On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County.
Approved for Publication March 26, 1996.
Before Judges Havey, D'Annunzio and Braithwaite. The opinion of the court was delivered by Braithwaite, J.A.D. D'annunzio, J.A.D. (Concurring)
The opinion of the court was delivered by: Braithwaite
The opinion of the court was delivered by BRAITHWAITE, J.A.D.
Hunterdon County Indictment Number 95-04-00063-I charged defendant with first degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(1); second degree eluding, N.J.S.A. 2C:29-2b; third degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third degree hindering apprehension, N.J.S.A. 2C:29-3b(1); and fourth degree possession of drug paraphernalia with intent to distribute, N.J.S.A. 2C:36-3. Following the indictment, defendant moved to suppress the cocaine that was thrown from his vehicle after the police signaled defendant to stop. The Law Division Judge granted defendant's motion relying on State v. Tucker, 136 N.J. 158, 642 A.2d 401 (1994). The State now appeals by leave granted from the interlocutory order suppressing the cocaine. We reverse.
The State does not contest the factual findings made by the Law Division Judge following the hearing on defendant's motion to suppress. We recite those oral findings verbatim:
On January sixteenth, 1995, at approximately 10:34 pm, New Jersey State Trooper Richard McDonnell and Timothy -- Trooper Smarth --S M A R T H -- were patrolling in uniform on Interstate 78 in a marked troop car. While traveling westbound in the left lane of that three-lane highway, Trooper McDonnell observed several vehicles traveling some distance ahead of him in the right lane activating their brake lights and changing lanes to pass a slower moving vehicle, and I think I recall some vehicles moving from the center lane into the left lane.
The slow moving vehicle was ultimately identified as a brown Toyota driving in the right lane and the trooper followed it from the center lane for approximately one quarter of a mile pacing it at approximately 40 miles per hour. Trooper McDonnell decided to stop this vehicle for careless driving and to check on the condition of the driver. Subsequently during the testimony, also indicated one of the reasons was it was impeding traffic. That may be a basis for the careless driving.
Following the one quarter of a mile when he was behind the vehicle when he noticed no other erratic driving, he activated -- Trooper McDonnell that is -- activated the overhead lights on the troop car in an effort to have the Toyota pull over, and at that point the Toyota's speed increased to 50 miles per hour. Trooper McDonnell then activated his siren and through the public address system directed the driver of the vehicle to pull over.
The Toyota swerved on several occasions onto the right shoulder without stopping and returned to the right lane and speed fluctuating between 35 and 50 miles per hour. The swerving between the right lane and the shoulder occurred a few more times and the trooper observed the passenger throw a white package out of the window.
The swerving continued or the pace with the Toyota in front of the police car continued for approximately one and one quarter miles until the vehicle pulled over on the right shoulder. The speed during this period of time varied between 30 and 50 miles an hour.
Trooper McDonnell approached the driver's side of the vehicle and Trooper Smarth approached the passenger side. Neither occupant wore seat belts which resulted in additional summonses.
Once the occupants of the vehicles [sic] were secured, the troopers returned to the vicinity of Milepost 13.2 where Trooper McDonnell recovered a clear plastic bag containing suspected cocaine on the grassy portion of the shoulder. This is the area where the troopers had observed the material being thrown from the car.
The search of the vehicle revealed a brown paper bag containing three plastic containers of Inositol -- I N O S O T O L -- [sic] powder, commonly used as a cutting agent to dilute cocaine, on the passenger seat of the vehicle. The cocaine was analyzed at the library -- the ...