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State v. Dolly

Decided: May 20, 1991.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TIMOTHY RAY DOLLY, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Cape May County.

Baime and A.m. Stein. The opinion of the court was delivered by Baime, J.A.D.

Baime

BAIME, J.A.D.

Following the denial of his motion to suppress evidence, defendant entered a retraxit plea of guilty to possession of cocaine (N.J.S.A. 2C:35-10a(1)). The Law Division imposed a probationary term of two years and a fine of $500. Defendant now appeals, contending that the search of his person and vehicle was unlawful. We agree and reverse.

I.

On September 30, 1988, Detective William T. Johnson submitted an affidavit in support of a search warrant for a combined residence and place of business located in Dennis Township.

The affidavit alleged that Elmer Harris, the owner of the premises, was selling various controlled dangerous substances from this location. This allegation was based upon information received from several informants. Although the affidavit alleged in general fashion that Harris was selling cocaine from both his residence and place of business, the only particularized information pertained to sales conducted from Harris' second-floor bedroom. The affidavit alleged that large quantities of cocaine were being sold on an ongoing basis and that Harris had received several guns as payment for the drugs. The premises were described as a two-story structure, containing a Gulf gasoline station and convenience store in the front and a dwelling in which Harris and his daughter resided in the rear. Pursuant to Detective Johnson's request, the warrant authorized the search of the entire premises, including "all outbuildings and vehicles [present] at the time of . . . execution."

The warrant was executed at approximately 4:30 p.m. on September 30, 1988. Ten State Troopers entered the premises with guns drawn. Approximately 20 minutes after initiating the search, Trooper Susan M. David noticed defendant's automobile in the front of the building parked in a parking area to the right of the gasoline pumps near the entrance to the convenience store. Trooper David and Detective Richard Ashman advised defendant that they were conducting a search of the premises and all vehicles present pursuant to a search warrant. Defendant was asked whether he would consent to a search of his automobile. Trooper David read a consent to search form which stated that defendant had the right to refuse.

Apparently believing that the consent form authorized the search of defendant's person as well as his automobile, Detective Ashman reached into defendant's front shirt pocket and discovered a small packet containing cocaine. Defendant was then asked whether "he had anything else on him." Because defendant appeared "nervous," the officer directed him to a nearby garage where a search of his undershorts disclosed a

matchbox containing three additional packets of cocaine. A small quantity of cocaine was also discovered in defendant's automobile.

Based upon this evidence, the Law Division denied defendant's motion to suppress. In his oral opinion, the judge made no finding, one way or the other, concerning whether the warrant properly authorized the search of defendant's automobile. Instead, the judge concluded that defendant had voluntarily consented to ...


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