On appeal from Superior Court of New Jersey, Law Division, Cape May County, 02-07-0493.
Before Judges Cuff, Weissbard and Hoens.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted on October 18, 2004
Defendant, William Eckel, appeals from his conviction, after a guilty plea, of third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(3). After his motion to suppress was denied, defendant entered a negotiated guilty plea. See R. 3:5-7(d). Pursuant to the terms of a plea agreement, defendant was sentenced to three years probation conditioned on serving 180 days in the county jail on weekends. Defendant was also required to earn his high school equivalency diploma while on probation and complete an outpatient drug and alcohol treatment program. Appropriate penalties were also imposed, as well as a six-month driver's license suspension.
In this appeal, defendant challenges the validity of a search, which led to discovery of the drugs forming the basis of his conviction. We conclude that the search was illegal and therefore reverse.
We set out the facts developed at the suppression motion hearing. In doing so we note that the motion judge found the State's witness, Patrolman Douglas Whitten of the Lower Township Police Department, to be credible. The judge's determination in that regard, based on hearing and observing the officer in person, is binding on us. State v. Locurto, 157 N.J. 463, 474 (1999).
On June 30, 2002, at about 3:20 p.m., Whitten, a nine-year veteran of the Department, was in his patrol car in the area of defendant's residence on Seashore Road responding to a report of a stolen vehicle. The vehicle was described as a green Mercury Cougar. Mr. and Mrs. Sanfillipo had reported that the vehicle had been stolen by their daughter, Dana, earlier in the day, and that defendant, the daughter's boyfriend, might also be in the vehicle. Whitten also knew that Upper Township had issued an active warrant for defendant's arrest based on defendant's failure to appear for court dates. At the time, Whitten was not aware of the underlying charge, which led to the failure-to appear warrant.*fn1
Whitten waited across the street from defendant's residence and observed a green Mercury Cougar pulling out of the driveway. A young woman, later identified as Dana Sanfillipo, was driving the vehicle and defendant was sitting in the front passenger seat. In addition to Sanfillipo and defendant, a juvenile male was seated in the rear passenger seat. After waiting for the vehicle to pull onto Seashore Road and head southbound, Whitten conducted a motor vehicle stop of the vehicle. Sergeant Jack Beers assisted Whitten on the stop.
Whitten approached the driver's side and asked Sanfillipo for her driver's license, as well as the registration and insurance card for the vehicle, while Beers asked defendant to exit the vehicle on the passenger side. At that point, defendant was arrested on the outstanding warrant and handcuffed. It took Beers a couple of minutes to arrest defendant and place him in the rear seat of Whitten's patrol car, which was parked behind the Mercury Cougar.
After defendant was placed in the patrol car, Whitten asked Sanfillipo to exit the vehicle and go to the back of the car so that he could speak to her off the side of the road. During the course of Whitten's conversation with Sanfillipo, which took place at the back of the Mercury and consumed less than five minutes, Sanfillipo asked to give defendant a kiss. Sanfillipo also asked if she could retrieve defendant's clothing out of the vehicle, but Whitten told her to stay where she was and that he would get it. Whitten would not let Sanfillipo enter the vehicle to get defendant's clothes because allowing her to do so could jeopardize the officers' safety. As Whitten went to retrieve defendant's clothing from the front passenger seat area, and throughout the search that ensued, the juvenile remained in the back seat of the car.
Whitten went to the front passenger side of the vehicle, where the door was still open, and picked up defendant's clothes, which were lying on the floorboard in front of the passenger seat. Underneath the clothing was a New Jersey Bell or Verizon phone book, and lying on top of that was"some green vegetation and stems" that Whitten believed to be marijuana. In the course of his nine years of experience, Whitten had seen marijuana before. Aside from the vegetation, Whitten also spotted an opened box of"Philly" blunt cigars on the rear passenger floor in front of the rear occupant, which contributed to his belief that the vegetation on the phone book was marijuana.
After making these observations, Whitten retrieved a pair of blue denim shorts that were located behind the front passenger seat. A softball-sized baggie was rolled up inside the shorts. Inside this bag was an additional baggie, and inside of that were several different items, including a clear plastic baggie with a white powdery substance inside, a small electronic scale with a tray that had some white residue on it, and several different types of small, glassine baggies. Based on his training and experience, Whitten suspected that the white powdery substance was cocaine.
Whitten then asked the juvenile to step out of the vehicle and continued to search the passenger compartment. Whitten discovered a larger baggie with green vegetation in it, which he suspected to be marijuana, wedged in between one of the rear seats and the door. Both Sanfillipo and the juvenile passenger denied ownership of the suspected cocaine and marijuana found in the car. ...