On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-08-0109.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Payne and Sabatino.
The issue presented by this appeal is whether law enforcement officers may conduct a warrantless search of the contents of a container in the possession of an arrestee even if the arrestee no longer has access to the container when the search is conducted. We conclude that such a search, if conducted contemporaneously with the arrest, is a valid search incident to an arrest under both the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution.
Defendant and his brother Babatunde Oyenusi were indicted on two counts of Medicaid fraud, in violation of N.J.S.A. 30:4D-17, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:2-7; second-degree theft by deception, in violation of N.J.S.A. 2C:20-4, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:2-7; second-degree misconduct by a corporate official, in violation of N.J.S.A. 2C:21-9c; and conspiracy to commit the foregoing offenses, in violation of N.J.S.A. 2C:5-2.
Co-defendants moved to suppress evidence obtained in a search incident to Babatunde's arrest. After an evidentiary hearing, the trial court denied the motion. Co-defendants were subsequently tried jointly, which resulted in a guilty verdict against defendant on all charges. Babatunde was acquitted of the charges.
The trial court sentenced defendant to concurrent five-year terms of imprisonment for theft by deception and misconduct by a corporate official and a three-year concurrent term for one count of Medicaid fraud. The court also imposed a $75,000 fine and required defendant to pay the State $152,215 in restitution. The court merged defendant's other convictions.
The Medicaid fraud scheme that formed the basis of defendant's convictions consisted of submitting Medicaid claims for prescription drugs that were not actually dispensed. A confederate in this scheme, Morris Dicker, testified for the State that he entered into an arrangement with Babatunde and defendant, who was a registered pharmacist, under which he would supply them with fake prescriptions written on doctors' prescription pads and Medicaid cards obtained from Medicaid recipients, in exchange for prescription drugs or cash. The State presented other evidence, including expert testimony, to show that defendant used these fake prescriptions and Medicaid cards to submit thousands of fraudulent Medicaid claims.
The search that is the subject of this appeal was conducted on February 10, 1996 pursuant to a warrant for Babatunde's arrest. This warrant was not based on evidence of the Medicaid fraud scheme for which defendant was convicted, but instead on evidence of Babatunde's participation in the sale of stolen prescription drugs through pharmacies.
The arrest was made outside of Babatunde's Newark residence by Division of Criminal Justice investigators. At the time of Babatunde's arrest, he was carrying two white plastic bags. The arresting officers took the bags from Babatunde, placed handcuffs on him, and then looked inside the bags, which were not sealed or otherwise secured. One of the bags contained a typewriter, and the other a notebook, blank prescription pads, Medicaid eligibility cards under various names, and some prescriptions ostensibly written by doctors. The items found in the second bag were subsequently used by the State to prove defendant's involvement in the Medicaid fraud scheme.
At the suppression hearing,*fn1 one of the arresting officers was asked how much time elapsed between Babatunde's arrest and the examination of the contents of the bags, in response to which he said:
Not much. I mean, we arrested him out on the street, looked in the bags on the street. We ...