Before Judges Pressler, Ciancia and Hoens. *fn1 On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 99-05-0469-I.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal addresses the question of whether drugs found on a person who was recently a passenger in a vehicle constitute probable cause to search that vehicle. On the facts presented we hold that probable cause was not established.
Following the denial of his motion to suppress evidence, defendant Larry D. Wilson pled guilty to third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); and third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. The plea agreement specifically noted defendant's reserved right to appeal the denial of his motion to suppress. *fn2 Defendant qualified as a persistent offender pursuant to N.J.S.A. 2C:44-3a and the State successfully moved for an extended-term sentence. At sentencing the offenses merged into the third-degree crime of possessing cocaine with intent to distribute within 1000 feet of school property. The extended term imposed for that crime was six years with a three-year period of parole disqualification. Appropriate fees and penalties were also imposed.
On appeal defendant contends the motion to suppress was erroneously denied and his sentence was excessive. We agree the motion to suppress should have been granted and, therefore, do not reach the excessive sentence issue.
The facts developed at the suppression hearing are as follows. During the early morning hours of February 20, 1999, two Paterson police officers on motor patrol saw a vehicle being driven by a man, later identified as Floyd McDonald, Jr., with defendant as a front seat passenger. The car was not violating any motor vehicle law, but one of the officers believed there were outstanding warrants against defendant.
He thought the warrants were for "contempt." The McDonald vehicle stopped and parked, its occupants apparently unaware of the police presence. McDonald and defendant exited the vehicle. Defendant started to walk across the street when the police called to him and defendant then began to walk toward the police. Defendant was escorted to the police car and arrested based upon the warrants outstanding against him. Defendant's hands were inside his sleeves and the police told him to extend his arms so that he could be handcuffed. As defendant complied, a bag of marijuana dropped from his right sleeve and six bags of crack cocaine fell from his left sleeve. Defendant was handcuffed and placed in the police car.
McDonald, meanwhile, had been walking toward the police car when all this was occurring. Neither police officer knew McDonald, and he apparently produced a valid driver's license.
The officers did not check the ownership of the car McDonald was driving. One of the officers traced defendant's steps from the McDonald vehicle to the police vehicle in an effort to see if any more drugs had dropped on the ground. No additional drugs were found. Without seeking consent, the officer then opened the passenger side door of the McDonald vehicle to see if there were additional drugs or paraphernalia. He saw suspected drugs in the "map pocket" located on the lower portion of the passenger side door. The drugs had not been in plain view and could not have been seen if the car door had remained closed. The suspected narcotics turned out to be fifty bags of crack cocaine. Defendant moved to suppress those drugs as well as the drugs that fell from his sleeves.
The trial court issued a written decision finding, in part, that the drugs dropped from defendant's sleeves had been properly seized. We agree and, in fact, defendant does not now contend otherwise. The trial court then went into an analysis of the automobile exception to the normal requirement that a search warrant must be obtained to comply with the requirements of the Federal and State constitutions. *fn3 The trial judge found that the discovery of drugs on defendant's person constituted probable cause to search the vehicle. He also found exigent circumstances because there was, in his view, a possibility that McDonald would destroy the evidence if one of the officers left to get a warrant and the other was occupied guarding defendant. He also believed it possible that third parties could have access to the drugs in the car. The penultimate paragraph of the court's opinion sums up the rationale for denying the motion to suppress.
Accordingly, this Court finds that the officers were entitled to approach Wilson and conduct a field inquiry. Prior [subsequent?] to that field inquiry, illegal narcotics were recovered from Wilson which gave probable cause to believe that the motor vehicle contained narcotics. Furthermore, the vehicle was readily mobile and accessible to third persons, who could have moved the car or destroyed its contents. This Court is satisfied that under the facts of the present case, the search of the automobile was valid because both probable cause and exigent circumstances existed.
We disagree. It is clear that the only arguable basis for a warrantless search of McDonald's vehicle was the "automobile exception." That exception "permits police to stop and search a moving or readily moveable vehicle when there is probable cause to believe the vehicle contains criminally related objects. 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." State v. Patino, 83 N.J. 1, 9 (1980). The federal courts have moved away from the concept of exigent circumstances in favor of a "lesser expectation of privacy" standard, but the New Jersey courts maintain the traditional test. State v. Cooke, 163 N.J. 657, 666-671 (2000). That difference aside, both state and federal courts agree that probable cause to search must exist as the sine qua non of a search. Neither exigency of circumstances nor lowered expectations of privacy substitute for the requirement of probable cause.
Simply put, defendant's possession of drugs on his person without more, does not provide probable cause to search his last known place of occupancy. We have found no ...