More Than a Whiff is Needed

Smell of marijuana and the sight and smell of 20 air fresheners hanging from the top of the cab weren’t enough to justify warrantless search, court finds

New Jersey Law Journal

July 08, 2010

The probable cause was so thick you could smell it, but that still didn’t give a New Jersey state trooper authority for a warrantless search of a tractor-trailer cab for marijuana, an appeals court says.
Applying retroactively State v. Pena-Flores, 198 N.J. 6 (2009), which requires both probable cause and exigent circumstances for a warrantless search, the judges in State v. Pompa, A-0139-08, said a strong odor of marijuana could supply the former but not the latter.
Though police could perform a warrantless administrative inspection of certain parts of the truck for regulatory compliance, that authority ended once the search intruded into the sleeper compartment of the cab, the court held on July 2.
Ender Pompa was stopped on Interstate 78 in Greenwich, Warren County, at about 8:30 a.m. on Jan. 28, 2007, because his U.S. Department of Transportation registration number appeared to have been tampered with.
As State Police Trooper Michael Budrewicz approached the truck’s cab, he was struck by the strong smell of air fresheners. He looked inside and saw 20 air fresheners hanging from the top of the cab. In addition, Pompa was extremely nervous and his logbook was not in order.
Budrewicz decided to perform an on-site safety inspection, as specifically permitted by DOT regulations. When he climbed into the cab to test the seatbelts, he detected a strong odor of fresh marijuana that appeared to be coming from the cab’s sleeper compartment. He searched the compartment and found two duffel bags, one of them in a closet. It was filled with 30 pounds of marijuana.
Pompa was arrested at the scene and later told troopers that he had agreed to transport the marijuana from Florida to Connecticut for $6,000.
Superior Court Judge John Pursel denied the suppression motion, saying the search was justified as an administrative inspection under the business exception to the warrant requirement, and because the smell of the marijuana gave Budrewicz probable cause to search. Pompa was convicted and handed a 10-year sentence.
Reversing, Appellate Division Judges Clarkson Fisher Jr., Francine Axelrad and Paulette Sapp-Peterson found that the limits of the administrative inspection were exceeded once the trooper entered the sleeper compartment.
At that point, Pena-Flores — a ruling that has caused warrantless searches by state police to plummet since it came down in early 2009 — should control, said Fisher, writing for the panel. Unless the driver consents, a warrantless search can be conducted only if a three-part test is satisfied: the stop is unexpected; police have probable cause the vehicle contains contraband or evidence of a crime; and exigent circumstances make it impracticable to seek a warrant. Fisher said the first two Pena-Flores requirements were satisfied but not the third.
To the state’s proffered exigent circumstances — the time of day, the remote location of the stop, the number of troopers at the scene and the irregularities concerning the DOT number — Fisher said they actually supported the defense position. The truck was stopped at 8:30 a.m., when it would have been easy to apply for a warrant; the stop was on a well-traveled interstate highway; and the trooper was not outnumbered.
Arrangements could have been made to tow the truck to a secure location and to apply to a judge for a search warrant, he added.
Fisher also dismissed the state’s suggestion that the marijuana odor itself could suffice as an exigent circumstance. The state cited State v. Birkenmeier, 185 N.J. 552 (2006), in which police, acting on a confidential tip that the defendant would be making a large marijuana delivery in Long Branch, N.J., at a particular time, stopped his vehicle, saw a laundry tote bag on the seat next to him and smelled a very strong odor of marijuana.
Though the Supreme Court upheld the search, “it is difficult to accept the State’s suggestion that the Court in Birkenmeier intended to find an exigency from circumstances that relate only to probable cause, particularly in a case in which the presence of exigent circumstances was not at issue,” Fisher said.
Fisher also distinguished State v. Hewitt, 400 N.J. Super. 376 (App. Div. 2008), which upheld a trooper’s use of a fiber-optic device to search for a hidden compartment. Pompa’s sleeping chamber and closet “were certainly more private than a cargo hold or, as in Hewitt, a secret compartment attached to a cargo hold,” he said.
Fisher said it would have been permissible under the business exception to search the sleeping compartment without a warrant to determine if it met DOT safety regulations. “However, the regulations do not encompass closets or personal belongings inside a sleeper cabin and, as a result, the closely regulated business exception cannot form the basis for a warrantless search into those areas,” he said.
Public Defender Yvonne Smith Segars called the ruling a “common sense application of the rules set forth by the Supreme Court in Pena-Flores governing the search of moving vehicles.”
Warren County Prosecutor Thomas Ferguson did not return a telephone call seeking comment.