December 1, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONALD TELEPO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 03-04-0122, 04-09-0354 & 05-07-0240.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges Rodríguez and Waugh.
Following the partial denial of defendant Ronald Telepo's motion to suppress evidence, he entered a negotiated plea of guilty. Defendant agreed to plead guilty to third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third-degree eluding, N.J.S.A. 2C:29-2b; fourth-degree throwing bodily fluids at a police officer, N.J.S.A. 2C:12-13; and third-degree terroristic threats, N.J.S.A. 2C:12-3a. The State agreed to recommend concurrent sentences aggregating five years. The judge imposed four-year concurrent terms on each conviction. We affirm.
Defendant appeals only the conviction for possession of cocaine. According to defendant, the cocaine was a residue in drug paraphernalia seized during an inventory search. Specifically, he challenges the denial of his motion to suppress this evidence.
Following a hearing at which National Park Service Rangers Joe Hinkes, Michael Croll and Jeremy Murphy testified, Judge Pursel found the following facts:
On August 16, 2003 at approximately 9:16 p.m. while on routine patrol in Knowlton Township in a marked vehicle, National Park Rangers Joe Hinkes and Michael Croll observed a Black Nissan traveling south on Old Mine Hill Road. This area of the road was posted a 35 mile per hour zone, and the Ranger's radar detector indicated that the vehicle was traveling 48 miles per hour. The Rangers activated their overhead lights and sirens and chased the vehicle, at a high rate of speed, for approximately two miles before it pulled over.
Upon approaching the vehicle, Ranger Croll observed the driver, Ronald Telepo exit the vehicle and start yelling obscenities. Ranger Croll ordered the driver back into the vehicle, and also detected a strong odor of alcohol emanating from the driver and the driver's side of the vehicle. The Ranger observed that the driver's eyes were bloodshot and that his speech was slurred. Ranger Croll asked Mr. Telepo for his credentials, however he was only able to provide an insurance card. The passenger of the vehicle was identified as Jason Neace. Mr. Telepo and Mr. Neace were questioned separately and both gave contradictory statements. Neither individual could provide the Rangers with the name of the campsite they were staying at or whose name it was registered under.
Mr. Telepo continued to be belligerent towards the Rangers. Ranger Croll took a breath sample of Mr. Telepo and he registered at.164. A breath sample of Mr. Neace showed that he registered at.10. Mr. Telepo was placed under arrest for DUI, and placed in the rear of the police vehicle. The Rangers determined that Mr. Neace would not be allowed to drive the vehicle since his license was suspended and he had a breath test reading of.10. Mr. Neace was allowed to make several phone calls in order to get someone to pick up the black Nissan. Mr. Telepo even yelled names to Mr. Neace from inside the patrol vehicle. Mr. Neace was unsuccessful in reaching anyone that would be able to retrieve the vehicle, therefore the Rangers informed Mr. Telepo that the vehicle would be impounded because it could not stay parked where it was. With this information, Mr. Telepo became extremely agitated and started kicking the rear windows of the patrol car and yelling obscenities towards the Rangers. Mr. Neace was placed under arrest when he failed to turn over the keys to the Rangers and a struggle ensued.
Rangers Croll and Hinkes escorted Mr. Telepo and Mr. Neace to Pocono Medical Center for observations before bringing both men to the Pike County Jail in Pennsylvania. Ranger Murphy arrived on the scene to conduct an inventory search of the vehicle before it was impounded (Search #1). During his inventory search, the Ranger made some cursory notes of a safe, baseball cards, old blankets and quilts, clothing, a glass pipe,*fn1 and many papers. The Ranger removed the pipe, safe and baseball cards from the car, but was later told to return the safe and baseball cards back into the vehicle because they could only remove items that may be contraband and at this time they had no reason to believe the safe and baseball cards were contraband. Ranger Croll called around to the State Police to inquire about the possibility of a stolen safe, but received no report of a stolen safe. After waiting about a half hour, he notified dispatch to tell the impound yard that the vehicle was not to be released.
The next day, the Rangers were notified by employees of Millbrook Village about a possible break in. Upon arrival at Millbrook Village, the Rangers noticed that the doors to the Old Hotel and the General Store had been kicked in. The Rangers were notified by employees that a safe had been stolen from the second floor of the General Store. At this point, Ranger Murphy was sent back to the impound yard to retrieve the serial number off of the safe because he had failed to write it down during the inventory search (Search #2). Ranger Murphy observed the serial number from the outside of the vehicle.
