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State v. Powell

November 6, 1996

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY POWELL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Salem County.

Approved for Publication November 8, 1996. As Corrected January 2, 1997.

Before Judges Dreier, Wefing and Newman. The opinion of the court was delivered by Dreier, P.j.a.d.

The opinion of the court was delivered by: Dreier

The opinion of the court was delivered by DREIER, P.J.A.D.

Defendant, Anthony Powell, appeals from convictions of possession of cocaine, N.J.S.A. 2C:35-10a(1), and possession with intent to distribute cocaine in an amount in excess of five ounces, N.J.S.A. 2C:35-5a(1) and -5b(1). He was sentenced to a term of twelve years with a four-year parole disqualifier for the first-degree offense and a concurrent three-year term for the simple possession offense.

Defendant was the passenger in a car stopped by the State Police just over the Delaware Memorial Bridge. The car was owned by a friend of defendant (or possibly by a female relative of that friend) who often stayed with him. The driver, defendant Melendez, could not produce a registration for the vehicle, although he did produce a registration in the owner's name for a different car. Melendez and defendant, both students at Virginia State University, gave significantly different stories concerning both where they had driven and their current destination. As a consequence, the troopers requested permission to search the car. The driver gave such permission by signing a State Police form. The State Police form, entitled "CONSENT TO SEARCH," read as follows (the italicized portions were handwritten):

I, Derek N. Melendez, ... hereby authorize Tpr J. Burnham 4947, a member of the New Jersey State Police and any other officer designated to assist, to conduct a complete search of

1987 Toyota Tercel 2DR

Va Reg - MDO-853 VIN-JT2EL31D1H0141504

All packages, compartments and luggage

....

I have knowingly and voluntarily given my consent to the search described above.

I have been advised by Tpr J. Burnham 4947 and fully understand the right to refuse giving my consent to search.

I have been further advised that I may withdraw my consent at any time during the search.

Defendants asked if they could sit in the trooper's patrol car during the search because the weather was cold. Melendez was told that he could stop the search at any time and, even though the police car doors were automatically locked, he was in a position to do so. Neither defendant indicated that he tried to attract the officer's attention in any way. After two brief searches of the car which yielded the registration for this particular car in the name of defendant's friend (or his relative) but no contraband, one of the troopers noticed that a side ...


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