State v. Astalos

Citation160 N.J.Super. 407,390 A.2d 144
PartiesSTATE of New Jersey, v. George J. ASTALOS and Charles D. Van Allen, Defendants.
Decision Date17 March 1978
CourtSuperior Court of New Jersey

Michael C. Shale, Asst. Deputy Public Defender, for defendant Van Allen (Stanley C. Van Ness, Public Defender, attorney).

Anthony F. Picheca, Jr., Far Hills, for defendant Astalos.

Howard B. Epstein, Asst. Prosecutor, for State of N. J. (David Linett, Somerset County Prosecutor, attorney).

MEREDITH, J. S. C.

Motion to suppress evidence as having been illegally obtained pursuant to a warrantless search is made by codefendants Charles Van Allen and George Astalos. Based on testimony elicited at the hearing of this motion, the court finds the facts to be as follows.

On December 8, 1977 defendants' vehicle, which was proceeding along Interstate 287 southbound, was radar-clocked as doing 74 m.p.h. in a 55 m.p.h. zone. On this basis, New Jersey State Trooper Androchek pursued the vehicle and activated the cruiser's overhead lights so as to indicate to defendants to pull off to the side of the road. Defendants' vehicle did not stop immediately in response to the trooper's signal but proceeded for some distance down the road before finally coming to a halt.

The trooper approached the vehicle, which contained four passengers, two men and two women, and asked the driver, defendant Astalos, to produce driving credentials. At this point the officer noted a strong smell of burning marijuana emanating from the vehicle, and so informed the vehicle's occupants. The passengers in the vehicle denied this and offered as explanation that they had been smoking numerous cigars and cigarettes during their somewhat lengthy trip. Unpersuaded, the trooper asked Astalos to exit the vehicle. As Astalos got out the trooper observed a smoking pipe and a clear plastic bag which contained some substance wrapped in aluminum foil partially protruding from a side pocket of defendant's coat. The trooper immediately seized these objects and asked Astalos what was contained in the package. Receiving no response, he proceeded to open the package and observed a small amount of what he believed to be hashish. The trooper placed Astalos under arrest and ordered the remaining passengers out of the vehicle.

The trooper then proceeded to search each of these persons as well as the interior of the vehicle, including the glove box. This search revealed no further contraband or evidence or contraband use. The officer next required as to the ownership of the vehicle. When defendant Van Allen indicated that he was the owner, he was directed to open the vehicle's trunk. A search of that portion of the vehicle revealed a shotgun, broken down in its case. After admitting ownership of the firearm, defendant Van Allen was placed under arrest for possession of a firearm without a valid permit. The vehicle was subsequently impounded.

Turning to the merits of the motion, defendants question the validity of the trooper's actions with respect to the sequence of events leading to their arrest.

Surely, under the circumstances presented, the trooper was entitled to stop the vehicle in question. Such a stop is supportable under either the police's express statutory authority to apprehend motor vehicle code transgressors, N.J.S.A. 39:5-25; State in Interest of J. B., 131 N.J.Super. 6, 328 A.2d 46 (Cty.Ct.1974); United States v. Greene, 371 F.Supp. 570 (D.N.J.1974), or under the statutory authorization to stop vehicles at random and require production of driving credentials, N.J.S.A. 39:3-29; State v. Kabayama, 98 N.J.Super. 85, 236 A.2d 164 (App.Div.1967), aff'd 52 N.J. 507, 246 A.2d 714 (1968); see State v. Braxton, 111 N.J.Super. 191, 268 A.2d 40 (App.Div.1970).

Similarly, any question regarding the propriety of the trooper's request that defendant Astalos exit the vehicle is foreclosed by the recent decision of the United States Supreme Court in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). In that case the court concluded that the De minimus intrusion occasioned by a request to exit a vehicle stopped on the highway is far outweighed by the legitimate interest in self-protection of the stopping officer, even where there are no circumstances indicating that his personal security may be in jeopardy. The court upheld a routine request to exit, done as a matter of course to all drivers stopped on the highway, as a reasonable police procedure in furtherance of this interest. A prior New Jersey case, State v. Boone, 114 N.J.Super. 521, 277 A.2d 414 (App.Div.1971), identified the same interest as being at stake under circumstances, and appears to have reached the same result. Id. at 524-525, 277 A.2d 414. Thus, the trooper's request that Astalos exit the vehicle was a reasonable procedure not proscribed by the strictures of the Fourth Amendment.

Next raised is the legality of the intrusion engendered by seizure of the hashish and smoking pipe from the pocket of defendant Astalos. The State asserts that the plain view observation of these articles, considered in light of the detected odor of marijuana, constitutes probable cause sufficient to justify the seizure of these items.

