On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 99-07-01434.
Before Judges Stern, Collester and Fall.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 12, 2000
Pursuant to leave granted, the State appeals from a December 3, 1999, order suppressing evidence of test results of a liquid in a water bottle seized from defendant without a warrant and found to contain Gamma Hydroxybufyrate (GHB), a prohibited substance. We affirm.
Defendant was indicted for third degree possession of GHB, contrary to the provisions of N.J.S.A. 2C:35-10.2 (count one); second degree possession of GHB with the intent to distribute, contrary to the provisions of N.J.S.A. 2C:35-5.2 (count two); second degree distribution of GHB, contrary to the provisions of N.J.S.A. 2C:35-5.2 (count three); and fourth degree reckless endangerment to another person, contrary to the provisions of N.J.S.A. 2C:12-2b(2) (count four). He entered a plea of not guilty and filed a motion to suppress which was subsequently granted.
The sole witness at the suppression hearing was Sea Bright Patrolman Richard Jacobs, who testified that he was dispatched to the Tradewinds Night Club at about 11:30 p.m. on March 11, 1999, in response to a first aid call. On arrival he was directed to the ladies room where he saw an obviously sick young woman vomiting in a toilet. While others attended to the sick woman, Jacobs cleared the crowd away from the door so that the first aid squad could bring a stretcher into the room. He heard unidentified persons in the crowd mention GHB, which Jacobs knew was a banned "date rape" substance that was colorless, soluable in water and could cause a person to vomit, pass out or become comatose. After the woman was taken to the hospital by ambulance, Jacobs returned to his normal duties. He received no additional information that night as to the woman's condition or the cause of her distress.
Half an hour later Jacobs was again dispatched to the Tradewinds on a report of a man causing a disturbance in the parking lot. When Jacobs arrived, he saw a man later identified as defendant leaning against a railing. He remembered him as one of the people standing outside the ladies room earlier. Defendant was wearing jeans, an untucked flannel shirt and a leather jacket. Jacobs shook him awake and requested identification. Defendant fumbled through his clothing and produced a driver's license. His speech was slurred, his pupil dilated, and he appeared on the verge of passing out again.
Jacobs told defendant that he had to leave the Tradewinds property and asked if he had a ride home. Defendant said that he would walk to a 7-11 convenience store about a half-mile away and call a cab. Because he was concerned that defendant might fall and injure himself or stagger into the roadway and be struck by a car, Jacobs offered to drive defendant to a place to make the call. Defendant accepted.
There followed a brief conversation when Jacobs told defendant that he had seen him earlier and asked if the sick woman was his girlfriend. Defendant said he had met her that night for the first time and did not know why she became ill. He added that he had given her a sip of a sports drink call "Rejuvenate" which he had purchased from Gold's Gym.
As defendant was getting into the police car, Jacobs noticed a bulge underneath his shirt at the waistband. He patted down the defendant and felt "a hard object" which he thought could be a weapon. He reached under defendant's shirt and pulled out a clear "Aquafina" water bottle about eight inches long and two and a half inches in diameter. The bottle was half full with a clear liquid. Handwritten on the side were the words, "Do Not Throw Away."
Jacobs seized the water bottle because he thought that it might have some connection to the sick woman he had seen earlier. He drove defendant to the Sea Bright police headquarters to call a cab. On arrival defendant asked for the return of the water bottle. Jacobs refused and told defendant that the bottle was to be sent to the State Police laboratory for analysis of its contents. Defendant was told he could leave and call a cab. He was not arrested, and no application was made for a search warrant of the contents of the water bottle.
The following afternoon the Aquafina bottle was taken to the State toxicology lab. Several days later it was confirmed that the liquid was positive for GHB. Defendant was then arrested and charged with possession of a controlled dangerous substance with the intent to distribute.
A warrantless search is prima facie invalid and must fall within constitutionally accepted exceptions to the warrant requirement to be upheld. Katz v. United States, 389 U.S. 847, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The State bears the burden of showing that an established exception applies. State v. Hill, 115 N.J. 169, 173-74 (1989). The contention sub judice is that the water bottle was properly seized and analyzed as a result of the "plain view" exception. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); State v. Bruzzese, 94 N.J. 210, 236-38 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984). The State argues that what Patrolman Jacobs heard and saw that evening gave him the requisite probable cause to believe that the liquid in the bottle contained a date rape drug. "Probable cause" is a constitutional concept difficult of denotation. It has been phrased as a "reasonable or well-grounded suspicion," see, Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), or a "fair probability that contraband or evidence will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1987); State v. Novembrino, 105 N.J. 95, 117-18 (1987); State v. Waltz, 61 N.J. 83 (1972). Because it is to be interpreted by law enforcement personnel, "probable cause" is a practical concept that defers to ...