On appeal from the Superior Court of New Jersey, Law Division, Union County, 04-06-0574.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Lyons.
Following the denial of his motion to suppress evidence, defendant, Duane Brathwaite, pleaded guilty to second degree possession of a controlled dangerous substance (CDS), methylenedioxymethamphetamine (MDMA), most commonly known by the street name Ecstasy or XTC, with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2); and third degree possession of CDS within 1,000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7. In exchange, the State agreed to dismiss related charges. The sentencing judge merged the convictions and imposed a four-year term with an eighteen-month parole disqualifier.
These are the proofs presented by the State at a hearing on the motion to suppress. Elizabeth Police Officer Robert Keily testified that at about 1:45 p.m. on February 18, 2004, he was patrolling Third Street with his partner, Officer James DiOrio, in an unmarked police car. He passed a 1997 BMW traveling in the opposite direction.
According to Keily, DiOrio noticed that the BMW's inspection sticker appeared odd and thought it might be fraudulent, and observed that the driver was not wearing his seatbelt. DiOrio turned the patrol car around, activated its overhead lights, and stopped the BMW.
Defendant was the sole occupant of the BMW. The officers approached the BMW and asked for credentials. Defendant produced a driver's license, which was in the name of "Duane E. Jones." The officers thought the license was fraudulent because the typing on it appeared too bold and the photograph appeared to be digital. They obtained the social security number listed for the driver's license from the motor vehicle department. However, defendant gave them a different social security number. DiOrio confronted defendant with their suspicions. Defendant gave the police his real name. Keily and DiOrio decided to place defendant under arrest for possessing a counterfeit driver's license, N.J.S.A. 2C:21-2.1(c). Defendant was directed to get out of the car, and DiOrio placed him in handcuffs.
Keily, who was standing by the passenger side door, testified that he noticed a McDonald's soda cup in the car's cup holder. There was no lid on the cup, and a piece of plastic tied in a knot was protruding from the top. According to Keily, "based on his training and experience," he believed that the piece of plastic was "narcotics." On cross-examination, he testified that "in my 13 years, I've recovered drugs in a soda cup once before." Keily opened the car door and retrieved the cup. It contained soda and ice. A plastic bag of suspected narcotics was resting on top of and partially submerged in the ice. The plastic bag was later determined to contain "Ecstasy."
The BMW was searched. No other contraband was found. At headquarters, defendant was searched and $740 was found in his pockets.
Following the submission of supplemental briefs, the trial judge denied defendant's motion to suppress, ruling that the initial stop of the BMW was valid because the police had the authority to ticket the driver for failing to wear his seatbelt. The judge found that the warrantless entry into the defendant's car and inspection of the cup was justified as a search incident to a lawful arrest for possessing a fraudulent driver's license. See Chimel v. California, 395 U.S. 752, 762-63 89 S.Ct. 2034, 2040 23 L.Ed. 2d 685, 694 (1969); State v. Goodwin, 173 N.J. 583, 599 (2002). He also found that the search was justified under the plain view exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed. 2d 576 (1967).
Defendant moved for reconsideration. On reconsideration, the judge agreed with defense counsel that the search-incident-to-arrest rationale might be inapplicable in light of a recent decision by our Supreme Court,*fn1 but again ruled that the search was permissible pursuant to the plain view exception to the warrant requirement.
On appeal, defendant contends that:
THE EVIDENCE PRODUCED AT THE MOTION TO SUPPRESS WAS NOT SUFFICIENT TO SUPPORT THE JUDGE'S FINDING THAT OFFICER KEILY HAD PROBABLE CAUSE TO BELIEVE THAT THE CUP ...