On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
Approved for Publication June 24, 1996. As Corrected August 14, 1996.
Before Judges King, Kleiner and Humphreys. The opinion of the court was delivered by Kleiner, J.A.D.
The opinion of the court was delivered by: Kleiner
The opinion of the court was delivered by KLEINER, J.A.D.
Defendant Trevor Bradley was indicted by the Atlantic County Grand Jury for: (1) attempted theft by deception, in violation of N.J.S.A. 2C:20-4 (count one); (2) unlawful use of a credit card, in violation of N.J.S.A. 2C:21-6d (count two); and (3) uttering a forged instrument, in violation of N.J.S.A. 2C:21-1a(3) (count three).
We granted defendant's petition for leave to appeal the denial of his motion to suppress evidence seized from a closed satchel-type briefcase approximately ten minutes after he was detained and placed under arrest at the Bally's Park Place Casino and Hotel in Atlantic City on September 24, 1993. The motion Judge concluded that the search was so closely contemporaneous with defendant's arrest that it was incidental to defendant's arrest. We disagree and reverse.
The sole witness for the State at defendant's suppression hearing was Detective William Ames. Ames testified that on September 24, 1993, he was dispatched to Bally's Park Place Casino and Hotel to investigate a possible credit card fraud. The police had been contacted by a representative of the casino security department. Ames indicated that he took between ten and fifteen minutes to travel to the casino.
On arrival at Bally's, Ames learned that defendant was being held at a Bally's satellite detaining office in the hotel and near the casino. Ames learned that defendant had approached a cash advance booth and presented a driver's license and a MasterCard credit card bearing the name Michael Brown in an attempt to charge a cash advance of $1,000 against the MasterCard account.
A written report of the investigation was subsequently prepared. Ames read from that report at the suppression hearing. He wrote, "The cashier, Ms. Brown, advised me that upon checking the printed check against the credit card she realized that the numbers did not match, she also realized that the Virginia drivers license used as ID was fraudulent/fake. She contacted security and the accused was taken into custody in the north tower area after he tried to flee the area."
Ames found defendant in the satellite detaining office, which he described as "very small," with a desk and one or two chairs. Present with defendant were Bally's security supervisor and one or two Bally's security personnel.
Defendant was placed under arrest and handcuffed. Ames testified that he believed he handcuffed defendant across his back. After defendant was handcuffed, Ames conducted a pat-down search. Defendant did, not possess any weapon. A Georgia driver's license, bearing defendant's name, was found on defendant's person. In the detaining office at the time was a brown leather case belonging to defendant. The case was not in defendant's possession during his detention. Ames described the case as a saddle bag with a flap that came over the top and one or two buckles to secure the flap.
After searching defendant, Ames escorted him to the Division of Gaming Enforcement Office in Bally's Casino located two floors above the satellite detaining office. That walk took three to four minutes. Defendant's case was carried by another person. Ames indicated that all investigations conducted at casino hotels are conducted in the Gaming Enforcement office. At the Bally's facility, that office includes a small monitor room, a bathroom, and a larger room with desks. Present were Ames, defendant, two or three Bally's security personnel, and Detective Weidel, who had been dispatched separately by the police to the casino to assist Ames in the investigation.
Det. Ames advised defendant of his Miranda *fn1 rights and defendant signed a Miranda card indicating that he understood his rights. After warning defendant of his rights, Det. Ames commenced his investigation of the alleged crime, beginning with a search of defendant's leather case. Det. Ames asked questions of defendant while going through his case. The search revealed numerous false identifications with defendant's photographs, credit cards issued to names other than defendant's and other personal items. Det. Ames testified that five to ten minutes elapsed from the time he placed defendant under arrest to the time he searched defendant's briefcase. No attempt was made by Ames to obtain a formal search warrant or a telephonic search warrant prior to the search of defendant's leather case.
On cross-examination, Ames indicated that while in the satellite detaining office, defendant never reached for or tried to grab his leather case. Defendant also made no such attempt while walking to the Gaming Enforcement office or after they reached that office. Defendant did not attempt to flee and engaged in no assaultive behavior with the security personnel or with the detectives.
The motion Judge determined that the search of defendant's briefcase was a lawful search incident to defendant's lawful arrest. The Judge explained,
Now, because there was some little bit of time that elapsed between the arrest, the detention and the then searching of the briefcase, that is of no moment. . . . This Defendant was secured, but the search came so closely contemporaneous with the arrest that certainly this search is a proper search of this Defendant's person, his briefcase and that is even though he did not have ready access to the briefcase.
In reaching this Conclusion, the motion Judge relied exclusively on State v. Grass, 250 N.J. Super. 74, 593 A.2d 379 (App. Div. 1991). In Grass, the defendant's motor vehicle was pulled over for speeding. Id. at 75. The police discovered that the defendant's license had been suspended and arrested him. Id. at 76. The defendant was handcuffed and placed in the back seat of the officer's squad car. Ibid. Two or three minutes later, the officer searched the defendant's vehicle and found a gun and cocaine. Ibid. We concluded that the search in question was conducted "immediately" after the arrest. Id. at 78. We consequently upheld the search as a valid incident to the defendant's arrest under New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), which addressed the authority to search an automobile incident to arrest.