. Ulrich, 265 N.J. Super. 569, 572-73 (App. Div. 1993) (the two prongs of the test of the legality of a warrantless intrusion into a residence are probable cause and exigent circumstances), certif. denied, 135 N.J. 304 (1994).
Reported decisions have repeatedly recognized that the detection of the smell of burning marijuana establishes probable cause for believing that there is contraband in the immediate vicinity and that a criminal offense is being committed. State v. Vanderveer, 285 N.J. Super. 475, 478-79 (App. Div. 1995); State v. Judge, 275 N.J. Super. 194, 201 (App. Div. 1994); State v. Sarto, 195 N.J. Super. 565, 574 (App. Div. 1984); State v. Gaines, 147 N.J. Super. 84, 96-97 (App. Div. 1975), aff'd, 72 N.J. 346 (1977); see also Donald M. Zupanec, Annotation, Odor of Narcotics as Providing Cause for a Warrantless Search, 5 A.L.R.4th 681 (1981).
In both the Holland and Califano cases, police witnesses testified that as the result of their training and experience they were able to identify the distinctive smell of burning marijuana and that they detected that odor emanating from the residences which they subsequently entered. The judges who considered the defendants' motions to suppress credited the police officers' testimony, and there is no reason for it not to be believed. It establishes that in both cases there was probable cause to believe that one or more persons on the premises from which the odor was emanating possessed an unknown quantity of marijuana, a disorderly persons offense. See N.J.S.A. 2C:35-10(a)(4). This satisfies the first prerequisite for the legality of a warrantless search.
As the Court pointed out in Hutchins, supra, 116 N.J. at 460, the second prerequisite is the existence of “exigent circumstances.” A realistic danger that evidence of a crime will be destroyed or will disappear before a warrant can be obtained may be one such “exigent circumstance.” See State v. Lewis, 116 N.J. 477, 484-85 (1989); Hutchins, supra, 116 N.J. at 464; cases cited id. at 464-67.
In Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed.2d 732 (1984), the Court held that a "minor offense" would ordinarily not generate the "exigent circumstances" which would justify a warrantless search or arrest in the suspect's home. In Welsh, the police violated the defendant's Fourth Amendment rights by arresting him in his home without a warrant for driving while intoxicated. The Court emphasized that "the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests." Id. at 749-50, 104 S. Ct. at 2097, 80 L. Ed. 2d at 743. The opinion notes that only "hot pursuit of a fleeing felon," "destruction of evidence," and "ongoing fire" were recognized by the Court as emergency situations justifying a warrantless search or arrest and that only the "hot pursuit" doctrine was applied to arrests in the home. Id. at 750, 104 S. Ct. at 2097-98, 80 L. Ed. 2d at 743. In language that is particularly pertinent to the cases before us, the Court continues: Our hesitation in finding exigent circumstances, particularly when warrantless arrests in the home are at issue, is especially appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. When the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.
[Id. at 750, 104 S. Ct. at 2098, 80 L. Ed.
2d
at 743 (citations omitted) (emphasis added).]
The Welsh opinion explicates the meaning of "minor offense"
by pointing out in a footnote to that phrase that in Payton v.
New York,
445 U.S. 573,
100 S. Ct. 1371,
63 L. Ed.2d 639,
(1980), which prohibits warrantless arrests in the home without
probable cause and exigent circumstances, the dissenters,
although believing that warrantless home
arrests are not prohibited by the Fourth
Amendment, recognized the importance of the
felony limitation on such arrests. See 445
U.S. at 616-617,
100 S. Ct. 1371,
63 L. Ed.2d 639 (White, J., joined by Burger, C.J.,
and Rehnquist, J., dissenting) ("The felony
requirement guards against abusive or
arbitrary enforcement and ensures that
invasions of the home occur only in case of
the most serious crimes").
[Welsh, supra, 466 U.S. at 750, 104 S. Ct. at
2098, 80 L. Ed.
2d at 743.]
In further amplification of the meaning of "minor offense"
in this context, the Welsh opinion quotes with approval as
follows from a concurring opinion of Justice Jackson in McDonald
v. United States,
335 U.S. 451, 459-60,
69 S. Ct. 191, 195-96,
93 L. Ed. 153 (1948), a case arising from a conviction for
conducting an illegal numbers game,
Whether there is reasonable necessity for a
search without waiting to obtain a warrant
certainly depends somewhat upon the gravity
of the offense thought to be in progress as
well as the hazards of the method of
attempting to reach it. . . . It is to me a
shocking proposition that private homes, even
quarters in a tenement, may be
indiscriminately invaded at the discretion of
any suspicious police officer engaged in
following up offenses that involve no
violence or threats of it. . . . When an
officer undertakes to act as his own
magistrate, he ought to be in a position to
justify it by pointing to some real immediate
and serious consequences if he postponed
action to get a warrant.
[Welsh, supra, 466 U.S. at 750-51, 104 S. Ct.
at 2098, 90 L. Ed.
2d at 744.]
