On appeal from the Superior Court, Law Division, Bergen County.
Before Judges Petrella, Havey and Cuff.
The opinion of the court was delivered by HAVEY, J.A.D.
The State appeals, by leave granted, from an order suppressing evidence seized from a vehicle operated by defendant, Tommie C. Alston. The issue is whether the arresting police officer's order to the passengers to alight from the vehicle is constitutionally valid. We conclude that it was and therefore reverse and remand for further proceedings.
Defendant and co-defendant Isiah Howard, were charged with possession of over one-half ounce of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2), and possession of cocaine, N.J.S.A. 2C:35-10a(1).
According to the proofs at defendant's motion to suppress,*fn1 at approximately 3:30 p.m., Palisades Park Police Officer Richard Sopelsa observed a 1985 Nissan exiting Route 46 at the Route 1 and 9 exit ramp. Officer Sopelsa testified that the vehicle was making a left-hand turn from the right lane of the ramp. The officer stated that the lane change was very dangerous because there was heavy traffic where the exit ramp meets Route 46. Officer Sopelsa thereupon activated his vehicle's overhead lights and, by loud speaker, requested that the vehicle's driver stop and exit the vehicle with his license, registration and insurance card. The driver, defendant, complied. A license check revealed that defendant's license had been revoked. Officer Sopelsa thereupon placed defendant under arrest for driving while on the revoked list.
Upon defendant's arrest, Officer Sopelsa informed the three passengers in the vehicle to exit. He did so because it was his intention to have the vehicle impounded. He stated that it was his department's policy to impound the vehicle in all driving while revoked cases until the driver deposits $500 cash bail.
When the front-seat passenger, T.E. (defendant's seventeen-year old son) alighted from the vehicle, Officer Sopelsa observed an open brown paper bag containing a large number of vials with plastic purple tops. The officer testified that "when I approached the car, this bag was open and I could see right down as if the bag was here, and I could look into the car and walk right up to the car and see the vials." He stated that based on his experience he had seen "thousands . . . of these [vials] filled with crack . . . ." The officer also observed in plain view a folded tinfoil packet on the floor of the driver's side of the vehicle. The tinfoil contained a white substance which the officer believed to be cocaine. Subsequent tests by the State Police determined that the package contained .51 grams of cocaine. He also observed a plastic bag containing what appeared to be cocaine in the back of the car. According to the officer, the bag looked as if the passengers in the rear seat had "attempted to put it under the seat, but they couldn't get it under the seat." Defendant, co-defendant Howard and the other passengers were thereupon placed under arrest.
On cross-examination, Officer Sopelsa acknowledged that he observed no "furtive" movements by the occupants of the vehicle prior to its stop. He also admitted that when he placed defendant under arrest, he felt "no threat at the time." He simply asked the passengers to exit because of his department's impoundment policy.
The motion Judge suppressed the evidence seized from defendant's car, concluding that the officer's reason for requiring the passengers to alight from the vehicle, to impound it, was not legally sustainable. He also found that the drugs in the vehicle would not have been in plain view "but for the fact . . . of the frontseat passenger getting out of the car . . . ." Finding that State v. Smith, 134 N.J. 599, 637 A.2d 158 (1994), "makes it very clear that you cannot just ask the [passengers] out[,]" the Judge concluded that absent some heightened suspicion of danger, Officer Sopelsa's conduct was not constitutionally permissible.
Preliminarily, there is no issue concerning Officer Sopelsa's initial stop of defendant's vehicle. The officer had a reasonable basis to stop the vehicle when it made an unlawful left turn from the right lane of the Route 9 exit ramp. N.J.S.A. 39:4-123. See State v. Williamson, A-38, slip op. at 2-3 (N.J. Supreme Court Dec. 19, 1994) (State need only prove that police had reasonable and articulable suspicion that defendant violated motor vehicle statute, not that it could convict defendant of the offense); see also Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); State v. Casimono, 250 N.J. Super. 173, 178-79, 593 A.2d 827 (App. Div. 1991), certif. denied, 127 N.J. 558, cert. denied, U.S. , 112 S. Ct. 1978, 118 L. Ed. 2d 577 (1992); State v. Murphy, 238 N.J. Super. 546, 554, 570 A.2d 451 (App. Div. 1990). The narrow question before us is whether the officer's order to the passengers to exit the vehicle is sustainable.
We begin with the recognition that Officer Sopelsa's justification for ordering the passengers to exit the vehicle, his intention to impound it, is not sustainable. Given the option of locking the vehicle and leaving it, or having another licensee, with defendant's consent, drive it from the scene, impoundment was not justified. See State v. Slockbower, 79 N.J. 1, 12, 397 A.2d 1050 (1979); State v. McDaniel, 156 N.J. Super. 347, 356-57, 383 A.2d 1174 (App. Div. 1978). The State concedes as much.
However, the proper inquiry for determining the constitutionality of a search and seizure is "whether the conduct of the law enforcement officer who undertook the search was objectively reasonable, without regard to his or her underlying motives or intent." State v. Kennedy, 247 N.J. Super. 21, 27, 588 A.2d 834 (App. Div. 1991). See also, State v. Bruzzese, 94 N.J. 210, 219-21, 463 A.2d 320 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Hence, "the fact that the arresting officer perhaps did not harbor the state of mind hypothecated by the reasons which provide the legal justification for his conduct does not vitiate the constitutional efficacy of the action taken." State v. Malik, 221 N.J. Super. 114, 120, 534 A.2d 27 (App. Div. 1987) (officer's mistaken belief that urine specimen was required in all cases involving drug arrests did not vitiate constitutional validity of a seizure based on exigent circumstances and also reasonably incidental to a valid arrest). Accord Delaware v. Prouse, 440 U.S. at 654, 99 S. Ct. at 1396, 59 L. Ed. 2d at 668 ("reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against 'an objective standard'").
We also agree with the motion Judge that there was no justification for requiring the passengers to exit the vehicle based on any danger to the officer. In Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977), the Court determined that even though the police observed no unusual or suspicious movement prior to a vehicle stop, the State's interest in the safety of the officers far outweighed the de minimis intrusion in requiring the driver to step out of the car after it had been stopped for a traffic violation. Id. at 111, 98 S. Ct. at 333, 54 L. Ed. 2d at 337. Our Supreme Court in Smith, concluded that the Mimms test, as applied to drivers, satisfied article I, paragraph 7 of the New Jersey ...