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State v. Patino

May 19, 1980

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT
v.
LUCIO W. PATINO AND GUILLERMO BARRIGA, DEFENDANTS-RESPONDENTS.



Wilentz, Sullivan, Pashman, Clifford, Handler and Pollock.

Clifford

The judgment of the Court was delivered by

CLIFFORD, J.

The Appellate Division reversed defendants' convictions and remanded for a new trial on charges of possession with intent to distribute cocaine in violation of N.J.S.A. 24:21-20(a)(2) and N.J.S.A. 24;21-19(a)(1). 163 N.J. Super. 116 (1978). We granted the State's petition for certification, 79 N.J. 477 (1979), to consider whether the trial court should have suppressed as evidence the cocaine discovered in the trunk of the automobile occupied by these defendants. The State contends that under the circumstances here presented the search was authorized either as incident to the arrest*fn1 or pursuant to probable cause. We disagree and hence affirm.

I

[1] As the court below observed, the pertinent facts must be gleaned from the testimony of State Trooper Phillips who, while

on routine patrol during the late afternoon of November 10, 1976, stopped an automobile occupied by defendants on State Highway 73 in Mt. Laurel Township. This was simply a routine motor vehicle check, the trooper having observed no traffic violations or any suspicious activity on the part of the occupants.*fn2 The events leading up to and including the questioned search are set forth in the Appellate Division opinion as follows:

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 drivers license because neither could produce any other identification.

Phillips then arrested the defendants for possession of 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 compart-

ment. 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 the trunk the trooper found the cocaine. [163 N.J. Super. at 119-20.]*fn3

Upon the denial of the motion to suppress the evidence for violation of their Fourth Amendment rights, defendants pleaded guilty and were sentenced pursuant to a plea bargain to indeterminate reformatory terms not to exceed five years. With respect to the marijuana, the defendants were charged under a municipal court complaint with possession of less than 25 grams, a nonindictable disorderly persons offense. N.J.S.A. 24:21-20(a)(4); see N.J.S.A. 2C:43-1.

In denying the motion to suppress the cocaine the trial court assumed an absolute right on the part of the trooper to search the entire automobile incident to the arrest of the occupants for joint possession of a small amount of marijuana. As indicated, the Appellate Division reversed that determination, relying primarily on Wimberly v. Superior Court, 16 Cal.3d 557, 128 Cal. Rptr. 641, 547 P.2d 417 (Sup.Ct.1976). The court below held that the discovery of a small amount of marijuana in the passenger compartment gave rise only to an inference that the occupants were casual drug users, and thus furnished no cause to search

the trunk where large "dealer-size" quantities of drugs would presumably be stored. As the Appellate Division concluded, "the search [of the trunk] was purely investigatory and the seizure a product of luck and hunch, a combination of insufficient constitutional ingredients." 163 N.J. Super. at 125.

II

[2-4] Certain fundamental propositions bear restatement at the outset. The Fourth Amendment to the United States Constitution requires the approval of an impartial judicial officer based on probable cause before most searches may be undertaken. E. g., Chambers v. Maroney, 399 U.S. 42, 51, 900 S. Ct. 1975, 1981, 26 L. Ed. 2d 419, 428, reh. den., 400 U.S. 856, 91 S. Ct. 23, 27 L. Ed. 2d 94 (1970). The same holds true for Article 1, paragraph 7 of the New Jersey Constitution. State v. Ercolano, 79 N.J. 25, 41-42 (1979), and cases cited therein. The warrant requirement of these provisions may be dispensed with in only a few narrowly circumscribed exceptions. The prima facie invalidity of any warrantless search is overcome only if that search falls within one of the specific exceptions created by the United States Supreme Court. Ercolano, supra, 79 N.J. at 42. Where, as here, the State seeks to validate a warrantless search, it bears the burden of bringing it within one of those exceptions. State v. Sims, 75 N.J. 337, 352 (1978)

Here, as noted above, the State seeks to justify the search on the grounds that it was incident to a lawful arrest for possession of marijuana, Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685, reh. den., 396 U.S. 869, 90 S. Ct. 36, 24 L. Ed. 2d 124 (1969), or under the "automobile exception" to the Warrant Clause, Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). We consider the contentions in that order.

[5] The Supreme Court has sanctioned searches incident to arrest primarily as a method of protecting the police officer and, to a lesser extent, as a means of preventing destruction of evidence. E.g., Chimel v. California, supra, 392 U.S. at 763, 89 S. Ct. at 2040, 23 L. Ed. 2d at 694. The scope of such searches is authoritatively defined in Chimel as encompassing weapons and evidence on the arrestee's person and in the area within his immediate control -- the area from within which he might gain possession of a weapon or destructible evidence. Id.

Chimel involved the search of a house; and while the automobile has never been granted the protection accorded the home, see Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), it is not longer open to question that automobiles remain within the protection of the Fourth Amendment and the Warrant Clause. Marshall v. Barlow's Inc., 436 U.S. 307, 315 n. 10, 98 S. Ct. 1816, 1821, 56 L. Ed. 2d 305, 313 (1978); Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S. Ct. 2022, 2035, 29 L. Ed. 2d 564, 580 (1971). In fact, the trend is to accord an increased amount of Fourth Amendment protection to automobiles as courts recognize that automobile travel is a basic, necessary and pervasive way of Americal life. See, e.g., Delaware v. Prouse, 440 U.S. 648, 662, 99 S. Ct. 1391, 1400, 59 L. Ed. 2d 660, 673 (1979). Likewise is it clear that courts have not hesitated to manifest concern for the personal safety of police officers. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977); State in Interest of H.B., 75 N.J. 243 1977). However, as was emphasized in Chimel v. California, supra, 395 U.S. at 763, 89 S. Ct. at 2040, 23 L. Ed. 2d at 694, this concern may not be inflated to justify the routine search of any room or area other than that in which an arrest occurs, nor will it justify a search through closed or concealed places beyond the control or reach of the defendant even though in the area of the arrest itself.

[6] Here, the police officer's pat-down of the defendants and the search of the passenger compartment, the area within the immediate control of the defendants, satisfied the legitimate concerns for the safety of Trooper Phillips and were justified as a search incident to arrest for possession of marijuana. However, we do not see any circumstances in this case which would lead a police officer reasonably to believe that two arrestees patted down and therefore presumably free of weapons on their persons, and detained at the front of an automobile, might be able to gain access to an enclosed automobile trunk in such a way as to endanger or overpower an armed, albeit unaided, state trooper, or to enable them to destroy evidence contained therein. The circumstances do not suggest that the extension of the search to the trunk of the vehicle was necessary either to protect the safety of the officer or to protect against the destruction of evidence. In fact these circumstances generate a contrary inference. The trooper's willingness to direct the defendants to assist him in opening the trunk indicates that he neither feared for his safety nor anticipated the destruction of evidence. Therefore, the search of the trunk has not been justified; the State has failed to meet the burden required to bring the trunk search within the Chimel exception as a search incidental to arrest. Accordingly, the evidence seized from the trunk must be suppressed unless admissible on some other grounds.

IV

[7] The State further seeks to justify the trunk search under the automobile exception to the Warrant Clause, Carroll v. United State, supra, which permits police to stop and search a moving or readily movable vehicle when there is probable cause to believe the vehicle contains criminally related objects. The rational for this exception is grounded in the exigent circumstances created by the inherent mobility of vehicles and the somewhat lessened expectation of privacy in one's vehicle.

Cady v. Dombrowski, 413 U.S. 433, 441-42, 93 S. Ct. 2523, 2528, 37 L. ...


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