State v. Toth

• Decision Date: 04 June 1999
• Citation: 321 N.J. Super. 609,729 A.2d 1069
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Sean M. TOTH, Defendant-Appellant.
• Court: New Jersey Superior Court

729 A.2d 1069

321 N.J. Super. 609

STATE of New Jersey, Plaintiff-Respondent, v. Sean M. TOTH, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued February 9, 1999.

Decided June 4, 1999.

Mordecai Garelick, Assistant Deputy Public Defender, for plaintiff-respondent (Ivelisse Torres, Public Defender, attorney; Mr. Garelick, of counsel and on the brief).

Jafer Aftab, Deputy Attorney General, for defendant-appellant (Peter Verniero, Attorney General, attorney; Mr. Aftab, of counsel and on the brief).

Before Judges LONG, KESTIN and WEFING.

The opinion of the court was delivered by WEFING, J.A.D.

Middlesex County Indictment No. 96-07-0938 charged defendant Sean M. Toth and co-defendant Edward W. Solomon with third-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10a(1) (Count One); first-degree possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (Count Two); and fourth-degree possession of drug paraphernalia with intent to distribute, contrary to N.J.S.A. 2C:36-3 (Count Three). Prior to trial, defendant moved to suppress the evidence against him. The trial court denied that motion. Thereafter, pursuant to a plea agreement, defendant entered a plea of guilty to possession of CDS with intent to distribute. He was sentenced to a custodial term of fifteen years with seven and one-half years of parole ineligibility. Appropriate penalties, fees, and assessments were also imposed.

Defendant has appealed, raising only one issue:

THE SEARCH CONDUCTED BY THE POLICE EXCEEDED THE PERMISSIBLE SCOPE OF A TERRY SEARCH AND CANNOT BE JUSTIFIED UNDER THE "PLAIN TOUCH" DOCTRINE.

We have carefully reviewed the record in light of that contention and have concluded that the trial court correctly denied defendant's motion to suppress.

The facts underlying the search of defendant are undisputed. At 2:45 a.m. on June 13, 1996, State Troopers Salvatore V. DiPaola and Kevin Goldberg were patrolling the New Jersey Turnpike in Cranbury Township, New Jersey. Trooper DiPaola was at the wheel. They spotted and paced a vehicle traveling at 70 miles per hour in a clearly-marked 35 mile-per-hour construction zone. The troopers indicated to the driver that he should pull over. The vehicle immediately moved from the left lane to the right shoulder but proceeded two-tenths of a mile before stopping.

Trooper DiPaola approached the vehicle on the passenger's side. Defendant occupied the front passenger seat and opened the window when DiPaola tapped on it. Trooper DiPaola requested the driver's credentials and vehicle's registration. Solomon, the driver, produced a boat-operator's license and an I.D. card. Trooper DiPaola repeated his request. Solomon replied that he had the proper documents, but could not find them. Solomon then opened the glove box, retrieved a white envelope, and shuffled through it. Trooper DiPaola noticed two motor vehicle summonses and asked to see them. Solomon handed DiPaola the envelope, which included a summons for driving while on the revoked list. DiPaola questioned Solomon regarding that offense; Solomon replied that the envelope held a letter from Division of Motor Vehicles stating that his license was restored. DiPaola, however, found no letter, no license, and no registration. DiPaola instead found Solomon's parole papers for drugs-and weapons-possession offenses. DiPaola ordered Solomon to get out of the car and to stand at the rear of the vehicle where Trooper Goldberg was positioned.

While Trooper DiPaola spoke with Solomon, defendant appeared nervous and repeatedly urged the officers to let Solomon and him go. After Solomon exited the vehicle, DiPaola observed defendant more closely. He observed a large bulge in defendant's groin area. DiPaola, concerned for his safety, directed his flashlight on the area. Defendant then removed his baseball cap and used it to cover his groin.

Trooper DiPaola positioned himself behind the passenger door and ordered defendant out of the vehicle. Defendant exited the vehicle with his back to DiPaola. Defendant maintained his back to DiPaola and continued to cover his groin with his baseball cap. Trooper DiPaola, still concerned for his safety, immediately conducted a Terry pat-down, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). He stated that upon feeling the object, he knew it was not a handgun but rather CDS.

After Trooper DiPaola concluded that he had touched CDS, he reached into defendant's shorts and retrieved a brown paper bag. Inside that bag were two, clear plastic bags containing cocaine and, behind them, a quantity of vials and caps wrapped in a paper towel. At the suppression hearing, the trooper clearly explained that the cocaine was to the front and that it was the cocaine within the plastic bags that he felt and immediately identified during the pat-down. Subsequent measurement revealed that defendant was carrying ten ounces of cocaine. The trial court, after viewing the exhibit, estimated that, in addition, defendant was carrying several hundred vials and caps.

