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State v. Astalos

Decided: March 17, 1978.

STATE OF NEW JERSEY,
v.
GEORGE J. ASTALOS AND CHARLES D. VAN ALLEN, DEFENDANTS



Meredith, J.s.c.

Meredith

Motion to suppress evidence as having been illegally obtained pursuant to a warrantless search is made by co-defendants Charles Van Allen and George Astalos. Based on testimony elicited at the hearing of this motion, the court finds the facts to be as follows.

On December 8, 1977 defendants' vehicle, which was proceeding along Interstate 287 southbound, was radar-clocked as doing 74 m.p.h. in a 55 m.p.h. zone. On this basis, New Jersey State Trooper Androchek pursued the vehicle and activated the cruiser's overhead lights so as to indicate to defendants to pull off to the side of the road. Defendants' vehicle did not stop immediately in response to the trooper's signal but proceeded for some distance down the road before finally coming to a halt.

The trooper approached the vehicle, which contained four passengers, two men and two women, and asked the driver, defendant Astalos, to produce driving credentials. At this point the officer noted a strong smell of burning marijuana emanating from the vehicle, and so informed the vehicle's occupants. The passengers in the vehicle denied this and offered as explanation that they had been smoking numerous cigars and cigarettes during their somewhat lengthy trip. Unpersuaded, the trooper asked Astalos to exit the vehicle. As Astalos got out the trooper observed a smoking pipe and a clear plastic bag which contained some substance wrapped in aluminum foil partially protruding from a side pocket of defendant's coat. The trooper immediately seized these

objects and asked Astalos what was contained in the package. Receiving no response, he proceeded to open the package and observed a small amount of what he believed to be hashish. The trooper placed Astalos under arrest and ordered the remaining passengers out of the vehicle.

The trooper then proceeded to search each of these persons as well as the interior of the vehicle, including the glove box. This search revealed no further contraband or evidence of contraband use. The officer next inquired as to the ownership of the vehicle. When defendant Van Allen indicated that he was the owner, he was directed to open the vehicle's trunk. A search of that portion of the vehicle revealed a shotgun, broken down in its case. After admitting ownership of the firearm, defendant Van Allen was placed under arrest for possession of a firearm without a valid permit. The vehicle was subsequently impounded.

Turning to the merits of the motion, defendants question the validity of the trooper's actions with respect to the sequence of events leading to their arrest.

Surely, under the circumstances presented, the trooper was entitled to stop the vehicle in question. Such a stop is supportable under either the police's express statutory authority to apprehend motor vehicle code transgressors, N.J.S.A. 39:5-25; State in Interest of J.B. , 131 N.J. Super. 6 (Cty. Ct. 1974); United States v. Greene , 371 F. Supp. 570 (D.N.J. 1974), or under the statutory authorization to stop vehicles at random and require production of driving credentials, N.J.S.A. 39:3-29; State v. Kabayama , 98 N.J. Super. 85 (App. Div. 1967), aff'd 52 N.J. 507 (1968); see State v. Braxton , 111 N.J. Super. 191 (App. Div. 1970).

Similarly, any question regarding the propriety of the trooper's request that defendant Astalos exit the vehicle is foreclosed by the recent decision of the United States Supreme Court in Pennsylvania v. Mimms , 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977). In that case the court concluded that the de minimus intrusion occasioned by a

request to exit a vehicle stopped on the highway is far outweighed by the legitimate interest in self-protection of the stopping officer, even where there are no circumstances indicating that his personal security may be in jeopardy. The court upheld a routine request to exit, done as a matter of course to all drivers stopped on the highway, as a reasonable police procedure in furtherance of this interest. A prior New Jersey case, State v. Boone , 114 N.J. Super. 521 (App. Div. 1971), identified the same interest as being at stake under such circumstances, and appears to have reached the same result. Id. at 524-525. Thus, the trooper's request that Astalos exit the vehicle was a reasonable procedure not proscribed by the strictures of the Fourth Amendment.

Next raised is the legality of the intrusion engendered by seizure of the hashish and smoking pipe from the pocket of defendant Astalos. The State asserts that the plain view observation of these articles, considered in light of the detected odor of marijuana, ...


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