On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 03-10-1944.
Before Judges Braithwaite, Lisa and Winkelstein.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2005
This appeal concerns the warrantless search of the passenger compartment of an automobile in connection with a stop and arrest for driving while intoxicated (DWI), N.J.S.A. 39:4- 50(a). As a result of the search, the police found and seized a loaded handgun and defendant was indicted for its unlawful possession. N.J.S.A. 2C:39-5b. The trial judge granted defendant's suppression motion. He found that the search did not qualify for the search incident to arrest exception to the warrant requirement under the bright-line rule interpreting the Fourth Amendment of the United States Constitution laid down in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed. 2d 768 (1981), because in State v. Pierce, 136 N.J. 184, 208 (1994), our Supreme Court held"that under article I, paragraph 7 of the New Jersey Constitution the rule of Belton shall not apply to warrantless arrests for motor-vehicle offenses." The judge further found that the search did not satisfy the requirements of the automobile exception because the police had no probable cause to believe the automobile contained evidence of the offense for which defendant was arrested (namely open containers of alcohol) nor were exigent circumstances present. See State v. Cooke, 163 N.J. 657, 661 (2000).
Because the evidence needed to support the State's case was suppressed, the indictment was dismissed. The State appeals, contending the search was valid under both of the mentioned exceptions. We hold that the search was valid under the automobile exception and reverse.*fn1 We therefore find it unnecessary to determine whether the search incident to arrest exception applies.
On July 13, 2003 at 3:25 a.m., Trooper David Feldstein was patrolling the Atlantic City Expressway with his partner, Trooper Brian Carswell. Defendant was driving an automobile with one front-seat passenger. The troopers observed defendant quickly pull out of the toll plaza, cut across several lanes, pass another vehicle on the shoulder, and exit the Expressway.
Because of the observed traffic violations, the troopers followed defendant and uneventfully pulled him over on a local street.
Feldstein approached the driver's side and Carswell approached the passenger's side. With both occupants in the car, Feldstein conversed with defendant, checking his credentials. Feldstein detected an odor of alcohol and asked defendant if he had been drinking, which he denied. When asked if the passenger had been drinking, defendant acknowledged he had. When defendant was asked to identify the passenger, defendant provided an incorrect name. Feldstein asked defendant to exit to the rear of the vehicle, where he again inquired whether defendant had been drinking. This time defendant said he"might have had one." While Carswell stayed with the passenger, who remained seated in the vehicle, Feldstein performed a series of field sobriety tests on defendant.
Feldstein determined, based on his observations of defendant and defendant's performance of the tests, to arrest him for DWI. He searched and handcuffed defendant behind his back and placed him in the back seat of the troop car, which was parked behind defendant's vehicle. He informed defendant he would take him to the stationhouse to administer a Breathalyzer test. The trial judge found Feldstein's testimony credible and found that he had probable cause to believe that defendant was intoxicated. The finding is amply supported by the record and we will not interfere with it. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 162 (1964).
At that point the passenger, who had called his girlfriend on his cellular phone and made arrangements for her to pick him up at a nearby location, was allowed to leave. He exited the vehicle and walked away. About four minutes later, pursuant to"standard operating procedures," Feldstein advised dispatch that he would"be doing a search incidental." The two troopers then opened the two front doors of defendant's vehicle and searched the passenger compartment, one leaning in from each side. In the center console, they found a loaded handgun. There is no suggestion that the console was locked. It was large enough to hold an alcohol container. The search of defendant's person revealed that he possessed a cellular phone.
The troopers"cleared" the stop at 3:55 a.m. During the half-hour duration of the stop, fifty-one vehicles passed by, as documented by the videotape of the incident, which is part of the evidentiary record. During that interval, there was considerable police radio discussion regarding a serious accident on the Expressway, with injuries, emergency vehicles and traffic backing up. All available units were requested to respond. Before leaving the scene, Feldstein requested that dispatch send a tow truck to impound defendant's vehicle, see N.J.S.A. 39:4-50.23, and advised,"keys rear driver's side tire." The tow truck arrived as the troopers departed.
Warrantless searches are presumed invalid, and to establish validity the burden is on the State to establish that the search falls within one of the recognized exceptions to the warrant requirement. State v. Patino, 83 N.J. 1, 7 (1980). The search incident to arrest exception finds its historical rationale in the need to disarm an arrestee so he can be safely taken into custody and to preserve evidence for later use at trial. Knowles v. Iowa, 525 U.S. 113, 116, 119 S.Ct. 484, 487, 142 L.Ed. 2d 492, 498 (1998). The exception deems reasonable under the Fourth Amendment the search of the person of the arrestee and the area within the arrestee's immediate control, where he might reach and grab a weapon or evidentiary item. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed. 2d 685, 694 (1969).
In the context of a motor vehicle stop, the United States Supreme Court has adopted a bright-line rule authorizing the search of the passenger compartment and containers found within the passenger compartment upon the stop and lawful custodial arrest of a motorist. Belton, supra, 453 U.S. at 460, 101 S.Ct. at 2864, 69 L.Ed. 2d at 774-75. The Court predicated the rule on"the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within'the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m].'" Ibid. (citing Chimel, 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed. 2d at 694). The Court thus reasoned that to establish a consistent and workable rule in motor vehicle cases, it would"read Chimel's definition of the limits of the area that may be searched in light of that generalization" thereby permitting the search of the vehicle"as a ...