On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 05-05-00185-1.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Seltzer.
After denial of his suppression motion, defendant Vincent Salzillo entered a plea of guilty to second degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5b(2). He was sentenced on September 7, 2006 to a term of seven years,*fn1 a six-month suspension of his driving privileges and the usual fines and penalties. This appeal focuses on the denial of defendant's motion to suppress, which we reverse.
The incident giving rise to these charges occurred on August 13, 2004, when defendant was a passenger in an automobile with out-of-state license plates operated by David Ramos.*fn2 While Ramos was driving north on Route 15 in Sparta Township at approximately 1:00 in the afternoon, Sparta Police Officer Keith Hannam was driving southbound. Hannam made a U-turn through the median to head north. As Hannam headed north in the left lane, traffic in front of him moved to the right lane. When Hannam approached the Ramos vehicle, it also moved to the right but failed to signal. Hannam pulled the vehicle over and indicated that in addition to Ramos's failure to signal, his license plate could not be read because it had a dirty plastic cover.
When Hannam first approached the car, he noticed a "heavy odor of alcoholic beverage coming out of the vehicle." Hannam asked for Ramos's credentials and Ramos appeared nervous, his hands were shaking and he initially produced only his driver's license. Ramos then picked up a map and asked the officer for directions to Route 206. After Ramos produced his registration and insurance card, Hannam asked him to get out of the car to look at the dirty license plate. As Ramos was getting out of the car, Hannam noticed a Corona beer bottle cap on the driver's seat. Meanwhile, defendant remained in the front passenger seat.
After he showed Ramos the license plate, Hannam went back to the car to speak with defendant. He retrieved the Corona bottle cap from the driver's seat and then asked defendant about the cap and whether there were any alcoholic beverages in the vehicle. Defendant was "very cooperative;" he bent over, picked up a brown paper bag, pulled out two empty Coors Light beer cans and showed them to the officer. There were no Corona bottles matching the cap in the bag or on the front seat.
After showing the beer cans to the officer, defendant leaned over toward his backpack, which was between his legs, and the officer told him to hand it over. Before defendant could hand it to him, Hannam "grabbed" the backpack and took it to the rear of the vehicle while defendant remained in the passenger seat. Hannam unzipped the backpack and found what was ultimately determined to be sixty-eight grams of cocaine. Hannam asked defendant if the backpack was his and, when defendant answered "yes," he was placed under arrest. The vehicle was then searched and additional CDS and drug paraphernalia were found.
The trial court found that the stop was legitimate, based upon Hannam's testimony that the driver failed to signal. The court further found that the bottle cap, together with the "strong odor of alcohol coming[,] not particularly from the operator or person, but from the vehicle," was sufficient to inquire about open containers:
What happened here is that we had the odor of alcohol, the nervousness, I don't put too much weight into that because people are nervous in those kinds of situation[s] . . . . So, nervousness is an element but not necessarily [a] decisive one in our scenario.
But what I think is sensitive here, in [the] Fourth Amendment sense, is the next sequence of events . . . and that is the observation of a bottle cap in the course of this interaction with asking the driver to get out of the vehicle. This is the predicate to the ultimate search that I think is challenged and certainly the point of sensitivity, in my view, on the Fourth Amendment analysis.
In denying the suppression motion, the trial court queried whether "the presence of the bottle cap is a sufficient basis to get into the [backpack]." The court referred to State v. Jones, 326 N.J. Super. 234 (App. Div. 1999), in which we reversed the denial of a suppression motion under circumstances somewhat similar to those presented here. It concluded "that the bottle cap is a distinction from the . ...