Several reported decisions of this jurisdiction support the proposition that probable cause to search may be posited on the presence of the smell of marijuana, at least when combined with some other corroborating indicia of contraband use or possession. This would presume, of course, adequate training in marijuana detection on the part of the law enforcement agent involved. So, for example, in State v. Lowry, 95 N.J.Super. 307, 230 A.2d 907 (Law Div.1967), reasonable cause to search a vehicle was found where, in addition to smelling the "sweet smell" of marijuana, the arresting officer also observed several rolled-up cigarettes with crimped edges, as well as an open handkerchief which contained a chopped up tobacco-like substance. In State v. Murray, 151 N.J.Super. 300, 376 A.2d 1255 (App.Div.1977), the court held that the smell of marijuana, emanating from a vial containing a vegetative residue, and a plain view observation of a "roach clip," were sufficient to conduct a further reasonable search of the stopped van. See also, State in Interest of A. C., 115 N.J.Super 77, 278 A.2d 225 (App.Div.1971), in which the observation of smoke in the vehicle together with a plain view of a homemade cigarette and two manila envelopes, considered a common container of marijuana, was deemed sufficient cause to seize these items. Cf. State v. Cohen, 73 N.J. 331, 375 A.2d 259 (1977).

In the present case the strong odor of marijuana was detected by the trooper, whose expertise was adequately established before this court, immediately upon approaching the vehicle. Additionally, the trooper observed a smoking pipe and an aluminum foil packet wrapped inside a plastic bag protruding from defendant's pocket. Such paraphernalia and containers of the type described, regarded as a common repository, of contraband, State v. Waltz, 61 N.J. 83, 293 A.2d 167 (1972); State v. Marchitto, 132 N.J.Super. 511, 334 A.2d 354 (App.Div.1975), are highly indicative of contraband use or possession. Thus the trooper clearly had probable cause to seize these items and search the packet to ascertain its contents. The mobility of the automobile and the opportunity for destruction of evidence plainly presented exigent circumstances dispensing with the warrant requirement. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), reh. den. 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94. Therefore, insofar as the instant motion seeks to suppress the hashish seized from defendant Astalos, the motion is denied.

The final issue raised by this motion is the propriety of the trunk search which revealed the shotgun owned by defendant Van Allen. Suppression is urged on the basis of two independent theories. First, it is asserted that the search of the trunk was the result of an illegal seizure of the hashish and that, therefore, the shotgun was an illegal "fruit" thereof. This argument must, of course, fail in light of this court's prior ruling as to the legality of such seizure.

In addition, however, defendant asserts that the discovery of the hashish, even though valid, did not justify the further search of the vehicle's trunk. This argument necessarily implicates the permissible extent of police intrusion into protected zones of privacy where probable cause to search has initially been established.

The Fourth Amendment permits only such searches as are reasonable. Chambers v. Maroney, supra; Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). It is recognized that a search, although validly initiated, may become unreasonable because of its intolerable intensity and scope. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,...

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  • State v. Patino
    • United States
    • New Jersey Supreme Court
    • May 19, 1980
    ...439 F.2d 373, 375 (4 Cir.), cert. den., 402 U.S. 1011, 91 S.Ct. 2198, 29 L.Ed.2d 434 (1971), quoted in State v. Astalos, 160 N.J.Super. 407, 414, 390 A.2d 144 (Law Div.1978). One operating or travelling in an automobile does not lose all reasonable expectation of privacy simply because the ......
  • Gill v. State
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    ...116, 394 A.2d 365 (App.Div. 1978); State v. Murray, 151 N.J.Super. 300, 376 A.2d 1255 (App.Div.1977); State v. Astalos, 160 N.J.Super. 407, 309 A.2d 144 (Law Div.1978); Commonwealth v. Long, --- Pa. ---, 414 A.2d 113 (1980). The search of the trunk was unreasonable; it violated the Fourth A......
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    ... ... Jersey, for example, expressly authorized police to make such random stops of automobiles. State v. Gray, 59 N.J. 563, 567, 285 A.2d 1 (1971); State v. Kabayama, 98 N.J.Super. 85, 87-88, 236 A.2d 164 (App.Div.1967), ... aff'd o.b., 52 N.J. 507, 246 A.2d 714 (1968); State v. Astalos, 160 N.J.Super. 407, 390 A.2d 144 (Law Div.1978). Given the widespread approval of the police practice that Prouse invalidated and the express approval of the practice in New Jersey law, the Prouse decision[462 A.2d 150] must be seen to represent a clear break in the law. 4 ... ...
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    ...N.J.Super. 300, 376 A.2d 1255 (App.Div.1977); State v. Scanlon, 84 N.J.Super. 427, 420 A.2d 336 (App.Div.1964); State v. Astalos, 160 N.J.Super. 407, 390 A.2d 144 (Law Div.1978). Upon discovery of a small container of marijuana in the passenger area, the officer could reasonably conclude th......
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