NJ: Officer’s purpose in momentarily putting head in window of car was to hear def over road noise was not search; plain smell sustained

The officer momentarily put his head in the window of defendant’s car to better hear him, and then he smelled marijuana. The purpose of the intrusion was benign and not to conduct a search, and it was not unreasonable. State v. Mandel, 2018 N.J. Super. LEXIS 88 (June 6, 2018):

Courts look to the purpose behind an officer’s actions when determining whether a search was reasonable. See Ryles, 988 F.2d at 15-16 (holding that an officer placing his head inside a vehicle or opening a vehicle’s door did not constitute an unreasonable search because the trooper had just discovered that the driver was unlicensed and possibly intoxicated and was trying to determine whether one of the vehicle’s passengers could drive the vehicle). Thus, courts confronted with the issue have found it reasonable for an officer to place his head into a vehicle to have effective communications with a passenger. See e.g., id. at 15-16; United States v. Pierre, 958 F.2d 1304, 1309-10 (5th Cir. 1992) (en banc); Lewis v. State, 949 N.E.2d 1243, 1245 (Ind. 2011); People v. Vasquez, 106 A.D.2d 327, 483 N.Y.S.2d 244, 245-46 (N.Y. App. Div. 1984), aff’d on other grounds, 66 N.Y.2d 968, 489 N.E.2d 757, 498 N.Y.S.2d 788 (N.Y. 1985).

We find the rationale of these cases persuasive. The Law Division judge thus correctly concluded that Gilliland’s slight, momentary intrusion inside the car window was reasonable, based on his finding that:

The credible evidence on this record reveals that the officer placed his head inside the window of the vehicle in order to better hear the defendant. That is what the officer said in his testimony. And based on the traffic noise recorded throughout the MVR … this Court as the court below found, that testimony credible.

Moreover, there was no evidence that the purpose of Gilliland placing his head in the window was to sniff the vehicle cabin for marijuana. The MVR corroborated the officer’s testimony regarding the need to hear defendant over the traffic noise, and demonstrated that his intrusion into the vehicle was minimal and not unreasonable.