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State v. Kearney

December 31, 1981

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONALD KEARNEY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County.

Before Judges Bischoff, King and Polow.

King

The opinion of the court was delivered by KING, J.A.D.

On this appeal defendant contends that the Law Division judge erred in denying his motion to suppress evidence seized in a series of warrantless searches.

On October 21, 1977 at 5:30 p.m. State Trooper Edward Hess was waiting in a gas line at the 12 S Service Area of the New Jersey Turnpike at Secaucus. Trooper Hess noticed that the 1973 Chevrolet four-door sedan behind his car in the gas line did not have an inspection sticker. After the Chevrolet was serviced, the driver pulled it over in front of the restaurant and started working on the motor. Both the driver, James Bundi, and a passenger, Bostick, were looking under the hood. Another passenger, the defendant, was sitting in the right front seat of the car.

Trooper Hess approached Bundi and asked him for his license and registration. Bundi produced his registration but had to open the trunk of the automobile to get his valid driver's license which he presented to the trooper. While the trunk was open Trooper Hess observed an open brown leather camera case containing small plastic vials of orange fluid. Hess testified that from his experience at narcotics training school and numerous previous arrests he knew this particular type of jar to be a container for methadone. Although he did not know for certain that these vials contained methadone, he had on ten previous occasions seen similar jars containing this drug.

After observing inside the trunk Trooper Hess went to the right front of the car to investigate the window where the inspection sticker should have been. It was at this time that he first saw defendant. While standing three to four feet away from defendant, with the door of the automobile open, the trooper noticed that he was "extremely nervous." Defendant was so nervous and his hands were shaking so much that he was unable to get a match to the cigarette he was trying to light. Trooper Hess requested that defendant get out of the automobile and then attempted to pat him down for "self-protection." As Hess stated:

I patted him around the waist and I patted up around the chest. There was a bulge in his pocket. When I hit this bulge he backed two steps and backed toward the car.

Hess then attempted to pat down defendant again, with the same result. Unable to complete the pat-down Hess reached into defendant's left front chest pocket, the area where the bulge was. He pulled out two glassine packets of white powder. Believing this substance to be cocaine, the trooper arrested defendant and searched his person further. He found nothing. Hess then searched defendant's jacket, which he found "on the front seat of the car right next to where Mr. Kearney was standing." In the jacket he found three marijuana cigarettes. Hess then placed the other two subjects, Bundi and Bostick, under arrest and searched the entire car and the trunk. He

went through the soft brown camera bag, which was open and which he had seen earlier in the trunk. He found 32 white vials, all containing methadone. He also found some heroin and cocaine within a closed film container in the camera bag.

Following indictment, defendant moved to suppress the evidence found on his person and in the car. Judge Walsh, in his bench opinion, stated that he found Hess believable. He felt that the trooper acted reasonably under the circumstances. The judge said that the pat-down was reasonable because Hess had a well-grounded suspicion that a crime, possession of drugs, was being committed. He held that the arrest after the productive pat-down was justified and that the search of the pocket of defendant's jacket in the automobile was valid as incident to an arrest. He found that the seizure of the methadone in the truck fell within the "plain view" exception to the warrant requirement. The heroin found in the empty film container in the camera case was considered to be the product of a valid inventory search. In the alternative, he concluded that both narcotic substances could be found to be legally seized as products of a search incident to arrest.

Defendant thereafter pled guilty to count charging illegal possession of methadone, in violation of N.J.S.A. 24:21-20(A)(1). Counts 2 and 3, charging possession of heroin and cocaine, were dismissed.

Defendant first contends that the pat-down of his body was unconstitutional as it was not based on a reasonable suspicion that he was armed and dangerous. The law is settled that a limited frisk is constitutionally permissible even if there is not probable cause sufficient to justify an arrest because an individual is armed with a weapon. Terry v. Ohio, 392 U.S. 1, 24-26 (1968); State v. Dilley, 49 N.J. 460, 467-468 (1967). In Dilley the court stated (at 468) that the test used should be the reasonableness of the frisk in the ...


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