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State v. Cancel

Decided: May 21, 1992.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
IRENE CANCEL, DEFENDANT-APPELLANT



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

Gaulkin, Brody and Muir, Jr. The opinion of the court was delivered by Brody, J.A.D.

Brody

BRODY, J.A.D.

Defendant was convicted by her plea of second-degree possession of more than five pounds of marijuana with intent to distribute, a violation of N.J.S.A. 2C:35-5a(1) and -5b(10). The trial Judge imposed a five-year prison term pursuant to a plea agreement that she would be sentenced as a third-degree offender.

Defendant challenges the trial Judge's order denying her motion to suppress evidence of the marijuana. The police found the marijuana in her suitcase when they opened it at an airport with her consent. She consented after a police officer told her that a dog trained to sniff narcotics had reacted positively to her bag. The ultimate issue is whether defendant's consent was given voluntarily; the key underlying issue is whether routine use of a dog for this purpose violates federal and state constitutional protections against unreasonable searches and seizures.

Two police officers stopped defendant at Newark International Airport just after she picked up a suitcase that she had checked with an airline before boarding its plane on a flight from Arizona to Newark. The bag contained 39 pounds of marijuana that she had been paid $1,000 to bring into this state. Responding to large amounts of marijuana being flown here from Texas and Arizona, the police had a trained dog sniff all luggage aboard the flight as it was being conveyed on a belt into the Newark terminal. The dog's reaction to defendant's bag signalled that it contained narcotics.

When defendant retrieved the suitcase from the luggage carousel, she was stopped by the officers after they had been alerted by radio to the dog's reaction. They requested her name and asked to see her luggage receipt and ticket. The receipt matched the tag on her suitcase. The ticket, however, did not bear her true name. The officers asked defendant if she would allow them to inspect the contents of the bag, advising her that she could refuse but that if she did they would detain her until they obtained a search warrant. She thereupon consented and supplied the officers with the combination to the lock. Upon discovering the marijuana, the officers placed her under arrest.

Defendant's attorney acknowledged at the suppression hearing that the dog's positive reaction to the bag was "reliable." He argued that the search was unlawful because the officers' threat to detain defendant while they obtained a warrant to search the bag rendered her consent involuntary.

The Judge denied the motion. He found that though defendant's consent was induced by the officers' threat of continued detention until a warrant issued, "this was not done without probable cause to believe that it would be obtained . . . ."

We agree that the dog's positive reaction to defendant's suitcase and the discrepancy between her name and the name on her ticket gave the police probable cause to arrest her and obtain a warrant to search the suitcase. See Florida v. Royer,

460 U.S. 491, 506, 103 S. Ct. 1319, 1329, 75 L. Ed. 2d 229, 242 (1983) (had police used dog to sniff defendant's luggage "a positive result would have resulted in his justifiable arrest on probable cause"). See also United States v. Goldstein, 635 F. 2d 356, 362 (5th Cir.1981) (positive dog sniff, defendant's furtive behavior and false name on his airline ticket furnished probable cause to obtain search warrant). Thus the officers' comment to defendant that she would be detained while they obtained a search warrant was a fair prediction of events that would follow, not a deceptive threat made to deprive her of the ability to make an informed consent. Compare State ...


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