State v. Patino

• Decision Date: 24 October 1978
• Citation: 163 N.J.Super. 116,394 A.2d 365
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Lucio W. PATINO and Guillermo Barriga, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 116

163 N.J.Super. 116

394 A.2d 365

STATE of New Jersey, Plaintiff-Respondent, v. Lucio W. PATINO and Guillermo Barriga, Defendants-Appellants.

Superior Court of New Jersey, Appellate Division.

Argued Sept. 18, 1978.

Decided Oct. 24, 1978.

Thomas J. Cammarata, Jersey City, for defendants-appellants (Shaljian, Cammarata & O'Connor, Jersey City, attorneys).

Albert G. Fredericks, Deputy Atty. Gen., for plaintiff-respondent (John J. Degnan, Atty. Gen., attorney; William F. Hyland, former Atty. Gen.).

Before Judges CONFORD, PRESSLER and KING.

The opinion of the court was delivered by

KING, J. A. D.

This case presents the question of whether a police officer's observation of a small amount of marijuana on the floor in the front of an automobile, thereby justifying an arrest of the occupants on a disorderly persons charge, is sufficient to furnish probable cause to search the locked trunk of the automobile.

Defendants were indicted for possession of a substantial amount of cocaine with intent to distribute in violation of N.J.S.A. 24:21-20(a)(2) and N.J.S.A. 24:21-19(a)(1). Upon denial of their motion to suppress the evidence on the grounds of violation of their Fourth Amendment rights under the Federal Constitution, they pleaded guilty and were sentenced to indeterminate reformatory terms not to exceed five years, pursuant to a plea agreement. Defendants now appeal the trial judge's denial of their motion to suppress as evidence the cocaine found in the locked trunk. Their right to appeal the adverse finding on the motion to suppress followed by a guilty plea is preserved under our practice by R. 3:5-7(d).

The pertinent facts are derived exclusively from the testimony of State Trooper Phillips, which was totally credited by the trial court. On November 10, 1976 Trooper Phillips was assigned to the Tactical Control Unit, whose principal duty was enforcement of traffic regulations. He had been a state trooper for about six years, and previously a local police officer for about the same number of years. Trooper Phillips received some brief formal training in narcotics detection at the State Police Academy.

While on routine patrol at about 4 p. m. on November 10 Phillips stopped the 1968 Chevrolet convertible occupied by the defendants on State Highway 73 in Mt. Laurel Township. No violations were observed to prompt the stop. Phillips stated, "I stopped the vehicle for a motor vehicle check, checked for license and registration." The driver immediately obeyed the trooper's direction to pull over and stop. As the trooper approached the vehicle he saw the passenger hand the driver a registration and an insurance document. The driver then handed Phillips a registration, a driver's license, and an insurance card.

While questioning the occupants about the motor vehicle documents Phillips observed "a round cylindrical clear plastic container" about six inches long and an inch in diameter half-full of green vegetation on the floor next to the front seat. Based on his experience he concluded there was marijuana in the plastic container and he asked the occupants to step out of the vehicle. At this point the officer was also concerned about which of the occupants actually owned the driver's license because neither could produce any other identification.

Phillips then arrested the defendants for possession of the marijuana "that I saw in the vehicle." He then "patted them down" for any "weapons or anything else they might have." At this point the driver, Barriga, admitted that the driver's license belonged to the passenger, Patino. The car was registered in the name of Patino's sister. The trooper then seized the container of marijuana and also a hand-rolled marijuana cigarette which he had found on the floor of the front seat when he observed the container. He next tried to open the locked glove compartment. Pursuant to Phillips' order Patino unlocked the glove compartment. The trooper looked in, and found "it was absolutely empty." The trooper also searched the ashtray and under the seat. He found nothing else incriminating in the passenger area.

Finally, the trooper turned his attention to the locked trunk. Patino, pursuant to instructions, unlocked the trunk. Inside a shopping bag in the trunk the trooper found the cocaine.

