State v. Dolce

• Court: New Jersey Superior Court – Appellate Division
• Citation: 178 N.J.Super. 275,428 A.2d 947
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. James DOLCE, Jr., Defendant-Appellant.
• Decision Date: 03 April 1981

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178 N.J.Super. 275 428 A.2d 947 STATE of New Jersey, Plaintiff-Respondent,
v.
James DOLCE, Jr., Defendant-Appellant. Superior Court of New Jersey, Appellate Division. Argued Oct. 21, 1980.
Decided April 3, 1981.

[428 A.2d 949]

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Joseph Hillman, Jr., Belmar, for defendant-appellant (Hillman, Badach & Sullivan, Belmar, attorneys).

Kim A. Otis, Deputy Atty. Gen., for plaintiff-respondent (John J. Degnan, Atty. Gen., attorney; William T. Koch, Jr., Deputy Atty. Gen., of counsel and on brief).

Before Judges MICHELS, ARD and FURMAN.

The opinion of the court was delivered by

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MICHELS, P. J. A. D.

Defendant James Dolce, Jr., appeals his convictions for possessing (1) a hypodermic syringe, in violation of N.J.S.A. 2A:170-77.5, and (2) prescription legend drugs, which were not controlled dangerous substances, in violation of N.J.S.A. 2A:170-77.8. Defendant entered guilty pleas to these offenses and to interfering with a police officer, in violation of N.J.S.A. 2A:170-29(2)(b). He was sentenced to concurrent six-month terms in the Monmouth County Correctional Institution. The sentences were suspended and defendant was fined $500.

On this appeal defendant challenges the trial court's denial of his motions (1) for a conditional discharge under § 27 of the New Jersey Controlled Dangerous Substances Act (N.J.S.A. 24:21-1 et seq.), and (2) to suppress evidence seized as the result of a search conducted by the New Jersey State Police pursuant to the provisions of N.J.A.C. 13:70-14.21 (current version at N.J.A.C. 13:70-14A.12), of the rules of the New Jersey Racing Commission (Racing Commission).

The proofs offered by the State at the suppression hearing established that on July 12, 1978 a horse named "Wild Spot," which was trained by defendant, won a race at the Monmouth Park Racetrack in Oceanport, New Jersey. A chemical test performed after the race revealed the presence of the drug Butazolidin in the horse's blood. This constituted a violation of N.J.A.C. 13:70-14.17 (current version at N.J.A.C. 13:70-14A.1). On July 14, 1978 State Police Detectives Seifert and Wolkowski, who were assigned to the State Police Racetrack Unit, were called to the Monmouth Park State Steward's office by State Steward Boulmetis. Boulmetis also summoned defendant to his office pursuant to N.J.A.C. 13:70-14.21(a)(2) (current version at N.J.A.C. 13:70-14(a). 12(a)(2)). Boulmetis informed those present of the finding of Butazolidin in Wild Spot's blood. Boulmetis then directed the detectives to search defendant's stable area for drugs. The stable area occupied by defendant was approximately one-half mile away from the steward's office.

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The detectives believed that it would be easier to drive than walk to the area. However, their car was several hundred yards away on the opposite side of the racetrack. Defendant, whose pick-up truck was parked near the steward's office, volunteered to drive the detectives to the area. The detectives accepted the invitation. Defendant drove the truck. Wolkowski sat in the right front seat of the cab and Seifert sat in the back seat. While proceeding towards the stable, Seifert asked defendant whether he had a prescription for Butazolidin. Defendant replied that he had a veterinary's authorization for the drug, but that it was issued for another horse. Defendant stated that the document was in his wallet which was inside the glove compartment. Defendant thereupon reached over and opened the glove compartment. When the glove compartment was opened, a hypodermic syringe rolled out towards Wolkowski, who immediately seized it.

When they arrived at the stable area defendant was placed under arrest for possessing the hypodermic syringe. Seifert and Wolkowski immediately made a cursory search of the stall where Wild Spot had been kept and of a small feed shed assigned to defendant. The search did not reveal anything relevant to the drug investigation. Defendant was then informed that because he was under arrest for possession of the hypodermic syringe, which was found inside the truck, a search of his truck would be made. Defendant suddenly became uncooperative and belligerent. He entered the truck, and attempted to drive away. However,[428 A.2d 950] the detectives were able to prevent defendant's escape. They physically restrained him, but did not place him in handcuffs. The detectives then searched the truck. They found a small carrying case, approximately 18 X 12 X 4 located directly behind the driver's seat. The small case was opened and found to contain Schedule II narcotic drugs, specifically, Sublimaze, Innovar and Ritalin.

