On appeal from the Superior Court, Law Division, Salem County.
Matthews, J. H. Coleman and Gaulkin.
On August 23, 1977 a State trooper conducted a routine stop of defendant's vehicle to check for compliance with license and registration laws. Defendant produced only his vehicle registration. At that point the trooper observed, through the open door of the vehicle, a large folding knife between the driver's seat and the front door. Consequently, he arrested defendant for a weapons violation.
Upon retrieving the knife, the trooper detected a strong odor of unburned marijuana and observed a partially-opened vinyl bag on the front seat of the car. He testified that he opened the vinyl bag and saw a clear plastic bag containing marijuana, and a vial and envelopes containing a few white pills. Because of the strong odor of unburned marijuana in the vehicle, the trooper then searched its interior.
Finding no evidence in the interior, and still detecting a strong odor of unburned marijuana, the trooper, without the consent of defendant, removed the car keys from the ignition and opened the trunk. Inside the trunk he discovered a suitcase containing 42 pounds of marijuana wrapped in green and white plastic, and a canvas bag, plastic bag and pillowcase containing marijuana. A total of 61.5 pounds of marijuana was discovered in the trunk.
Subsequently, a Salem County Grand Jury returned an indictment on September 30, 1977 charging defendant with unlawful possession of marijuana, contrary to N.J.S.A. 24:21-20(a)(4) (Count One); possession of marijuana with intent to distribute, contrary to N.J.S.A. 24:21-21(a)(1) (Count Two), and unlawful possession of a dangerous weapon, namely, a knife, contrary to N.J.S.A. 2A:151-41 (Count Three).
Thereafter, a Law Division judge heard and denied a motion to suppress the evidence seized as a result of the stop. Defendant subsequently entered retraxit pleas of guilty to Counts Two and Three of the indictment under a plea agreement that called for the dismissal of Count One. On Count Two he was sentenced to 364 days in the county jail with all but 60 days suspended; he was placed on probation for two years and was directed to pay a $7,500 fine. On Count Three he was sentenced to a suspended term of 364 days at the county jail.
On March 1, 1979 defendant appealed the denial of his suppression motion. That decision was affirmed by this court. State v. Sarto, A-2173-78 (April 17, 1980) (unpublished opinion). Defendant petitioned for certification and appealed to the New Jersey Supreme Court; his petition was denied and his appeal was dismissed. State v. Sarto, certif. den. 84 N.J. 479 (1980). Defendant was also denied his petition to the United States Supreme Court for a writ of certiorari, Sarto v. New Jersey, cert. den. 449 U.S. 938, 101 S. Ct. 338, 66 L. Ed. 2d 161 (1980), and subsequent rehearing nunc pro tunc, Sarto v. New Jersey, reh'g den. 453 U.S. 950, 102 S. Ct. 27, 69 L. Ed. 2d 1037 (1981).
On July 29, 1982 defendant petitioned for postconviction relief. The Law Division judge held a hearing on that motion, and issued a written opinion dated January 13, 1983 (order dated February 3, 1983) in which he concluded that Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), was not retroactive and therefore inapplicable to this case but that Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979), was retroactive and applicable. Accordingly, he ruled that a hearing was required to determine the applicability of Sanders to the facts of the case. The judge also denied the State's request to apply the holding of United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982), to the case.
Rather than having oral argument, the parties agreed to permit the judge to review the suppression hearing transcripts, apply Sanders, and make a determination therefrom. On March 29, 1983 the judge issued another written opinion granting defendant's motion to suppress the marijuana discovered in the passenger compartment and trunk of his vehicle. The marijuana discovered in the passenger compartment was suppressed pursuant to the holding in United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977). The marijuana discovered in the trunk was suppressed pursuant to the holding in Sanders, cited above. The judge further ruled that the holding in New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), could not be applied retroactively to this case.
By order dated April 8, 1983 the judge vacated defendant's conviction on Count Two of the indictment, vacated the merger of Count One with that conviction and suppressed ...