State v. Paturzzio

• Decision Date: 26 July 1996
• Citation: 679 A.2d 199,292 N.J.Super. 542
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Lisa M. PATURZZIO, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 542

292 N.J.Super. 542

679 A.2d 199

STATE of New Jersey, Plaintiff-Appellant, v. Lisa M. PATURZZIO, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 6, 1995.

Decided July 26, 1996.

Brent D. Miller, Assistant County Prosecutor, for appellant (Daniel J. Carluccio, Ocean County Prosecutor, attorney; Ronald F. DeLigny, Assistant County Prosecutor, of counsel; Mr. Miller, on the brief)

James Pinchak, Assistant Deputy Public Defender, for respondent (Susan L. Reisner, Public Defender, attorney; Mr. Pinchak, of counsel and on the brief).

Before Judges LONG, BROCHIN and LOFTUS.

The opinion of the court was delivered by

LOFTUS, J.A.D.

The State of New Jersey appeals from an order of the Superior Court, Law Division, Ocean County granting the motion of defendant, Lisa Paturzzio (Paturzzio), to suppress drugs and other evidence obtained in a warrantless search.

On appeal, the State contends:

POINT I

THE TRIAL COURT FAILED TO CONSIDER THE TOTALITY OF THE CIRCUMSTANCES IN ASSESSING THE DEVELOPMENT OF PROBABLE CAUSE THROUGH CORROBORATION OF THE INFORMANT'S TIP.

POINT II

THE SEARCH OF DEFENDANT'S POCKETBOOK AT THE STATION WAS A LAWFUL SEARCH INCIDENT TO ARREST.

We have carefully reviewed the record and conclude that the State's contentions are meritorious. We reverse.

At the hearing on the motion to suppress, Investigator Thomas Wallace (Wallace) of the Ocean County Narcotics Strike Force testified. He had been a police officer with the Little Egg Harbor Police Department for eight years, and at the time of the hearing had been a member of the Ocean County Narcotics Task Force for almost two years.

On December 7, 1994, at 9:18 p.m., Wallace received a call from a confidential source which he had not utilized in the past. He believed that the source had either a criminal arrest pending or a criminal conviction. The confidential source advised him that Paturzzio was in the Mystic Islands area at a house occupied or rented by Anthony Manto and that Paturzzio was in possession of a large quantity of phencyclidine (PCP) and marijuana which she was distributing. The confidential source also advised that Paturzzio would be leaving the Manto residence shortly either on foot or in a vehicle operated by Gina DeFeo (DeFeo).

Wallace obtained a physical description of Paturzzio as well as a description of Paturzzio's clothing. The source advised that Paturzzio would have a black knapsack in her possession.

Wallace conducted a check with the Little Egg Harbor Township Police records which revealed that Anthony Manto was residing at 4-7 Cala Breeze Way in Mystic Islands. At approximately 10:00 p.m. on December 7, 1994, surveillance was established at that address. The surveillance was conducted by Wallace and Investigator Hammerle (Hammerle) of the Ocean County Narcotics Strike Force as well as Patrolman Jeff Wilson (Wilson) of the Little Egg Harbor Police Department.

During the surveillance Hammerle observed an older Cadillac Eldorado arrive at 4-7 Cala Breeze Way at approximately 10:25 p.m. The driver was observed exiting the vehicle and walking from the car to the house. Hammerle gave a physical description of the individual via radio to Wallace. The description matched the physical description of DeFeo with whom Wallace was familiar. He was also familiar with the fact that DeFeo drove a Cadillac Eldorado.

At approximately 12:05 a.m., Wallace was advised via radio that Hammerle observed three individuals leave 4-7 Cala Breeze Way and enter a Cadillac Eldorado. Hammerle advised him that the individuals were the "initial female," a "small child" and a "white female." Hammerle gave a description which matched the information given by the source as Paturzzio. Wallace testified that he knew DeFeo had a small child.

Hammerle observed the Cadillac travel from Cala Breeze Way. At this time, Wallace instructed Wilson to make a motor vehicle stop with his marked car. Wilson activated his overhead lights and brought the Cadillac to a stop. Once the vehicle was stopped, Wallace approached the Cadillac from the passenger side. Wallace identified himself to a white female seated in the passenger seat and asked her for her name. She stated that her name was Lisa Paturzzio. DeFeo was seated behind the steering wheel operating the vehicle and a small white male child named Sean, who was DeFeo's son, was also seated in the vehicle.

