Before Judges Pressler, Ciancia and Arnold.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Following the denial of his motion to suppress evidence obtained from his person without a warrant during the course of a traffic stop, defendant Steven J. Carty, tried by a jury, was convicted of second- degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35- 5a(1). A charge of simple possession was merged into that conviction. Defendant was sentenced to a six-year term with no parole ineligibility period, and required penalties were imposed.
The sole issue raised by defendant on appeal is the validity of the pat-down of his person which revealed cocaine in his pocket. We agree with defendant that under the totality of the circumstances here, the pat-down did not meet constitutional muster as a matter of this State's constitutional law. More specifically, the State attempted to justify the pat-down, which took place during a routine traffic stop, by asserting that it was a reasonable measure for the arresting officer to have taken to ensure his safety before proceeding to search the vehicle. The search, in turn, was attempted to be justified by the driver's consent. The officer had, however, no articulable suspicion that a search would reveal evidence of illegal activity. We hold that in the absence of an articulable suspicion, the request to search to which the driver assented offended the State Constitution, and since the proposed search was the only basis for the pat-down, the pat-down was also, necessarily, constitutionally offensive.
The facts respecting the pat-down, both undisputed and as found by the trial court, are as follows. Defendant was a passenger in a car being driven by his brother, Leroy Coley. The car was stopped for speeding on the New Jersey Turnpike by a New Jersey State Trooper, patrolling by himself. The trooper asked the driver for his credentials. The driver then explained that he did not have his driver's license with him and that he had no registration for the car, which had been rented by his father, who had permitted him and his brother to use it that day. Although Coley testified at the suppression hearing that he proffered the rental agreement to the trooper, the motion judge accepted the trooper's contrary testimony that no rental papers were ever produced.
In any event, since Coley had no credentials, the trooper, as he explained, "asked the driver if he would step from his vehicle back to my vehicle so I could write his information down, his name, address, date of birth, for a check if he did have a license. And also to check on the registration." The trooper also testified, although the timing is not clearly determinable, that at some point during the roadside proceedings he was advised by headquarters that Coley did indeed have a valid license and that the car was not stolen. According to the trooper, after obtaining the requested information from Coley and after Coley had told him again that his father had rented the car and "had let him and his brother use the vehicle that day to ride around," the trooper, leaving Coley behind, went back to the car to talk to defendant, who was still sitting in the passenger seat. Defendant told the trooper essentially what his brother had told him respecting the vehicle and also told him that they were returning to Delaware from New York. Defendant was unable to produce any personal identification. He also, according to the trooper, "appeared to be nervous." At that point, the trooper returned to the troop car and asked Coley if he would sign a consent to search form. Coley did so.
It is not clear whether Coley had been placed in the troop car during that conversation with the trooper. But in any case, after he had signed the consent form and was no longer in the troop car, if he had ever been, the trooper asked him if he "could pat him down for my safety prior" to the search. Coley agreed, the pat-down was conducted, and the trooper found nothing. The trooper then went back to the Coley vehicle and asked defendant to step out so it could be searched. Preparing to do so, the trooper, according to his testimony, asked defendant as well if he could pat him down for his own safety and defendant agreed. The trooper's explanation was that during the course of searching the car, he would have to turn his back on both of them and therefore had to frisk them to be sure neither was armed. During the pat-down the trooper felt a hard object in the rear of his pants which the trooper knew was not a weapon but believed was a controlled dangerous substance. He then, he said, read defendant his Miranda *fn1 warnings, defendant admitted that the object was cocaine, and the trooper confiscated it. Defendant was forthwith arrested and handcuffed, and the trooper proceeded to search the car for some forty minutes, finding nothing incriminating.
To begin with we agree with the trial judge that the stop was obviously justified by the speeding. Our concern is about everything that happened thereafter. We start with the proposition that the only circumstance which made this anything other than a routine traffic stop with the issuance of a summons to the driver and the driver then going on his way without any further police action was the driver's inability to produce credentials. It is, of course, now clear that that circumstance, without more, does not justify a search of the vehicle. As we held in State v. Lark, 319 N.J. Super. 618, 627 (App. Div. 1999), aff'd, 163 N.J. 294 (2000):
New Jersey law prescribes exactly what an officer should do when, during a traffic stop, a driver fails to present his license and then lies about his identity. The officer may either detain the driver for further questioning until he satisfies himself as to the driver's true identity, see State v. Dickey, 152 N.J. 468, 476-78, 706 A.2d 180 (1998), or arrest the driver for operating a vehicle without a license, see N.J.S.A. 39:3-29, 39:5-25; see also State v. Campbell, 53 N.J. 230, 237, 250 A.2d 1 (1969). The officer may not, however, absent probable cause to believe that a further offense has been committed, enter the vehicle to look for identification. [Footnote omitted.]
Justice Verniero, writing for the Supreme Court in its affirmance of Lark, fully endorsed that holding, explaining further that:
In instances such as this, when a driver is without a license and offers false information in response to a reasonable police inquiry, there exists a sufficient basis for the police officer to detain the driver for further questioning until the officer learns the true identity of the driver. State v. Dickey, 152 N.J. 468, 476-83, 706 A.2d 180 (1998) (discussing contours of permissible investigative stops). Assuming that the driver persists in concealing his or her identity and there appears to be no other reasonable alternative, the police officer may take the driver into custody. However, even in that instance, the officer generally may not search the vehicle unless one of the existing exceptions to the warrant requirement is applicable. [163 N.J. at 296-97.]
Here, of course, the driver had not offered false information regarding his identity. He simply did not have his credentials with him. The trooper certainly had the right to detain him until he was satisfied that he was in fact dealing with a licensed driver in a car that was not stolen. There appears to be no reason at all for the trooper not to have waited, before doing anything further, for confirmation from headquarters of those facts, particularly after they were confirmed by the passenger. Had he done so, there would have been no ...