February 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VINSON ANDERSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-03-433-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2010
Before Judges Reisner and Yannotti.
Defendant Vinson Anderson was tried before a jury and found guilty of third-degree possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-10(a)(1). The trial court sentenced defendant to three years of probation, ordered a a six-month suspension of his driving privileges, and imposed various penalties, fees and assessments. Defendant appeals from the judgment of conviction dated July 11, 2008. For the reasons that follow, we dismiss the appeal.
We briefly summarize the relevant facts. At approximately 9:11 a.m. on September 23, 2006, defendant was driving his automobile southbound in the center lane of the New Jersey Turnpike. State Trooper Bruce Bobbitt (Bobbitt) observed the vehicle cross over the right shoulder line several times and the driver tapping his brakes. Bobbitt decided to stop the car because of the manner in which it was being driven and because it had a broken brake light.
Bobbitt asked defendant for his license, registration and insurance card. Defendant gave Bobbitt a Louisiana identification card and a New Jersey motor vehicle registration card but the registration had expired. In addition, defendant did not provide the officer with a valid New Jersey driver's license. Using the computer in his vehicle, Bobbitt checked the vehicle's license plates and learned that defendant had a suspended New Jersey license and there was an outstanding warrant for his arrest from Vineland, for driving with a suspended license. Bobbitt arrested defendant, placed him in handcuffs and patted him down. He found no weapons or contraband.
Detective Anthony Mangelli (Mangelli) arrived on the scene and began to secure defendant's vehicle for towing. He asked defendant if he needed anything from the car before it was towed. Defendant asked for his wallet, phone and identification from the front seat. Mangelli reached into the car and retrieved those items. He observed an open blue pouch in the vehicle with two vials of prescription medication inside. Defendant told Mangelli that he did not need the medicine.
Mangelli returned the pouch to the front seat of the car. He secured the car by closing the windows, locking the doors and tagging it for pick-up by a private towing company. Defendant was transported to the State Police Barracks in Moorestown and later transferred to the Burlington County jail. Donald McGuigan (McGuigan) of the Hainesport Auto and Truck Company (Hainesport) towed the car to the company's shop.
Hainesport's inventory policy required that anything visible in a towed vehicle be locked in the glove compartment or trunk. McGuigan went into the car and found, among other things, the blue pouch. He opened the pouch to determine whether it contained anything of value and found two marijuana cigarettes.
McGuigan closed the pouch, put it in a sealed box and contacted the State Police.
Bobbitt retrieved the pouch. He opened it, found the two marijuana cigarettes, a "baggie" of marijuana, two packs of rolling papers, two prescription bottles with some pills, and an Excedrin bottle with a piece of aluminum foil that Bobbitt believed contained crack cocaine. Bobbitt also searched the interior compartments of the car but did not find any drugs or weapons.
In this appeal, defendant raises the following issues for our consideration:
THE SEARCH OF THE DEFENDANT'S CLOSED BLUE POUCH VIOLATED THE FOURTH AMENDMENT PROTECTION AGAINST UNREASONABLE SEARCHES AND THE RESULTANT EVIDENCE SHOULD HAVE BEEN SUPPRESSED. (Not Raised Below.)
THE TOWING COMPANY EMPLOYEE'S SEARCH OF THE DEFENDANT'S SEALED MEDICATION BAG CONSTITUTED A FATALLY FLAWED INVENTORY SEARCH AND THE RESULTANT EVIDENCE SHOULD HAVE BEEN SUPPRESSED. (Not Raised Below.)
A. Its Excessive Scope Invalidated The Inventory Search.
B. The Inventory Search Was Not Conducted in Accordance with Standard Departmental Procedures.
C. The Search Failed To Use Less Intrusive Means.
THE INEVITABLE DISCOVERY EXCEPTION DOES NOT APPLY TO THE EVIDENCE RESULTING FROM THE FLAWED INVENTORY SEARCH AS THERE WAS NO ONGOING POLICE INVESTIGATION. ACCORDINGLY, THE EVIDENCE SHOULD HAVE BEEN SUPPRESSED. (Not Raised Below.)
DEFENSE COUNSEL RENDERED INEFFECTIVE LEGAL RESPRESENTATION BY FAILING TO FILE A MOTION TO SUPPRESS THE EVIDENCE.
As noted, defendant argues that the evidence found in his automobile was obtained in violation of his rights under the Fourth Amendment to the United States Constitution and should not have been admitted at trial. He did not, however, make a motion in the trial court to suppress this evidence. The State argues that, under the circumstances, defendant may not challenge on direct appeal the admission of the evidence at trial. We agree.
Rule 3:5-7(f) provides that if a timely motion to suppress is not made in the trial court, "the defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained." A defendant waives his claim that evidence was obtained in violation of the Fourth Amendment unless he asserts it "before or during the trial[.]" State v. Jenkins, 221 N.J. Super. 286, 292 (App. Div. 1987), certif. denied, 113 N.J. 343 (1988), cert. denied, 488 U.S. 1032, 109 S.Ct. 843, 102 L.Ed. 2d 975 (1989). Therefore, we decline to consider the arguments raised in Points I, II and III.
In Point IV, defendant argues that he was denied the effective assistance of counsel because his trial attorney failed to file a motion to suppress the evidence in question. Defendant is not precluded from raising this argument, despite the waiver of his objection to the admission of the evidence at trial. State v. Johnson, 365 N.J. Super. 27, 33-34 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004).
However, we decline to consider defendant's argument because his ineffective-assistance-of-counsel claim is better suited to a petition for post-conviction relief (PCR). Since defendant did not file a motion to suppress the evidence at trial, the State did not have an opportunity to present a full record addressing the claim. Thus, resolution of defendant's contention that he was denied the effective assistance of counsel involves evidence that lies outside the trial record and should not be considered on direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992). Defendant may pursue the claim in a petition for PCR.
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