State of New Jersey v. Taviaus Wilson

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1365-23

STATE OF NEW JERSEY,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

June 12, 2024

v.

APPELLATE DIVISION

TAVIAUS WILSON,

JAMES HOOKS, and

SADALE LOATMAN,

Defendants-Respondents.

__________________________

Submitted May 8, 2024 – Decided June 12, 2024

Before Judges Currier, Firko and Susswein.

On appeal from an interlocutory order of the Superior

Court of New Jersey, Law Division, Cumberland

County, Indictment No. 19-07-0670.

Jennifer Webb-McRae, Cumberland County

Prosecutor, attorney for appellant (Stephen Christopher

Sayer, Assistant Prosecutor, of counsel and on the

brief).

Jennifer Nicole Sellitti, Public Defender, attorney for

respondent James Hooks (Zachary Gilbert Markarian,

Assistant Deputy Public Defender, of counsel and on

the brief).

John P. Morris, attorney for respondent Sadale

Loatman.

Michael R. Mazzoni, PA, attorneys for respondent

Taviaus Wilson, join in the briefs of respondents James

Hooks and Sadale Loatman.

The opinion of the court was delivered by

SUSSWEIN, J.A.D.

This case presents two questions of first impression under New Jersey law

concerning the scope and intensity of searches conducted pursuant to the

automobile exception to the warrant requirement. Are police permitted to search

a glove box based solely on the odor of marijuana emanating generally from the

passenger compartment of a vehicle without first determining whether the odor

is coming specifically from the vicinity of the glove box? 1 And does the New

Jersey automobile exception extend to a glove box that is intentionally locked,

manifesting a heightened expectation of privacy in its contents as compared to

the vehicle generally, to objects left out in the open, and to the contents of

opaque containers in the vehicle that are closed but not locked?

1

The stop in this case occurred in November 2018 when possession of

marijuana was unlawful. The New Jersey Cannabis Regulatory, Enforcement

Assistance, and Marketplace Modernization Act (CREAMMA), N.J.S.A. 24:6I-

31 to -56, now precludes police from using the odor of marijuana to establish

probable cause to search. See N.J.S.A. 2C:35-10(b)(1) ("[t]he odor of marijuana

. . . shall not constitute reasonable articulable suspicion to initiate a search of a

person to determine a violation. . . ."). CREAMMA took effect on February 22,

2021, and does not apply retroactively. State v. Cohen, 254 N.J. 308, 328

(2023).

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2

By leave granted, the State appeals a December 5, 2023 Law Division

order suppressing three loaded handguns and a large capacity ammunition

magazine police found in defendant Taviaus Wilson's locked glove box during

a traffic stop. In 2019, the trial court denied defendants' motion to suppress but

reconsidered its ruling following our Supreme Court's decision in Cohen, 254

N.J. at 308.

The trial court reversed its initial decision and suppressed the guns and

ammunition magazine, noting that Wilson and the other occupants—defendants

James Hooks and Sadale Loatman, and a juvenile who is not a party to this

appeal—did not have access to the locked glove box while the vehicle was in

operation because the key that opened it was in the ignition switch. The trial

court further reasoned defendants had a heightened expectation of privacy by

"intentionally lock[ing]" the glove box. The police were therefore required to

impound the vehicle and secure a warrant before searching the locked

compartment.

Although the trial court rendered a thoughtful oral opinion, we conclude

it misinterpreted the automobile-exception principles recently explained in

Cohen. The smell of marijuana emanating from the passenger compartment

provided probable cause to search the entire interior for marijuana, including the

glove box, since that was a place within the passenger compartment where

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3

marijuana could be concealed. While searching within the passenger

compartment, the officers were not obliged to follow a scent trail and pinpoint

the exact source of the odor before opening containers situated within that space.

Nor are we persuaded that locking the glove box manifested a heightened

expectation of privacy comparable to that which applies to a home, taking that

compartment outside the realm of the automobile exception. Throughout the

long history of the automobile exception in New Jersey, police have been

permitted to open trunks of vehicles—so long as the case-sensitive probable

cause extends to that compartment—notwithstanding that historically, trunk lids

were locked and had to be opened with a key. The locked status of a trunk, in

other words, had no bearing on the scope of an automobile-exception search.

Based on that history and tradition, we reject the novel proposition that motorists

can unilaterally render containers in a vehicle immune from automobile-

exception searches by locking them.

Nor does it matter whether the contents of the locked glove box were

inaccessible to the vehicle occupants. Unlike the distinct search-incident-to-

arrest exception, which limits the scope of a warrantless search to areas "within

[the arrestees'] immediate control," see Chimel v. California, 395 U.S. 752, 763

(1969), under the automobile exception, the State need not establish that the

contents of a built-in compartment or portable container are accessible to the

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4

occupants. See State v. Witt, 223 N.J. 409, 428 (2015) (noting police may

conduct an automobile-exception search after the occupants are arrested and

secured in a police vehicle).

