On appeal from the Burlington County Court.
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 ...