Before Judges Stern, A. A. Rodr¡guez and Fall.
The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Morris County.
This appeal has been assigned to this Part pursuant to its designation to consider and resolve questions pertaining to racial profiling or selective enforcement. See State v. Ballard, 331 N.J. Super. 529, 534 (App. Div. 2000). We hold that a racial profiling challenge to a warrantless search of a motor vehicle is preserved for direct appeal even when racial profiling was not urged as a ground for suppression at the trial level.
Following a jury trial, defendant, Thomas Ross, was convicted of first degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(1); and third degree possession of cocaine, N.J.S.A. 2C:35-10a(1). In a simultaneous bench trial, defendant was convicted of the disorderly persons offenses of possession of marijuana, N.J.S.A. 2C:35-10a(4); and possession with intent to use drug paraphernalia, N.J.S.A. 2C:36-2. The judge merged the two indictable convictions and imposed a fifteen-year term with a five-year period of parole ineligibility. He also imposed concurrent ninety-day terms on each disorderly persons offenses.
Defendant appealed to us contending that: (1) the trial court erred in denying his motion to suppress evidence obtained as a result of an illegal automobile stop and search; and (2) the sentence was excessive. While this appeal was pending, the Attorney General released and published on April 20, 1999 the Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling (Interim Report). In light of the Interim Report, defendant moved before us for a remand to reconsider his motion to suppress. We granted the remand. *fn1
In the Law Division, defendant moved to obtain discovery regarding his allegation of selective enforcement or racial profiling. The trial court granted this motion. *fn2 The State moved for leave to appeal. We stayed the Law Division's order and reserved decision on the State's motion for leave to appeal pending the adjudication of this case on direct appeal. *fn3
We now: (1) grant the State's motion for leave to appeal the discovery orders for the limited purpose of remanding them to the Designated Judge, Judge Walter R. Barisonek, to reconsider the scope of discovery, in advance of reconsideration of the motion to suppress by the trial court, and (2) affirm defendant's sentence. *fn4
On August 12, 1995, defendant, his nephew Timothy Ross, and Richard Hairston, were traveling by car, on Route 80 West in the area of Netcong en route to Virginia. The three occupants of the vehicle are African-American. The vehicle was a green BMW which was driven by defendant. At the same time, State Trooper Richard Nardone, who was monitoring westbound traffic from a center median, observed the BMW driving in the left lane, for approximately three quarters of a mile. Nardone noted that the BMW's driver neither activated the blinkers nor attempted to pass another car. Consequently, Nardone stopped the BMW for a traffic violation, failure to keep right. N.J.S.A. 39:4-88a.
Upon pulling over the BMW, Nardone approached and asked defendant for his license and registration. Nardone detected an odor of burnt marijuana emanating from the interior of the car. Suspecting that a crime was being committed, he requested that defendant exit the vehicle. Nardone did a "pat down" search of defendant and discovered "E-Z Wider rolling papers." He also noted that defendant was "extremely nervous . . . and failed to keep eye contact." According to Nardone, the other occupants appeared anxious and provided the officer with seemingly inconsistent answers.
Nardone called for back-up and requested defendant's written consent to search his car. Defendant provided written consent. The subsequent search of the BMW yielded two marijuana "roaches" in the driver's side compartment, an eyeglass case with 5.88 grams of marijuana, and a brown paper bag containing 5.06 ounces of cocaine under the driver's seat. A search of defendant's person revealed $900, divided into $100 increments in denominations of $20. Nardone placed the occupants of the BMW under arrest. He issued defendant two summonses, one for ...