Bischoff, Morgan and King.
Convicted by a jury of possession of a controlled dangerous substance (hashish) and possession with intent to distribute it, defendants appeal, contending that the trial judge erroneously denied their pretrial motion to suppress evidence of the hashish allegedly obtained as the result of an illegal search; that the State improperly inquired into defendants' failure to volunteer the information at the time of the arrest that one of them gave in his trial testimony, and that the prosecutor's incorrect statement of law contained in his summation insufficiently corrected by the trial court constituted error and cause for reversal and a new trial.
Testimony at the motion to suppress established that during the afternoon hours of April 25, 1975, on Route 22 in Warren County, New Jersey, Trooper Robert Hopkins stopped the white Dodge van in which defendants were travelling for several unspecified traffic violations. While Trooper Hopkins was on the passenger side of this vehicle obtaining the driver's credentials he observed a "roach clip" on the floor of the passenger's side of the van near the feet
of defendant Robert Leite, the passenger. He also observed in the vicinity of the center console area, between the driver's and passenger's seat near the dashboard area, an amber vial containing a "vegetative residue, dust, actually, all around the surface, inside surface of the vial as well as some in the bottom of it." The combination of the empty roach clip and this vial containing a residue of something caused the officer to be suspicious that perhaps marihuana or other narcotic substance was present.
Obtaining possession of the vial from defendant Leite, he opened it and on smelling it concluded that it contained marihuana. Looking closer at the interior of the vehicle he detected another amber vial just under the passenger's seat. Both vials seized by Trooper Hopkins were produced at the motion to suppress and observed by the trial judge to contain a dusty residue.
Trooper Hopkins admitted that when he first observed the first vial he was unable to identify its contents. All he could observe from his vantage point outside the vehicle was that the vial appeared to contain dust. It was not until he opened the vial and smelled it that his suspicions that it had contained marihuana were confirmed. He admitted that the amount of marihuana contained in the vial was minimal, not enough to make even one cigarette from the contents; in fact, the laboratory report was unable to quantify the amount contained in the vial, stating only that the vials were positive for traces of marihuana.
Following the recovery of these vials and confirmation of Hopkins' suspicion that they contained traces of marihuana, Hopkins ordered defendants out of the vehicle. Although they were not placed under arrest at the time, he did advise them of their constitutional rights, including the right to be silent. As the defendants were positioned outside of the van they were confined to an area precluding access to the van to either obtain a weapon or destroy any evidence. When an off-duty police officer arrived at the scene, the search of the vehicle ensued.
Hopkins first examined the cab area of the van, including the area around the dashboard. Finding nothing he then proceeded to search the rear area of the van which he described as containing furniture and a number of boxes containing household goods. Most of these boxes were opened and searched; cushions on some of the furniture were also examined. No contraband was uncovered as the result of these efforts.
Encountering a sink set in a cabinet fully enclosed except for an opening adjacent to the rear of the driver's seat, Trooper Hopkins decided to search further. In order to gain access to this compartment under the sink it was necessary for him to remove the driver's seat from the van. The following excerpt from Hopkins' testimony describes what he did in this regard:
Q. What physically did you do to take the seat out?
A. As I said earlier, I recalled taking a pin or something there was holding the seat onto the brackets. I didn't have to use any tools. So, ...