State v. Barksdale
| Decision Date | 21 April 1988 |
| Citation | 540 A.2d 901,224 N.J.Super. 404 |
| Parties | STATE of New Jersey, Plaintiff-Appellant, v. Drake BARKSDALE, Defendant-Respondent. STATE of New Jersey In the Interest of A.N.W., a Juvenile. |
| Court | New Jersey Superior Court — Appellate Division |
John H. Stamler, Prosecutor of Union County, for plaintiff-appellant (Dennis R. O'Brien, Asst. Prosecutor, of counsel and on the letter brief).
Alfred A. Slocum, Public Defender, for defendant-respondent Drake Barksdale (Mark M. Cheser, Designated Counsel, Elizabeth, of counsel and on the letter brief).
Alfred A. Slocum, Public Defender, for respondent A.N.W., a juvenile (Steven M. Gilson, Designated Counsel, Union, on the letter brief).
Before Judges J.H. COLEMAN and O'BRIEN.
The opinion of the court was delivered by
COLEMAN, J.H., P.J.A.D.
This appeal raises the question of when is a search of an automobile incident to a lawful arrest after the arrestee and other occupants are no longer inside the motor vehicle. The Law Division suppressed the use of evidence seized because the search was conducted pursuant to an administrative policy and not as an incident to a lawful arrest. We now affirm.
Defendant Drake Barksdale, Curtis McKoy and Joyce Fries were indicted under Union County Indictment No. 87-07-0828 for possession and possession with intent to distribute cocaine (crack) on April 8, 1987. Defendant Barksdale filed a motion pursuant to R. 3:5-7 to suppress evidence seized in a warrantless search. The motion was granted by the Law Division on October 6, 1987.
A.N.W. was charged in Complaint FJ-20-04519-87W as a juvenile with possession and possession of crack with intent to distribute on April 8, 1987. The juvenile filed a pretrial motion to suppress evidence seized in a warrantless search. A hearing on the motion was commenced on June 29, 1987. That day's hearing was closed without a decision on the motion. The hearing was continued on October 8, 1987 at which time the judge indicated that during the interim he learned that the Law Division had granted a suppression motion filed on behalf of an adult accomplice based on identical facts. The Family Part Judge applied State v. Gonzalez, 75 N.J. 181, 380 A.2d 1128 (1977) and granted A.N.W.'s suppression motion. The judge also dismissed the Complaint FJ20-045-19-87W.
The State was granted leave to appeal both of the suppression orders. We consolidated these appeals. We now affirm the suppression orders.
The facts are not complicated. On April 8, 1987, Peter Davis, a Springfield police officer, stopped a motor vehicle on Route 22 for operating without headlights. Curtis McKoy was the owner and operator of the motor vehicle. Four passengers were in the car at the time: Joyce Fries was the front passenger, Drake Barksdale, A.N.W. and B.W. were rear passengers. McKoy was asked for his driver's credentials. He stated that they were in the trunk. The policeman asked McKoy to get them from the trunk. While McKoy was looking in the trunk for his credentials, Detective Judd Levenson and Lieutenant Hietala arrived on the scene. A computer check on McKoy's driving record revealed that his New Jersey driver's license had been suspended. Officer Davis arrested McKoy for driving while on the revoked list. He also issued a summons for careless driving. McKoy was patted down, handcuffed and placed in the back seat of the patrol car operated by Officer Davis that was parked to the rear of McKoy's vehicle. Officer Davis remained inside or beside his patrol car after McKoy was arrested.
Officer Davis was asked whether his department has "a policy regarding search of vehicles in connection with arrest." His response was "we check the vehicles for contents of the vehicle, so there's no problem in the future of an individual saying something's missing or not." After the assistant prosecutor informed the court that the State was not relying on an inventory search, Officer Davis was asked the following questions to which he responded:
Q Are there any other reasons why you would conduct a search of the interior of the vehicle in connection with an arrest?
A Possible weapons inside the vehicle.
Q When did you make the decision that you were going to search the interior of Mr. McCoy's vehicle?
A When somebody's placed under arrest, we always make a search of the vehicle.
Q And when do you conduct that search?
A After the individual's placed in protective custody, such as in the back of the patrol car.
Q Did you in fact conduct the search of that vehicle right there and then as it sat on the roadway? A No, sir.
Q Why not?
