PER CURIAM.
By leave granted, the State appeals from the order of the Criminal Part of the Law Division granting defendant Idivine Clark's motion to suppress $866 found on defendant's person following a search conducted pursuant to a motor vehicle stop for driving without wearing a seatbelt. After hearing the evidence presented by the State at an
In light of this record and mindful of our standard of review, we affirm substantially for the reasons expressed by the motion judge. The following salient facts are taken from the record developed at the
On Saturday, September 26, 2009, at approximately 3:30 p.m., Borough of Tinton Falls Patrolman John Tallarico was parked in the proximity of Route 520 and Shrewsbury Avenue when he saw a Nissan sedan drive by. Patrolman Tallarico observed the driver of the vehicle operating it without a seatbelt. According to Patrolman Tallarico, he pulled out and "went after the suspect and pulled him over." He pursued the Nissan for "[a]pproximately one quarter of a mile" after activating his patrol car's overhead lights. The driver, subsequently identified as defendant, "pulled over right away," without making any attempt to elude the officer or leave the scene.
When Patrolman Tallarico approached defendant's car from the passenger's side, he "immediately smelled an odor of fresh marijuana coming from inside the vehicle." Patrolman Tallarico radioed for backup units to respond to the scene, including a K-9 unit with a dog trained to detect the presence of marijuana. Patrolman Tallarico testified that the backup officers arrived "a few minutes"
When defendant declined to consent to a search of his car's trunk area, Patrolman Tallarico called the assistant prosecutor on duty to ask for legal advice as to how to proceed. According to Patrolman Tallarico, the assistant prosecutor told him "to impound the vehicle and secure it and then identify the suspect and make sure he was who he was,
Following the prosecutor's advice, Patrolman Tallarico called for a tow truck while another officer stayed behind with defendant's car to secure the vehicle and preserve the chain of custody. Although not a "hundred percent sure," Patrolman Tallarico testified that he believed he was the officer who transported defendant from the scene to police headquarters. In light of the prosecutor's specific instructions to release defendant after verifying his identity, Patrolman Tallarico testified as follows at the
Defense counsel immediately lodged an objection to this question, and the following exchange occurred:
The prosecutor then questioned Patrolman Tallarico concerning the policies and procedures of the Borough's police department regarding searching a suspect before placing him or her inside a police vehicle. According to Patrolman Tallarico, under the circumstances encountered by this motor vehicle stop, i.e., the odor of raw marijuana, police policy required that a suspect be searched before entering a police vehicle to ensure that he or she was not carrying a weapon. The motion judge sustained defense counsel's objection, however, when the prosecutor asked Patrolman Tallarico whether "any other officer [would] put someone into a car without first conducting some sort of pat down of the individual?" The court again reminded the State that Patrolman Tallarico could only testify about what he personally did or experienced. The State rested after Patrolman Tallarico testified about what was found in defendant's car from the execution of a search warrant.
From this record, the motion judge found that Patrolman Tallarico's initial motor vehicle stop was proper. The judge also found that defendant's vehicle was lawfully impounded and thereafter searched pursuant to the warrant issued. Concerning the $866 found on and seized from defendant's person without a warrant, the judge found only two ostensibly applicable justifications for such an act: (1) a search conducted based on a reasonable fear for the police officer's safety; and (2) a search incident to a lawful arrest. The judge carefully analyzed and rejected both of these grounds.
As to the first potential justification, the judge reached the following conclusion:
Addressing the second argument, the court immediately noted that following the prosecutor's advise at the scene, defendant was not arrested and was free to leave. The court further noted that defendant was not arrested until after the impounded vehicle was searched and its content inventoried pursuant to the execution of a valid search warrant issued by the court two days after the initial stop. Under these circumstances, there was absolutely no legal basis to apply the search incident to an arrest exception to the warrant requirement. The court thereafter granted defendant's motion to suppress the $866 found on his person.
The State now raises the following arguments in support of its duly granted interlocutory appeal:
We reject these arguments and affirm substantially for the reasons expressed in the statement of reasons issued by Judge Daniel M. Waldman pursuant to
Affirmed.