On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 98-2-499-I.
Before Judges Stern, Eichen and Lintner.
The opinion of the court was delivered by: Eichen, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2001
This appeal arises from the warrantless search of an automobile stopped by a State trooper on the Atlantic City Expressway for speeding. The search was conducted under the "automobile exception" to the warrant requirement. Defendant Danelle Hammer was an occupant of the automobile. Cocaine was discovered in the glove box and luggage found in the trunk. Defendant lost her motion to suppress the evidence and pleaded guilty to first degree possession of cocaine, in a quantity of five ounces or more, with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 5(b)(1). In accordance with the terms of the negotiated plea, defendant received a ten-year sentence of imprisonment, three and one-third years to be served without parole. Statutory fines and penalties were imposed.
On appeal, defendant contends that her motion to suppress should have been granted because the State lacked probable cause and exigent circumstances to justify the warrantless search of the automobile trunk and its contents. Defendant further asserts that her guilty plea should be vacated because the State did not utilize the guidelines established under State v. Brimage, 153 N.J. 1 (1998), before making its plea offer.
We hold that the State trooper investigating the motor vehicle stop in this case did not violate defendant's rights under the Fourth Amendment of the United States Constitution or under Article I, Paragraph 7 of the New Jersey State Constitution. However, we conclude that defendant is entitled to a remand of the matter so that the prosecutor, utilizing the Brimage guidelines, can engage in appropriate negotiations with defendant concerning a sentence recommendation.
The facts leading to the search and subsequent arrest of defendant are undisputed and are derived solely from evidence presented by State Trooper Christopher Dean Rocap. On the afternoon of December 21, 1997, at approximately 1:00 p.m., Trooper Rocap was operating a stationery radar at milepost 14.8 eastbound on the Atlantic City Expressway, when he clocked a 1982 Cadillac with Pennsylvania license plates traveling eighty miles per hour in a fifty-five mile per hour zone. He activated his overhead lights and pulled over the vehicle for speeding. Upon approaching the driver's side of the vehicle, Trooper Rocap observed open containers of Budweiser beer in the car. A female, later identified as defendant, was seated in the rear of the car, and two males were in the front. The driver was later identified as Ronald Hammer, defendant's husband. Seated beside him was co-defendant John Weigel.*fn1
Mr. Hammer advised the officer that he owned the vehicle but was unable to provide a license or any other driving credentials to the trooper. Trooper Rocap then instructed Mr. Hammer to exit the vehicle. He complied and, as he exited, two hollow point bullets fell to the ground from his coat. Fearing that one of them might have a gun, Trooper Rocap drew his weapon and ordered the other two occupants to keep their hands where they could be seen and to step out of the car. After patting each person down with negative results, he directed them to lay on the ground, handcuffed Mr. Hammer and Mr. Weigel with the only two sets of handcuffs he had, and called for back-up assistance.
After the back-up unit arrived, Trooper Rocap searched the interior of the vehicle for weapons. The search revealed a small digital scale and a metal pipe under the front seat, but no weapon. A search of the glove box disclosed ten hypodermic needles in a sealed bag and "a zip-lock bag full of white powder substance." No weapon was found in the interior of the car. Trooper Rocap seized the cocaine, and then asked each of the car's three occupants if they "knew anything about the drugs that were in the vehicle." All three denied any such knowledge.
After completing his search of the vehicle's interior, Trooper Rocap asked defendant if there were any narcotics or weapons in the trunk. Defendant stated that he had "never" been in the trunk of the car. Trooper Rocap then checked the lock on the trunk and observed "a punched out hole" with "no lock whatsoever." There was no key to the trunk or the doors of the vehicle. Only an ignition key was present. The trooper then went back into the glove compartment and pressed the electronic trunk release button and the trunk opened. Inside the trunk was a locked black briefcase and a red duffle bag. Trooper Rocap unzipped the duffle bag and observed personal items inside with Mr. Hammer's name on them. "[M]ore CDS and more hypodermic needles" were located in another zipped compartment of the bag. Trooper Rocap then cut open the locked briefcase and discovered "more small packages of a white powder substance," and various drug paraphernalia. Metal spoons, and additional smoking pipes were also found in the briefcase. No weapon was found in the trunk.
At the close of the hearing, the judge reviewed the evidence concluding that probable cause existed to justify a warrantless search of the trunk and its contents and that since the vehicle could have been impounded and driven to the police station and searched, a highway search conducted without a warrant was permissible. The judge did not address the exigency requirement.
"A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); State v. Alston, 88 N.J. 211, 230 (1981). Moreover, the State has a heavy burden in seeking to validate a warrantless search by bringing it within one of those exceptions. Ibid. One of those exceptions is the "automobile exception" which permits warrantless searches of readily movable vehicles if law enforcement officers have probable cause to believe the vehicle contains evidence of a crime. Cooke, supra, 163 N.J. at 664. "The rationale for this exception is grounded in the exigent circumstances created by the inherent mobility of vehicles and the somewhat lessened expectation of privacy in one's vehicle." Id. at 667 (quoting State v. Patino, 83 N.J. 1, 9 (1980)). This "lessened expectation of privacy," when ...