In sum, the warrantless search was lawfully initiated based on probable

cause that arose spontaneously and unforeseeably during the traffic stop. The

manner in which the search was conducted was reasonable in its physical scope

since police found the weapons within the passenger compartment in a container

that could conceal the object of the search. The search was also reasonable in

its intensity given that police did not break open the glove box but instead used

the ignition key to unlock it without causing any damage. Accordingly, we

reverse the order suppressing the weapons.

I.

We discern the following pertinent facts and procedural history from the

record. On November 4, 2018, Detective Christopher Zanni of the Bridgeton

City Police Department was on patrol in a marked patrol vehicle when a white

SUV pulled out in front of him. He observed the SUV's front driver and

passenger side windows were unlawfully tinted, whereupon he activated his

overhead emergency lights and initiated a motor vehicle stop.

Wilson was driving the vehicle. Loatman was in the front passenger seat

and Hooks was in the back seat along with the juvenile. Zanni identified himself

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to Wilson, informed him of the reason for the stop, and asked for his driving

credentials. While speaking with Wilson, Zanni detected the strong odor of

marijuana. Zanni testified the marijuana odor "emanated throughout the entire

vehicle." He never indicated whether the odor was particularly strong in any

specific location, such as the vicinity of the glove box.

Zanni asked Wilson if there was anything in the vehicle that "[he] needed

to know about." Wilson explained his vehicle's interior smelled like marijuana

because he was at a party. Zanni instructed Wilson to turn off the engine and

ordered all four occupants to exit the vehicle one at a time. Zanni searched each

occupant's person. He found no contraband on Wilson, Loatman, or Hooks. The

juvenile became nervous and agitated, cursed at Zanni, and pushed up against

the rear of the vehicle in an attempt to prevent Zanni from searching the front of

his person.2

Other officers arrived to assist Zanni. After searching the occupants but

finding no marijuana, Zanni and another officer proceeded to search the vehicle

for the source of the odor. They searched the front seat area, backseat, side door,

and center console. The other officer tested the glove box and found it to be

locked. Zanni instructed the officer to unlock the glove box with the car key

2

Later at the police station, the juvenile turned over two small plastic baggies

containing marijuana that were concealed in his underwear.

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that had been in the ignition switch. That search immediately revealed the

handguns.

After the handguns were secured, the occupants were advised they were

under arrest, handcuffed, and placed in the rear of separate patrol vehicles.

Zanni resumed the on-scene search of the vehicle. He located a mason jar

containing marijuana in the trunk area. He also found a small plastic bag of

marijuana in a Cracker Jack box, a digital scale, and numerous unused red plastic

baggies.

In July 2019, Wilson, Loatman, and Hooks were charged by indictment

with three counts of unlawful possession of a weapon, N.J.S.A. 2C:39 -5(b)(1);

two counts of possession of a defaced firearm, N.J.S.A. 2C:39-3(d); and

possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j).

Defendants were also charged with marijuana possession, but those counts were

later dismissed based on changes in the marijuana laws. See note 1.

Defendants moved to suppress the fruits of the warrantless search. The

trial court convened an evidentiary hearing on December 20, 2019, at which

Zanni was the sole witness. At the conclusion of the hearing, the trial court

denied defendants' suppression motion, issuing an oral opinion. Defendants

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subsequently filed a renewed motion to suppress, relying on Cohen.3 On

December 5, 2023, the same judge that heard the initial suppression motion

reconsidered his ruling, this time granting defendants' motion. The trial court

concluded the search of the locked glove box exceeded the reasonable scope and

intensity of a search permitted under the automobile exception.

In reaching that decision, the trial court reasoned defendants did not have

access to the glove box while the car was in operation because the key that

opened the glove box was in the ignition. The trial court further held that when

confronted with a locked container, police must impound the vehicle and apply

for a warrant.

The trial court stayed its suppression order for forty-five days to allow the

State to appeal. We granted the State's motion for leave to appeal. This

interlocutory appeal followed.

The State raises the following contention for our consideration:

THE OFFICER'S ENTRY INTO THE GLOVE

COMPARTMENT OF THE VEHICLE IN THIS CASE

WAS LAWFUL BECAUSE THE OFFICER HAD

PROBABLE CAUSE TO SEARCH THE INTERIOR

OF THE VEHICLE PURSUANT TO THE

AUTOMOBILE EXCEPTION TO THE WARRANT

REQUIREMENT.

3

Defendants do not contest the lawfulness of the tinted-window stop. Nor do

they contest the detective's authority to initiate an automobile-exception search

based on the odor of marijuana. See note 1.

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Hooks filed a brief contending:

THE MOTION COURT PROPERLY APPLIED OUR

SUPREME COURT'S PRECEDENTS TO

CONCLUDE POLICE COULD NOT SEARCH THE

SEPARATELY ENCLOSED AND LOCKED GLOVE

COMPARTMENT BASED SOLELY ON THE CAR'S

GENERAL ODOR OF MARIJUANA.

