ON APPEAL FROM MUNICIPAL COURT OF SADDLE RIVER.
Approved for Publication December 4, 1996.
The opinion of the court was delivered by: Conte
This is an interlocutory appeal from a decision of the Municipal Court of Saddle River granting the motion of defendant to suppress evidence obtained following a motor vehicle stop. There was no hearing and no one testified. The parties stipulated that the facts contained in their opposing briefs were consistent and could serve as the basis for a ruling of the court.
There are two fact sensitive issues raised. Is the surrender of incriminating evidence to a police officer during a valid motor vehicle stop governed by the rules of search and seizure? If so, was the calling for backup tantamount to such coercion negating the voluntariness of consent. There are no reported decisions in this state which articulate a rule controlling the degree of coercion involved in the surrender of contraband while applying the principles of search and seizure.
In support of the motion, defendant argues that (a) the turnover of the alleged marijuana and drug paraphernalia was involuntary, (b) that the actions of the police officer in calling for backup amounted to coercion, (c) the action of the police officer in calling for backup was disproportionate to the circumstances and inconsistent with and unnecessary to enforce the issuance of a motor vehicle summons, and (d) that the investigation, interrogation and/or seizure of the evidence without a proper warrant was illegal.
The State argues that a warrant is unnecessary where the consent of defendant is knowing and voluntary. The turnover and surrender of the evidence were not the result of coercion or intimidation by the police officer.
The facts revealed that on February 2, 1996, at approximately 10:40 a.m., Saddle River police officer Thomas Psota stopped the vehicle of defendant on Route 17 North for failure to have a front license plate. Officer Psota informed defendant of the reason for the stop and asked that he produce his driver's license, auto registration and insurance card. Defendant was able only to produce his driver's license. The officer returned to his car and was informed by his dispatcher that the registration for the car, owned by another person, had expired the previous month. Defendant then was informed that the vehicle could not be driven because of the expired registration. A towing company was contacted to remove the vehicle from the highway.
Before placing defendant in the rear of the patrol car for transportation back to police headquarters, the officer conducted a patdown of defendant for safety reasons. At that time, the officer asked defendant to open the knapsack which he was carrying. Defendant informed officer Psota that he did not want him to look inside of the knapsack. After a second request by the officer to open the bag, defendant walked to the rear of his own vehicle and placed the knapsack inside his trunk. In response to this action of defendant, officer Psota proceeded to call for backup. Thereafter, defendant opened his trunk, retrieved his knapsack and produced what is alleged to be marijuana and two pipes used for inhaling.
At approximately 11:00 a.m., officer Psota placed defendant under arrest and informed him of his Miranda rights. Defendant was transported to Saddle River Police Headquarters, where he was charged with possession of marijuana in a quantity of less than fifty grams, in violation of N.J.S.A. 2C:36-10a(4) and possession of drug paraphernalia, in violation of N.J.S.A. 2C:36-2.
A decision on the issues raised can not be reached without a Discussion of the constitutional protections against unreasonable search and seizures. The fundamental protection is found in the Fourth Amendment of the U.S. Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.
The New Jersey Constitution, Article I, Paragraph 7, adopted in 1947 is nearly verbatim, changing only the words "but ...