On appeal from Superior Court, Law Division, Mercer County.
Antell, Long and Baime. The opinion of the court was delivered by Long, J.A.D.
The opinion of the court was delivered by
By leave granted, the State challenges an order of the trial Judge which suppressed evidence obtained during a consent search of the trunk of an automobile, which led to the indictment of defendants Christopher Allen and Kenneth McEachin.
The case arose at approximately 1:40 a.m. on September 20, 1990, when New Jersey State Troopers Frazier and Lazarie stopped a car on the New Jersey Turnpike for exceeding the posted speed limit. The automobile, bearing Virginia license
plates, was properly registered to Tawanna Day, a back seat passenger. Two other occupants were in the car -- the driver (defendant Christopher Allen) who said his name was Joe Lewis but who had no identification and the front seat passenger, defendant Kenneth McEachin who had proper credentials. The driver, whom Day identified as her boyfriend, "Chris," told the officers he had lost his driver's license in New York City. McEachin identified the driver as his cousin "Joe" whose last name he did not know. According to Trooper Frazier, the driver and passenger gave conflicting versions of how long they had been in New York prior to this trip. A motor vehicle check showed that Joe Lewis was five feet nine inches tall while the driver was six feet five inches tall.
On the basis of all of this information, Trooper Frazier requested Ms. Day to step out of the car and asked if she would consent to the search of the automobile. She was given a consent to search form which was read and explained by Trooper Frazier. After he advised Ms. Day of her right to refuse, she signed it. Trooper Frazier opened the trunk and found a maroon overnight bag. He testified that he asked who owned it and none of the three responded. According to the trooper, after the bag was unzipped and during the search, defendant Allen stated he had found it in New York. Inside was what turned out to be 12.74 grams of cocaine along with a greenish brown powder, glass vials of brown liquid, quinine, and tin foil containing a rock like substance. Allen testified, contrary to the trooper, that he claimed ownership of the bag before the search began.
A black overnight bag was also in the trunk. McEachin acknowledged to the trooper that this bag belonged to him. Without further inquiry, the trooper proceeded to search this bag and retrieved further suspected C.D.S. Defendants Allen and McEachin were then arrested and indicted. This motion followed.
The trial Judge granted the motion on one ground -- that the circumstance of the case did not justify the request for a consent to search from Ms. Day. More particularly, he stated:
What we have in this case factually is that, as the trooper has testified, he stopped a vehicle on the turnpike exceeding the speed limit. I have no problem with that. I think he further indicated that he asked for a driver's license and registration, and he was not given the driver's license or registration by the driver. He asked for the driver's name and he was given a false name. He asked the passenger, who was another male in the front seat, as to the identity of the driver, and was told that this was his cousin, somebody named Joe, whose last name he didn't know. However, the passenger did properly identify himself. In the back seat we had the owner of the car, and the trooper quite correctly, as was remarked by counsel, that he acted in a way that was the very model of how a trooper should be acting. ...