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State v. Toth

June 04, 1999

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SEAN M. TOTH, DEFENDANT-APPELLANT



Before Judges Long, Kestin and Wefing.

The opinion of the court was delivered by: Wefing, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 9, l999

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

Middlesex County Indictment No. 96-07-0938 charged defendant Sean M. Toth and co-defendant Edward W. Solomon with third-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-l0a(l) (Count One); first-degree possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(l) (Count Two); and fourth-degree possession of drug paraphernalia with intent to distribute, contrary to N.J.S.A. 2C:36-3 (Count Three). Prior to trial, defendant moved to suppress the evidence against him. The trial court denied that motion. Thereafter, pursuant to a plea agreement, defendant entered a plea of guilty to possession of CDS with intent to distribute. He was sentenced to a custodial term of fifteen years with seven and one-half years of parole ineligibility. Appropriate penalties, fees, and assessments were also imposed.

Defendant has appealed, raising only one issue:

"THE SEARCH CONDUCTED BY THE POLICE EXCEEDED THE PERMISSIBLE SCOPE OF A TERRY SEARCH AND CANNOT BE JUSTIFIED UNDER THE "PLAIN TOUCH" DOCTRINE."

We have carefully reviewed the record in light of that contention and have concluded that the trial court correctly denied defendant's motion to suppress.

The facts underlying the search of defendant are undisputed. At 2:45 a.m. on June l3, l996, State Troopers Salvatore V. DiPaola and Kevin Goldberg were patrolling the New Jersey Turnpike in Cranbury Township, New Jersey. Trooper DiPaola was at the wheel. They spotted and paced a vehicle traveling at 70 miles per hour in a clearly-marked 35 mile-per-hour construction zone. The troopers indicated to the driver that he should pull over. The vehicle immediately moved from the left lane to the right shoulder but proceeded two-tenths of a mile before stopping.

Trooper DiPaola approached the vehicle on the passenger's side. Defendant occupied the front passenger seat and opened the window when DiPaola tapped on it. Trooper DiPaola requested the driver's credentials and vehicle's registration. Solomon, the driver, produced a boat-operator's license and an I.D. card. Trooper DiPaola repeated his request. Solomon replied that he had the proper documents, but could not find them. Solomon then opened the glove box, retrieved a white envelope, and shuffled through it. Trooper DiPaola noticed two motor vehicle summonses and asked to see them. Solomon handed DiPaola the envelope, which included a summons for driving while on the revoked list. DiPaola questioned Solomon regarding that offense; Solomon replied that the envelope held a letter from Division of Motor Vehicles stating that his license was restored. DiPaola, however, found no letter, no license, and no registration. DiPaola instead found Solomon's parole papers for drugs- and weapons-possession offenses. DiPaola ordered Solomon to get out of the car and to stand at the rear of the vehicle where Trooper Goldberg was positioned.

While Trooper DiPaola spoke with Solomon, defendant appeared nervous and repeatedly urged the officers to let Solomon and him go. After Solomon exited the vehicle, DiPaola observed defendant more closely. He observed a large bulge in defendant's groin area. DiPaola, concerned for his safety, directed his flashlight on the area. Defendant then removed his baseball cap and used it to cover his groin.

Trooper DiPaola positioned himself behind the passenger door and ordered defendant out of the vehicle. Defendant exited the vehicle with his back to DiPaola. Defendant maintained his back to DiPaola and continued to cover his groin with his baseball cap. Trooper DiPaola, still concerned for his safety, immediately conducted a Terry pat-down, Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). He stated that upon feeling the object, he knew it was not a handgun but rather CDS.

After Trooper DiPaola concluded that he had touched CDS, he reached into defendant's shorts and retrieved a brown paper bag. Inside that bag were two, clear plastic bags containing cocaine and, behind them, a quantity of vials and caps wrapped in a paper towel. At the suppression hearing, the trooper clearly explained that the cocaine was to the front and that it was the cocaine within the plastic bags that he felt and immediately identified during the pat-down. Subsequent measurement revealed that defendant was carrying ten ounces of cocaine. The trial court, after viewing the exhibit, estimated that, in addition, defendant was carrying several hundred vials and caps.

It is significant to note the dimensions of the bulge Trooper DiPaola observed. During the course of defendant's motion to suppress, the trial court described the package as being approximately eight-inches across and noted that if it were compressed, it would be approximately five-inches deep. Trooper DiPaola testified that the package was rounded, not square and flat. The ...


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