On appeal from the Superior Court of the New Jersey, Law Division, Essex County.
Fritz, Ard and Trautwein. The opinion of the court was delivered by Ard, J.A.D.
The State appeals, on leave granted, from a search suppression order in the trial court.
The State urges that the trial judge erred in concluding that the warrantless police search of defendant's soft leather briefcase taken from defendant's hand was a violation of defendant's Fourth Amendment rights. The State also argues that even if defendant was not legally under arrest prior to the recovery of the gun, the search was proper within the "stop and frisk" concept as enunciated in Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In light of our decision, we need not address the latter point.
The procedural background is as follows: Defendant was charged with possession of a weapon, i.e. , a Marksman Repeater 4.5-mm, .177-cal. pellet gun, in violation of N.J.S.A. 2C:39-5. He was also charged with possession of cocaine, a controlled dangerous substance, in violation of N.J.S.A. 24:21-19(a). On motion of the State the initial charge was amended to creating a hazardous or physically dangerous condition without a legitimate purpose, in violation of N.J.S.A. 2C:33-2(a)(2). The drug charge was amended to N.J.S.A. 24:21-20(b), which proscribes the use of a controlled dangerous substance.
Subsequently defendant moved to suppress the evidence, alleging an illegal search conducted without a warrant. The trial judge denied the motion as to the controlled dangerous substance but, relying on State v. DeLorenzo , 166 N.J. Super. 483 (App.Div.1979), suppressed the gun found within the briefcase. The State then sought leave to appeal.
The facts are not complex. On May 22, 1980 two plainclothes police officers stopped an automobile because its rear lights were inoperable.*fn1 Defendant was a passenger in the vehicle. As the police approached the vehicle they observed defendant dropping an object outside of the car. Upon retrieving it, the police officer found it to be a small tinfoil package containing a white powder substance which, based on his experience and expertise, he believed was a controlled dangerous substance. Defendant was ordered to get out of the vehicle. The officer testified that "Mr. Evans exited the vehicle with a suitcase or briefcase type bag in his hand. . . . I immediately removed the bag from Mr. Evans' hand feeling that it may contain some type of a weapon." The officer then handled the outside of the bag and felt "what I thought was a weapon inside the bag, a gun." At that point the gun was removed from the briefcase.
In making his findings, the trial judge was satisfied that the police officer observed defendant drop the tinfoil package to the ground, and, upon examining the package, reasonably believed that he was dealing with a narcotic drug. However, the judge felt bound by State v. DeLorenzo, supra. In suppressing the gun, the judge stated:
Now, the problem arises. The briefcase was not opened. In State against DeLorenzo , 166 Super. 43 [ sic ] the Court was dealing there with a police officer taking hold of a defendant's duffel bag.
The Court said that it was then in the officer's exclusive control. It was easily removable to some other place for safekeeping and a threat to the officers' lives if any, was eliminated by removing the bag from the defendant's control.
The police officer should have obtained a search warrant before searching the duffel bag. I ...