February 15, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MORRIS JOYCE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 appeal, defendant argues:
POINT I: BECAUSE DEFENDANT HAD COMMITTED NO MOTOR VEHICLE OFFENSE, THE TROOPER'S DECISION TO STOP AND INTERROGATE HIM WAS UNJUSTIFIED AND THE RESULTING SEARCH WAS UNLAWFUL.
POINT II: BECAUSE THE STATE FAILED TO MEET THE CRITERIA REQUIRED FOR A STRIP SEARCH, THE COURT ERRED IN DENYING THE DEFENSE MOTION TO SUPPRESS THE EVIDENCE DISCOVERED.
We find no merit in either of defendant's arguments.
Initially, we note that "an appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, (1999)). Based on our careful review of the record, we are satisfied that the trial court's factual findings are supported by sufficient credible evidence.
"It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." Locurto, supra, 157 N.J. at 470 (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). To meet this standard, the State "need not establish that the move actually affected traffic." State v. Williamson, 138 N.J. 302, 304 (1994). "[T]he State need prove only that the police lawfully stopped the car, not that it could convict the driver of the motor vehicle offense." Ibid.
Defendant contends that he did not execute an illegal U-turn because he did not engage in the proscribed conduct articulated in N.J.S.A. 39:4-125,*fn1 given that Route 9 was not marked with a "no U turn" sign. Thus, defendant argues McNally did not have a reasonable and articulable suspicion to stop defendant for a motor vehicle violation. This argument disregards the fact that McNally also charged defendant with the failure to comply with a police officer's directions, in violation of N.J.S.A. 39:4-57.*fn2 McNally, using hand signals, instructed defendant to proceed north in the southbound lane of Route 9. As found by the trial court, defendant clearly understood this instruction as he drove in the correct direction before turning his car around and proceeding against the flow of traffic created by McNally. The trial court determined that it was or should have been clear to defendant that traffic was not permitted to proceed southbound on that portion of Route 9 at the time defendant turned his car around. Thus, when defendant reversed his direction and proceeded in the face of oncoming traffic, McNally had a reasonable and articulable basis to stop defendant because defendant had in fact failed to comply with McNally's instruction in violation of N.J.S.A. 39:4-57.
Defendant contended that he complied with McNally's "only directive" by momentarily proceeding north in the southbound lane and that he, therefore, did not commit a violation. While it is true that McNally did not instruct defendant not to make a U-turn, the literal interpretation suggested by defendant is nonsensical. The obvious purpose of the instruction was to prevent southbound traffic. Defendant plainly defied the officer's direction.
Even if defendant literally complied with McNally's instructions, under the above-described circumstances, McNally's belief that defendant did not comply with his instructions was reasonable and justified him stopping defendant for violating either N.J.S.A. 39:4-57 or 39:4-125. The State did not have to prove that defendant committed a motor vehicle offense; the State merely had to demonstrate that McNally reasonably suspected that defendant had committed a motor vehicle violation. Williamson, supra, 138 N.J. at 304. The reasonableness of McNally's conduct under the circumstances presented in this case is unassailable. Because McNally lawfully stopped defendant, the fruits that flowed from his inquiries and subsequent search of defendant were lawfully obtained and not required to be suppressed. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed. 2d 441, 456 (1963).
Defendant's second argument also lacks merit. Defendant asserts that the strip search leading to the identification of the controlled dangerous substance in his underwear was unlawful because the criteria of New Jersey's strip search statute, N.J.S.A. 2A:161A-1, were not met. N.J.S.A. 2A:161A-1 provides:
A person who has been detained or arrested for commission of an offense other than a crime shall not be subjected to a strip search unless:
a. The search is authorized by a warrant or consent;
b. The search is based on probable cause that a weapon, controlled dangerous substance, as defined by the "Comprehensive Drug Reform Act of 1987," N.J.S. 2C:35-1 et al., or evidence of a crime will be found and a recognized exception to the warrant requirement exists or;
c. The person is lawfully confined in a municipal detention facility or an adult county correctional facility and the search is based on a reasonable suspicion that a weapon, controlled dangerous substance, as defined by the "Comprehensive Drug Reform Act of 1987," N.J.S. 2C:35-1 et al., or contraband, as defined by the Department of Corrections, will be found, and the search is authorized pursuant to regulations promulgated by the Commissioner of the Department of Corrections.
McNally arrested defendant for a disorderly persons offense of hindering apprehension; therefore, the statute applies. See State v. Harris, 384 N.J. Super. 29, 49 (App. Div. 2006) ("[A] strip search of [a] defendant, who was arrested for the disorderly persons offense of a marijuana possession is prohibited," unless the requirements of N.J.S.A. 2A:161A-1 are satisfied). In the present case, however, both prongs of subsection b are satisfied; therefore, the strip search was performed lawfully.
First, the strip search was based on probable cause. Defendant was arrested and taken into custody following the traffic violation because he provided false information in an apparent attempt to evade apprehension. In the course of the search incident to arrest, McNally found a marijuana cigarette in defendant's sock. As he continued his search near defendant's waistband, defendant attempted to pull away, causing McNally to believe defendant was hiding something in that area. While frisking defendant's leg, McNally felt "a very large bulge in the genital area" that he described as "two balls about four inches in diameter, two round objects." He knew this was not part of defendant's anatomy. Based on McNally's training and experience in narcotics investigations, which included numerous classes on advanced narcotics detection, he immediately believed that the objects felt on defendant were narcotics that should be retrieved. See State v. Toth, 321 N.J. Super. 609, 613-17 (App. Div. 1999), certif. denied, 165 N.J. 531 (2000) (denying defendant's motion to suppress evidence because a state trooper had probable cause to retrieve a bulge in the defendant's shorts based on the totality of the circumstances that included the trooper explaining that he immediately knew what he felt during a search was narcotics).
As for the second prong, exception to the warrant requirement, McNally arrested defendant for hindering apprehension and had the right to conduct a search. When a police officer makes an arrest, it is reasonable for the officer to conduct a search incident to arrest. See Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed. 2d 685, 694; State v. Daniels, 393 N.J. Super. 476, 487, 489-91 (App. Div. 2007) ("[O]nce the police determine to make a custodial arrest . . . their authority to conduct an essentially unlimited search of the arrestee's person follows as a matter of course."). Here, McNally searched defendant in accordance with a recognized exception to the warrant requirement.