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State v. Hewitt

May 19, 2008

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
ANTHONY HEWITT AND DERVAN FACEY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-06-0777.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted March 11, 2008

Before Judges Skillman, Yannotti and LeWinn.

The issue presented by this appeal is whether a police officer who makes observations during a routine safety inspection of a commercial truck that reasonably lead him to believe it contains a hidden compartment containing contraband must obtain a search warrant before undertaking to confirm the existence of the hidden compartment and determine its contents. We conclude that a search of an area of a commercial truck that is within the scope of a proper safety inspection may be conducted without a warrant even though this area is concealed within a hidden compartment and the officer's purpose in continuing the search is to obtain evidence of a crime rather than to complete the safety inspection.

Federal and state statutes and administrative regulations authorize safety inspections of commercial trucks. 49 U.S.C.A. § 31142; 49 U.S.C.A. § 31136; 49 C.F.R. §§ 396.9, 396.17; N.J.S.A. 39:5B-32; N.J.A.C. 13:60-2.1. In New Jersey, such inspections are conducted by the State Police Commercial Carrier Safety Inspection Unit.

On November 5, 2005, a member of that unit, Trooper Wayne Hancock, stopped defendants' tractor-trailer on the New Jersey Turnpike in Mount Laurel Township to conduct a safety inspection. Defendant Hewitt was driving the tractor and defendant Facey was in the back in a "sleeper."

When Hancock approached the truck, he noticed that Hewitt's hands were "visibly shaken" and that he appeared nervous. Hancock examined Hewitt's driver's license and the "paperwork" for the truck and then directed Hewitt to drive to a nearby rest area in order to conduct a North American Standard Level II safety inspection. A police officer conducting such an inspection may examine not only the paperwork for the truck but also make a visual inspection of the truck to check for any safety violations and of the truck's contents to ensure that they are properly secured.

After Hancock escorted Hewitt to the rest area, he was joined by another member of his safety inspection unit, Trooper Andy Eaton. A third trooper, who was not a member of the unit, was also present.

Hancock began the Level II inspection by conducting a more intensive review of the paperwork for the truck and entering relevant data into his computer. This review revealed information regarding defendants' itinerary that increased Hancock's initial suspicions based on Hewitt's nervousness when first stopped. Hancock noticed that the truck had remained in Phoenix, Arizona, for five days even though it was the peak of the growing season -- a time of year when truckers have no difficulty picking up loads of produce such as the melons defendants were transporting. When Hancock asked defendants separately about the reason for their long layover in Phoenix, they gave conflicting answers. Hewitt said the refrigeration unit in their truck had broken down, while Facey said they could not find a load to transport. Hancock also testified that defendants had driven the truck fewer hours per day than normal and that they had taken an indirect route from Phoenix to their destination in New York.

When Hancock completed his review of the paperwork for the truck, he conducted the visual inspection of the truck and its contents required in a Level II safety inspection. Hancock noted a number of violations, including a tail light and brake light out on the back of the trailer and an unsecured fire extinguisher. When he opened the back door of the trailer to inspect its contents, he found that the "load jack" that secures the load was not in the proper position and that three of the pallets on which crates of melons had been placed were tipped over against the side of the trailer.

Hancock then crawled over the top of the crates to the front of the trailer. He noticed that the trailer did not have a front drain, as most trailers do, to channel water that accumulates from the refrigeration system to the outside of the truck. Hancock also noticed that the floor "ribs" that run from the back to the front of the trailer continued underneath the front wall of the trailer rather than, as in most trailers, stopping before the wall. In addition, Hancock observed what appeared to be new panels secured by new rivets and caulk at the front of the trailer. Based on his training and experience, Hancock concluded that there was probably a hidden compartment at the front of the trailer. He also knew that such compartments are used to transport money, explosives, people or narcotics.

At this point, Hancock got out of the trailer and told his partner, Trooper Eaton, what he had observed. The troopers then undertook to confirm the existence of the hidden compartment. They measured the inside and outside of the trailer and discovered a four-foot discrepancy. Trooper Eaton also used a density meter, which indicated a significant ...


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