On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, whose opinion is reported at 220 N.J. Super. 308 (Law Div. 1987).
O'Brien, Havey and Stern. The opinion of the court was delivered by Stern, J.A.D.
The important issue raised on this appeal is whether a defendant can offer suppressed evidence against a codefendant in a joint possession case. Part of the evidence seized from a car and its trunk was suppressed, but the Barrett brothers sought to introduce that evidence against codefendant Morant on the theory that, if the jury knew the suppressed evidence was found in Morant's duffel bag in the trunk of the car, it might infer that he possessed the balance of the drugs found within the car. Morant contends that the suppressed evidence was improperly admitted at his trial, and the Barretts claim they were entitled to severance from Morant. All three claim prejudice requiring a new trial. We reverse the conviction of Morant, but affirm the convictions of the Barretts.
The Barretts and Morant were indicted for possession of cocaine "in a quantity of 1 ounce or more . . . [with] at least 3.5 grams of the pure free base", contrary to N.J.S.A. 24:21-20(a)(2) (count one) and possession of that substance with intent to distribute, contrary to N.J.S.A. 24:21-19(a)(1) and -19(b)(2) (count two). The Barretts were convicted on both counts. The first was merged into the second and both were sentenced to the custody of the Commissioner of the Department of Corrections for twelve years. Reginald was ordered to serve four years without parole, and Michael three-and-a-half years before parole eligibility. Morant was convicted of possession under the first count but acquitted on count two. He received an indeterminate term not to exceed five years.
Defendants moved to suppress evidence of the 212.2 grams of 79.7 percent pure cocaine found in the passenger compartment of the vehicle and 1.01 grams of cocaine found in Morant's duffel bag seized from the trunk of the vehicle. The motion was granted as to the cocaine taken from the trunk, but denied with respect to that found in the passenger compartment of the vehicle.
The significant issue must be understood in light of the suppressed evidence. As there is no issue addressed to the weight or sufficiency of the evidence resulting in the convictions at trial, we concentrate on the testimony admitted at the motion to suppress.*fn2
On February 12, 1986, State Trooper William M. Toms (hereinafter "Toms") observed a four-door 1985 Lincoln Town Car with Virginia license plates pass his marked vehicle traveling in excess of the 55 m.p.h. speed limit. Toms determined, after "pace clock[ing]" the vehicle, that it was "traveling at a steady speed of 68 miles per hour."
After making a "Z" turn and maneuvering through traffic Toms pulled behind the vehicle to effect a motor vehicle stop. According to Toms, while behind the vehicle, Morant, a passenger in the back seat, looked at him and started "contorting in the back seat, as if turning and bending down as if he was trying to conceal something . . . began to jump nervously, there was definite movement in the back." The driver of the vehicle was identified as Michael Barrett and the front seat passenger was identified as his brother Reginald. According to Toms, "Reginald Barrett who was the front right passenger was
turning over his left shoulder looking back and Jason was jumping in the back seat and he was bending to his right."
Concerned for his "personal safety", Toms "wanted to make sure that there were no weapons . . . that could harm him." He thus conducted a pat down of the Barretts with negative results. While patting down Reginald, Toms noticed what appeared to be "a half a joint, a half of a marijuana cigarette" in a "clear plastic zip lock bag" on the front seat of the vehicle. He did not immediately observe the marijuana because Morant "jumped out of the vehicle." A "pat down" of Morant was also negative.
After completing the pat downs, Toms opened the right rear door of the vehicle and observed that "it was obvious that [the seat] was unattached and it had been slid forward. The crack where the seat belts normally come out of which is very tight, there was a large gap there." Toms "could see brown paper sticking up out of the crack, what it appeared to be . . . just a brown paper bag . . . . [He] slid the unattached seat forward . . . inside the brown paper bag, there were two clear plastic bags, . . . found to contain a white powdery substance which was later tested positive for Cocaine."*fn3
After calling for a "backup" defendants were handcuffed, advised of their Miranda rights*fn4 and transported to the station. Once at the station, defendants were strip searched, with negative results. Defendants were again advised of their Miranda rights and signed forms acknowledging same.
Toms "advised [the Barretts of] what was found in the vehicle" and asked them if there was any contraband in the trunk. They said "[n]o" and voiced no objection to a search of the trunk. Toms then advised the defendants of the " Johnson decision," (see State v. Johnson, 68 N.J. 349, 346 A.2d 66 (1975))
relating to their right not to consent to a search of the trunk. "[T]hey stated that there was nothing in the trunk and that there was no problem with conducting a check of the trunk." Similarly, Morant indicated "no problem in checking the trunk because there was no contraband in it." There were no " Johnson forms" available for defendants to sign.
A search of the vehicle's trunk produced "a camouflage duffel bag . . . that belonged to Jason Morant when he was in the Marine Corps. It was labeled as such." Inside the duffel bag was a "black pouch" with Morant's name on it. Inside the black pouch was a wallet and inside the wallet Toms found what was later identified as 1.01 grams of cocaine.
Morant testified at the motion that upon seeing the trooper, who motioned for the vehicle to pull over, he reached into his jacket to get his wallet from the jacket which was on the back seat. He further testified that, after the Barretts and he got out of the car, Officer Toms said he saw a beer can in the car, opened the door and "went through the glove compartment." Toms thereafter opened the back door and "dislocated the back seat."*fn5 Morant denied the back seat of the vehicle was unattached. He claimed that after the trooper "detached the back seat, he stood up and pulled his gun." He confirmed that he was given his Miranda rights, but denied that he was asked for his consent to search the vehicle's trunk.
The Barretts did not testify at the motion.
The judge "accept[ed] the trooper's version" on essential facts and found that he was entitled to "investigate for a gun" and to take action "based upon [his] observations of furtive conduct." He also found "there was a gap between the seat portion and the backrest portion, that the seat was no[t] locked
in" and that Toms observed the paper bag containing "contraband." However, the motion judge accepted portions of Morant's testimony and found that the State had not clearly and convincingly established that consent was given "with respect to the duffle and the bag that ha[d] Mr. Morant's name on it."
Based on our scope of review, State v. Johnson, 42 N.J. 146, 199 A.2d 809 (1964), and the observations made by the officer from outside the car, we reject the challenge by all defendants to the denial of their motion to suppress the evidence found within the car. See e.g., Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983); State v. Hall, 93 N.J. 552, 561, 461 A.2d 1155 (1983); State v. Patino, 83 N.J. 1, 14-15, 414 A.2d 1327 (1980); State v. Carter, 235 N.J. Super. 232, 561 A.2d 1196 (App.Div.1989).
We also note that the State never sought leave to appeal from the suppression of the cocaine in Morant's duffel bag. Hence, we are not asked to decide whether the search within the duffel bag should have been sustained on the basis of consent to search the trunk, or otherwise. We note that the defendants were then in custody, having been arrested by virtue of the cocaine found in the car and that, in any event, the judge found a lack of knowing consent. See and compare, e.g., State v. Martin, 87 N.J. 561, 436 A.2d 96 (1981); State v. Santana, 215 N.J. Super. 63, 521 A.2d 346 (App.Div.1987). Thus, we must approach this case with deference to both rulings on the pre-trial motion to suppress.
After the motion to suppress was partially denied, the Barretts moved for a severance.*fn6 They argued that a joint trial would preclude them from introducing the suppressed evidence which would ...