Defendant was charged in the Oceanport Municipal Court with three disorderly persons violations, specifically, interfering with a police officer (N.J.S.A. 2A:170-29(2)(b)), possession of a

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hypodermic syringe (N.J.S.A. 2A:170-77.5) and unlawful possession of prescription legend drugs (N.J.S.A. 2A:170-77.8), and with one criminal offense, to wit, possession of the controlled dangerous substances Sublimaze, Innovar and Ritalin (N.J.S.A. 24:21-20(a)(1)). Thereafter, defendant was indicted by the Monmouth County grand jury for possession of the controlled dangerous substances. He moved for conditional discharge under § 27 of the New Jersey Controlled Dangerous Substance Act (N.J.S.A. 24:21-27). His motion was denied by Judge Shebell, whose opinion is reported in State v. Dolce, 165 N.J.Super. 488, 398 A.2d 610 (Law Div.1979). Defendant then moved to suppress the evidence seized by the detectives. Judge Cunningham, at the conclusion of a contested hearing, found that the testimony of the two detectives was credible and that the hypodermic syringe was in plain view, and thus upheld the arrest and consequent search of the truck and carrying case and the seizure of the drugs. Thereafter, defendant entered guilty pleas to the three disorderly persons violations and the indictment charging possession of the controlled dangerous substances was dismissed. This appeal followed. I

The Denial of Defendant's Motion to Suppress Evidence.

A

Defendant challenges the trial judge's denial of his suppression motion, contending that N.J.A.C. 13:70-14.21, pursuant to which the search was conducted, is unconstitutional. N.J.A.C. 13:70-14.21 provided:

(a) On receiving written notice from the official chemist that a specimen has been found "positive" for any of the substances specified in Sections 17, 19 and 20 of this Subchapter, the stewards shall proceed as follows:

1. They shall notify State and track police and authorize these authorities to conduct a search of the premises occupied by the stable involved.

2. They shall, as quickly as is possible, notify the owner and trainer of the horse involved.

3. They shall, with the assistance of the policing agencies cited above, conduct a thorough investigation, interviewing the trainer, assistant trainer and

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any other persons who may have pertinent knowledge of the circumstances involved.

4. During the progress of such investigation, the stable involved shall be permitted to race; save that the particular horse (or horses) involved shall not be entered or start until allowed to do so by the stewards.

5. Should the stewards determine that any person is guilty of violation of any of Sections 15, 16, 17 or 19 of this Subchapter, they may punish the offender by fine, suspension or ruling off.

Defendant claims that the foregoing regulation authorizes a warrantless search in violation of the Fourth Amendment of the United States Constitution. He contends, therefore, that the evidence seized pursuant to such search must be suppressed, relying primarily upon Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). In the Marshall case the United States Supreme Court held that a search warrant was necessary before a federal OSHA inspector could enter business premises when looking for safety violations. In reaching this conclusion the Supreme Court stated:

Nor do we agree that the incremental protections afforded the employer's privacy[428 A.2d 951] by a warrant are so marginal that they fail to justify the administrative burdens that may be entailed. The authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search. A warrant, by contrast, would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria. Also, a warrant would then and there advise the owner of the scope and objects of the search, beyond which limits the inspector is not expected to proceed. These are important functions for a warrant to perform, functions which underlie the Court's prior decisions that the Warrant Clause applies to inspections for compliance with regulatory statutes. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). We conclude that the concerns expressed by the Secretary do not suffice to justify warrantless inspections under OSHA or vitiate the general constitutional requirement that for a search to be reasonable a warrant must be obtained.

(436 U.S. at 322-324, 98 S.Ct. at 1825-1827, 56 L.Ed.2d at 317-319; footnotes omitted)

Unquestionably, the clear import of the Marshall case, as well as Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), and Almeida-Sanchez v. United States,

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413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), is that an administrative search of private property without proper consent is generally held unconstitutional unless it has been authorized by a valid search warrant. One of the recognized...