On appeal from the Superior Court, Appellate Division, whose opinion is reported at 231 N.J. Super. 114 (1989).
Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein join in this opinion.
This case presents another aspect of the search-and-seizure issue presented in State v. Colvin, 123 N.J. 428 (1991). In that case the police had probable cause to believe that a vehicle parked on a street contained contraband in the form of drugs. We held that in the circumstances of that case (no advance planning for the search, combined with indications that the evidence might be lost or removed by confederates) the police could conduct a warrantless search of the car, and, under United States v. Ross, 456 U.S. 798, 72 L. Ed. 2d 572 (1982), of all the containers in the car that could contain the object of the search.
In this case the police lacked generalized probable cause to believe that a stopped car contained drugs but asserted that they had probable cause to believe that a specific container inside the car contained drugs. The police seized and opened the container without a warrant.
This scenario poses the problem highlighted in a case recently decided by the United States Supreme Court. See California v. Acevedo, U.S., L. Ed. 2d (1991). Prior to Acevedo, probable cause to believe that a closed container in a vehicle contains contraband or evidence was not enough to permit a search of that container; a warrant was required. Arkansas v. Sanders, 442 U.S. 753, 61 L. Ed. 2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 53 L. Ed. 2d 538 (1977). On the other hand, under the well-established "automobile exception" to the warrant requirement, probable cause to believe that a vehicle contained contraband or evidence was enough to permit a search of that vehicle, including any containers that could contain the object of the search. United States v. Ross, supra, 456 U.S. 798, 72 L. Ed. 2d 572. The implication of those cases was that if probable cause was directed to a specific container in a car, that container could not have been opened until a warrant is obtained; if, however, probable cause extended to the car in general, then any container inside could
have been searched without a warrant, as long as it could have contained the suspected evidence or contraband. In Acevedo, supra, the Court eliminated the warrant requirement for closed containers set forth in Sanders. U.S., L. Ed. 2d
We need not debate the ruling of the Supreme Court for we are satisfied, as was the court below, that in the circumstances of this case, the police lacked probable cause to believe that either the car or the container held drugs.
On March 1, 1987, a police officer on routine patrol in the Town of Belvidere observed a red van with a defective license-plate light being driven by defendant. The officer stopped the van and approached on the driver's side. While standing outside the van, the officer noticed a black opaque 35-millimeter film container lying on the storage area on the van's front console. Such containers are cylindrical in shape and about two inches in length. The officer did not see a camera in the van. He asked defendant to hand him the container. As defendant handed over the container, he stated that he used it to hold bridge tokens. The officer removed the film container's lid and detected an odor of marijuana and some residue inside the canister. The officer asked defendant to step out of the van and then conducted a further search of the vehicle, discovering another film container. He found narcotics inside that container.
Defendant was charged with criminal possession of the narcotics, contrary to N.J.S.A. 24:21-20a(1), repealed by L. 1987, c. 106. See N.J.S.A. 2C:35-23 (continuing in effect prior law for violations committed before effective date of new chapter of Criminal Code). He moved to suppress the evidence before trial. Defendant argued that the search of the first film container was invalid because it was not based on probable cause. Therefore the narcotics discovered in the second film container would have to be suppressed. At the suppression
hearing, the arresting officer testified that in his seven years of experience as a police officer he had investigated at least forty narcotics incidents with "at least half of them" involving the use of 35-millimeter film containers to hold drugs. He admitted that he asked defendant to hand him the film container for no reason other than that his past experience showed that a high percentage of such film containers, when found without cameras, contained narcotics. The stop did not occur in a high-crime area nor did the police have any tips regarding suspected drug activity by defendant. Regarding defendant's claim of using the container to hold bridge tokens, the officer said that in his previous experience he had encountered three vehicles whose occupants used such containers for that purpose. The officer testified that he did not ask defendant whether he had a camera before he requested the film container. He also said that he could not detect an odor of marijuana until after he had opened the film container. The trial court denied the motion to suppress. It ruled that the officer had probable cause based on the lack of a camera near the canister; the experience of the officer in his prior stops; and the officer's training in drug paraphernalia courses. At trial, defendant was convicted of criminal possession of narcotics. He appealed the denial of his motion to suppress.
The Appellate Division reversed the trial court, holding that the police officer did not have probable cause to search the film container. 231 N.J. Super. 114 (1989). The court stated that the officer's "asserted 'belief' is mere conjecture or suspicion and at best a 'hunch.'" Id. at 119. One member of the panel dissented on the grounds that the officer ...