On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. I-3011-09-98.
Before Judges Wefing, Parrillo and Bilder.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following denial of his motion to suppress evidence, and after a bench trial, defendant Mario Sirianni was found guilty of third degree possession of LSD, in violation of N.J.S.A. 2C:35- 10a(1). He was sentenced to five years probation. Appropriate fines and fees were imposed and his driving privileges were forfeited for six months. Defendant now appeals from the denial of his motion to suppress evidence. We affirm.
These are the salient facts. In the early morning of June 6, 1998, Bellmawr police were conducting a stakeout of a home on West Browning Road where they believed a homicide suspect would return. The two officers did not have detailed information about the suspect, beyond his name and a limited description of a white male.
At approximately 2:20 a.m., the officers observed defendant drive a vehicle into the area and park along the curb of West Browning Road, a door or two down and on the opposite side of the street from the house under surveillance. Defendant, however, did not emerge from the car. Instead, he dimmed the lights and reclined back on his seat, appearing to the officers to be observing their activities.
The officers requested the radio dispatcher to "run" the license plate of the vehicle and then approached the car to investigate. They observed defendant apparently asleep, and something was burning in the ashtray. There was also a black bag on the front passenger seat in plain view. The officers tried to get defendant's attention by knocking on the window and, after several attempts, defendant opened the door, appearing startled and disoriented. It then became evident that the substance burning in the ashtray was incense.
The officers, one of whom was wearing a police uniform, identified themselves as police and asked defendant for his name and credentials. Defendant responded that his name was Mario Sirianni and that he lived at his friend's house where defendant had parked in front. By then, the officers had learned from the computer check that the car was registered to "Mario Sirianni" with a Camden post office box address. As defendant looked for his credentials, he leaned to open the glove compartment, whereupon the officers observed what they recognized as marijuana in a glassine bag sticking out of the left pocket of defendant's jacket. Defendant exited the vehicle at the officers' request and was arrested. A subsequent pat-down search incident to the arrest revealed another bag of marijuana in defendant's pants pocket.
Because the officers still lacked positive personal identification of defendant, they asked him again where his identification was. Defendant replied that his identification was in the black bag on the front passenger seat. The officers then opened the bag to retrieve the identification and discovered a bag of marijuana as well as what appeared to be strips of paper saturated with LSD. The officers found defendant's driver's license, which indicated a Camden address, in the black bag.
As noted, the trial judge denied defendant's motion to suppress:
The question then is was criminal activity afoot or under the community caretaking standard was this a situation that required at least an investigation by approaching the defendant . . . The officer did approach the vehicle and he observed Mr. Sirianni seated with his head back and it appeared that he was asleep but he didn't know whether he was faking. There was an unknown substance, which was later determined to be incense, burning in the ashtray. Even though there was a repeated knock on the window, the defendant didn't awaken until he finally did and it was in a very surprised fashion and at that point, as the officer testified, he sprung the door open. So now there is a clear view into the vehicle.
The officer ran a tag search on the vehicle and it was reported in the name of Sirianni, I would take it Mario Sirianni, with a post office box address in Camden. Yet when speaking to Mr. Sirianni and asked why he was in the area, he said he lived or was staying at 911 West Browning Road. There is a distinction between 911 West Browning Road and Camden. Cause one is Bellmawr, the other is Camden.
I warrant, at this point, there is the Lark situation because there is no arrest and to go any further because the defendant has been asked now for his identification and while he attempted to find it, that's when the contraband was observed by Officer Kenney. He did notice, as the defendant leaned across the vehicle to go into the glove compartment, a glassine bag in his ...