On appeal from the Superior Court of New Jersey, Law Division, Warren County.
Petrella, Shebell and Landau. The opinion of the court was delivered by Shebell, J.A.D. Landau, J.A.D., dissenting.
[231 NJSuper Page 115] Defendant Peter A. Demeter appeals from the denial of his motion to suppress incriminating evidence seized as a result of a warrantless search of his automobile. This evidence was used to support his conviction of possession of a controlled dangerous substance (methamphetamine) in violation of N.J.S.A. 24:21-20(a)(1).
At the suppression hearing, a patrolman of the Belvidere Police Department testified that he was on patrol duty on the evening of March 1, 1987, when defendant's van passed with its license plate light out. He signaled defendant to stop, and thereafter requested defendant's license, registration and insurance card. As the patrolman spoke to defendant he "observed a 35 millimeter film container lying on the storage area on the front console. . . ." The officer saw no camera in the open area of the van but did not inquire as to whether defendant had one in the vehicle, asserting "I was able to fully observe the passenger compartment."
The patrolman, who had received narcotics training at county and state police facilities, testified that similar film containers had been involved in about half of his narcotics stops during his six years as a patrolman. The patrolman candidly admitted that he only stopped defendant because the van's license plate light was out and that there was no other reason he asked defendant to hand him the film canister except the officer's past experience which showed that a high percentage of such film containers, when found without cameras in the same area, contained controlled dangerous substances.
The patrolman claimed that defendant hesitated when "instructed" to hand him the film container and then volunteered that the container was for bridge tokens, a use the patrolman, in his previous experience, had run into with three vehicles that had film containers in them as the location was near a toll bridge to Pennsylvania.
Upon receiving the film container, the patrolman opened it, saw marijuana residue, and then smelled marijuana odor inside the container. As a result of these observations he instructed defendant to step out of the van and stand to the rear. The patrolman then leaned into the van to look for additional drugs. Underneath the driver's seat he found another 35 millimeter film container. This one contained a yellowish powder and
numerous small white crystals which defendant admitted were methamphetamine and a drying agent.
It is the established law of this State that a warrantless search is presumed to be invalid and that the State therefore has the burden of proving its reasonableness and validity. State v. Valencia, 93 N.J. 126, 133 (1983). The United States Supreme Court noted in Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 910-11 (1968), in the context of determining the reasonableness of protective searches for weapons, that the limitations which the Fourth Amendment places upon warrantless searches would "have to be developed in the concrete factual circumstances of individual cases." The prime theme of the Fourth Amendment is reasonableness. See Delaware v. Prouse, 440 U.S. 648, 653-55, 99 S. Ct. 1391, 1395-97, 59 L. Ed. 2d 660, 667-68 (1979).
As was succinctly stated in State v. Young, 87 N.J. 132, 142-43 (1981):
A minimal constitutional requirement for most government searches, whether with or without a warrant, is that the police have probable cause to suspect that a crime has been or is being committed. [Citations omitted]. The probable cause requirement cannot be dispensed with even if a search falls within one of the exceptions to the warrant requirement. [Footnote omitted].
We note first that there is no attempt to justify the initial seizure of the film container as a protective search or a search incidental to an arrest. See Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). It is clear, under the facts presented, that the search and seizure of the second film canister was lawful provided the seizure and search of the first container was lawful. New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).
Understandably the State's brief is somewhat indecisive as to whether it attempts to justify the seizure of the first film canister strictly under the "plain view" exception to the warrant requirement, or as being based on "probable cause" and ...