State v. McCarthy

• Decision Date: 23 October 1974
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Edward J. McCARTHY, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 540

130 N.J.Super. 540

328 A.2d 10

STATE of New Jersey, Plaintiff-Respondent, v. Edward J. McCARTHY, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Sept. 19, 1974.

Decided Oct. 23, 1974.

Stanley C. Van Ness, Public Defender, for defendant-appellant (Elliott M. Baumgart, Orange, of counsel and on the brief).

William F. Hyland, Atty. Gen., for plaintiff-respondent (Julian Wilsey, Deputy Atty. Gen., of counsel and on the brief).

Before Judges KOLOVSKY, LYNCH and ALLCORN.

The opinion of the court was delivered by

ALLCORN, J.A.D.

Defendant appeals his conviction of the offense of illegal possession of narcotics (phenobarbital), entered upon a jury verdict.

The single ground urged for reversal is that the trial judge error 'in admitting into evidence the fruits of an illegal, warrantless search' of the trunk of the defendant's automobile. The argument ignores the significant circumstances that, initially, the police conducted a search of the interior of the passenger compartment of the vehicle which, on the basis of substantial credible evidence, the trial judge found to have been made with the express consent of defendant (not here controverted by defendant), and that search revealed phenobarbital in the glove compartment. Hence, even assuming the search of the automobile trunk to have been illegal and to have disclosed, in the words of counsel for defendant, 'possession of an additional quantity of the phenobarbital found earlier in the glove compartment,' no prejudice resulted to defendant by the admission of the additional phenobarbital.

At all events, under the circumstances here present the warrantless search of the trunk of the automobile was entirely valid; there was no violation of the Fourth and Fourteenth Amendment rights of defendant. According to the evidence adduced on the motion to suppress, after defendant and Mrs. Burdge arrived at the Trott Inn, defendant opened the trunk of his automobile, removed from it a clear plastic bag containing green vegetable matter which he exhibited to Mrs. Burdge, at the same time informing her that it was 'grass'; when she told him she did not want any, 'he put it back and locked his trunk and * * * his car, and we went in the Trott Inn.' Mrs. Burdge thereupon telephoned the police, who dispatched two officers to Trott Inn.

Upon arrival of the officers at Trott Inn, one of them interviewed Mrs. Burdge and she related to him the fact that defendant had exhibited and 'had offered her grass,' and that it was 'in the trunk of the car.' The officer then questioned defendant. Despite his denial of the 'grass' incident related by Mrs. Burdge, defendant agreed to allow the officers to look inside the vehicle, gave them the key to the passenger compartment, and accompanied the officers and Mrs. Burdge to the parking lot. A search of the passenger compartment revealed in the glove compartment zig-zag papers (used commonly for rolling marihuana cigarettes) and three ampuls of a clear liquid ultimately determined to be phenobarbital. When asked what the ampuls were for, the defendant gave no answer.

After completing their search of the passenger compartment the officers attempted but were unable to open the trunk with the key originally give them by defendant. Although the officers requested defendant to give them the key to the trunk, he did not supply it. (It was subsequently found concealed in one of the socks being worn by defendant.) The officers then escorted defendant and Mrs. Burdge to headquarters; defendant's automobile (which bore Vermont registration plates) was locked by the officers and left standing in the Trott Inn parking lot, in the care of an off-duty officer who had been asked to 'stand by the vehicle.'

At police headquarters the officers' renewed request of defendant to supply the trunk key still was unproductive. They thereupon obtained elsewhere a key that would open the trunk and returned to the Trott Inn parking lot, without defendant. There the trunk was opened, and a search revealed a clear plastic bag containing vegetable matter later found to be marihuana, five ampules of phenobarbital, a hypodermic syringe and two hypodermic needles.

From the foregoing it is plain that at the time the initial search of the automobile was made, the police officers had probable cause to believe that a violation of the Controlled Dangerous Substances Act (N.J.S.A. 24:21--1 et seq.) was being or had been committed by defendant, and that the automobile trunk contained articles that the officers were entitled to seize. Those same circumstances also justified the making of a search of the entire vehicle, including the trunk, without a warrant and without the consent of defendant. In short, at the time of the initital search there were plentiful facts associating the automobile with a violation of the Controlled Dangerous Substances Act which, coupled with the mobility of the automobile, would have made a warranless...