Loatman filed a brief contending:

THE MOTION JUDGE CORRECTLY APPLIED

COHEN'S STATE CONSTITUTIONAL ANALYSIS

UNDER NEW JERSEY'S STANDARD AS TO AN

UNREASONABLE SCOPE OF A WARRANTLESS

AUTOMOBILE SEARCH: THE GENERALIZED

SMELL OF MARIJUANA WITHOUT

ARTICULATED AND PARTICULARIZED

CIRCUMSTANCES SUGGESTING ITS LOCATION

IN NON-ACCESSIBLE AREAS OF THE INTERIOR

OF THE AUTOMOBILE DOES NOT AUTHORIZE A

SEARCH OF SUCH NON-ACCESSIBLE AREAS,

SUCH AS THE LOCKED GLOVE COMPARTMENT

AT ISSUE HERE. THE AUTHORITY CITED BY

THE STATE (GAMMONS, LEWIS) IS

INAPPLICABLE: THE LOCKED GLOVE

COMPARTMENT IN GAMMONS INVOLVED A

CREDENTIALS SEARCH IN THE LOGICAL AREA

FOR CREDENTIALS WHILE THE BLACK

LEATHER BRIEFCASE IN THE CAR'S INTERIOR

IN LEWIS WAS EASILY ACCESSIBLE TO THE

OCCUPANTS. NEITHER PARTICULARIZED

CIRCUMSTANCES NOR ACCESSIBILITY, BOTH

SEEMINGLY REQUIRED BY COHEN, WERE

PRESENT HERE.

Wilson relied on and incorporated the briefs submitted on behalf of Hooks and

Loatman.

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II.

We begin our analysis by acknowledging the legal principles governing

this appeal. As a general matter, "[o]ur standard of review on a motion to

suppress is deferential." State v. Nyema, 249 N.J. 509, 526 (2022). "[A]n

appellate court reviewing a motion to suppress must uphold the factual findings

underlying the trial court's decision so long as those findings are supported by

sufficient credible evidence in the record." State v. Ahmad, 246 N.J. 592, 609

(2021) (alteration in original) (quoting State v. Elders, 192 N.J. 224, 243

(2007)). We "defer[ ] to those findings in recognition of the trial court's

'opportunity to hear and see the witnesses and to have the "feel" of the case,

which a reviewing court cannot enjoy.'" Nyema, 249 N.J. at 526 (quoting Elders,

192 N.J. at 244).

In contrast, the trial court's interpretation of the law and the legal

"consequences that flow from established facts" are reviewed de novo. State v.

Gamble, 218 N.J. 412, 425 (2014); accord State v. Smith, 212 N.J. 365, 387

(2012). We regard the trial court's interpretation and application of Cohen to be

a legal conclusion to which we owe no special deference. We likewise deem the

determination of the constitutional boundaries of an automobile-exception

search to be an interpretation of the law subject to de novo review. Accepting

the underlying facts as found by the trial court—which are largely undisputed

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by the parties—we determine whether the search of the locked glove box

exceeded the scope and intensity allowed under the automobile exception with

a fresh set of eyes.

Turning to substantive legal principles, both the Fourth Amendment to the

United States Constitution and its analogue, Article I, Paragraph 7 of the New

Jersey Constitution, "protect against unreasonable searches and seizures." State

v. Smart, 253 N.J. 156, 164 (2023) (quoting Nyema, 249 N.J. at 527). The rules

governing police conduct, however, are not necessarily the same under federal

and New Jersey law, since the New Jersey Constitution may afford defendants

greater protections than are afforded by the United States Constitution. Id. at

165-66.

Our Supreme Court has stressed that "[o]ur jurisprudence under both

[United States and New Jersey] constitutional provisions expresses a preference

that police officers secure a warrant before they execute a search." Witt, 223

N.J. at 422 (citing State v. Frankel, 179 N.J. 586, 597-98 (2004)). That

preference finds expression in the bedrock principle that warrantless seizures

are presumptively invalid. See State v. Goldsmith, 251 N.J. 384, 398 (2022);

see State v. Pineiro, 181 N.J. 13, 19 (2004).

"To justify a warrantless search or seizure, 'the State bears the burden of

proving by a preponderance of the evidence that [the] warrantless search or

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seizure falls within one of the few well-delineated exceptions to the warrant

requirement.'" State v. Vanderee, 476 N.J. Super. 214, 230 (App. Div. 2023),

certif. denied, 255 N.J. 506 (2023) (alteration in original) (quoting State v.

Chisum, 236 N.J. 530, 546 (2019)). The automobile exception is one such

exception. Witt, 223 N.J. at 422.

The government bears the burden of proving probable cause to justify the

warrantless search. State v. Baker, 478 N.J. Super. 116, 126 (App. Div. 2024).

The "totality of the circumstances" test used in analyzing probable cause,

moreover, is substantially consistent under both the Fourth Amendment and

Article I, Paragraph 7 of the New Jersey Constitution. See State v. Novembrino,

105 N.J. 95, 122 n.11, (1987) (quoting Illinois v. Gates, 462 U.S. 213, 238

(1983)). Probable cause exists where, given the totality of the circumstances,

"'there is a fair probability that contraband or evidence of a crime will be found

in a particular place.'" State v. Moore, 181 N.J. 40, 46 (2004) (quoting Gates,

462 U.S. at 238). The central component of probable cause "is a well-grounded

suspicion that a crime has been or is being committed." State v. Nishina, 175

N.J. 502, 515 (2003) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)).