It is significant to note the dimensions of the bulge Trooper DiPaola observed. During the course of defendant's motion to suppress, the trial court described the package as being approximately eight-inches across and noted that if it were compressed, it would be approximately five-inches deep. Trooper DiPaola testified that the package was rounded, not square and flat. The State's description of the bulge as "skull-like" is not unwarranted from those physical dimensions.

Defendant contends that the failure of Trooper DiPaola to describe the particular, tactile sensation that led him to conclude that defendant was secreting CDS required suppression of the evidence Di-Paola had seized. We disagree.

Because the officers observed the vehicle traveling at an excessive speed, the stop of defendant's car was reasonable. State v. Dickey, 152 N.J. 468, 475, 706 A.2d 180 (1998). When Solomon was unable to produce proper credentials, the officers reasonably pursued their investigation. Id. at 476-83, 706 A.2d 180 (discussing allowable limits of investigative detention during traffic stop); see Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S.Ct. 882, 886, 137 L.Ed.2d 41, 47-48 (1997)

(allowing removal and brief, investigative detention of vehicle's passenger); Pennsylvania v. Mimms, 434 U.S. 106, 110-11, 98 S.Ct. 330, 332-33, 54 L.Ed.2d 331, 336-37 (1977) (allowing brief detention of driver outside the vehicle). When Trooper Di-Paola observed the large bulge in defendant's shorts, his suspicion that defendant was armed and dangerous was reasonable; a Terry pat-down for weapons was therefore appropriate. Terry, supra, 392 U.S. at 27,

88 S.Ct. at 1883,

20 L.Ed.2d at 909; State v. Thomas, 110 N.J. 673, 678-83, 542 A.2d 912 (1988).

The trial court correctly recognized that in considering whether Trooper Di-Paola had probable cause to seize the package from defendant, it had to examine the totality of the circumstances as presented to the trooper. Illinois v. Gates, 462 U.S. 213, 218, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 528 (1983); State v. Smith, 155 N.J. 83, 92-93, 713 A.2d 1033 (1998); State v. Demeter, 124 N.J. 374, 380-81, 590 A.2d 1179 (1991); State v. Novembrino, 105 N.J. 95, 119-23, 519 A.2d 820 (1987). Those circumstances included defendant's evident nervousness; his query to the trooper, "Can't you just let us go?"; his desire to shield the bulge from inspection; and the sheer size and mass of the bulge itself. See State v. Palacio, 111 N.J. 543, 545, 552, 545 A.2d 764 (1988)

. The totality of the circumstances also included the location at which defendant secreted the package. United States v. Rodney, 956 F.2d 295, 297 (D.C.Cir.1992) (noting that drug dealers frequently hide drugs near their genitals).

The unusual location of an object may help bolster a claim that it was immediately recognizable as contraband. If a defendant has a bulky object inside his or her crotch area, or has bulges around his or her ankles, the police are justified in believing the object is concealed contraband. While the location of the bulge alone may not provide probable cause to seize an item, only slight additional information may be necessary to establish probable cause.

[Anne Bowen Poulin, The Plain Feel Doctrine and the Evolution of the Fourth Amendment, 42 Vill. L.Rev. 741, 783-84 (1997) (citations omitted).]

We can see no basis to require, in circumstances such as those that confronted Trooper DiPaola, that an officer describe at a suppression hearing the particular, tactile sensation the officer experienced. The plain-feel doctrine enunciated in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), does not so restrict Gates`s totality-ofthe-circumstances approach. Under Dickerson, a police officer may seize non-threatening contraband detected during a Terry pat-down if the officer's search does not exceed Terry`s boundaries. Id. at 373-79, 113 S.Ct. at 2136-39, 124 L.Ed.2d at 344-48. Thus,

[i]f a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

[Id. at 375-76, 113 S.Ct. at 2137, 124 L.Ed.2d at 346.]

The Dickerson Court analogized the plain-feel doctrine to the plain-view doctrine, id. at 375, 113 S.Ct. at 2137, 124 L.Ed.2d at 345-46, and our Supreme Court has recognized the applicability of the totality-of-the-circumstances approach to plain-view searches. Demeter, supra, 124 N.J. at 381, 590 A.2d 1179. There is no reason in law, logic, or policy that would justify a different analysis when...