On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Dreier and Stern. The opinion of the court was delivered by Dreier, J.A.D.
[215 NJSuper Page 65] The State has appealed by leave granted from an order of the Law Division suppressing evidence of substantial quantities of cocaine recovered from behind the door panels of a car driven by defendant Santana and in which defendant Techera was a passenger. The car was owned by Techera's ex-wife and he had executed a consent to its complete search.
On September 18, 1984 two New Jersey State Troopers stopped a vehicle bearing Florida license plates on the New Jersey Turnpike. In response to an inquiry from Trooper Michael Nutt, the driver, a Hispanic male, produced his driver's license and the vehicle registration. The passenger, also a Hispanic male, stated that his ex-wife owned the car and knew that he (Techera) was using it. Trooper Nutt noticed a carton of untaxed cigarettes that had been purchased in the Carolinas and asked the occupants to step from the vehicle to permit a search of the passenger compartment for any possible further contraband.*fn1 Trooper Nutt's partner escorted the two occupants to the patrol vehicle while Trooper Nutt searched the car. He saw an open brown paper bag with a small amount of a white powder substance which he believed was either cocaine or some type of additive or cutting agent used in preparing cocaine for distribution. The packaging, however, was unusual. He took the bag bearing the powder to the patrol vehicle to show it to his partner and then orally advised defendant Techera of his Miranda rights. Techera stated he understood his rights and that he was fluent in both English and Spanish, whereupon he explained the Miranda warnings to Santana in Spanish. In response to the trooper's questions, Techera stated he knew nothing about the white powder substance.
At that time neither defendant was under arrest nor had the police decided to arrest them. The officers were suspicious enough of the situation, however, to question Techera further concerning his travel plans. Techera responded that they were going to visit his sister and, when asked where she lived, Techera became visibly nervous, but eventually told them the location. Techera was asked if he had ever been arrested and responded that he had been convicted of conspiracy to distribute cocaine and had "done time" in Georgia.
Trooper Nutt determined that based upon the then existing circumstances he wanted to search the car, but he did not feel he had probable cause either to obtain a search warrant or to place defendants under arrest. He, therefore, asked defendant Techera, who had stated that he had been given the use of the car, for consent to search the vehicle, stating further that Techera could refuse to give consent and could withdraw his consent at any time during the search. He was told, however, that if anything was found it could be used against him. Trooper Nutt then filled out a written consent to search form printed in Spanish. Techera read it, indicated he understood it, and signed, thereby giving consent to "a complete search" of his car. Techera appeared extremely cooperative and volunteered the comment that he had nothing to hide.
After the form was signed, defendants and both officers walked to the rear of the vehicle. Trooper Nutt opened the trunk and started to search a suitcase and shoulder bag. When he began to open the shoulder bag, identified as Techera's, Santana became extremely agitated and excited, went to the trunk and began throwing the bags out of the trunk, pulling up the trunk's carpet and shouting "nothing, nothing, nothing!"
The officers, still believing that there was a need to investigate, decided that it would be preferable to return to their headquarters and complete the investigation there. Trooper Nutt explained this to Techera who, remaining very cooperative, agreed to drive the vehicle to headquarters accompanied by Santana but followed by the two officers in their patrol car. Upon reaching headquarters the troopers asked Techera to park his vehicle in the garage on the lower level. Defendants were then escorted up one flight of stairs to the radio room area where for safety reasons defendants were asked to wait in a holding cell immediately adjacent to and in view of the radio room. Trooper Nutt explained to Techera that the officers intended to finish searching the car downstairs. Techera remained pleasant and cooperative, saying "no problem, no problem, we'll stand by up here." The officers then brought both
men coffee and returned to the garage. Techera does not contest the fact of his apparent willingness to remain in the cell or his continuous outward cooperation with the police.
When the officers returned to the garage, Trooper Nutt resumed his search of Techera's shoulder bag and found inside it other packaging containing a second brown paper bag similar to the one he had located on the floor of the car. The second bag contained a much larger quantity of the white powder substance. Trooper Nutt then believed that there were narcotics hidden somewhere in the car. He stated that in his experience there were several commonly used places for hiding contraband, such as the spare tire well, false compartments in the trunk, false oil cans, over the wheel wells, under the carpet, inside hubcaps, in false containers under the hood, taped under a seat or the dashboard, behind false radios or behind pop-out type door panels. He proceeded first to search the car's trunk and found no contraband. He then went to the passenger door panel, reached under the bottom flap and popped out the panel by pulling on it. He reached into the door frame and felt a brick-like substance which he removed. His partner found and removed an identical object from the driver's door. The package contained a whiter substance than that found in the paper bags; from the color and packaging the troopers correctly believed that they had found cocaine. Each package contained approximately one kilogram. The door panels could be completely removed by unscrewing two screws and removing the door lock button. By proceeding as they did, the officers may have actually bent the door panel leaving small damage marks, although Trooper Nutt could not recall if the marks had been there before he had opened the panel. After the discovery of the cocaine the officers called for assistance from narcotic detectives, and approximately one hour later Trooper Nutt advised both defendants that they were under arrest.
The trial judge granted defendant Santana's motion to suppress on the grounds that defendant Techera's consent was not valid as to Santana. The ...