The facts constituting probable cause are critical not only in determining

whether an automobile-exception search may be initiated, but also in

determining the spatial boundaries of the warrantless search. Our Supreme

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Court in Cohen reiterated the long-accepted maxim that "'a search which is

reasonable at its inception may [nonetheless] violate the Fourth Amendment by

virtue of its intolerable intensity and scope.'" 254 N.J. at 320 (alteration in

original) (quoting Terry v. Ohio, 392 U.S. 1, 18 (1968)).

Relatedly, it also is well-established under New Jersey's search-and-

seizure jurisprudence that "[t]he scope of a warrantless search of an automobile

is defined by the object of the search and the places where there is probable

cause to believe that it may be found." State v. Esteves, 93 N.J. 498, 508 (1983).

That is a foundational principle critical to our analysis in this case. Simply

stated, for an automobile-exception search to be lawful in its physical scope, the

probable cause to search must be as to items or effects that, by their nature, could

be concealed in the container that was opened. For example, in United States v.

Ross, the United States Supreme Court explained, "probable cause to believe

that undocumented aliens are being transported in a van will not justify a

warrantless search of a suitcase." 456 U.S. 798, 824 (1982).

In Ross, the Court rejected the notion that some containers within a

vehicle are more "worthy" of constitutional protection than others. Id. at 822.

The Court held,

the scope of a warrantless search authorized by [the

automobile] exception is no broader and no narrower

than a magistrate could legitimately authorize by

warrant. If probable cause justifies the search of a

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lawfully stopped vehicle, it justifies the search of every

part of the vehicle and its contents that may conceal the

object of the search.

[Id. at 825 (emphasis added).]

New Jersey courts have consistently followed the rule announced in Ross

that the scope of an automobile-exception search is limited to—but also

includes—places/containers that could be holding the object of the probable-

cause search. In State v. Probasco, for example, we explained:

Once the police had probable cause to search the

automobile for drugs, they could do so without a

warrant under the automobile exception. [Esteves, 93

N.J. at 504-05]. The search could properly include the

contents of closed containers found in the vehicle.

[Ross, 456 U.S. at 823-24] (cited with apparent

approval in Esteves, 93 N.J. at 508, n.3); State v.

Nittolo, 194 N.J. Super. 344, 346-47 (App. Div. 1984).

[220 N.J. Super. 355, 359 (App. Div. 1987).]

In State v. Lewis, we likewise concluded that law enforcement officers

lawfully searched a closed leather case contained within the car, explaining:

Furthermore, the validity of the search was not affected

by the fact that the drugs were found in a closed leather

case rather than in an open area within the passenger

compartment of the van. See State v. Guerra, 93 N.J.

146, 151 (1983) (apparently adopting holding of [Ross,

456 U.S. at 798], that "upon probable cause to search a

lawfully stopped vehicle, police may conduct a

warrantless search of every part of the vehicle and its

contents that may conceal the object of the search");

accord State v. Smith, 306 N.J. Super. 370, 381 (App.

Div. 1997).

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[411 N.J. Super. 483, 490-91 (App. Div. 2010).]

III.

That brings us to our Supreme Court's recent decision in Cohen, which

specifically addressed whether the odor of marijuana in a vehicle authorized a

warrantless search of the engine compartment and trunk. 254 N.J. at 312. The

Cohen Court did not break new ground, but rather reaffirmed well-established

New Jersey precedent limiting the spatial scope of an automobile-exception

search. Notably, the Court carefully examined—and built on the foundation—

of its much earlier decision in State v. Patino, 83 N.J. 1 (1980).

Patino did not involve a search predicated on the odor of marijuana, but

rather a search predicated on visual evidence of a personal use/simple possession

drug offense. In Patino, after pulling the defendant's vehicle over, a state trooper

noticed a clear plastic container "half-full of green vegetation on the floor near

the front seat." Id. at 5. The trooper searched the interior of the vehicle and

recovered a marijuana cigarette. Ibid. The trooper next tried to open the glove

box, which was locked. Ibid. He ordered the defendant to unlock it and found

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"'it was absolutely empty.'" 4 Id. at 5-6. Finally, the trooper searched the trunk

where he discovered cocaine inside a shopping bag. Id. at 6.

The Patino Court concluded the search of the trunk exceeded the

parameters of the automobile exception. Id. at 12-13. The Court held that as a

matter of law, the trooper's discovery of only "a small amount of marijuana,

consistent with personal use, does not provide [police] with probable cause to

believe that larger amounts of marijuana or other contraband are being

transported." Id. at 13. The Court added, "[a] small amount of marijuana does

not alone without other circumstances that suggest participation in drug

traffic[king] or possession of more contraband provide justification to extend

the zone of the exigent search further than the persons of the occupants or the

interior of the car." Id. at 14-15.

