On appeal from the Superior Court, Law Division, Monmouth County.
Antell, O'Brien and Scalera.
On October 6, 1989 the New Jersey Department of Environmental Protection, Division of Fish, Game and Wildlife (DEP) issued complaints to Gerald Duran, Sr. and his son, Gerald Duran, Jr., (the defendants) for possessing 214 detached American short lobster tails in violation of N.J.S.A. 23:5-9b. They moved to suppress the evidence seized, challenging the warrantless search made by DEP personnel and the accuracy of the measurement device used on the lobster tail segments. This motion was heard subsequent to the actual trial.
This matter was tried on January 22, 1990 and some evidence relating to the search and seizure issue was received then. On March 19, 1990 the trial court heard further testimony regarding the search and seizure issue and the measurement device
used. Eventually, it denied the motion to suppress and assessed civil penalties of $1,250 against each of the appealing defendants.
The operative facts are largely undisputed. This action arises out of the possession of illegal short lobsters, where the sixth tail segment measured in a flex position along the dorsal midline is less than 1 1/16 inch.
Mark A. Chicketano, an enforcement officer with the New Jersey Division of Fish, Game and Wildlife, testified that, in September 1989 his office received information from a "reliable" confidential informant that illegal short lobsters were being sold at the General Motors plant in Linden, New Jersey out of a 1978 brown Cadillac, which turned out to belong to Edward Pantle. On September 21, 1989, Chicketano and Robert Manna, a special federal agent with the National Marine Fishery Service, surveilled that particular vehicle at the G.M. plant. At 8:40 a.m., Manna approached Pantle and asked if he was the person who sold lobsters. Pantle answered that he "didn't have any lobsters today because the boat didn't fish yesterday . . ." He advised, however, that he anticipated having some later in the day because the boat would be fishing that morning.
Later that afternoon Manna and State Conservation Officer Gary Finton began a surveillance of Pantle's residence, while Chicketano conducted a surveillance on the Port of Belford. There, Chicketano observed only the fishing vessel, Barge One, run by the Durans, come into port. Approximately one hour later Chicketano arrived at Pantle's and observed a male and a female in a pickup truck in Pantle's driveway packaging lobster parts. Chicketano measured some of the tails in the pickup truck with a "certified" gauge and arrested all three persons for possession of illegal lobster parts. At the Marine police station, based on information they gave, Chicketano suspected that Barge One was the source of those lobsters.
After this incident, but "prior to setting up an operation to stop and inspect Barge One," another confidential informant advised that Edward Vance was selling illegal short lobsters throughout Monmouth County, and was currently a crewman on Barge One. Chicketano also had seen Vance's vehicle at Belford on more than one occasion and the Coast Guard informed him that Vance had been seen aboard Barge One.
On October 6, 1989, Chicketano, Manna and members of the Coast Guard were aboard an unmarked boat. When Barge One approached they stopped it, identified themselves and requested permission to board and inspect the catch. Vance and the Durans granted permission. Once aboard, the agents indicated they wanted to look around for illegal lobsters and Duran, Jr. said, "Go ahead. Look anywhere you want."
In the pilot house Chicketano noticed the same type of green plastic cinch-sac bags used at Pantle's house. The agents examined a wooden compartment approximately 7 feet by 2 feet. The edges of the screws therein were "fairly rusty" while the indentations were somewhat shiny, indicating that the screws had been used recently. Chicketano then removed some of the screws and Manna reached in and discovered short lobsters in plastic bags. Duran acknowledged there were five dozen in each of the bags, the same count found in the Pantle incident. Chicketano measured some of the lobster tails with a "certified" tail gauge and found them to be under legal limit. Two hundred and fourteen unlawful detached American lobster tails were found and all defendants were arrested.
After the incident at the Pantle residence and prior to the search of Barge One, Chicketano testified that he personally did not believe he had probable cause to establish that the Duran vessel was bringing in these illegal lobsters and he had doubts whether a magistrate would have issued a warrant based on the information he had. However, he insisted he had at least a "reasonable suspicion to believe that Barge One was involved in this activity." Moreover, Chicketano conceded he had not informed
the defendants that they could refuse to consent to the search of the boat. With respect to the measuring device, Chicketano testified this had been calibrated by N.J. Bureau of Weights and Measures and he produced a letter of accuracy issued by the Bureau.
Manna also testified that he became suspicious of the compartment on the vessel especially when Duran, Jr., said he owned the boat for 2 years and had never opened that compartment. He further insisted he was conducting a federal investigation as well and therefore it was unnecessary to pursue a warrant from a New Jersey judge.
Gerald James Duran, Jr., testified and denied that the agents had asked for permission to board or search the vessel. On cross-examination, he conceded he had lied when he told the agents that the compartment had never been opened during the time he owned the vessel.
Judge Paul F. Chaiet concluded that, while there was no probable cause in the "traditional sense," he felt that all that was required was adherence to the ...