On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-08-1551.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2007
Before Judges Parker and R. B. Coleman.
After his motion to suppress evidence was denied, defendant Morris Joyce entered a conditional plea of guilty to count two of a three count indictment. That count charged first degree possession of cocaine with intent to distribute. Prior to sentencing, defendant sought to retract his guilty plea but that application was denied. Defendant was sentenced to a term of fourteen years in prison with a fifty-one month period of parole ineligibility on count two, and the remaining counts were dismissed in accordance with the plea agreement. Defendant now appeals from a May 10, 2005 order denying his motion to suppress evidence recovered in connection with his June 17, 2004 arrest. We affirm.
At the suppression hearing, State Trooper Stephen McNally testified to the following facts. On June 17, 2004, there was a professional golf tournament taking place at a golf course in Galloway Township, Atlantic County. Because of the high volume of pedestrian and vehicular traffic for the tournament, vehicular traffic was redirected at the intersections of Jimmie Leeds Road and Route 9. Route 9 was closed south of Jimmie Leeds Road and all southbound traffic was diverted onto Jimmie Leeds Road. The northbound lane of Route 9 was closed for golf carts and pedestrian traffic, and the northbound traffic was directed by cones to use the southbound lane on Route 9.
Trooper McNally was stationed at the intersection of Jimmie Leeds Road and Route 9, directing traffic. Defendant was directed to travel in the southbound lane heading north on Route 9. After he traveled about 200 yards, defendant made a U-turn or a K-turn and drove back to the intersection against the northbound flow of traffic. When defendant reached the intersection, McNally pulled him over and asked for his license, registration and insurance card. Defendant was not able to produce a driver's license, and he offered a rental agreement in lieu of the registration and insurance card. Defendant told the trooper that his name was Jai Malik Washington, and he gave a date of birth, social security number and an address in Atlantic City.
When McNally checked that information against Division of Motor Vehicle (DMV) records, the name and address did not match the social security number. The name on the rental agreement was also not the name defendant had given the trooper. When the trooper returned to the car and questioned defendant further to confirm his identity, defendant became increasingly nervous and evasive. When McNally asked defendant to provide his height and information about his past driving history, defendant indicated he was five-feet eleven inches tall and he had two previous motor vehicle violations. When McNally checked the records, the information given by defendant did not match the records for Jai Malik Washington. For example, the DMV records indicated Malik Washington was five-feet seven inches tall and that his license had previously been suspended and restored. McNally then read defendant his Miranda rights and advised defendant that he believed defendant was lying about his name. At that point, defendant disclosed his true name, but McNally was not convinced of the truthfulness of the new information. McNally placed defendant under arrest for having given a false name and for hindering apprehension.
Before McNally placed defendant in the rear of the trooper car, he conducted a search incident to arrest. In the pat down, McNally found a marijuana cigarette in defendant's sock, and he felt two four-inch round objects near defendant's genital area. The trooper was persuaded the objects were not part of defendant's anatomy. He testified the objects felt like powder inside a bag. Although McNally suspected, based upon his training and experience, that the objects contained narcotics, it was not practical to retrieve whatever was in defendant's pants at that location.
McNally searched defendant's vehicle but did not find anything evidential. He transported defendant to Galloway Township Police Headquarters, where he contacted his superior and obtained his approval to conduct a strip search. Defendant was directed to remove his clothing. He was wearing two pairs of pants and two pairs of underwear. When defendant removed the pants, the two large bulges were evident between the two pairs of underwear. McNally ordered defendant to remove the objects, which turned out to be large plastic bags containing white powder and weighing more than one pound.
The trial court denied defendant's motion to suppress the evidence. The court found Trooper McNally's testimony to be truthful, and it concluded that defendant had "created a hazardous condition because the traffic was supposed to go north in one lane, and it was necessary for defendant to operate his vehicle at least partly on the shoulder to avoid oncoming traffic[.]" Therefore, the court found that the officer was justified in stopping defendant and asking for his driving and motor vehicle credentials. When the officer began to question defendant, defendant provided false information that reasonably raised the officer's suspicions and eventually prompted the officer to arrest defendant and search him incident to the arrest. The court reasoned as follows:
I don't see any basis to suppress the evidence in this case. I think the Officer conducted himself appropriately as seen in the matter developed as it unfolded. I think the Officer was not lying. He may have been mistaken in some areas, inconsequential ways . . . . I think the Defendant had to know or must have known that he was not doing what the Officer wanted him to do and there may have been other cars that did it and they shouldn't have done it and the Galloway police permitted it to be done didn't do right.
But two wrongs or three wrongs do not make a right.
I think Officer McNally operated and conducted himself in a very appropriate way. In this ...