Wallace testified that there was a black knapsack on the back seat of the passenger's side. He searched the knapsack, finding a Marlboro cigarette pack containing a partially smoked one-inch cigarette. Based upon his training and experience, he believed it to be marijuana. At that time, Wallace advised Paturzzio that she was under arrest. She was transported to the Little Egg Harbor Township Police headquarters by Patrolman Paul Malaga (Malaga).

Wallace was informed by Malaga that prior to being placed into a holding cell, Paturzzio removed a shoulder strap satchel from underneath her sweatshirt and gave it to Malaga. Inside the satchel were twenty-two manila envelopes which later tested positive for PCP, twenty-one separate miscellaneous sized bags of what later tested positive for marijuana and two chunks of a substance that later tested to be hashish.

The trial judge heard the testimony of Wallace, considered the evidence submitted as well as the oral arguments of counsel and granted Paturzzio's motion to suppress. He concluded that the evidence should be suppressed under State v. Probasco, 220 N.J.Super. 355, 532 A.2d 262 (App.Div.1987), because the informant was not reliable, because there was not sufficient corroboration of the physical description (at trial Wallace could not recall the physical descriptions and they were not contained in his report) or other information to justify an investigatory stop and search of the vehicle and persons.

In State v. Foreshaw, 245 N.J.Super. 166, 174, 584 A.2d 832 (App.Div.), certif. denied, 126 N.J. 327, 598 A.2d 886 (1991), this court set forth the relevant law relating to warrantless searches of automobiles:

Under the automobile exception established in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), "the police can stop and search a moving or readily movable vehicle when there is probable cause to believe that the vehicle contains evidence of criminality." State v. Welsh, 84 N.J. 346, 352, 419 A.2d 1123 (1980). See California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 2068, 85 L.Ed.2d 406, 412 (1985); State v. Martin, 87 N.J. 561, 567, 436 A.2d 96 (1981). "This exception applies to situations involving parked and unoccupied vehicles encountered by police in public parking lots or on city streets as well as to moving vehicles stopped on the open highway." State v. Martin, supra, 87 N.J. at 567, 436 A.2d 96. There are two reasons for the automobile exception. " 'Besides the element of mobility, less rigorous warrant requirements govern because the exception of privacy with respect to one's automobile is significantly less than that relating to one's home or office.' " California v. Carney, supra, 471 U.S. at 391, 105 S.Ct. at 2069, 85 L.Ed.2d at 413. "Even in cases where an automobile [is] not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justifie[s] application of the vehicular exception." Id. Despite the breadth of the exception, " '[o]nly the prior approval of the magistrate is waived; the search otherwise [must be such] as the magistrate could authorize.' " California v. Carney, supra, 471 U.S. at 394, 105 S.Ct. at 2070, 85 L.Ed.2d at 415 (quoting United States v. Ross, 456 U.S. 798, 823, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982)). In short, "a warrantless search of a motor vehicle is justifiable ... where police have probable cause to believe that the vehicle contains contraband or evidence of criminal activity." State v. Martin, supra, 87 N.J. at 567, 436 A.2d 96.

[Id. at 174-75, 584 A.2d 832.]

In this case although the confidential informant was not reliable, the source advised that Paturzzio was in the Mystic Islands area at a house owned or rented by Anthony Manto and that she was in possession of a large quantity of PCP and marijuana which she was distributing. The source gave Wallace the physical description of Paturzzio as well as a description of her clothing and advised that Paturzzio would be leaving the Manto residence shortly on foot or in a vehicle operated by DeFeo. The source stated that Paturzzio would have a black knapsack in her possession.

Surveillance was established at Manto's residence, 4-7 Cala Breeze Way. Gina DeFeo was seen entering the residence. Wallace knew her and the physical description matched that of DeFeo. Three individuals subsequently left the residence--the initial female, a small child and a white female. Hammerle gave the source's description of Paturzzio to Wallace and it matched.

The fact that Wallace recognized DeFeo, as well as the car she drove; that the description of Paturzzio given by the informant matched that of the second woman; and that Paturzzio left the residence of Anthony Manto in a car operated by DeFeo constitutes sufficient corroboration of the information provided by the source.

We conclude that Wallace and Hammerle had sufficient facts to corroborate the information provided by the source that illegal drug activity was occurring, and that they had probable cause to stop the vehicle. Once having stopped the vehicle, the black knapsack was observed in plain view--another corroborating fact. A search of the car as well as of Paturzzio's knapsack ensued. In the knapsack was found a Marlboro cigarette pack containing a partially smoked cigarette, subsequently determined to be marijuana. Paturzzio was placed under arrest. At the police station a satchel worn underneath Paturzzio's sweatshirt was searched incident to the arrest and yielded the narcotics...