Before Judges Baime, Brochin and Wecker.
The opinion of the court was delivered by: Baime, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Following the denial of their motions to suppress evidence, defendants Alexander Chapman and Ruben Velez pled guilty to second degree possession of at least five pounds of marijuana with intent to distribute (N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(10)). Finding that the mitigating circumstances substantially outweighed the aggravating factors, the trial court sentenced each defendant to three years imprisonment pursuant to N.J.S.A. 2C:44-1f(2). Defendants filed separate appeals contending that the police engaged in an unlawful search and seizure. We now consolidate these appeals and affirm the defendants' convictions.
At 2:13 p.m. on January 28, 1992, State Trooper Ricardo Ocetnik was patrolling Route 80 when he observed a Ford pickup truck bearing California license plates weaving between lanes along a one and one-half mile stretch. The truck was also fluctuating in speeds. Believing that the driver was either intoxicated or fatigued, the officer activated the overhead lights to his patrol car.
The pickup truck promptly stopped along the shoulder of the highway. Trooper John L. Kratzer and William Hanley arrived at the scene shortly thereafter. We digress to note that much of the police investigation that ensued was recorded by a "Video Incident Capture System" mounted on the hood of Trooper Ocetnik's patrol car. Moreover, Trooper Ocetnik wore a microphone and some, but not all, of the officer's conversations with the occupants of the pickup was sound recorded.
Chapman was sitting in the driver's seat. Scott Curran was sitting in the front passenger seat. Ruben and Roberto Velez *fn1 were sitting in the rear seat. Trooper Ocetnik asked Chapman for his license and registration. Chapman produced a registration identifying him as the owner of the pickup truck, but told Ocetnik that he had "lost" his driver's license. At this point, Ocetnik was no longer concerned that defendant was intoxicated. He nevertheless asked all the passengers to produce identification, preferably their drivers' licenses, because Chapman could not legally operate the vehicle. Each produced a California driver's license.
Upon request, Chapman exited the pickup truck. Ocetnik explained his reason for stopping him, noting that he suspected there was a problem with intoxication or fatigue. The police videotape reveals Chapman's acknowledgment that he was fatigued. Upon questioning, defendant mentioned that he was a stuntman and had decided to take a trip before his next film, noting "we went to [Las] Vegas" and "won some money." Chapman indicated that the four men had left California together. Chapman told Ocetnik that he, Curran, and the Velezes were friends and that the Velez brothers were in the record business and he was attempting to find work for Curran as a stuntman. Chapman admitted that his driver's license had been suspended. Ocetnik told him that he intended to issue a summons for that offense, and that one of the passengers might be required to take over as driver. Chapman noted that he and his friends were "en route" to New York City.
While Chapman was being questioned, Trooper Kratzer engaged the passengers in conversation. Curran mentioned that he had won $4,000 in Las Vegas and that the Velez brothers had "broken even." Upon returning to the pickup truck, Chapman contradicted Curran's account and his own earlier statement by indicating to Kratzer that he alone had been in Las Vegas. Curran later insisted that he had been in Las Vegas with Chapman and the Velez brothers.
The subject was further pursued by Ocetnik when he questioned Roberto Velez out of the presence of the other individuals. Roberto unequivocally denied that he had been to Las Vegas. After speaking with Roberto, Ocetnik directed him to sit in the driver's seat in order to be the designated driver. Ocetnik also questioned Ruben Velez. Although Ruben was apparently not asked whether he had accompanied Chapman to Las Vegas, Ocetnik noticed that he was "dripping" with perspiration despite the frigid January weather. Ruben noted that he and his brother were originally from Colombia. Although Ocetnik had read books and articles about Columbian drug cartels, he testified that this fact did not "alone" heighten his suspicion. *fn2
The subject of who had gone to Las Vegas and when continued to plague the officers. Ocetnik asked Chapman if he went to Las Vegas alone or with the other passengers. In response, Chapman said he went by himself "to pick up Shaggy," referring to Curran. Curran indicated that he had driven with Chapman to Las Vegas. The two then returned to California where they picked up the Velez brothers. Curran said that all four men drove to Illinois where they watched the Super Bowl.
The troopers returned to Ocetnik's patrol car and discussed the inconsistencies in the statements of Chapman, Curran and the Velez brothers. Ocetnik "ran a check" on the four men's drivers licenses, and prepared a summons for driving with a revoked license and a warning for careless driving. Ocetnik also prepared a consent to search form, anticipating that he would ask Chapman's permission to examine the pickup truck and its contents. Kratzer returned to the truck and explained that he and the other officers were "computer checking" the four men's drivers' licenses.
Chapman was asked to exit the vehicle. After repeating Kratzer's explanation for the reason for the delay, Ocetnik told Chapman that he had issued a summons for driving with a revoked license and a warning for careless driving. Ocetnik then read aloud to Chapman the consent to search form, ...