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State v. Barr

February 16, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PETER A. BARR, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-11-1806.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 4, 2010

Before Judges Lisa and Baxter.

After his motion to suppress evidence seized in a warrantless search was denied, defendant pled guilty to third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(11), and third-degree unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5b. He was sentenced to concurrent terms of five years probation on each count. In accordance with the plea agreement, the remaining three counts of the indictment were dismissed. Defendant now appeals the denial of his suppression motion. He argues:

THE WARRANTLESS SEARCH OF BARR'S JEEP WAS NOT JUSTIFIED UNDER THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT.

A. The Stop Of Barr's Jeep, Which Was Directed By Federal Agents, Was Not Unexpected.

B. It Was Not Impracticable For The Officers To Get A Warrant When They Themselves Acknowledged That They "Should Stop Right Here And Get A Warrant," That There Was "No Rush," And That They Had "A Lot Of [Police] Cars Out [T]here."

We reject defendant's arguments and affirm.

On July 18, 2007, New Jersey State Trooper Thomas Kulpinsky began his shift at 6:00 p.m. He was assigned to patrol the New Jersey Turnpike. Immediately upon beginning his patrol, he heard a dispatch advising that federal Immigration and Customs agents had a visual on a vehicle traveling southbound on the Turnpike, approaching Kulpinsky's location. The driver of the vehicle was believed by the customs agents to be trafficking in narcotics. The dispatcher reported that the vehicle was driving at a high rate of speed and erratically. The customs agents requested that the State Police stop the vehicle.

Kulpinsky established a stationary position. About ten to fifteen minutes later, he saw the vehicle described in the dispatch. He pulled out and followed it. Driving directly behind it, he paced the vehicle at seventy-nine miles per hour. He said it had been going faster when he first observed it, but it slowed down to that speed by the time he was able to pace it. In addition to substantially exceeding the speed limit, Kulpinsky observed other motor vehicle violations, including following too closely, N.J.S.A. 39:4-89. Based upon these violations, Kulpinsky activated his overhead lights and effected a stop of the vehicle, which defendant was driving.

The customs agents who had been following defendant's car pulled over simultaneously, and other State Troopers who were aware of the circumstances based upon the dispatch had come to the area and immediately arrived at the site of the stop.

The location of the stop, verified by the videotape taken with the camera mounted in Kulpinsky's car, which was played at the suppression hearing and which we have viewed, was on the right shoulder of the highway. A guardrail was located two to three feet to the right of the vehicle. The lane of travel was two to three feet to the left of the vehicle. There were three lanes of travel in the southbound direction at this location. Traffic was very heavy. Vehicles passing by at a high rate of speed included many tractor trailers and box trucks, as well as buses and car carriers.

Three troopers, including Kulpinsky, approached the vehicle. Kulpinsky and another trooper went to the passenger side window, and the other trooper went to the driver's side area. The passenger side window was open. As Kulpinsky approached the vehicle, he immediately detected a strong odor of marijuana emanating from it. He leaned into the window and asked for driving credentials. He noted that defendant was nervous. His hands were on his lap. Within seconds, Kulpinsky observed a machete wedged between the center console and passenger seat. Kulpinsky's demeanor immediately changed, as corroborated on the videotape. He and the other troopers drew their weapons and Kulpinsky began shouting orders at defendant, instructing him to put his hands on the steering wheel, and ordering him out of the vehicle. Defendant exited the vehicle and was immediately placed under arrest for possession of an illegal weapon. He was handcuffed, advised of his Miranda*fn1 rights and placed in a police vehicle.

During the course of these fast-moving events, defendant volunteered to the police that he had a gun in the car. He may have also identified its location in the back pocket of one of the front seats.

At this point, there were six or seven State Troopers and federal customs agents on the scene. Several troopers engaged in a discussion as to how to proceed, considering whether they should search the car immediately or seek a search warrant. Primarily based upon the known presence of weapons in the vehicle, they opted to proceed without a warrant. They went into the vehicle and seized the machete and the gun, which they found to be loaded with ten hollow-point bullets. Based upon the strong odor of marijuana and the concern that additional weapons might be present, they continued the search.

As it turned out, the length of the search from that point on was protracted. It is unclear from Kulpinsky's testimony and the videotape at what point the marijuana was discovered. Based upon the time markings on the videotape, defendant was removed from the car at about 6:55 p.m. The search began at about 7:05 p.m. The video reveals that at about 7:10 p.m. a white plastic bag was removed from the vehicle by an officer who was leaning into the rear of the vehicle. This portion of the tape was played during Kulpinsky's direct examination. Kulpinsky testified that an officer was checking a bag which was retrieved from the rear area of the vehicle. Kulpinsky further stated that another bag of what he believed to be marijuana was also recovered from the rear area of the vehicle. Kulpinsky did not specify at what point this bag of alleged marijuana was recovered, although he did say that it was not contained in the white plastic bag.

At about 7:15 p.m., the video shows an officer appearing to place a bag inside a black duffel bag. As to this portion of the ...


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