On appeal from the Superior Court of New Jersey, Law Division, Union County.
Stern, Keefe and Bilder. The opinion of the court was delivered by Keefe, J.A.D.
[270 NJSuper Page 34] Defendant Lawrence Garland was indicted for the following crimes: count one -- third degree possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1); count two -- second degree possession of cocaine, in a quantity of half an ounce or more, with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2); count three -- third degree possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1); count four -- first degree possession of cocaine, in a quantity of five ounces or more, with intent
to distribute in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1); and count five -- third degree possession of cocaine with intent to distribute within 1,000 feet of school property in violation of N.J.S.A. 2C:35-7. Co-defendants Cassandra Garland and Melanie Higginbotham were also charged under counts three, four and five.
Counts one and two related to evidence seized from defendant's person, from the interior of the car he was operating, and from the trunk of the car, in the City of Newark on August 15, 1989. Counts three, four and five related to evidence seized from a motel room in the City of Linden during the early morning hours of August 16, 1989.
A motion to suppress the evidence obtained from both searches resulted in the trial Judge granting the motion as to the evidence seized from the trunk and denying the remainder of the motion.*fn1
Thereafter, pursuant to a plea agreement, defendant pled guilty to third degree possession of cocaine (count one), first degree possession of cocaine with intent to distribute (count four), and third degree possession of cocaine with intent to distribute within 1000 feet of school property (count five). Counts two and three were dismissed. Defendant preserved his right to appeal from the denial of his suppression motion.
Defendant was sentenced on count one to a five year term of imprisonment. On count four, the Judge imposed a 15 year prison term with a five year period of parole ineligibility. On count five, the Judge imposed a five year prison term with a three year period of parole ineligibility. The sentences were ordered to be served concurrently.
Defendant appeals and presents the following issues:
POINT I THE EVIDENCE SEIZED SHOULD HAVE BEEN SUPPRESSED AS IT WAS SEIZED IN VIOLATION OF DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS.
A. The pat-down search of defendant was illegal because Officer Rosania had no reasonable basis to believe defendant was armed and dangerous.
B. The trial court erred in upholding the warrantless search of Room 2212 at the Swan Motel based on the "exigent circumstances" exception to the warrant requirement.
C. The evidence seized from the Swan Motel must be suppressed as "fruit of the poisonous tree."
On August 15, 1989, at approximately 11:45 p.m., Newark police officers Anthony Rosania (Rosania) and Dennis Tassie (Tassie) were on routine patrol, travelling north in the lefthand lane of the Route 21 viaduct approaching Newark. It was at this point that the officers spotted a vehicle with a rental insignia on its rear bumper driving ahead of them in the righthand lane. The rental insignia aroused some suspicion in the officers because it is not uncommon for rental cars to be used by drug dealers. As the officers attempted to pull alongside, the vehicle abruptly changed from the righthand to the lefthand lane in front of the officers. The vehicle made this lane change without using its left directional signal. Rosania felt that the driver of the car had intentionally cut in front of the police vehicle because the driver did not want the officers to look inside his vehicle. To that point, the officers had only noticed one person, the driver, in the car.
The officers continued to follow behind the vehicle without their overhead lights on until the vehicle made a full stop at a traffic light. The officers pulled their car alongside the vehicle, and noted that the driver was a black male, approximately 40 years old, who was later identified as the defendant, Lawrence Garland. Moreover, the officers for the first time noticed a small light-skinned girl, approximately seven years old, who was later identified as B.V., slouched down in the passenger seat. While still in the police car, the officers inquired as to the ownership of the vehicle. The defendant responded that the car belonged to a friend. Concerned about the child's presence in the vehicle, Rosania asked the defendant who the child was. Defendant responded that the child was a friend of his. Rosania characterized defendant's response as "arrogant." Rosania again asked "who the child was," but defendant was not able to give the child's
name. Moreover, while defendant stated that he was taking the girl to her mother's house on West Kinney Street, he did not know the exact address.
Based on the improper lane change, and out of concern for the young passenger, Rosania instructed defendant to pull his vehicle over to the curb. Defendant could not produce a driver's license, and Rosania noticed an open can of beer between defendant's legs. Defendant was asked to exit his vehicle.
Upon defendant's exit from the vehicle, Rosania noticed a brown paper bag protruding about three-quarters of an inch to an inch above defendant's belt buckle. Rosania testified on cross-examination as follows regarding the bag:
As he stepped out of the car I carefully observed him and I noticed that bulging in his waistband right about where his buckle was. And after realizing he had something there, I tried to identify what it was and then I frisked him further.
Q. Officer Rosania, when you asked Mr. Garland to get out the car and you saw a bag, what did you think it was, sir?
Q. What did you think it was?
A. Could have been any number of things.
Q. Did you have any suspicions about it?
A. No. It's something I felt I had to check, could be something that size, could have amounted to any sort of item.
After checking the contents of the bag and finding drugs, defendant was placed under arrest and advised of his Miranda rights. He was handcuffed ...