On certification to the Superior Court, Appellate Division.
For affirmance in part; reversal in part; and remandment -- Chief Justice Wilentz and Justices Stein, Handler, O'Hern, and Garibaldi. Concurring and Dissenting -- Justices Pollock and Clifford. The opinion of the Court was delivered by Stein, J. Pollock, J., Concurring in part and Dissenting in part. Justice Clifford joins in this opinion.
[133 NJ Page 301] This appeal addresses the validity of a consent search of luggage located in the trunk of a car. The critical question concerns the reasonableness of a State Trooper's reliance on the driver's consent when more than one occupant is in the car and more than one piece of luggage is searched. In addition, we consider the possible prejudice in admitting the driver's hearsay statement connecting the passenger, defendant, to a piece of luggage that contained contraband.
On December 17, 1988, State Troopers Frank Trifari and Thomas Colella were patrolling the southbound lane of Interstate 95 when they observed a 1988 Oldsmobile with out-of-state license plates proceeding in the left-hand lane for approximately one-half mile. The troopers stopped the car for failing to keep right, contrary to N.J.S.A. 39:4-88a. The troopers approached the car and asked the driver, Gerald Green, for his license and registration. Both Green and the passenger, defendant Reinaldo Maristany, appeared nervous as they searched for the papers. When Green failed to produce credentials, Trifari asked him to step out of the car and walk to the rear of the vehicle. Defendant remained in the passenger seat.
Trifari questioned Green and defendant separately. Green explained that he was returning from a visit with his sick aunt in New York. However, defendant claimed that he and Green had been visiting defendant's children in New York. Because of the inconsistent responses and apparent nervousness, Trifari requested Green's consent to search the car and trunk. When asked if the trunk contained any luggage, Green indicated that a blue canvas bag and brown suitcase were inside.
Defendant was not close by at the time Trifari sought Green's consent. Trifari and Green were standing at the rear of the car; defendant was sitting on the front hood. After Trifari advised Green of his right to refuse consent, Green acquiesced in the search and signed a consent-to-search form that authorized Trifari to "conduct a complete search of trunk portion of vehicle including blue canvas bag, brown suitcase, also includes interior portion of vehicle * * * ."
Defendant and Green waited at the front of the car while Trifari searched the car's interior. No contraband was found. Trifari asked defendant to sit in the front passenger seat. Green removed the keys from the ignition and opened the trunk for the trooper's inspection. In the blue canvas gym bag, Trifari found three kilograms of cocaine. The bag did not have any identification
tags and was empty except for the cocaine. A search of the brown suitcase revealed no contraband. Defendant and Green were arrested. A further search of the car uncovered a rental agreement, indicating that the car had been rented to a Bernadette Harvey.
Two hours later, at headquarters, Green gave a statement to the investigating officer claiming that he had picked up defendant in New York and that defendant had placed the blue gym bag in the trunk. In addition, Green denied any knowledge of the bag's contents. Defendant made no statement with respect to the bag's ownership.
Defendant and Green were indicted for possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10a(1), and possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and -5b(1). Defendant moved to suppress the evidence, arguing that Green's consent was not valid with respect to the blue gym bag.
At the suppression hearing, relying on Green's statement at headquarters, defense counsel argued that Green did not own the blue gym bag, and therefore his consent to search was invalid. Defendant did not testify or present any evidence suggesting actual ownership of the gym bag. The State urged the court to consider the trooper's state of mind at the time of the search. According to the State, nothing had indicated that defendant owned the gym bag, and the trooper had been presented with a driver who showed apparent ownership and control of the car and who consented to its search. The State argued that under those circumstances the search had been valid and Green's subsequent attempt to disclaim ownership could not invalidate the consent.
The trial court denied the motion to suppress. Because Green's statement concerning the alleged ownership of the blue gym bag was not made until two hours after the search had been completed, the court concluded that the trooper's belief at the time of the stop that Green had the authority to consent had been objectively reasonable.
At trial, the defense presented no witnesses. Over defense counsel's objections, Trifari was allowed to testify regarding Green's statement that the blue gym bag belonged to defendant and that Green had no knowledge of its contents. The trial court informed the jury that "[n]ormally hearsay is not elicited. I allowed Mr. Green's statement in not for the matter of the truth stated but for the fact that he did say it."
Defendant was convicted on both counts and was sentenced to seven-years imprisonment with a three-year period of parole ineligibility. In an unreported opinion, the Appellate Division reversed, holding that Green's consent was not valid with respect to the closed containers in the trunk, and observing that the trooper was required to ascertain ownership of the luggage before conducting the search. The court concluded that defendant's consent had to be obtained to search any luggage to which he could have claimed ownership. In addition, the Appellate Division found that the admission of Green's hearsay statement constituted reversible error. We granted the State's petition for certification and defendant's cross-petition, 130 N.J. 601, 617 A.2d 1222 (1992).
The Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution protect "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures * * * ." U.S. Const. amend. IV; N.J. Const. art. I, para. 7. Those provisions impose a standard of reasonableness on the exercise of discretion by government officials to protect persons against arbitrary invasions. See Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979). The constitutional guarantee proscribes not all searches but only those deemed unreasonable. State v. Bruzzese, 94 N.J. 210, 217, 463 A.2d 320 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
To determine the constitutionality of a search and seizure, we consider whether the conduct of the law-enforcement officer who undertook the search was objectively reasonable. Id. at 219, 463 A.2d 320. Appearances of control at the time of the search, not subsequent determinations of title or property rights, inform our assessment of the ...