On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 97-12- 1130-I and 98-10-929-A.
Before Judges Stern, Eichen and Parker.
The opinion of the court was delivered by: Eichen, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2002
Following denial of his motion to suppress, defendant Brian L. Pegeese entered a guilty plea to first degree possession of a controlled dangerous substance with intent to distribute (cocaine) (count two), N.J.S.A. 2C:35-5a(1) and b(1) and N.J.S.A. 2C:2-6, and second degree possession of a controlled dangerous substance with intent to distribute (heroin) (count four), N.J. S. A. 2C:35-5a(1) and b(2) and N.J.S.A. 2C:2-6, charged in Indictment No. 97-12-1130-I. He also pleaded guilty to Accusation No. 98-10-929-A charging him with second degree possession of a controlled dangerous substance with intent to distribute (count one), N.J.S.A. 2C:35-5b(2), and third degree possession of a controlled dangerous substance within 1,000 feet of a school zone (count two), N.J.S.A. 2C:35-7.
The judge sentenced defendant on count two of the indictment to ten years in prison with a parole ineligibility term of five and one-half years, and to five years in prison on count four, to run concurrent to count two. On the accusation, defendant was sentenced on count one to five years in prison with a parole ineligibility period of four and one-half years, and, on count two, to five years in prison with a parole ineligibility period of four and one-half years, to run concurrent to count one and concurrent to counts two and four of the indictment.
The facts underlying the motion on the indictment were developed solely from the testimony of Trooper Brian Long. On May 21, 1997, at approximately 1:40 a.m., defendant was a passenger in a 1989 red Buick Riviera driven by co-defendant Troy Kelly *fn1 and traveling westbound on Interstate Route 80. Trooper Long and his partner Trooper Frank Monte were patrolling in the area when they observed the Riviera in the left lane traveling at "a high rate of speed." Trooper Long pulled in behind the vehicle and paced it for "a short period of time" traveling sixty-eight miles per hour in a fifty-five mile per hour zone. Suddenly, without using its directional, the vehicle cut sharply across two lanes without signaling and exited Route 80 at Exit 59. Trooper Long activated his overhead lights and followed the vehicle off the roadway, pulling it over on Market Street in the City of Paterson.
Prior to executing the stop, Trooper Long called in the license plate number to check whether the vehicle had been stolen. He did not receive a report of the vehicle's status until after defendant had been arrested.
Trooper Long approached the driver's side of the vehicle and Trooper Monte went to the passenger side. In response to Trooper Long's request of the driver for his driving credentials, Kelly stated he did not have a driver's license, but produced a vehicle registration for the car. The registration was in the name of a third person, Janelle Davis, who was not present in the vehicle. Kelly then advised Trooper Long that his license had been suspended.
Trooper Long instructed Kelly to exit the vehicle and had a brief conversation with him in front of the car concerning their recent whereabouts. He then approached the passenger, later identified as defendant, who was still seated in the vehicle, and had "a brief conversation" with him. Based on those conversations, the trooper decided to ask the driver if he would consent to a search of the car because defendants' stories were "different" and "conflicting," they had no identification, or driver's license, and the check on the registration had not yet been received. Kelly consented to the search and signed the consent to search form. As a result of the search, Trooper Long found a blue plastic bag containing eight ounces of cocaine and approximately 350 "decks" of heroin in the door vent on the passenger's side.
On appeal, defendant raises the following arguments:
POINT I SINCE THE STATE TROOPERS LACKED A REASONABLE SUSPICION THAT THE CO-DEFENDANTS HAD ENGAGED IN ANY CRIMINAL ACTIVITY, THEIR REQUEST FOR CONSENT TO SEARCH THE VEHICLE WAS IMPROPER, KELLY'S CONSENT TO SEARCH WAS INVALID, AND THE TRIAL COURT SHOULD HAVE SUPPRESSED THE EVIDENCE FOUND IN THAT SEARCH.
POINT II BOTH THE FEDERAL AND STATE CONSTITUTIONS PROSCRIBE THE POLICE FROM EXPANDING THE LEGITIMATE SCOPE OF A TERRY *fn2 STOP BY SEEKING EVIDENCE OF UNRELATED OFFENSES WITHOUT A REASONABLE, ARTICULABLE SUSPICION THAT THE ...