On appeal from the Superior Court of New Jersey, Law Division, Essex County, 99-05-2028.
Judges Eichen, Steinberg and Weissbard.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
As amended September 12, 2001
Defendant appeals his judgment conviction entered on a plea of guilty to possession of cocaine, N.J.S.A. 2C:35-10a(1), and possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(1). He was sentenced to five years of imprisonment with a two-year period of parole ineligibility. The plea was entered after the denial, without an evidentiary hearing, of defendant's motion to suppress cocaine seized from his shoes by a United States Customs officer at Newark International Airport on March 22, 1997 as he arrived from Jamaica. On appeal defendant raises the sole contention that the trial court erred in denying the motion, at least without the benefit of a full evidentiary hearing. For the reasons which follow, we affirm.
The State took the position that an evidentiary hearing was not required since there were no material facts in dispute. R. 3:5-7(c); State v. Kadonsky, 288 N.J. Super. 41, 45-46 (App. Div.), certif. denied, 144 N.J. 589 (1996). The rule provides that the filing of a motion by a defendant asserting that evidence to be used against him was seized in a warrantless search triggers a requirement that "the State shall, within fifteen days of the filing of the motion, file a brief, including a statement of facts as it alleges them to be, and the movant shall file a brief and counter statement of facts no later than three days before the hearing." It is only when the defendant's counter statement places material facts in dispute that an evidentiary hearing is required. State v. Hewins, 166 N.J. Super. 210, 213-15 (Law Div. 1979), aff'd, 178 N.J. Super. 360 (App. Div. 1981). The mere allegation of a warrantless search, with the attendant burden of proof on the State to justify same, does not place material issues in dispute, nor does defendant's assertion that he denies the truth of the State's allegations. Id. at 214.
In this case the substance of the rule, although not the precise form, was complied with by the State's proffer of a two- page police report dated March 23, 1999 from the Port Authority of New York and New Jersey setting forth the circumstances under which the drugs were seized on March 22, 1999. The Assistant Prosecutor summarized the report as follows:
Judge, according to the report a U.S. Custom inspector by the name of Robert McNally selected Mr. Green on the day in question for an enforcement exam. He was arriving from Jamaica, which is a known drug source country. His airline ticket had been paid for in cash the same day that it was purchased. He had no checked bags. At that time he stated he was – - would only be here for four days. He had made numerous trips in the last three years to this country; however, this was his first trip to Newark.
During the interview he appeared to be extremely nervous. It's noted here he had a trembling voice, he avoided eye contact with the custom officer, a pat down was conducted, and they noticed during the pat down that his shoes appeared to be unusually heavy. When they probed further, they found a white powdery substance in his shoes made out like shoe pads or inserts and it was five hundred 79 grams of what appeared to be cocaine.
Those are the facts set out by the U.S. Customs Office through Police Officer Michael Milne who actually made the arrest after Customs detained Mr. Green and found cocaine in his shoes.
Immediately thereafter, apparently in an effort to create disputed issues of material fact, defendant testified under oath. As we have noted, testimony was not required by the rule; a counter statement of facts contained in a brief would have been sufficient. Nevertheless, defendant's version of the events of March 22, 1997 was as follows.
Defendant testified that he arrived at Newark International Airport at 9:47 p.m. Upon deplaning, he went to immigration where they checked his documents and stamped his passport. After immigration, defendant proceeded to customs where a U.S. Customs official approached him.*fn1 The inspector then asked defendant if he could search his carry-on bag. Defendant proceeded to place the bag at his feet, whereupon the customs agent patted the defendant down. The customs official then asked for defendant's airline ticket and passport, which defendant gave to him. Thereafter, the customs agent proceeded to pick up the bag and a box containing duty-free rum that defendant was carrying and asked the defendant to come over to the customs desk with him. The customs agent searched the bag and the box, finding nothing of an illegal nature. Following the search, the customs inspector asked defendant a series of questions relating to his present trip to Newark, including where he was planning on staying in New Jersey, whether he had family in the area, and how long he planned on staying in the area. Thereafter, the customs official asked defendant to proceed into a private room where he ordered defendant to unbutton his shirt and pants and remove his shoes. According to defendant, he removed his shoes and placed them on a table, started to unbutton his shirt and pulled the belt from his pants. At that point the customs official picked up the shoes, left the room for a moment and upon returning twice "bent" the shoes in front of defendant. The customs agent then inquired of defendant why the shoes were "unusually heavy" and asked what was inside the shoes. Defendant responded that the shoes were brand new and that there was nothing in them. The customs official proceeded to puncture the sole of one or both shoes, revealing the cocaine.*fn2 It does not appear that defendant ever disrobed before the cocaine was discovered.
After hearing argument, the court reserved decision and on September 20, 1999, issued an oral ruling denying defendant's motion. The court stated that in the context of the line of cases dealing with the conduct of stops, pat-downs, examinations of people, luggage and clothing by custom personnel and factors attendant to those activities, I cannot find and do not find in this case that the defendant here presents any material facts justifying ...