Stated another way, the Patino Court explained that "the bare

circumstance of a small amount of marijuana does not constitute a self -evident

proposition that more marijuana or other contraband might be elsewhere in the

automobile." Id. at 12. Ultimately, the Court concluded the search of the trunk

4

Because nothing was found in the locked glove box, the Patino Court was not

required to rule on the lawfulness of ordering the defendant to unlock it to permit

a search of its contents. We nonetheless deem it noteworthy that while the

gravamen of the Patino decision is to establish the spatial parameters of an

automobile-exception search, the Court did not suggest the search of the glove

box was improper because it was locked.

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compartment was unlawful because, under the automobile exception, not only

must an officer have probable cause to believe that contraband is present in the

vehicle, "but the search must be reasonable in scope" and "must be 'strictly tied

to and justified by' the circumstances which rendered its initiation permissible."

Id. at 10-11 (quoting Terry, 392 U.S. at 19.)

That brings us back to our Supreme Court's recent decision in Cohen.

Besides carefully studying Patino, the Cohen Court canvassed subsequent New

Jersey automobile-exception cases and concluded, "[i]n sum, cases in which our

courts have upheld searches that extended to the trunk or other areas beyond the

passenger compartment have involved facts indicating something more than

simply detecting the smell of marijuana from the interior of the car." Cohen,

254 N.J. at 324.

To put Cohen in context, we recount the particular facts in that case. After

receiving a tip from a confidential informant that the defendant regularly

traveled out of state to acquire firearms to be sold in New Jersey, the State Police

issued a "be on the lookout" notice for two of the defendant's vehicles. Id. at

312. After spotting one of those cars on the New Jersey Turnpike, a state trooper

followed the vehicle for a few miles before initiating a traffic stop for a

suspected toll violation and failure to maintain the lane. Id. at 312-13.

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When the trooper approached the vehicle, he noticed several air fresheners

hanging from the vehicle's rearview mirror. Id. at 314. The trooper asked the

defendant and the passenger for their licenses, registration, and car insurance

information. Ibid. The defendant told the trooper that he and the passenger

were driving back from Washington, D.C., where they visited friends for the

weekend. Ibid.

The trooper testified that he smelled "'a strong odor of raw marijuana' in

the vehicle during the stop." Ibid. He also observed "'greenish-brown

vegetation' on the driver's beard and shirt, which the trooper identified as 'shake,'

or 'the tail-end of marijuana.'" Id. at 314-15. He asked the defendant whether

he smoked cigarettes because he "'wanted to make sure it wasn't tobacco.'" Id.

at 315.

While the defendant and the passenger were handcuffed and in separate

patrol cars, the trooper initiated a warrantless search of the vehicle. Ibid. He

searched the passenger compartment and recovered a bag containing two shot

glasses from the glove compartment. Ibid. One of the glasses contained a shell

casing. Ibid. No marijuana was found in the passenger compartment. Ibid.

The trooper continued his search by opening the hood of the car. Ibid. He

discovered a rifle and a revolver nestled in the vehicle's engine compartment.

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Ibid. He then opened the trunk and found a bag containing hollow point bullets.

Ibid. No marijuana was found. Ibid.

On those facts, our Supreme Court suppressed the firearms and

ammunition, explaining that "simply detecting the smell of marijuana from the

interior of the car," without more, does not justify "searches that extended to the

trunk or other areas beyond the passenger compartment." Id. at 324. The Court

held:

[W]hen [the trooper] expanded his search to the engine

compartment of the car, he went beyond the scope of

the automobile exception. Although he smelled

marijuana in the passenger compartment of the car, the

trooper's initial search yielded no results and provided

no justification "to extend the zone of the . . . search

further than the persons of the occupants or the interior

of the car."

[Id. at 325 (quoting Patino, 83 N.J. at 14-15).]

The gist of Cohen and Patino is that as a matter of law, probable cause to search

the trunk or engine compartment does not exist based solely on suspicion of an

occupant's personal use or simple possession of marijuana.

We deem it noteworthy the Cohen Court did not criticize any aspect of the

passenger compartment search, including the glove box search. On the contrary,

the Court explicitly stated: "[w]e therefore find that the initial search of

defendant . . . and the passenger compartment was valid under the automobile

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exception because the officer had probable cause to initiate that search." Id. at

324 (emphases added).

IV.

Importantly for purposes of the present appeal, while the Court in Cohen

drew a line between places in and outside the vehicle's interior, it made no such

demarcation between spaces and containers situated inside the passenger

compartment. Indeed, the Court made clear that "[p]ursuant to the automobile

exception, if an officer has probable cause to search the interior of the vehicle,

that probable cause encompasses the entirety of the interior." Id. at 327

(emphasis added). The Court added:

This holding [suppressing the weapons found in the

engine compartment and trunk] in no way suggests that

areas within the interior of the car would require

separate probable cause findings in order to conduct a

warrantless search. We are not dividing up the interior

of vehicles such that an officer would need to establish

different or additional probable cause to search the

front seat as opposed to the back seat, for example.

