On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
O'Brien and Scalera. The opinion of the court was delivered by O'Brien, J.A.D.
[235 NJSuper Page 338] By leave granted, the State appeals from an order suppressing evidence seized from the trunk of a vehicle operated by defendant Wharton Murray in which defendant Curtis Letman was a passenger. We reverse.
On April 27, 1988 at approximately 9:00 p.m., Trooper Edward Romanczuk (trooper) was on routine patrol in a marked vehicle on the New Jersey Turnpike in Lyndhurst. As he drove in the right lane through a construction zone, he observed a vehicle approximately five car lengths ahead of him move to the center lane, pass a truck, return to the right lane, and accelerate. After pulling abreast of the vehicle, the trooper ascertained that it was traveling 57 miles per hour in a construction zone clearly posted with a speed limit of 45 miles per hour and stopped it.
After the vehicle was stopped, the trooper asked Murray for his credentials, which indicated the vehicle was owned by Murray's wife. Letman was seated in the front passenger seat. As the trooper scanned the interior of the vehicle with his flashlight for his personal safety, he observed a clear plastic bag protruding about one-third of the way from underneath the left portion of the floor mat on the passenger side. The plastic bag was folded in half and wrapped in the middle with a yellow paper towel or napkin. Visible inside the protruding edge of the plastic bag was a chunky white powdery substance which the trooper suspected, and it was later confirmed, to be cocaine.
Trooper Romanczuk asked Murray what was under the floor mat. Murray replied he did not know nor did he know how it came to be there. With this reply the trooper directed both men to place their hands on the dashboard. First he asked Letman to step out of the car and asked him what was under the mat. Letman said it had been there when he entered the vehicle. Trooper Romanczuk noted that Letman appeared nervous when he approached him. The trooper then asked Murray to get out of the vehicle through the passenger side door. Thereafter, a pat-down of both men outside the car produced negative results. Defendants were directed to sit on the hood of the vehicle.
After he retrieved the plastic bag, the officer placed both men under arrest, handcuffed them and put them in the rear
seat of the police car after advising them of their Miranda*fn1 rights. The trooper then asked Murray if there was anything else in the car. Murray replied that he had placed a bag in the trunk, but did not know its contents. At the time, Murray's lips were quivering and there was sweat on his brow.*fn2 The trooper then returned to the vehicle, removed the keys from the ignition and opened the trunk. Inside he discovered a brown paper bag in which there were four smaller paper bags containing a total of 364 plastic vials of the type used for the distribution of cocaine. After defendants were taken to police headquarters and strip searched, additional cocaine and marijuana were found in Letman's wallet, and a small amount of cocaine was found in Murray's wallet.
Defendants were indicted for possession of cocaine in an amount between one-half ounce and five ounces, containing at least 3.5 grams of pure free base drug with intent to distribute (N.J.S.A. 2C:35-5a(1) and 2C:35-5b(2)) and possession of the same cocaine ( N.J.S.A. 2C:35-10a(1)). Each defendant was also charged individually in separate counts with possession of cocaine (apparently referring to the cocaine found on the person of each defendant).
Both defendants moved to suppress the evidence seized. After a hearing on January 9, 1989, the motion judge denied the motion to suppress the 4.2 ounces of cocaine found in the passenger compartment. The judge also denied the motion to suppress the evidence found on the person of each defendant. However, the judge granted the motion to suppress the 364 empty vials in the brown paper bags which had been seized
from the trunk of the vehicle. We granted the State's motion for leave to appeal from that determination and now reverse.*fn3
In his oral opinion, the motion judge concluded that defendant's vehicle was properly stopped for a motor vehicle violation, citing Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), and that the cocaine contained in the plastic bag in the passenger compartment of the vehicle was properly seized as being in plain view. See State v. Bruzzese, 94 N.J. 210, 235-239 (1983). The judge then found the trooper had properly removed the occupants from the vehicle and conducted a Terry*fn4 pat-down search. The judge then stated:
[The trooper] engaged in [a] somewhat unusual, I've never heard of this before, somewhat unusual conversation with the passenger in which he asked the passenger if there was anything else in the car. And this person said there's a bag in the trunk, I put it there, but I don't know what's in it, meaning what's in the bag.
Actually, the trooper testified that after he had arrested defendants, handcuffed them, and placed them in the rear of the patrol car, he advised them of their Miranda rights before he asked Murray, the driver, if there was anything else in the vehicle. It is not clear why the motion judge found this conversation unusual but, in any event, the trooper testified that Murray told him he had placed a bag in ...