On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Pressler, Skillman and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D. Pressler, P.J.A.D., Dissenting.
The opinion of the court was delivered by
Pursuant to a plea agreement entered into after the denial of her motion to suppress evidence, defendant pleaded guilty to count three of Monmouth County Indictment 89-11-2062, charging possession of cocaine. The court sentenced her to three years probation.
The facts are not in dispute. Officer Rette stopped a vehicle owned and operated by codefendant Nicholas Grass because Rette had clocked the vehicle's speed at 51 miles per hour in a 40-mile-per-hour zone. Defendant Pierce and codefendant Bernardo were passengers in the Grass vehicle. Grass presented a Pennsylvania driver's license, which Rette determined through communication with his headquarters to have been suspended. Rette arrested Grass for operating a vehicle while his license was suspended, N.J.S.A. 39:3-40, handcuffed him and placed him in the police vehicle.
Pierce and Bernardo were ordered to exit the Grass vehicle. Rette searched the vehicle and found a loaded handgun in a metal container. He also found three jackets in the vehicle. One of the jackets belonged to defendant Pierce and in it officer Rette found a trace amount of cocaine in cellophane packaging. Defendant now appeals from the denial of her suppression motion and makes the following contentions:
THE SEARCH OF THE VAN INCIDENT TO THE DRIVER'S ARREST FOR A MOTOR VEHICLE VIOLATION VIOLATED DEFENDANT PASSENGER'S RIGHTS UNDER ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION WHERE THE OFFICER HAD NO REASONABLE BELIEF THAT THE SEARCH WOULD PRODUCE WEAPONS OR EVIDENCE OF CRIME
THE ARREST OF THE DRIVER FOR DRIVING WHILE SUSPENDED WAS IMPROPER WHERE ANOTHER LICENSED DRIVER WAS PRESENT AND ABLE TO DRIVE THE VAN; THEREFORE, THE EVIDENCE SEIZED IN A SEARCH INCIDENT THERETO SHOULD NOT BE SUPPRESSED (Not Raised Below)
We rejected similar contentions in the companion case of State v. Grass, 250 N.J. Super. 74, 593 A.2d 379 (App.Div.1991). In Grass we applied New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768, 775 (1981), which held 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" including any containers found within the passenger compartment. We perceive no basis in this record for not applying the bright line rule announced in New York v. Belton and, therefore, we affirm substantially for the reasons expressed in State v. Grass, supra.
We deem it necessary, however, to make some observations regarding our holding in this case and in Grass.
N.J.S.A. 39:5-25 (hereafter § 25), authorizes any law enforcement officer to arrest without a warrant any person violating "in his presence" any provision of Chapter 3 or Chapter 4 of Title 39. The grant of authority in § 25 coupled with the principle announced in New York v. Belton, supra, create a potential for abuse. Unrestricted application of § 25 and Belton would permit a law ...