On appeal from the Superior Court, Law Division, Monmouth County.
Lynch, Crane and Horn. The opinion of the court was delivered by Lynch, P.J.A.D. (retired; temporarily assigned).
Pursuant to a plea bargain defendant pleaded guilty to a charge of possession of marijuana (N.J.S.A. 24:21-20(a)(4)) with the State consenting to the dismissal of another count in the indictment which charged defendant with possession with intent to distribute.
I. The Motion to Suppress
Prior to his plea defendant had moved to suppress certain evidence. The motion was denied. As permitted by R. 3:5-7(d), defendant appeals from the order denying his motion to suppress despite his having pleaded guilty to the count charging possession of marijuana.
The facts giving rise to defendant's motion to suppress were the following.
On January 29, 1977 Patrolman DeNardo of the Bradley Beach Police Department stopped a car driven by defendant for the reason that it bore an expired inspection sticker. Defendant produced a registration certificate which, however, was under the name of another and had expired on June 6, 1976. At the time the officer noticed a white duffel bag on the passenger seat but defendant made no movements toward it. Since the vehicle was unregistered, the officer impounded the car, allowing defendant to drive it to police headquarters. Defendant was not arrested.
Once at headquarters defendant took the duffel bag from the passenger seat and accompanied the officer into the squadroom. The officer wanted to question defendant as to whether the car was stolen and intended to decide whether a summons would be issued to defendant for driving with an expired registration.
Present in the squad room were several other officers. Defendant was seated on a chair. The testimony of the officers was to the effect that defendant appeared to be very nervous and started making several movements toward the duffel bag which was on the floor alongside him. On several occasions he started to bend over and bring the bag between his legs. However, he never actually did so. Officer DeNardo testified that he was "suspicious" that the bag "possibly" contained a weapon.
Officer Seyler, one of those present in the room, testified that defendant never touched the bag. However, the first time defendant reached for the bag the officer walked across the room to move it since he did not know what was in it and he was concerned for his safety. When the officer picked the bag up defendant exclaimed, "Oh, no." The officer then immediately took the bag, unzippered it, and searched it. Inside the bag he discovered a cellophane bag which contained approximately four ounces of marijuana. It was the validity of this search which was sustained by the trial judge in denying defendant's motion to suppress, and which is before us on appeal.
In Katz v. United States , 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), it was said:
There are five judicially recognized exceptions to the general rule. They are: (1) searches incidental to a lawful arrest, Chimel v. California , 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); United States v. Robinson , 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1974); (2) plain view observations, Harris v. United States , 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968); State v. Bell , 55 N.J. 239 (1970); ...