On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Hunterdon County, 99-05-00097-I.
Before Judges Havey,*fn1 Cuff and Lisa.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The State appeals, by leave granted, from an order suppressing evidence seized as a result of a consent search conducted in conjunction with a routine motor vehicle stop. The suppression was grounded upon a finding that the police lacked an articulable suspicion that the search would yield evidence of illegal activity and was therefore improper under the principles of State v. Carty, 332 N.J. Super. 200 (App. Div. 2000).*fn2 The State argues that Carty established a new rule of law which should not be applied retroactively to this pre-Carty search. We disagree and affirm.
At midnight on November 6, 1998, Troopers Donato and Levy clocked defendants on stationary radar traveling seventy-five m.p.h. in a sixty-five m.p.h. zone westbound on Interstate 78 in Hunterdon County. They uneventfully pulled defendants over. Before exiting the troop car, Donato determined by way of NCIC look-up that defendants' vehicle was not stolen. The vehicle had an Ohio dealer license plate. The driver, Igor Yanovsky, produced a valid driver's license but was unable to produce a registration or insurance card.*fn3 Upon questioning by Donato, Yanovsky stated that he did not know the identity of the vehicle's owner, but that a friend who worked for a dealer had lent him and Krylov the car to go to New York for three days, and they were now returning to Ohio. Upon visual inspection of the interior of the vehicle (an S.U.V. with no separate trunk compartment), Donato did not observe any luggage. Considering this to be inconsistent with a three day trip, Donato inquired about it. Yanovsky then exited the vehicle, opened the hatch back and pointed out a leather carry-on bag, measuring approximately two feet by three feet, and a plastic trash bag containing articles of clothing. Donato nevertheless persisted in his questioning, separating the two defendants and perceiving some unspecified inconsistencies in their responses to him about "where they were and the amount of time they were there, [and] what they were doing" while in New York.
Donato then requested and obtained from Yanovsky a consent to search the vehicle.*fn4 At 12:28 a.m., nearly one-half hour after the initial stop, Donato began the search. After searching the plastic bag with clothing, he asked who owned the leather bag. When both defendants denied ownership, he opened it. It contained clothing and toiletries. It also contained a manilla envelope, which had inside a heat-sealed bag, containing approximately 1,000 "unmarked tablets," which Donato seized. Subsequent laboratory analysis determined the tablets to be MDMA,*fn5 commonly known as "Ecstasy," a controlled dangerous substance ("CDS"). The seizure of the CDS formed the basis of this prosecution in which defendants have been indicted for possession of a CDS in violation of N.J.S.A. 2C:35- 10a(1) and possession of a CDS with intent to distribute in violation of N.J.S.A. 2C:35-5a(1) and -5b(13).
The trial judge suppressed the seized CDS, finding that the police did not possess a reasonable articulable suspicion that the search would yield evidence of criminal activity.*fn6 That finding is supported by substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 162 (1964).
In Carty, supra, this court, in reliance on Article 1, paragraph 7 of the State Constitution, held that during a routine motor vehicle stop, "in the absence of an articulable suspicion, the request to search to which the driver assented offended the State Constitution." State v. Carty, supra, 332 N.J. Super. at 202. The rationale underlying the Carty decision was based, in part, on a recognition that the New Jersey State Police had in effect a Standard Operating Procedure requiring reasonable, articulable suspicion of their members before requesting a consent to search. Id. at 206. This was acknowledged in the "Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling," issued on April 20, 1999. A similar requirement was included in a Consent Decree entered on December 29, 1999 in a Federal action initiated by the United States of America against New Jersey regarding racial profiling, which provided:
In order to help ensure that state troopers use their authority to conduct consensual motor vehicle searches in a nondiscriminatory manner, the State Police shall continue to require: that state troopers may request consent to search a motor vehicle only where a trooper can articulate a reasonable suspicion that a search would reveal evidence of a crime . . . . [Ibid. (emphasis added).]
The rationale was also based on a need to protect the traveling public from unwarranted "harassment, embarrassment and inconvenience." Id. at 207.
We recognized that under Fourth Amendment analysis such reasonable suspicion was not deemed a prerequisite to requesting a consent to search after a valid motor vehicle stop. State v. Abreu, 257 N.J. Super. 549, 555 (App. Div. 1992); State v. Allen, 254 N.J. Super. 62, 66 (App. Div. 1992). Indeed, one week after Carty, the same Fourth Amendment analysis was followed in State v. Chapman, 332 N.J. Super. 452 (App. Div. 2000). However, in Carty, we recognized that "our Supreme Court [has] held that Article 1, paragraph 7 of our State Constitution may independently 'afford the citizens of this State greater protection against unreasonable searches and seizures than may be required by the Supreme Court's interpretation of the Fourth Amendment . . . .'" Id. at 207 (quoting State v. Alston, 88 N.J. 211, 225 (1981)).
Considering the existing State Police policy and recognizing that baseless requests for consent searches incidental to routine motor vehicle stops are almost always complied with, these searches were deemed to be an appropriate subject of greater protection under the State Constitution. We find the reasoning in Carty to be sound and persuasive, particularly since its underpinnings are grounded, in significant part, on issues of State concern, and we subscribe to it. See State v. Hunt, 91 N.J. 338, 366-67 (1982) (Handler, J., concurring).
The State argues that the holding in Carty should not be given retroactive application. The analysis of this issue begins with the threshold determination of whether that holding is a "new rule of law." State v. Burstein, 85 N.J. 394, 403 (1981). Our Supreme Court has adopted the United States Supreme Court's definition that a "'case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government . . . [or] if the result was not dictated by precedent existing at the time the defendant's conviction became final.'" State v. Lark, 117 N.J. 331, 339 (1989) (quoting Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070, 103 L. Ed. 2d 334, ...