On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 07-082.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Chambers.
Defendant Edward Lynch IV, convicted of driving while intoxicated pursuant to N.J.S.A. 39:4-50, appeals from the denial of his motion to suppress. Defendant had sought to suppress from evidence an open alcoholic beverage container that the arresting police officer retrieved from the glove compartment of defendant's vehicle after defendant had been arrested for driving while intoxicated. We remand in order that findings may be made on whether exigent circumstances were present to justify the search.
On October 3, 2007, defendant was charged with driving while intoxicated, N.J.S.A. 39:4-50, having an open alcoholic beverage in a motor vehicle, N.J.S.A. 39:4-51b, and speeding, N.J.S.A. 39:4-98. Thereafter, a hearing was conducted on his motion to suppress the open alcoholic beverage container that had been seized from his vehicle.
The only witness who testified at the suppression hearing was New Jersey State Trooper Andrew Dudzic whom the municipal court judge found to be a credible witness. The Trooper testified that on the evening of October 3, 2007, he was on patrol on Route 80 in Denville with another trooper. The traffic was very light. A silver Honda traveled past them at a high rate of speed, and the troopers then pulled the vehicle over for speeding. While obtaining the license, registration, and proof of insurance from the driver, identified as defendant, the Trooper detected a strong odor of alcohol emanating from the vehicle and noticed that defendant's hand movements were slow.
The Trooper then administered field sobriety tests, which defendant failed. Defendant was arrested for driving while intoxicated, handcuffed, and placed in the troopers' vehicle. After defendant was secured, the Trooper searched defendant's vehicle for evidence of open containers and found a half-empty bottle of vodka in the glove compartment.
The municipal court judge denied defendant's motion to suppress evidence of the half-empty vodka bottle, relying on the case of State v. Irelan, 375 N.J. Super. 100 (App. Div. 2005). Pursuant to a plea bargain, defendant then pled guilty to driving while intoxicated, and the other two charges were dismissed without prejudice. Defendant appealed the municipal court judge's decision on the motion to suppress. The Superior Court Law Division judge agreed with the municipal court judge on the motion to suppress, and this appeal followed.
We reject the State's argument that defendant's appeal is barred because he accepted the plea bargain. Before defendant's plea was taken on the record, defense counsel stated, without objection, that an appeal would be filed. As a result, defendant reserved the right to take an appeal and would be able to withdraw his plea if he prevails on appeal. See R. 3:9-3(f) (permitting conditional pleas whereby the defendant pleads guilty but reserves the right to appeal the ruling on a pretrial motion, and to withdraw the plea if he prevails on appeal).
We find no merit in the State's argument that this appeal is moot because the charge for having an open alcoholic beverage container was dismissed. While that charge was dismissed, defendant still stands convicted of the driving while intoxicated charge. The open vodka bottle was evidence supporting that charge, and hence the appeal is not moot.
We also reject the State's contention that the inevitable discovery doctrine to the exclusionary rule, set forth in State
v. Sugar, 108 N.J. 151 (1987), applies. "The essential rationale of the inevitable discovery doctrine is that, even though evidence may have been obtained as a result of unlawful governmental activity, if the prosecution can show that 'the information ultimately or inevitably would have been discovered by lawful means . . . the deterrence rationale [of the exclusionary rule] has so little basis that the evidence should be received.'" State v. Finesmith, 406 N.J. Super. 510, 522 (App. Div. 2009) (quoting Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed. 2d 377, 387-88 (1984)). For the inevitable discovery doctrine to apply, the State must prove by clear and convincing evidence the following three factors:
(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the ...