A It was in an unsafe position. As I informed you earlier, the vehicle was somewhat into the slow lane of Route 22 and we were beyond the hillcrest, so traffic coming over the hillcrest couldn't see us for more than a hundred feet. It was a tough situation where the car was situated. And since the car was dead, apparently the reason he was driving with no lights on because his alternator was bad and he didn't want to drain the alternator. As I pulled the car over to the side, the car died and it was unable to run again.
Q Was the vehicle moved?
A The vehicle was moved.
Q Who made the decision to move the vehicle?
A Officer Levenson asked Mr. McKoy if it would be all right to push this vehicle into the defense building parking lot off the side of the road into a safe location.
Q And what did Mr. McKoy respond?
A He said it was okay. And the other occupants with Miss Fries at the wheel pushed the vehicle into the defense building parking lots.
Q Now, while this vehicle was being pushed into the defense building parking lot, where were you?
A I was located in my patrol car with the overhead lights on following the vehicle.
Q At what distance?
A Two car lengths, a car and a half length, somewhere about there.
Q Were there any other officers present at this time?
A Officer Levenson was present at the time following the vehicle behind it with a flashlight.
Q When you say following, was he in a car, on foot?
A He was on foot.
Q How far was he from the people pushing the car?
A Eight to ten feet, somewhere about there.
Q Now, what happened after the car was pushed into the parking lot?
A It was pushed approximately 75 feet down the shoulder of the road and into the defense building parking lot.
* * *
* * *
Q Did you have the vehicle in your view, the defendant's vehicle in your view all during this time?
A That's right, my vehicle followed theirs into the parking lot.
Q Did you make any observations of the occupants of the vehicle after it came to rest?
A At this particular time Officer Levenson was out with the individuals of the vehicle and I was filling out the arrest sheets and an investigation form.
Q What happened next? A After several minutes, four, five minutes, three, four, I'm not really too sure, Officer Levenson came over to my vehicle and notified me he found a lot amount of what he suspected as crack inside the vehicle.
Q And then what happened?
A At this time I exited my vehicle. We placed Mrs. Fries under arrest where I gave her, her Miranda rights. As we were there, Mr. Barksdale who had gone over to the Lido Diner to make a phone call and came back and informed him of his Miranda rights and placed him under arrest. And at this time Lieutenant Hytella watched the two suspects. And Officer Levenson and myself went to the Lido Diner, which is adjacent across Route 22, for [A.N.W.] and [B.W.] who were making a phone call and placed them under arrest where I gave them both their Miranda rights.
Detective Levenson gave testimony that varied from that of Officer Davis. Detective Levenson testified that after the car had been pushed off the roadway, he observed A.N.W. "walk over to the passenger door, open it and reach into the vehicle." When A.N.W. returned to a standing position, Detective Levenson observed nothing in his hands. He then permitted Barksdale and B.W. to go to Lido Diner to make a phone call. As A.N.W. walked away from the car to go to the Lido Diner with the other two males, Detective Levenson said he walked up to the open passenger door and with the use of his flashlight he looked into the car and saw a clear plastic bag underneath the seat. He said he made that observation as he stood outside the motor vehicle. Inside the clear plastic bag, he observed small vials with blue plastic caps which he concluded contained crack. He retrieved the plastic bag and all of the occupants of the car were arrested.
The trial judge said that he had studied the briefs submitted before Detective Levinson testified. There was nothing in the State's brief which indicated that the State would rely on plain view. After Detective Levenson testified concerning plain view, the judge observed that he was having difficulty with the credibility of the State's case. The assistant prosecutor had the same problem. The ensuing colloquy between the assistant prosecutor and the judge is revealing:
MR. AMANN: [Assistant Prosecutor] I will submit this. I had the same concerns as far as you are concerned about smelling a rat or something like that. I for the first time got my information on this case different from what was in the State's brief for the first time when McKoy, Curtis McKoy, the driver, who was going to be potentially a witness in this case was brought to my attention. I spoke to Mark Imbriani and Mark indicated that there was a potential of Mr. Cheser calling McKoy. At that time there was no change in the brief whatsoever.
I asked McKoy--I think the thing that is key and I would have a different view of this and I have my concerns with this as well. But as far as being above board, I want to make it absolutely clear on the record, the sequence of the events and the source of information that came to my attention. The plain view is not in the report. The plain view was never brought to my attention. The plain view, until I spoke with McKoy for the...
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