[Id. at 327.]

That unambiguous statement answers one of the central questions before

us in this case: when police have probable cause to search the passenger

compartment, they also have probable cause to search a container located within

the passenger compartment—including a glove box—so long as the container

is capable of holding the object of the search.

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Defendants nonetheless contend that a glove box is its own separate

compartment and thus not part of the "interior" of a vehicle within the meaning

of the Cohen holding. We are unpersuaded. As a matter of common experience

as well as common sense, a glove box that opens directly onto the front

passenger seat is part of the passenger compartment. It is not part of the engine

compartment or trunk/rear storage area. Defendants' argument conflicts with

Cohen's firm instruction not to "divide[] up the interior of vehicles." Ibid. We

are satisfied that under Cohen's "entirety of the interior" ruling, a glove box

clearly falls within the interior region of a vehicle. Ibid.

We likewise reject defendants' argument that Zanni "never vocalized and

'pinpointed' the glove compartment as being a potential source" of the odor

emanating generally within the interior. We decline to create a new rule that

would essentially require police to follow a scent trail or pre-inspect containers

in the passenger compartment before opening them, such as sniffing the glove

box's exterior or deploying a drug detection canine to identify the source of the

odor with precision. The officers searching inside the passenger compartment

were not obliged to pinpoint the odor's source before opening containers within

that compartment. Imposing any such sniff-before-opening requirement would

effectively "divid[e] up the interior of vehicles" in contravention of the explicit

instruction in Cohen. Ibid.

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Applying the foregoing principles to the largely undisputed facts before

us, we conclude the glove box fell within the spatial boundaries of a lawful

automobile-exception search because there was probable cause to believe

contraband would be found in the passenger compartment, the glove box was

located within that compartment, and the glove box was a container that could

hold the object of the search for which there was probable cause.

V.

We turn next to the trial court's ruling that the police were not permitted

to search the glove box under the automobile exception because it was locked.

This appears to be a question of first impression in this State. To address this

novel contention analytically, we examine three closely-related arguments: (1)

locking the glove box evinced a greater expectation of privacy in its contents,

invoking a higher standard of justification for searching it; (2) locking the glove

box rendered it inaccessible to the driver and passengers; and (3) opening the

locked container was a more "intense" form of physical intrusion than is allowed

under the automobile exception.

A.

We first consider the argument that locking the glove box exhibited an

elevated expectation of privacy in its contents, effectively taking that container

outside the realm of the automobile exception. The trial court reasoned that

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when an individual has made a "conscious decision to lock an area of the car,"

"[w]hether that be a suitcase, a briefcase, or a . . . glovebox," that person enjoys

a heightened expectation of privacy, at which point an automobile-exception

search should stop, the vehicle should be impounded, and a search warrant

sought.

We have no quarrel with the proposition that taking the precaution of

locking a built-in compartment or portable container exhibits a subjective intent

to shield its contents from others, including law enforcement officers. Of

course, the same could be said of other efforts undertaken to keep effects away

from prying eyes or hands, including the installation of trap doors and hidden

compartments to facilitate smuggling firearms, contraband, and cash proceeds

from illegal transactions. We see no constitutionally significant difference

between "consciously" locking a glove box or article of luggage, to use the trial

court's characterization, and consciously placing the object in a compartment

knowing that it locks automatically, such as the trunk in a traditional sedan.5

Nor is locking a container meaningfully different—in terms of either

subjective intent or constitutional effect—from consciously hiding or

5

We recognize that in many modern SUVs, the rear hatchback can be opened

without a key or electronic key fob unless the entire vehicle is locked, in contrast

to older vehicles where a trunk lid typically did not have the equivalent of a door

handle but rather sprang open by turning a key.

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camouflaging the object sought to be protected from discovery. All of these

deliberate precautions are meant to prevent others from seeing, recognizing, or

confiscating the concealed objects, and thus evince a greater subjective

expectation of privacy than if the person had simply strewn those objects inside

the vehicle.6 The novel question before us is whether any such elevated

subjective expectation of privacy categorically renders a locked

compartment/container immune from an automobile-exception search.

It seems clear under the Fourth Amendment that no distinction is drawn

between locked and unlocked containers for purposes of the automobile

exception. See United States v. Mazzone, 782 F.2d 757, 760 (7th Cir. 1986)

("[I]f the police have probable cause to believe that there is contraband or other

lawfully seizable material anywhere in the car they can search for it even if it is

in a sealed container, or in a closed or even locked compartment such as the

glove compartment or the trunk."). In Ross, the United States Supreme Court

explained, "[t]he scope of a warrantless search of an automobile . . . is not

defined by the nature of the container in which the contraband is secreted.

Rather, it is defined by the object of the search and the places in which t here is

6

In Ross, the Court remarked that "[c]ontraband goods rarely are strewn across

the trunk or floor of a car; since by their very nature such goods must be withheld

from public view, they rarely can be placed in an automobile unless they are

enclosed within some form of container." 456 U.S. at 820.

