On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 04-10-2225, 04-09-1836.
The opinion of the court was delivered by: Sabatino, J.S.C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Payne, and Sabatino.
This appeal requires us to review an order sustaining an automobile search following a defendant's arrest, and the seizure of a plastic bag of narcotics found within the automobile. For reasons slightly different than those posited by the trial court, we uphold the search and seizure. Because defendant's challenge to the search and seizure is the sole basis for his appeal, we affirm his convictions for various offenses predicated on the fruits of that search.
On the afternoon of August 15, 2004, Atlantic City Police Officer Frank Timek observed a brown Buick sedan parked in front of the Endicott Hotel. Officer Timek recognized the sedan driver as defendant Ernest Carroll from a photograph that he had been shown earlier that day by another officer, describing Carroll as a suspected new drug dealer in the area. Carroll had been apprehended for drug dealing twelve days before, on August 3, 2004, and was released.
Officer Timek observed defendant enter the hotel building empty-handed and emerge about ten minutes later carrying a bluish plastic bag. Defendant placed the bag on the passenger seat of the Buick and drove away.
After noticing, among other things, that the Buick lacked a license plate or registration tag and that its middle brake light was not working, Officer Timek pursued the Buick in his patrol car and activated his siren and emergency lights. The Buick did not stop. Officer Timek continued to follow the Buick, with another responding patrol car, driven by Officer Richard Lasko, following behind Officer Timek.
During the course of the pursuit, Officer Timek observed defendant attempt to push the plastic bag through the driver's side window. However, defendant was unsuccessful in discarding the bag, as it appeared to Officer Timek that the car window was not open wide enough for the bag to fit through. The officer observed that defendant was having difficulty operating the Buick and simultaneously trying to push the bag through the window.
Not heeding the police siren and lights, defendant drove through the city in a southerly direction at a speed between forty and fifty miles per hour, "jumped a curb," and headed east. Defendant then steered into a casino parking lot, where he crashed the Buick into a parked vehicle. He then ran out of the car, leaving the driver's door open and the plastic bag inside, and attempted to flee on foot.
Arriving at the parking lot at the same time as defendant, Officer Timek got out of the patrol car and stood in Carroll's path, shouting at him to turn around and put his hands up in the air. Carroll ignored these police commands, and instead took what Officer Timek described as "a combative stance," raising his hands and clenching his fists.
Officer Timek attempted to place defendant in custody. The two men struggled. Defendant grabbed Timek's shirt and managed to pull the officer, who was on top of him, into the front seat of the Buick. The struggle continued inside of the vehicle for about thirty to forty seconds. At this point Officer Lasko arrived in the second police car. With Lasko's help, Timek was able to handcuff defendant, pat him down for weapons and remove him from the Buick.
After defendant was removed from the Buick and standing, as Officer Timek estimated, about one car length from the vehicle, Officer Timek reached into the Buick. He retrieved the plastic bag, which the officer testified was in plain view on the floor by the front passenger seat. Suspecting that the bag contained a weapon or contraband, Officer Timek looked inside it. The officer found a large white rock, which he suspected was cocaine, wrapped in clear plastic, a digital scale, and several smaller plastic bags of the kind commonly used for distributing illegal drugs. The officer also retrieved from the Buick identification information and a key on the front seat. The police later determined that the Buick had been stolen about two hours before defendant was observed driving it.
According to Officer Timek's testimony at the suppression hearing, at that point "numerous units" of police cars, which were never quantified in the record, had arrived, along with an EMS unit. The EMS workers treated Officer Timek for a cut on his hand and also treated defendant for some facial injuries. Thereafter, defendant was placed in a patrol car and driven to police headquarters for processing. Officer Timek radioed a supervisor and advised him of the situation, and was then transported by Officer Lasko to the hospital.
Based upon these events, the police stationed a detective in the Endicott Hotel. Later that day, the police applied for a warrant to search a room in the hotel registered to a "Ronald and Tina Wilson," which was suspected to be a place where defendant had conducted drug transactions. Their suspicions were based not only upon the police chase and the seizure of the plastic bag of narcotics from the Buick earlier that day, but also upon other information, including defendant's recent arrest for drug dealing on August 3; the hotel desk clerk's observations of defendant carrying plastic bags out of the hotel and repeatedly coming in and out of the hotel; and defendant's use of a false name ("Ronald Wilson") to register a room at a different hotel.
When presented with an affidavit outlining these details, a municipal judge issued the requested search warrant that evening, finding that there was ample probable cause to justify the search. At about 11:00 p.m., the police executed the search warrant and found in the hotel room several white rocky substances later confirmed to be cocaine, other drug paraphernalia, and three photographs of defendant along with prescription medication in his name.
Defendant was subsequently indicted in Atlantic County on seven charges stemming from the events of August 14, 2004. The charged offenses included third-degree possession of a controlled dangerous substance (CDS), cocaine, in violation of N.J.S.A. 2C:35-10a(1); second-degree possession of at least one-half of an ounce of cocaine, in violation of N.J.S.A. 2C:35-5a(1) and -5b(2); second-degree possession of cocaine with intent to distribute it within 500 feet of a public housing facility, park or building, in violation of N.J.S.A. 2C-35-7.1; third-degree aggravated assault on a police officer (Officer Timek), in violation of N.J.S.A. 2C:12-1b(5); second-degree eluding police causing a risk of death or injury, in violation of N.J.S.A. 2C:29-2b; third-degree resisting arrest by use or threat of physical force against a police officer, in violation of N.J.S.A. 2C:29-2a(1); and third-degree receipt of stolen property, a Buick automobile, in ...