On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Warren County, Indictment No. 02-06-212.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Coburn and Chambers.
Defendant, John Stella, was convicted of possession of a controlled dangerous substance, namely oxycodone, in violation of N.J.S.A. 2C:35-10(a)(1), and resisting arrest, in violation of N.J.S.A. 2C:29-2(a). He seeks a reversal, maintaining that the trial judge should have suppressed evidence of the oxcycodone, because it was discovered in an illegal search of a vehicle. We affirm, finding that the search was in conformance with existing law.
On January 2, 2002, between 2 a.m. and 3 a.m., the police were called to property at 514 Guy Road in Lopatcong, New Jersey, responding to a call that an unwanted guest was at the residence. Officers Garcia and Sabo responded. When Officer Garcia arrived, he found two adults and a child inside a parked car and defendant outside of it. One of the adults was defendant's girlfriend, and the child was his son. After speaking to the homeowner's son inside the house, Officer Garcia approached the vehicle; everyone was outside the vehicle by that time. Officer Garcia testified that the investigation at the scene had led him to suspect that the three adults had in their possession coins taken from soda machines in the area. He shined his flashlight inside the vehicle and saw a large amount of coins on the rear floor of the vehicle.
Officer Sabo then learned from headquarters that there was an outstanding Pennsylvania warrant for defendant's arrest. When the officers attempted to place defendant under arrest, he grabbed his son and resisted the arrest, threatening to hold his son as hostage. After a physical struggle, the officers were able to pry the child from defendant, handcuff defendant and place him under arrest. Defendant was then searched incident to the arrest, and he was found to be in possession of a screwdriver, pocketknife and twenty-three one dollar bills. Officer Garcia then searched the vehicle and retrieved the bag of coins. As he did so, he observed, in the center console of the vehicle below the radio, four pills inside a plastic lining of the type used on the outside of cigarette cartons. Later, at the police station, defendant acknowledged that the pills were oxycodone, that he took the pills for his back even though he had no prescription for them, and that he had obtained them from his girlfriend's mother. When the coins were later counted, they were found to amount to $181.67.
Defendant was charged with third degree possession of a controlled dangerous substance, namely the oxycodone, contrary to N.J.S.A. 2C:35-10(a)(1) (count one), third degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a) (count two), and second degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) (count three). On December 6, 2002, a hearing was conducted on defendant's motion to suppress the oxycodone seized in the search of the vehicle and to suppress the statement he had given to the police. The motion was denied, and a bench trial was, thereafter, conducted on June 1, 2005, and June 6, 2005. Defendant was found guilty of possession of a controlled dangerous substance under count one; he was found not guilty of third degree resisting arrest under count two, but guilty of the lesser included disorderly persons offense of resisting arrest; and he was acquitted of the charge of endangering the welfare of a minor under count three. On August 5, 2005, defendant was sentenced to three years imprisonment for the controlled dangerous substance charge, and he was sentenced to time served, totaling 371 days, on the resisting arrest charge, to run concurrently; also, he was assessed the requisite fees and penalties.
In this appeal, defendant contends that the search of the vehicle was improper because (1) it occurred prior to his arrest and, thus, it did not qualify as a search incident to arrest under State v. Pierce, 136 N.J. 184, 198 (1994); (2) that because the amount of the coins was less than $200, theft of the coins did not constitute a crime under New Jersey statute, N.J.S.A. 2C:20-2(b)(3), and thus the police had no probable cause that a crime was committed; (3) that the judge improperly questioned the officer at the suppression hearing; and (4) the search was unrelated to the reason the arrest was made, namely, the Pennsylvania arrest warrant.
Both the United States Constitution and the New Jersey State Constitution protect people from unreasonable searches and seizures by the government. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Not all searches are unconstitutional, but only those that are found to be unreasonable. State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed. 2d 695 (1984). To pass constitutional muster, the search must have been objectively reasonable. Id. at 219. A warrantless search is presumptively invalid under both the State and Federal Constitutions. State v. Pineiro, 181 N.J. 13, 19 (2004). When a warrantless search has taken place, the burden is on the State to establish that the search fell within one of the recognized exceptions to the warrant requirement. Ibid.
Our analysis in this case begins with the officer shining the flashlight into the vehicle and observing the coins there. When an officer makes an observation without physically intruding into a constitutionally protected area, such as when he looks into a vehicle in a public space, no search is involved and no fourth amendment rights are implicated. State v. Pineiro, 369 N.J. Super. 65, 72-73 (App. Div.), certif. denied, 181 N.J. 285 (2004). Specifically, a police officer may shine a flashlight into the vehicle for the purpose of making observations, and still no search has been conducted. Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 1542, 75 L.Ed. 2d 502, 512 (1983) (shining a flashlight into a vehicle from a public vantage point did not constitute a search); State v. Moller, 196 N.J. Super. 511, 515 (App. Div. 1984) (shining a flashlight into a vehicle to observe drugs and drug paraphernalia did not constitute a search). However, once the officer observes contraband in such a circumstance, he does not have an automatic right to seize it. State v. Pineiro, supra, 369 N.J. Super. at 73-74. He can only intrude into the vehicle, a constitutionally protected space, if the intrusion conforms with constitutional law. Ibid. Thus, while the officer's observation of the coins by using a flashlight did not implicate any constitutional rights, in order for the officer to enter lawfully the vehicle and seize the coins or conduct a search of the vehicle, the circumstances must satisfy the constitutional requirements for a lawful warrantless search of a vehicle.
In his decision on the suppression motion, the trial judge found that the search of the vehicle fell within the exception allowing a search incident to a lawful arrest. In doing so, he relied on existing law at the time, namely New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed. 2d 768 (1981), and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed. 2d 685 (1969), which permitted such searches under federal constitutional law. He also relied on State v. Pierce, which interpreted the New Jersey State Constitution as prohibiting warrantless searches of motor vehicles where the occupant was arrested for a motor vehicle offense although recognizing that in the context of arrests for crimes, such searches were sustainable. State v. Pierce, supra, 136 N.J. at 205, 208, 213-14 (1984).
Since the time the trial judge rendered his decision, the law has evolved, and the New Jersey Constitution is now interpreted as prohibiting a warrantless search of a vehicle incident to an arrest where, as here, the defendant was in custody at a distance away from the vehicle and he was not in a position to threaten the safety of the arresting officers or to interfere with the preservation of evidence. State v. Eckel, 185 N.J. 523, 541 (2006). As a result, the search ...