The opinion of the court was delivered by: Handler, J.
On certification to the Superior Court, Appellate Division, whose opinion is reported at 294 N.J. Super. 367 (1996).
In this search and seizure case, defendant was convicted of drug offenses based on evidence that had been seized following a warrantless search of his person after his automobile was stopped and searched by the police. As in State v. Smith, __ N.J. __ (1998), also decided today, the police action was based on an informant's tip. The issue presented by this appeal is whether the police, acting on a confidential informant's tip that was partially corroborated, had probable cause to justify the personal search of defendant.
At approximately 6:15 p.m. on July 26, 1993, Sergeant Michael O'Connor of the Narcotics Bureau of the Wayne Police Department set up a surveillance along Route 23 North "based on information we received from a confidential reliable informer that a vehicle bearing registration BC- 584V, it was a '93 red Toyota, would be traveling up 23 North from New York City after the party had purchased marijuana." With regard to the timing of the trip, O'Connor testified, "[h]e said they were -- they had just left, and that was the time we received the information. So, it was short -- shortly before 6 o'clock." O'Connor never indicated why he believed the informant was reliable.
At approximately 8 p.m., O'Connor saw a car matching the informant's description traveling in the center lane on Route 23 North. He said that in his experience, the round trip to New York to buy drugs took anywhere from forty minutes to an hour and a half or two hours. Upon seeing the vehicle, O'Connor pulled behind it in the unmarked van he was driving. O'Connor was traveling two or three car lengths behind the Toyota when the driver "shot off without signaling from the center lane to the right lane and got off at the Exxon station." There was a car in the right lane approximately one to two car lengths behind O'Connor's van. Traveling 40-50 m.p.h., O'Connor followed the Toyota into the right lane. He said that he did not know what happened to the car behind him in the right lane, but "it was very close."
The driver, later identified as defendant, Joseph Zutic, pulled up front-first to the side of the building at the Exxon station, and O'Connor pulled up behind him. O'Connor identified the reason for the stop as defendant's unsafe lane change. According to O'Connor, defendant had just returned to the car when he confronted him. Upon request, defendant showed O'Connor his credentials, and O'Connor started asking him questions based upon the tip he had received. Defendant appeared "very nervous and jittery." Defendant told O'Connor that he was coming from Mountain View and that he had filled up his tank that morning, but O'Connor believed that the gas gauge was too low for defendant to have traveled such a short distance. O'Connor felt that defendant's incorrect answers substantiated the tip he had received. O'Connor read defendant his Miranda rights and asked him if he had any drugs in the car. Defendant denied having drugs in the car, but "he still became very nervous." O'Connor testified that, at that point, "I ordered him out of the car and he stood by the front portion of -- on the driver's side. While I began looking through the car I found a Marlboro Light box containing marijuana roaches in it."
While searching the car, O'Connor observed defendant motion toward the front portion of his sweat pants. Based on his experience, O'Connor knew that people often carry drugs in their pants. Defendant denied that he was carrying drugs. According to O'Connor, "I could still see there was some kind of bulge in the front portion of his pants. And as I attempted to check it he knocked my hand -- my hand away with his left hand." With the help of two uniformed officers that O'Connor had called as backup, O'Connor recovered from defendant's pants a bag containing what looked like marijuana. Lab tests later positively identified the substance as marijuana.
At that point, O'Connor told defendant he was under arrest. Defendant struggled with the officers as they tried to handcuff him, but the officers were able to subdue him and transport him to police headquarters. After O'Connor read him his Miranda rights back at headquarters, defendant admitted that he had bought the marijuana in New York City and said that he had over-reacted when being arrested.
On July 26, 1993, defendant was charged in Wayne Municipal Court with possession of a controlled dangerous substance (CDS), marijuana, contrary to N.J.S.A. 2C:35-10a(4); possession of drug paraphernalia, contrary to N.J.S.A. 2C:36-2; resisting arrest, contrary to N.J.S.A. 2C:29-2a; possession of a CDS in a motor vehicle, contrary to N.J.S.A. 39:4-49.1; and making an unsafe lane change, contrary to N.J.S.A. 39:4- 88b.
On November 17, 1994, the Municipal Court held a hearing on defendant's motion to suppress the evidence. O'Connor testified in accordance with the facts as recounted, and the court denied defendant's motion. The court found that O'Connor was justified in stopping defendant based on the traffic violation. The court further found that the subsequent warrantless search was justified, in part, because "some of the contraband was found in plain view on the front seat."
A trial immediately followed the denial of defendant's motion. O'Connor's motion testimony was incorporated into the trial. Defendant provided a different account of the events. Defendant testified that O'Connor, who was in plain clothes, did not immediately identify himself as a police officer. He said that O'Connor pushed him against the car and told him he was under arrest. When defendant asked what for, O'Connor said, "I will let you know when I find what I am looking for." Defendant testified that he told O'Connor he could not search the car, but O'Connor searched it anyway. Then, O'Connor searched his pants and pulled out the marijuana. Defendant denied having gone to New York to purchase the marijuana, and he denied having marijuana in the car.
The Municipal Court found defendant guilty of possession of a CDS, resisting arrest, possession of a CDS in a motor vehicle, and making an unsafe lane change. The court acquitted defendant of possession of drug paraphernalia. At sentencing, the court merged the possession counts. The court imposed total fines and costs of $1002 and suspended defendant's driver's license for one year.
Defendant appealed to the Law Division pursuant to Rule 3:23. Exercising de novo review, the court affirmed the Municipal Court's denial of the motion to suppress. Without expressly stating that the marijuana in the car was not in plain view, the court observed that the testimony was that the marijuana was inside a cigarette box in the front seat. Rather than uphold the search based on the plain view doctrine, the court reasoned that the informant's tip coupled with the sighting of the vehicle described in the tip was ...