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State v. Grass

Decided: July 25, 1991.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NICHOLAS GRASS, DEFENDANT-APPELLANT



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

Havey and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

Based on evidence obtained through a search of his automobile subsequent to his arrest for driving on the revoked list, defendant was indicted together with codefendants Eugene Bernardo and Eileen Pierce for possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5b; receiving stolen property, in violation of N.J.S.A. 2C:20-7a; and possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1). The trial court denied defendant's motion to suppress the evidence discovered in his automobile. Thereafter, defendant entered into a plea bargain with the State pursuant to which he pled guilty to possession of a handgun without a permit and the State agreed to dismiss the remaining charges. The court sentenced defendant to a four year term of imprisonment for the weapons offense. Defendant appeals from the order denying his motion to suppress.

Defendant was stopped for speeding on Route 527 in Manalapan Township on August 19, 1989, based on a radar clocking which indicated he had been traveling 51 miles per hour in a 40

mile per hour zone. A check of defendant's driving credentials disclosed that his license was suspended. Defendant was directed to get out of the car, placed under arrest, handcuffed and put in the back seat of the patrol car. The arresting officer then returned to the car and directed the two passengers, Bernardo and Pierce, to get out and produce some form of identification. After examining this identification, the officer searched the passenger compartment of the car, which revealed a camera case containing a handgun and a jacket containing a cellophane packet with a small amount of cocaine. The officer estimated that approximately two to three minutes elapsed between when he put defendant in the back seat of the patrol car and when he searched the passenger compartment of defendant's car.

In an oral opinion delivered on June 8, 1990, the trial court concluded that the search of the passenger compartment of defendant's vehicle incident to his arrest was valid under the rule set forth in New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). We agree and therefore affirm the denial of defendant's motion to suppress.

Belton holds that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Id. at 460, 101 S. Ct. at 2864, 69 L. Ed. 2d at 775. Moreover, the permissible scope of such a search extends to the contents of any containers found within the passenger compartment. Id. at 460-62, 101 S. Ct. at 2864-65, 69 L. Ed. 2d at 775-76. The Court further indicated that the validity of a search of the passenger compartment of the arrestee's vehicle and the containers located therein does not require any showing that the search probably will reveal weapons or evidence:

It is true, of course, that these containers will sometimes be such that they could hold neither a weapon nor evidence of the criminal conduct for which the suspect was arrested. However, in United States v. Robinson, the Court rejected the argument that such a container -- there a "crumpled up cigarette

package" -- located during a search of Robinson incident to his arrest could not be searched: "The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment: that intrusion being lawful, a search incident to the arrest requires no additional justification." [453 U.S. at 461; 101 S. Ct. at 2864, 69 L. Ed. 2d at 775-76 (quoting United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477, 38 L. Ed. 2d 427, 440-41 (1973))].

See also State v. Colvin, 123 N.J. 428, 435, 587 A.2d 1278 (1991) (To sustain a Belton search incident to an arrest, "there need be no probable cause to believe that the vehicle contains contraband.").

Defendant does not dispute that he was under arrest when the passenger compartment of his automobile was searched. Nor does he question the legality of his arrest or the fact that the search was conducted immediately after his arrest. Therefore, the search in this case was a contemporaneous incident of a lawful custodial arrest of an occupant of an automobile, which is ...


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