On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. 07-10-1599.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2009
Before Judges Carchman and Lihotz.
Defendant Richard Hernandez was charged by a Middlesex County grand jury under Indictment No. 07-10-1599 with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), count one; and second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2), count two.
Defendant moved to suppress certain drug evidence gathered during a warrantless search of an automobile in which he was traveling. The motion was denied following a hearing. Preserving the right to appeal the denial of his motion to suppress, R. 3:5-7(d), defendant entered a guilty plea to count two and the State agreed to dismiss count one. Accepting the plea, the court sentenced defendant to five years incarceration with an eighteen-month period of parole ineligibility, to run concurrent with that imposed on a separate Middlesex County Indictment pending at the time defendant committed the instant offense. Applicable fines and costs were also assessed.
On appeal, defendant presents a single issue for review, arguing:
THE EVIDENCE SEIZED FROM DEFENDANT'S VEHICLE SHOULD BE SUPPRESSED BECAUSE THE WARRANTLESS SEARCH OF THAT VEHICLE DID NOT MEET THE REQUIREMENTS OF THE "AUTOMOBILE EXCEPTION."
After review of the briefs submitted, and in light of the record and applicable law, we affirm the trial court's denial of defendant's motion to suppress.
These are the facts. On July 7, 2007, shortly before 2:00 a.m., State Trooper Michael Nelson and his partner, Trooper Pommrencke,*fn1 observed a 1994 Chevrolet Caprice with inoperable taillights enter northbound Route 440 from Route 514 in Edison. The vehicle was driven by Diana Crespo, defendant's girlfriend, with defendant as a passenger. The Troopers effectuated a traffic stop.
As the officers approached the passenger side of the vehicle, Trooper Nelson noticed defendant was "flailing his hands outside the . . . window" and kept "turn[ing] his back towards [them]." Shining their flashlights into the car, the Troopers asked Crespo to produce her license, registration and proof of insurance. Crespo did not have her license and stated the vehicle did not belong to her. Crespo asked defendant to open the glove compartment to look for the papers. In so doing, defendant "ripped the entire face off" of the compartment and was observed sweating profusely on what Trooper Nelson described as an otherwise "cool[,] breezy" night.
Defendant then began kicking the passenger-side floorboard with his left foot, causing the Troopers to shine their flashlights in that direction. Trooper Nelson observed a "white powdery substance in a clear plastic bag" on the floor and asked defendant to hand him the bag. Defendant complied. Based upon his training and experience, Trooper Nelson believed the bag contained cocaine. He ordered defendant to exit the vehicle and placed him under arrest.
Defendant was escorted to the front of the vehicle, handcuffed and searched. The police found three baggies of suspected cocaine wrapped in a "yellow sticky note" and an inhaler filled with "green brownish vegetation" on defendant's person. Defendant stated "he did not want anything to happen to his girlfriend," and admitted there were additional drugs in a "black nylon bag" located underneath the passenger seat of the car. Defendant was placed in the back of the police car and read his Miranda*fn2 rights.
Trooper Nelson returned to the Caprice and ordered Crespo to exit the car; she was arrested and then searched by Trooper Pommrencke, a female ...