The New Jersey Supreme Court recognized in State v. Bolte,
115 N.J. 579, 597, cert. denied,
493 U.S. 936,
110 S. Ct. 330,
107 L. Ed.2d 320 (1989), that Welsh had placed constitutional
limits on the use of the doctrine of exigent circumstances to
justify a warrantless entry into a home. In Bolte, the police
entered the defendant's home to arrest him for drunk driving. A
police officer had observed him driving erratically for
approximately one mile. The defendant then entered his house
through his garage door. The police officer followed him in
without a warrant, arrested him and took him to the police
station for a breathalyzer test. The Court noted the State's
concession that when the arresting officer entered the
defendant's home, he lacked probable cause to believe that the
defendant had been driving while intoxicated. Ibid. Therefore,
the Court noted, the police had probable cause to believe only
that defendant had committed several motor vehicle violations and
two disorderly persons offenses, eluding, N.J.S.A. 2C:29-2(b),
and resisting arrest, N.J.S.A. 2C:29-2(a). Citing Welsh, supra,
466 U.S. 740,
104 S. Ct. 2091,
80 L. Ed.2d 732 for the "holding
that an arrest for a 'minor offense' can rarely support a finding
of exigent circumstances sufficient to justify a warrantless home
entry," the New Jersey Supreme Court held that "these offenses,
individually and in the aggregate, are within the category of
'minor' offenses held by the Welsh Court to be insufficient to
establish exigent circumstances justifying a warrantless home
entry." Bolte, supra, 115 N.J. at 597. Cf. Johnson v. United
States,
333 U.S. 10,
68 S. Ct. 367,
92 L. Ed. 436 (1948) (odor of
burning opium emanating from a hotel room did not justify a
warrantless entry into the room).
We conclude that defendants' motions to suppress in both the
Holland and Califano cases are governed by Welsh and Bolte. In
both cases, the only evidence of crime the police officers had
before they entered the premises was the smell of burning
marijuana. There is nothing in the records of either of the
cases to show that they had probable cause to believe that either
premises housed more than fifty grams of marijuana. In other
words, they had probable cause to believe only that a disorderly
persons offense was being committed. See N.J.S.A. 2C:35-10(a)(3)
and (4). We are not authorized to make a moral judgment that
possession of fifty grams or less of marijuana is a graver
offense than the disorderly persons offenses of eluding or
resisting arrest. The need to search for evidence of possession
of marijuana or to arrest the possessors therefore did not
constitute "exigent circumstances" which justified the police
entering defendants' residences without a warrant. Cf. State v.
Lewis,
227 N.J. Super. 593 (App. Div. 1988) ("bare-bones" showing
of probable cause to believe that there was drug dealing in a
residence did not establish "exigent circumstances" which
obviated search warrant).
Nonetheless, there are reported cases from other
jurisdictions which hold that because the smell of burning
marijuana is itself proof that evidence of criminal conduct is
being destroyed, the detection of that smell establishes "exigent
circumstances." See State v. Decker,
580 P.2d 333 (Ariz. 1978);
State v. Kosman,
892 P.2d 207 (Ariz. Ct. App. 1995); Mendez v.
People,
986 P.2d 275 (Colo. 1999); People v. Baker,
813 P.2d 331
(Colo. 1991); Joseph v. State,
3 S.W.3d 627 (Tex. App. 1999).
These cases, however, fail to cite Welsh, supra,
466 U.S. 740,
104 S. Ct. 2091,
80 L. Ed.2d 732. The cases from other
jurisdictions which cite Welsh hold that the smell of burning
marijuana does not evidence an offense which is sufficiently
grave to justify entering a residence without a warrant. See
State v. Curl,
869 P.2d 224 (Idaho 1993), cert. denied,
510 U.S. 1191,
114 S. Ct. 1293,
127 L. Ed.2d 646 (1994); Haley v. State,
696 N.E.2d 98 (Ind. Ct. App. 1998); State v. Beeken,
585 N.W.2d 865, 872 (Neb. Ct. App. 1998) (dictum); State v. Wagoner,
966 P.2d 176 (N.M. Ct. App.), certif. denied,
964 P.2d 818 (1998);
State v. Ackerman,
499 N.W.2d 882 (N.D. 1993); State v. Robinson,
659 N.E.2d 1292 (Ohio Ct. App. 1995); State v. Ramirez,
746 P.2d 344 (Wash. Ct. App. 1987). In our view, it is this latter group
of cases that correctly interpret the decision of the United
States Supreme Court in Welsh, which, of course, is binding on us
under the Supremacy Clause of the United States Constitution.
We therefore remand both cases to the Law Division. The
evidence collected in the Califano case must be suppressed.
In the Holland case, the remand court should determine whether
the evidence should be suppressed or whether it may be admissible
pursuant to Murray v. United States,
487 U.S. 533,
108 S. Ct. 2529,
101 L. Ed.2d 472 (1988) and State v. Chaney,
318 N.J.
Super. 217, 221 (App. Div. 1999).
We reject defendant Holland's challenge to his probationary
sentence as entirely without merit R. 2:11-3(e)(2).
The judgments appealed from in both the Holland and Califano
cases are reversed and the cases are remanded to the Law Division
for further proceedings consistent with this opinion. We do not
retain jurisdiction.
Footnote: 1 1 One of the two policemen who were witnesses at the
suppression hearing testified that defendant dropped or threw a
dry marijuana bud as he came out of the house. The officer
claimed to have retrieved the marijuana bud and to have put it in
an evidence bag, but it was never found and there is no record of
it. Whether or not a marijuana bud was seen is immaterial to our
disposition of the case.
There is no merit to the State's contention that the circumstances authorized the police to make a "protective sweep" of the premises because there was no evidence to support a reasonable belief on the part of the police that they were in danger before they entered the house. Cf. State v. Lund, 119 N.J. 35, 50 (1990); State v. Smith, 140 N.J. Super. 368, 373 (App. Div. 1976), aff'd o.b. 75 N.J. 81 (1977).