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probable cause to believe that it may be found." 456 U.S. at 824. Further, "[t]he

scope of a warrantless search based on probable cause is no narrower . . . than

the scope of a search authorized by a warrant supported by probable cause." Id.

at 823. Obviously, a locked container—or even a locked home—can be searched

pursuant to a warrant.

Citing to the federal rule does not end our inquiry. As we have already

noted, we look beyond the Fourth Amendment and federal precedents to

determine whether the same principles apply under Article I, Paragraph 7 of the

New Jersey Constitution. In Witt, our Supreme Court observed the automobile

exception is based, in part, on the rationale that there is a "lesser expectation of

privacy in an automobile compared to a home." 223 N.J. at 422-23 (emphasis

added) (citing California v. Carney, 471 U.S. 386, 391-93 (1985)).7 Even

7

In Witt, the Court traced the origins and evolution of both the federal and New

Jersey automobile exceptions. The Court explained:

The United States Supreme Court has identified three

rationales for the current automobile exception: (1) the

inherent mobility of the vehicle, Carroll v. United

States, 267 U.S. 132, 153 (1925); (2) the lesser

expectation of privacy in an automobile compared to a

home, [Carney, 471 U.S. at 391-93]; and (3) the

recognition that 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

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accepting that motorists who take the precaution of locking a glove box have a

higher subjective expectation of privacy in its contents than if they had left the

glove box unlocked, our courts have never equated that heightened expectation

to the expectation of privacy in a home.

No one disputes that the contents of a closed glove box, whether locked

or not, are entitled to constitutional protection against unreasonable searches

and seizures. Indeed, everything in an automobile—and the vehicle itself—is

protected under Article I, Paragraph 7, as shown by the fact a detained vehicle

cannot be searched without a warrant or pursuant to a recognized exception to

the warrant requirement. But as the United States Supreme Court noted in Ross,

the practical consequences of the automobile-exception doctrine "would be

largely nullified if the permissible scope of a warrantless search of an

automobile did not include containers and packages found inside the vehicle."

456 U.S. at 820. That observation is important to our analysis under the S tate

Constitution, considering that in Witt, our Supreme Court revamped the

elements of the automobile exception based in part on the need for a "practicable

and workable standard capable of producing fairly uniform results." 223 N.J. at

warrant, [Chambers v. Maroney, 399 U.S. 42, 51-52

(1970)].

[Id. at 422-23.]

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432.8 The Witt Court, in other words, sought to restore the automobile

exception, not render it useless for all practical purposes by allowing motorists

to exempt otherwise searchable containers in a vehicle simply by expressing a

heightened subjective expectation of privacy in them.

Importantly, locking a glove box does not eviscerate any of the rationales

for having a workable automobile exception as contemplated in Witt. See supra

note 7. Whether locked or not, a glove box is just as "readily mobile" as the

vehicle and thus its contents are subject to the same inherent risks associated

with mobility that gives rise to the automobile exception. See id. at 422.

So too, requiring a vehicle to be impounded and searched pursuant to a

warrant because the glove box is locked might unintentionally denigrate, not

advance, motorists' constitutional interests. As our Supreme Court stressed in

Witt, "[t]he third rationale [for the automobile exception], and in many ways the

most compelling one, is that, for Fourth Amendment purposes, an immediate

search of a vehicle may represent a lesser intrusion than impounding the vehicle

and detaining its occupants while the police secure a warrant." Id. at 424.

8

In Witt, our Supreme Court jettisoned as "unsound in principle and unworkable

in practice" the multi-factor exigency test the Court used in State v. Cooke, 163

N.J. 657 (2000), and amplified in State v. Pena-Flores, 198 N.J. 6 (2009). Witt,

223 N.J. at 447.

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In State v. Hunt, Justice Handler offered comprehensive guidance on when

the New Jersey Constitution should be interpreted to provide greater protections

against unreasonable searches and seizures than are afforded under the United

States Constitution. 91 N.J. 338, 358-68 (1982) (Handler, J., concurring). He

identified "preexisting state law" and "state traditions" as important factors. Id.

at 365-67. In this instance, adopting a locked-container exemption would not

only diverge from federal precedent, but also from our State's own experience

with the automobile exception. We thus conclude that regardless of an

individual's subjective expectation of privacy, the constitutional protections

afforded to items in a locked glove box are no greater than the constitutional

protections afforded to personal effects consciously placed in a vehicle's locked

trunk, which have long been subject to lawful automobile-exception searches.

For all these reasons, we decline to reformulate the automobile exception

to allow motorists to unilaterally render portions of a vehicle immune from an

automobile-exception search by their conscious actions to secret or secure

objects they hope to conceal from police or others.

B.

We next address defendants' contention that "[a] locked glove

compartment does not suggest accessibility to that compartment." As we have

noted, the trial court found defendants did not "have any access to the glove box

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while the car was in operation because the key that opened the glove box was in

the ignition." Although we defer to that factual finding, see Nyema, 249 N.J. at

526, as a matter of law, accessibility is not a required element of the automobile

exception and thus has no bearing on the lawfulness of the glove-box search

under that doctrine.

