On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 98-08-2023-B.
Before Judges Skillman, Wecker and Lesemann.
The opinion of the court was delivered by: Lesemann, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant Keith Leslie appeals from his conviction and sentence to five years in prison for the second degree offense of possessing over five pounds of marijuana with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(10)(b). He pleaded guilty to that charge following denial of his motion to suppress evidence seized following a search of the trunk of a car he was driving on the Garden State Parkway. The search disclosed approximately thirty pounds of marijuana, and it was that finding which triggered defendant's indictment and, following denial of his motion to suppress, his plea and sentence.
Defendant claims that the state trooper who stopped his vehicle and made the search had no lawful basis for the stop. He claims further that, even assuming the stop was justified, there was no basis for a search of his vehicle, and that the scope of his alleged consent to search, which the State contends justified the trooper's action, was exceeded when the officer went beyond the passenger compartment of the vehicle and opened the trunk. We conclude that, even assuming the validity of the stop and the consent to search, the entry into and search of the trunk of the vehicle exceeded the scope of the consent. For that reason, defendant's motion should have been granted and the seizure of the evidence suppressed. Thus, we reverse.
State Trooper David Smith, the officer who stopped and searched defendant's vehicle and then arrested him, was the only witness at the suppression hearing. Trooper Smith was a member of the Garden State Parkway Task Force, one of whose main functions was to be "proactive" in looking for and combating DWI offenders as well as "the criminal element" driving on the Garden State Parkway. He testified that at the time in question, he saw defendant's vehicle drive past him at approximately fifty miles per hour in an area where the speed limit was sixty-five miles per hour. As defendant passed the trooper, and presumably when he saw the police vehicle, he reduced his speed to forty-three miles per hour.*fn1 Trooper Smith testified that such a low speed suggested possible driving while intoxicated (DWI) since, in his experience, he has found that intoxicated drivers tend to overcompensate by driving slower than normal. The possibility of DWI was enhanced to the trooper by the further slow-down from fifty miles per hour to forty-three miles per hour as the vehicle passed him. The trooper also testified that, although traffic was light at the time, a vehicle driving behind defendant was required to make a sudden lane shift because of defendant's reduced speed.
When Trooper Smith signaled defendant's vehicle to stop, defendant did so. Other than the speed of the vehicle, there had been no indication of erratic driving or any other indicia of DWI. When the trooper approached the vehicle and spoke to defendant, he also saw no signs of DWI.
When Trooper Smith asked defendant for his license, registration and insurance card, defendant produced appropriate documentation for the rented vehicle but was unable to present a valid driver's license or insurance card. He identified himself as Donald Hawkins and provided an Atlantic City address. In response to the officer's question, he also described what he said were the number of points against his license. However, when the officer checked those items via radio, both the address and the point information proved false. The officer was asked what he did next and he responded as follows:
At that point, I asked the driver if there was any type of identification inside the motor vehicle.
I asked him would he mind if I took a look inside the passenger's compartment and he stated, no.
I asked him that I would like him to sign an N.J.V.P. consent to search form indicating that his rights were ...