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State v. Nunez

February 19, 1993

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FREDDY NUNEZ, DEFENDANT-APPELLANT



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

Shebell, Arnold M. Stein and Conley. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

Defendant, Freddy Nunez, appeals from the denial of his motion to suppress evidence seized as a result of a warrantless search of the automobile he was driving on the New Jersey Turnpike. He also appeals from the sentence imposed within the bounds of the plea bargain entered into after the denial of the suppression motion. We affirm on both issues.

The only witness at the suppression hearing was the New Jersey state trooper who seized the evidence and arrested the defendant and his passenger. Defendant on appeal does not attack the factual findings of the Law Division. He argues that "[t]he motion to suppress should have been granted, as the damaging of the rear door panels was an invasion of the structural integrity of the car defendant was driving which was not justified by the discovery of two small marijuana cigarettes in the ashtray of the car." The relevant facts as found by the Judge following the suppression hearing follow.

In the early morning hours of September 6, 1990, two state troopers were traveling on routine patrol in a southbound direction in a three-lane area of the New Jersey Turnpike in Middlesex County. The trooper who was driving noted a 1980 blue two-door Oldsmobile with Massachusetts license plates in the center lane traveling at approximately seventy miles per hour in a fifty-five per hour mile zone. The trooper observed that the Oldsmobile came upon a slower moving vehicle and stayed behind it at a very close distance for about one-tenth of a mile. The speeding vehicle then suddenly made an untoward turn into the left lane in front of the troopers' vehicle. The trooper concluded that three motor vehicle violations had occurred -- speeding, traveling too close, and an inappropriate lane change. He therefore caused the offending vehicle to stop on the right-hand shoulder of the roadway.

The trooper approached the driver's side of the stopped vehicle and his partner approached the passenger's side. As the trooper was asking for the driver's credentials, he noticed through the use of a flashlight that there was, in plain view, a partially consumed bottle of rum on the floor in the rear of the Oldsmobile. He smelled alcohol and noted that the driver had red eyes. Therefore, he had the driver and passenger exit the vehicle. The driver was identified as the defendant, Freddy Nunez.

The driver and his passenger, who were cooperative throughout the entire encounter, were placed at the front of the vehicle. The trooper went to the driver's side door, opened it, and retrieved the bottle. He then began to look further for any additional open containers by going to the opposite side of the vehicle and opening the passenger door. He observed in an open ashtray a small plastic bag containing two marijuana roaches. The trooper then went back to the suspects, showed them what he had found, arrested them for possession of marijuana, and placed them in the State Police car. The trooper then continued to search for any additional open bottles and controlled dangerous substances.

While conducting his search, the trooper noticed a gap of approximately one-half inch under the rear window on the passenger side. This gap was above a panel, approximately six to nine inches wide and twelve to fifteen inches deep. The suppression Judge found that the trooper, because of his "training and experience," "ha[d] learned of hidden compartments in vehicles of this approximate age and make" and did not have "any specific intent to go into any potential hidden compartment that would not be visible." "[W]ith the flashlight at that time, [the trooper] did see this opening in the compartment area."

The trooper forced his fingers into the one half-inch gap and continued down to approximately the elbow area. However, the trooper found nothing in the compartment. He then observed the opposite side of the vehicle in the same area and saw the same type of configuration with a one-half inch gap on the corners of the top of the compartment underneath the window. The trooper was unable to open these compartments because a latch system had been installed to secure the panels, which had hinges at the bottom. He put his fingers through the hole into the driver's side gap and ultimately by pushing back the sheet metal of the compartment wall was able to see and retrieve a red plastic shopping bag. Within the shopping bag, the trooper found cashier checks with the defendant's name on them totalling $31,000. Other identification with defendant's picture on it but showing a different name was also found in the compartment. Inside of the shopping bag was a clear plastic bag containing a white, powdery substance. It was found to be cocaine weighing approximately four and one-half ounces.

I.

The Law Division Judge observed that defense counsel was arguing, in effect, that the trooper was lying and had deliberately, with some sort of tool, broken into the compartments and ...


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