The elements of the automobile exception must not be conflated with the

elements of the distinct search-incident-to-arrest exception, which is limited to

the area "within [the arrestee's] immediate control." Chimel, 395 U.S. at 763.

In Witt, which focused on the requirements of the automobile exception, our

Supreme Court stressed, "[s]ignificantly, we also made clear in Alston . . . that

merely because 'the particular occupants of the vehicle may have been removed

from the car, arrested, or otherwise restricted in their freedom of movement,'

police were not required to secure a warrant." 223 N.J. at 428 (quoting Alston,

88 N.J. 211, 234 (1981)). It is thus clear that under New Jersey law, the

permissible scope of an automobile-exception search does not depend on

whether compartments or containers within the vehicle are accessible to the

suspects, either when those compartments/containers were loaded, during the

operation of the vehicle, or at the time of the warrantless search.

C.

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Finally, we consider the trial court's ruling that "an otherwise lawful

search becomes unreasonable when the police either have to break into a . . .

separately secured container or have to use a key to open it." As we have noted,

and as the Cohen Court stressed, a search that is reasonable at its inception may

become unlawful "by virtue of its intolerable intensity and scope." 254 N.J. at

320 (emphasis added) (quoting Terry, 392 U.S. at 18). We interpret this search-

and-seizure axiom to impose limitations not just on the spatial boundaries of an

automobile-exception search, that is, where within a vehicle the search may

extend, but also on the techniques and tools police may employ to execute the

search, that is, limits on the degree of mechanical force that may be used and

the amount of damage to personal property that will be tolerated.

There is scant published precedent in New Jersey on this issue. In State

v. Murray, a case cited in Patino, we concluded that "where . . . the only basis

for the search is an empty roach clip and a vial containing traces of marihuana,

a search which interferes with the structural integrity of the vehicle itself is

fatally excessive in its scope." 151 N.J. Super. 300, 308 (App. Div. 1977). In

that case, the State trooper removed the driver's seat and found an attaché case.

Id. at 305. The trooper used a knife to force the lock on the case, revealing a

sizeable quantity of hashish. Ibid. We held the defendant's motion to suppress

the contents of the attaché case should have been granted, reasoning that "when

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the officer, unsuccessful to that point in uncovering additional contraband,

commenced interfering with the structural integrity of the vehicle itself, the

search he was conducting transcended all bounds of reasonableness." Id. at 307.

In the matter before us, the trial court drew no distinction between

breaking open a locked glove box or using a key to unlock it. We think that

distinction is critical and dictates the result in this case. Using a key to open a

lock does not interfere with the structural integrity of a vehicle. Nor does it

produce any damage, much less damage that is excessive or unnecessary.

We acknowledge that police entry into a protected space by any manner

or means constitutes a Fourth Amendment/Article I, Paragraph 7 privacy

intrusion. Thus, with respect to the spatial limitation prescribed by the scope of

probable cause, see supra section III, unauthorized entry with a key is no

different than any other method for gaining unauthorized access to a particular

space or container in the vehicle. But with respect to the analytically distinct

limitation on the intensity of an automobile-exception search, we deem the use

of a key to open a locked container or compartment to be qualitatively different

from using a pry bar or similar instrumentality, or brute force, to break open the

container or compartment. The New Jersey automobile exception, it bears

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noting, is designed to permit unplanned, expeditious roadside searches. 9 This

warrant exception, as circumscribed under Article I, Paragraph 7, does not

contemplate disassembling a vehicle or using the jaws of life to find the objects

of the search.

That said, we have no occasion in this case to consider what level of

intensity or damage would exceed the permissible boundaries of the automobile

exception. Here, there was no insult to the structural integrity of the vehicle and

no damage caused to the glove box. We deem the manner in which Zanni and

the other officer opened the locked glove box to be eminently reasonable and

thus lawful under Article I, Paragraph 7.

In sum, we conclude the police were authorized under the automobile

exception to search the glove box for marijuana and executed that search in a

reasonable manner. Accordingly, the handguns that came into plain view when

9

Under Witt, an automobile-exception search must be conducted at roadside,

before the vehicle is towed and impounded. See State v. Courtney, 478 N.J.

Super. 81, 94, (App. Div.), leave to appeal denied, ___ N.J. ___ (2024). The

Witt Court referred repeatedly to the dangers posed to police officers and a car's

driver and occupants associated with extended stops on the sides of heavily -

traveled highways and roads. 223 N.J. at 427, 435, 442. Those concerns—

which relate to the exigency that justifies the automobile exception—counsel

against protracted roadside searches that entail, for example, figuring out how

to safely access trap doors and hidden compartments, or otherwise interfering

with the structure of a vehicle.

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the glove box was opened were lawfully seized and should not have been

suppressed.

Reversed and remanded for further proceedings. We do not retain

jurisdiction.

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