On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-5489-00.
Before Judges Stern, Collester and Lintner.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiffs, Richard Freeman and John Jones, appeal from a July 3, 2001 Law Division order dismissing, with prejudice, plaintiffs' complaint against defendants State of New Jersey; Justice Peter Verniero, in his capacity as Attorney General; Trooper Antonio Casais; Trooper Osiliva; and Trooper Hemely.*fn1
Judge Uhrmacher found that plaintiffs' complaint, which alleged deprivation of various rights under the United States and New Jersey Constitutions, was barred by the running of the statute of limitations. We agree and affirm.
We combine the procedural history and relevant facts. On June 27, 1996, plaintiffs were stopped on the northern end of the New Jersey Turnpike by Trooper Casais. The specific facts concerning the stop and the ensuing search of the vehicle are set forth at length in our opinion in State v. Jones, 326 N.J. Super. 234, 237-39 (App. Div. 1999), decided on December 3, 1999. They are as follows:
On June 27, 1996 at 5:42 p.m., during rush hour, Jones was operating Freeman's Mercury Sable on the northern end of the New Jersey Turnpike in the southbound inside lane. Freeman was seated in the right front passenger seat and Michael Gonzalez was seated in the rear. At the time, Trooper Antonio Casais was traveling behind the defendants when he observed defendants' vehicle make a lane change from the left lane to the middle lane without displaying a turn signal.
Having observed no signal, Trooper Casais activated his overhead lights in order to effectuate a motor vehicle stop. According to Trooper Casais, the driver pulled the car over to the shoulder approximately fifteen seconds after the trooper had activated his overhead lights, having traveled approximately two-tenths of a mile. Trooper Casais then alerted headquarters of the stop, after which he approached defendants' vehicle on the driver's side. He asked Jones for his credentials. After producing his license, Jones activated his directional signal in response to the trooper's request. Though the blinker gave an audible signal, the dashboard light was not working. At Trooper Casais's direction, both he and Jones went to the back of the vehicle where both observed that the blinker light was working.
After speaking with Jones, at the rear of the vehicle, Trooper Casais detected an odor of alcohol on Jones's breath, as a result of which he asked Jones if he had been drinking. Jones responded "I'm not going to lie to you because I had a bottle of Heineken." At this point in time, backup Troopers Osiliva and Hemely arrived. After conducting a pat-down search of Jones which revealed no weapons, Trooper Casais directed Freeman and Gonzalez to exit the vehicle. Both passengers were searched for weapons, none were found. While the three occupants of the vehicle were waiting behind the Mercury with the two backup troopers, Trooper Casais commenced a search for open containers of alcohol by going to the driver's side of the vehicle and looking in the immediate area of the driver's seat for alcohol containers. Underneath the driver's seat he found a plain plastic bag containing a white substance which he believed to be cocaine. The driver and both passengers were placed under arrest and given their Miranda warnings.
Trooper Casais returned to the car to conduct a further search. On the right front floor in front of the passenger seat he found a black plastic bag containing a zip-lock bag with a larger quantity of cocaine. Underneath the front arm rest a brown bag containing 500 zip lock bags was found. The subsequent tests performed by the State Police laboratory revealed that the bag underneath the driver's seat contained .48 ounces of cocaine while the bag on the front passenger floor contained 5.82 ounces of cocaine. [Id. at 237-39.]
Plaintiffs were arrested and subsequently indicted by a Bergen County Grand Jury on October 10, 1996. Their motion to suppress the evidence was denied by the trial judge on October 8, 1997. The trial judge found that the smell of alcohol on Jones's breath, combined with his admission of consumption of beer, his apparent nervousness, his failure to use the turn signal and what Trooper Casais believed was an unusually long time to stop the vehicle, established probable cause. Following the motion to suppress, plaintiffs were tried and convicted by a jury of first- degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(1), and third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), and sentenced to custodial terms.
On May 4, 1998, plaintiffs appealed their convictions, contending that Trooper Casais lacked probable cause to search the vehicle and that the warrantless search of the vehicle and seizure of evidence represented a violation of their Fourth Amendment rights under the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution. Additionally, Freeman contended for the first time on appeal, in a pro se supplemental brief filed on September 3, 1999,*fn2 that he was a victim of a racially motivated profile stop. Jones, supra, 326 N.J. Super. at 237, n.2. Jones also contended that the stop was not justified, arguing that the evidence presented at the suppression hearing was insufficient to show that Trooper Casais had a valid basis to stop the vehicle.
We declined to hear Freeman's claim that the stop was a result of selective enforcement, noting that it was improperly before us because it had not been raised by motion before the trial judge and there was no record to support the claim. Id. (citing State v. Marain, 322 N.J. Super. 444, 447 (App. Div. 1999)). We validated the stop but reversed the judgment of conviction and remanded for further proceedings concluding that, under the circumstances, the State failed to establish that there was probable cause to search the vehicle and, therefore, the evidence seized should have been suppressed by the trial judge as violative of the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution. We were advised at oral argument on this appeal that ...