At this point, the Rangers contacted the Warren County Prosecutor's Office, and they were instructed to seize the evidence that they believed to be stolen. The Rangers returned to the impound lot and seized all of the items from the vehicle that they believed to be evidence of a crime (Search #3). The Rangers also came to the Courthouse to obtain arrest warrants for Mr. Telepo and Mr. Neace.
From there facts, the judge concluded that the first search (the inventory search) was justified, although he found that the second and third searches were not. Therefore, the judge suppressed evidence seized after the second and third searches, while denying the motion with respect to the drug residue found in the narcotic paraphernalia that was seized as part of the inventory search.
The judge issued a written opinion detailing the following analysis:
The first search is the inventory search that was conducted by Ranger Murphy after the vehicle was to be impounded. Along with this search is the decision later by Ranger Croll to tell the impound yard not to release the vehicle....
The first search of the vehicle was an inventory search conducted by Ranger Murphy after it had been determined that the vehicle would be impounded. The United States Supreme Court ruled that a routine police inventory of a lawfully impounded car that was conducted to safeguard the belongings of the vehicle does not violated the Fourth Amendment. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed. 2d 1000 (1976). The Court noted that for there to be a lawful inventory, there must be "standardized criteria" for conducting the inventory. The National Park Service has a detailed criteria that states, "Rangers will conduct a detailed inventory of the contents of impounded vehicles for the purpose of protecting the owner's property, and protecting the National Park Service against claims." The guidelines go on to state that the inventory will include all closed and/or locked containers, and that all items deemed to be contraband or evidence will be seized. Noting that the "standardized criteria" has been met, the Courts have added three additional conditions that must be met. The vehicle must have been lawfully impounded. State v. Hill, 115 N.J. 169 (1989). New Jersey case law states that when a driver is arrested, the police may not impound a vehicle unless the vehicle constitute[s] a danger to other persons or public safety, and the driver cannot arrange someone else to remove the vehicle. State v. Ercolano, 79 N.J. 25 (1979). In the present case, Ranger Croll testified that the vehicle was not completely off of the road and that the shoulder was not that wide because of the guardrail. Ranger Croll testified that leaving this car parked where it was would create a danger to the general public that would be traveling on that roadway in the future. Ranger Croll testified that Mr. Telepo had instructed them to let Mr. Neace drive the vehicle, however he was under the influence and he did not have a license. The Rangers offered to call someone, and even allowed Mr. Neace to make several phone calls to individuals, however after some time they were not able to reach anyone that could remove the vehicle. The second condition is the fact that police may not use an inventory search as a subterfuge to conduct an exploratory search. State v. Slockbower, 79 N.J. 1 (1979). It is clear to this Court that the Rangers were only inventorying the car in order to protect themselves against future claims, and Mr. Telepo's property. Ranger Croll testified that he was suspicious of the safe, but he had no reason to believe that it was evidence of a crime. Ranger Croll even instructed Ranger Murphy to return multiple items back to the vehicle because they had no reason to believe they were linked to any crime. The third condition is the fact that if the owner is present, he must be given the option to consent to the search. State v. Mangold, 82 N.J. 575 (1980). It is clear from the testimony that Mr. Telepo had become belligerent at this time and it would have been impossible for the Rangers to get the consent of the defendant or to allow him to make other [arrangements]. Since all of the conditions have been met, it is clear to this Court that the vehicle was impounded lawfully, and that a proper inventory search had been conducted. It is clear from the testimony that at the time of the inventory search, the Rangers had no knowledge of the break-ins that had occurred at Millbrook Village, and the Rangers even testified that at that time they had no probable cause to believe that another crime had been committed.
Defendant contends that:
AFTER THE SAFE WAS SEEN IN THE BACKSEAT OF THE CAR, THE INVENTORY WAS A PRETEXUAL SEARCH TO ATTEMPT TO DISCOVER EVIDENCE OF OTHER CRIMES, IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE FOURTH AMENDMENT AND HIS RIGHT TO A FAIR TRIAL.
We reject this contention and affirm substantially for the reasons expressed by Judge Pursel in his June 21, 2005 written opinion. We find that the facts as found by the judge are supported by the proofs. State v. Johnson, 42 N.J. 146, 162 (1964). Therefore, these findings are binding on us. State v. Locurto, 157 N.J. 463, 471 (1999). Moreover, we agree with the judge's analysis, which is sound and according to governing legal principles.