Before Judges Havey, Keefe and Lintner.
The opinion of the court was delivered by: Lintner, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 1999
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
These cases, consolidated for the purposes of appeal, arise from an order of the trial court denying defendants' motions to suppress evidence seized from an automobile owned by defendant Richard Freeman and driven by defendant John Jones. Both defendants were tried by a jury and found guilty of first degree possession of controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) & (b)(1), (Count One), and third degree possession of controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), (Count Two). *fn1 Defendant Jones was sentenced to a custodial term of eleven years with a three year, eight month period of parole ineligibility and defendant Freeman was sentenced to a custodial term of forty-five years with fifteen years of parole ineligibility.
The central issue raised is essentially whether the odor of alcohol, combined with the admission of consumption of one bottle of beer by a motor vehicle operator, is sufficient to establish probable cause to search the vehicle for open containers of alcohol where a trained police officer testifies that, based upon the circumstances and his experience, occupants often possess open containers of alcohol.
Both defendants contend that the trial court erred in denying their motions to suppress. We agree and reverse. *fn2
The undisputed facts are as follows. On June 27, 1996 at 5:42 p.m., during rush hour, Jones was operating Freeman's Mercury Sable on the northern end of the New Jersey Turnpike in the southbound inside lane. Freeman was seated in the right front passenger seat and Michael Gonzalez was seated in the rear. At the time, Trooper Antonio Casais was traveling behind the defendants when he observed defendants' vehicle make a lane change from the left lane to the middle lane without displaying a turn signal.
Having observed no signal, Trooper Casais activated his overhead lights in order to effectuate a motor vehicle stop. According to Trooper Casais, the driver pulled the car over to the shoulder approximately fifteen seconds after the trooper had activated his overhead lights, having traveled approximately two-tenths of a mile. Trooper Casais then alerted headquarters of the stop, after which he approached defendants' vehicle on the driver's side. He asked Jones for his credentials. After producing his license, Jones activated his directional signal in response to the trooper's request. Though the blinker gave an audible signal, the dashboard light was not working. At Trooper Casais's direction, both he and Jones went to the back of the vehicle where both observed that the blinker light was working.
After speaking with Jones, at the rear of the vehicle, Trooper Casais detected an odor of alcohol on Jones's breath, as a result of which he asked Jones if he had been drinking. Jones responded "I'm not going to lie to you because I had a bottle of Heineken." At this point in time, backup Troopers Osiliva and Hemely arrived. After conducting a pat-down search of Jones which revealed no weapons, Trooper Casais directed Freeman and Gonzalez to exit the vehicle. Both passengers were searched for weapons, none were found. While the three occupants of the vehicle were waiting behind the Mercury with the two backup troopers, Trooper Casais commenced a search for open containers of alcohol by going to the driver's side of the vehicle and looking in the immediate area of the driver's seat for alcohol containers. Underneath the driver's seat he found a plain plastic bag containing a white substance which he believed to be cocaine. The driver and both passengers were placed under arrest and given their Miranda warnings. *fn3
Trooper Casais returned to the car to conduct a further search. On the right front floor in front of the passenger seat he found a black plastic bag containing a zip-lock bag with a larger quantity of cocaine. Underneath the front arm rest a brown bag containing 500 zip lock bags was found. The subsequent tests performed by the State Police laboratory revealed that the bag underneath the driver's seat contained .48 ounces of cocaine while the bag on the front passenger floor contained 5.82 ounces of cocaine.
The trial Judge found that the smell of alcohol on Jones's breath, combined with his admission of consumption of beer, his apparent nervousness, his failure to use the turn signal, and what Trooper Casais believed was an unusually long time to stop the vehicle, established probable cause on the part of a trained police officer to believe that a violation of law had been or was committed, namely the possession of open containers of alcohol. We disagree.
Defendant Jones questions the validity of Trooper Casais's stop under State v. Williamson, 138 N.J. 302 (1994), arguing that the Trooper Casais never testified that other traffic was affected by Jones's lack of signaling. Trooper Casais testified that the stop occurred on a Thursday during rush hour and that there were quite a few cars on the road at that time. He could not say whether the stop affected other traffic on the roadway or where such traffic was in relation to defendants' vehicle. He further indicated that his vehicle was following the defendants at a distance that he approximated to be 100 to 200 yards. N.J.S.A. 39:4-126 requires a motorist to signal a lane change "in the event any other traffic may be affected by such movement." In Williamson, supra, 138 N.J. at 304, our Supreme Court pointed out that it is unnecessary to prove that a motor vehicle violation occurred to justify a stop for failure to signal. The trooper need only have "a reasonable and articulable suspicion" that the driver's failure to signal is "to some degree likely to" affect traffic. Id. at 304 (quoting State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 1994)). Here, the rush hour traffic conditions were sufficient to support an articulable and reasonable basis for concluding that the unsignaled lane change might have an effect on other vehicles.
The question then becomes whether the search of the motor vehicle was justified. Generally, a warrantless search is presumed to be invalid. State v. Bruzzese, 94 N.J. 210, 218 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). To justify a warrantless search, once there is a valid stop, the Fourth Amendment of the United States Constitution and art. I, ¶ 7 of the New Jersey Constitution require that the conduct of the officer who undertook the search was objectively reasonable without regard to underlying motives or intent. Bruzzese, supra, 94 N.J. at 219-21 (1983). Under the automobile exception, a warrantless search of a motor vehicle is sustainable as reasonable if there exists probable cause to believe the vehicle contains contraband or evidence of a crime. State v. Colvin, 123 N.J. 428, 429-30(1991); State v. Pierce, 136 N.J. 184, 204 (1994). Probable cause is measured by the objectively reasonable standard and is derived from the factual circumstances present at the time of the search. The relevant factors ...