When denying the motion to suppress the trial judge concluded that "once there is cause to arrest, it is the law of this state (that) he may then go ahead and search the rest of the car." The trial court's conclusion was premised on an absolute right to search the entire car incident to the arrest of the occupants for joint possession of the small amount of marijuana. (As to the marijuana, defendants were charged under a municipal court complaint with nonindictable possession of less than 25 grams, a disorderly persons offense. N.J.S.A. 24:21-20(a)(4).) The trial judge did not analyze the question in terms of the trooper's reasonable basis, if any, to believe that the locked trunk contained contraband, thereby justifying an on-the-spot warrantless search of the trunk, following a routine credentials stop, during which a small amount of marijuana was observed in open view.

This case involves the so-called automobile exception to the Warrant Clause of the Fourth Amendment, which permits the police to stop and search a moving or readily movable vehicle when they have probable cause to believe the vehicle contains criminally-related objects. The exigent circumstances for the exception are provided by the mobility of the instrumentality; the constitutional demands are tempered by the somewhat lessened expectancy of privacy in one's automobile, distinguished from one's home, office or shop. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Yet automobiles remain within the Warrant Clause of the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The State does not seek to justify the search of the locked trunk on the basis of a consensual and knowing waiver of the federal and state constitutional rights to be free from unreasonable searches and seizures, see State v. Johnson, 68 N.J. 349, 346 A.2d 66 (1975), or on the grounds that the search was justified to secure destructible evidence or weapons readily accessible to the accused, and therefore lawfully incident to the arrest for possession of marijuana. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The Chimel case would refute any such argument on these facts. Nor had the vehicle been lawfully impounded, arguably justifying an inventory of its contents. See South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); State v. Roberson, 156 N.J.Super. 551, 384 A.2d 195 (App.Div.1978), certif. den., 77 N.J. 487, 391 A.2d 502 (1978); State v. McDaniel, 156 N.J.Super. 347, 383 A.2d 1174 (App.Div.1978); State v. Slockbower, 145 N.J.Super. 480, 368 A.2d 388 (App.Div.1976), motion for leave to appeal granted, 74 N.J. 255, 377 A.2d 656 (1977).

Our State Supreme Court has noted in the case of a moving vehicle that "probable cause is the minimal requirement for a reasonable search permitted by the Constitution." State v. Waltz, 61 N.J. 83, 87, 293 A.2d 167, 169 (1972). This elusive concept was there defined as "more than mere naked suspicion but less than legal evidence necessary to convict." Ibid. It has also been defined as a "well grounded suspicion" that a crime is being committed. State v. Burnett, 42 N.J. 377, 387, 201 A.2d 39 (1964). No one could suggest that the police have a right to conduct random searches of the locked trunks of motor vehicles on mere whim or guess without a reasonable belief that criminal activity is afoot. Chief Justice Taft the author of the original United States Supreme Court opinion on the "moving vehicle exception" to the Warrant Clause, Carroll v. United States, supra, stated:

Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identity himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise. (267 U.S. at 153-154, 45 S.Ct. at 285)(69 L.Ed. 551-552).

This court has not until very recently considered the limits, if any, on the scope of a warrantless search of a motor vehicle. In State v. Murray, 151 N.J.Super. 300, 376 A.2d 1255 (App.Div.1977), certif. den. 75 N.J. 541, 384 A.2d 519 (1978), we ordered suppressed the product of a search of a defendant's van-type vehicle, following a stop for traffic violations, where the investigating trooper's initial observations revealed a "roach clip" and several vials containing marijuana-like residue in open view in the cab. The trooper continued to search throughout the rear area of the van, found nothing, and finally removed the driver's seat from the van. This structural dismantling of the vehicle continued and ultimately led to a concealed compartment which contained an attache case full of hashish.

Murray considered the serious question of the permissible scope and...