On appeal from the Superior Court of New Jersey, Law Division, Salem County.
King, Long and Stern. The opinion of the court was delivered by King, P.J.A.D.
[245 NJSuper Page 443] Defendant Terry Lee appeals his conviction after a jury trial for possession of cocaine. Lee challenges the denial of his suppression motion, the denial of his motion for a mistrial concerning the prosecutor's comments made during summation, and his sentence. The first issue on appeal is whether the
codefendant-driver Raymond Williams' consent to search the vehicle and its contents was binding on Lee, a passenger in Williams' vehicle, and included containers found in the trunk. The second issue concerns whether denial of ownership of a container in the trunk permitted the police to search it. We think the judge incorrectly answered the consent issue in the State's favor. But we affirm the denial of the suppression motion on the separate and independent ground that by denying ownership of the container in which cocaine was found, Lee had relinquished any expectation of privacy in it.
This is the procedural background. In February, 1988 Lee was indicted along with his codefendant Raymond Williams for possession of a controlled dangerous substance on December 14, 1987, in this case a trace amount of cocaine in a shaving kit, in violation of N.J.S.A. 2C:35-10a(1).
In March 1988 Lee filed a motion to suppress the seized cocaine. The Law Division judge issued an opinion from the bench on March 22, 1988 denying the motion on the ground that the search was authorized by Williams' general consent to search the vehicle and its contents.
Williams later pled guilty in early April 1988 and testified for the State at Lee's trial. Williams testified at trial that both he and Lee bought crack and cocaine in New York which they later used; the residue in the vials in the shaving kit was the basis for this prosecution. Williams was later sentenced to probation for one year with credit for 115 days served in the County Jail. At Lee's trial in late April, 1988, the jury returned a verdict of guilty to the single count of the indictment. Lee was sentenced to a three-year prison term and a $1,000 drug enforcement penalty, a $50 lab fee, and a $30 VCCB fine. In addition, his driving privileges were suspended for two years.
The hearing on the motion to suppress established these facts: On December 14, 1987, at about 3 a.m. the car in which defendant Lee was travelling as a passenger was stopped on the Turnpike for speeding. Troopers Costill and Campbell of
the State Police approached the car and sought the driver's license and the car registration. Williams, the driver and codefendant in this case, produced a driver's license but could not produce the vehicle registration. Costill made a computer check which revealed that the plates were not in Williams' name and belonged on another car.
When Costill told Williams that the plates did not match the car, Williams became "visibly nervous, trembling." Costill then requested a consent to search the car from Williams. Costill informed Williams that he did not have to sign and that he could withdraw his consent at any time during the course of the search. Williams voluntarily gave his consent to search, orally and in writing. The consent form purported to authorize "a complete search of" the vehicle. Though the form did not also mention a search of any containers found in the car, Trooper Costill testified that he told Williams that the search was to include everything found inside the car.
The troopers searched the interior of the vehicle and found nothing. They then searched the trunk where they found two suitcases. Williams claimed ownership of one and defendant claimed ownership of the other. A search of the two suitcases revealed nothing. The troopers then found a zippered shaving kit. When Costill asked them whose kit it was, "they both said they didn't know who that belonged to." Inside the shaving kit the troopers found shaving equipment, 55 vials with residue of what Costill believed was crack, a clear plastic bag with a white powder which he believed to contain cocaine, and a pipe which he believed was used for smoking crack. The lab results revealed that the plastic bag contained baking powder and that a vial contained a trace amount of cocaine.
Lee urges that because the driver Williams disclaimed ownership of the shaving kit in which the cocaine was found, he was without authority to consent to the search of its contents. He asserts that the judge erred in denying his motion to suppress the ...