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State v. McGivern

Decided: March 30, 1979.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
MICHAEL J. MCGIVERN, DEFENDANT-RESPONDENT



On appeal from Superior Court, Law Division, Middlesex County.

Lynch, Crane and Horn. The opinion of the court was delivered by Horn, J.A.D.

Horn

We granted the State's application for leave to appeal from an order of the trial court which, following an evidential hearing, suppressed evidence. R. 3:5-7. Pursuant to R. 2:11-2 we elected to decide the merits of the appeal on the papers submitted by the respective parties with respect to the motion and such additional briefs as the parties desired to file. We have received no additional briefs or other communication from the parties, and the time within which the supplemental briefs could be filed has now elapsed. Accordingly, the case is ripe for our determination.

The evidence of the State at the hearing, although controverted by defendant, tended to show that on January 22, 1978 State Trooper Steven Mihalow, while patrolling the New Jersey Turnpike in Edison Township, Middlesex County, observed a northbound motor vehicle weaving between the shoulder and the right lane. The vehicle was a 1978 Ford bearing New York registration license plates. He directed the driver (defendant) of the vehicle to pull over onto the right shoulder and then requested him to produce his driver's license and registration. Defendant exhibited

his driver's license and a rental agreement which was nine days overdue.

In response to questions, defendant told the trooper that he had not been drinking and was enroute from Maryland to New York. We quote a portion of the trooper's testimony at the hearing as to the trooper's inquiry of defendant concerning whether the latter had any luggage in the car:

A He stated he did. He had a briefcase with a CB radio and a gym bag with clothes in it.

Q Then what happened?

A At which point the subject exited the vehicle, went around and opened up the trunk.

Q Had you asked him to do that?

A No.

Q And when he opened up the trunk, ...


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