On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, 96-11-00546.
Before Judges Stern, A. A. Rodriguez and Collester.
The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 24, 2001
In this appeal, arising from a warrantless search of a motor vehicle by a New Jersey State Trooper, we hold that, although defendant has pleaded guilty to the charge, a racial profiling defense can be raised for the first time on appeal because defendant challenged the validity of his consent to search the vehicle by way of a pre-trial motion to suppress.
Defendant, James Payton, moved to suppress evidence of 187.9 grams of cocaine seized during a traffic stop. After the motion was denied by Judge Martin A. Herman, defendant pled guilty, pursuant to an agreement with the State, to first degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(1). In exchange, the State agreed to dismiss related charges and to recommend the following sentence: a custodial term between fifteen to twenty-five years with a sixty- five to seventy-one month period of parole ineligibility. Judge Joseph F. Lisa, granted the State's motion for an extended term and imposed a twenty-five year term with a sixty-eight month period of parole ineligibility.
Defendant's motion to suppress did not raise an issue of racial profiling or selective enforcement. Rather, the motion challenged the validity of his alleged consent to a search of the motor vehicle he was operating. Only one witness, New Jersey State Police Corporal Peter K. Bethune, testified at the hearing on the motion to suppress. His testimony can be summarized as follows. On June 18, 1996, Bethune was patrolling the New Jersey Turnpike in East Greenwich and Woolwich Townships. At approximately 1:05 a.m., Bethune observed a red, four-door 1996 Ford Taurus GL, with a New Jersey license plate, traveling southbound at seventy-six m.p.h. in a fifty-five m.p.h. zone. The Taurus was also swerving. Bethune activated the patrol car's overhead lights and siren. The Taurus traveled for approximately one hundred feet before stopping. Because the Taurus took some time to pull over, and Bethune was alone, he contacted another patrol unit for assistance. Bethune approached defendant, the driver of the Taurus.
Co-defendant, Darren O. Roe, was the passenger. Defendant gave his driver's license to Bethune and told him that the Taurus was rented. He tried unsuccessfully to find the rental agreement and explained that he had left it at home. According to Bethune, defendant "had a very nervous demeanor." Defendant's hands shook when he handed the officer his driver's license. For this reason, Bethune asked defendant to exit the Taurus. Defendant complied.
Bethune asked defendant, out of Roe's earshot, his destination. Defendant responded that he was going to Delaware to meet a girl named Theresa. He had met her in New York the previous week. He planned to call her when he reached the first rest area in Maryland. Defendant also admitted that he had been speeding. Because defendant stated that the girl he planned to visit lived in Delaware, but would be bypassing Delaware to call her from Maryland, Bethune asked him if he had her phone number. Defendant did not. Bethune asked defendant to identify his passenger. Defendant replied that it was his cousin Darren, but he did not know his last name.
Around this time, Troopers Philippi and Og arrived at the scene. Bethune asked Roe to exit the Taurus. The passenger complied. He identified himself as Nafis Roe and said that he had no idea where his cousin was going. He stated that he was just going along for the ride.
Based on defendant's and Roe's nervous demeanor and their conflicting statements, Bethune asked defendant if he would sign a consent form to a search. Defendant read the consent form. Bethune also read the form aloud to defendant, and explained what it meant. According to Bethune, defendant said that he understood his rights and signed the form.
After the form was signed, Trooper Philippi asked defendant, who owned the telephone attached to the Taurus' lighter plug. Defendant replied that the phone did not belong to him, but to a friend. He did not have the name of that friend or where he lived. Trooper Philippi, who had been trained in the identification of cloned telephones, checked the serial number. He determined that the telephone in the Taurus was a cloned telephone. At this point, defendant was placed under arrest for possession of a cloned telephone. Trooper Og then found, in the back seat, a package wrapped in clear plastic containing 187.9 grams of crack cocaine. At this point, Roe was also ...