On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-10-00766.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 8, 2010
Before Judges Yannotti and Chambers.
By leave granted, the State appeals from an order of the Law Division dated June 25, 2009, suppressing evidence obtained in an inventory search of defendant's vehicle. For the reasons that follow, we affirm.
The following facts are pertinent to our decision, drawn from the testimony presented at the suppression hearing. On July 23, 2008, Timothy Moore, a security officer with the Delaware River Bay Authority (DRBA), was directing traffic in the staging area at the ferry depot in Cape May, New Jersey, where passengers park their vehicles before driving aboard the ferries that operate between Cape May and Lewes, Delaware. There are eighteen lanes in the staging area.
Moore testified that, at approximately 2:30 p.m., a toll collector informed him that a black Lexus sport utility vehicle with a Delaware registration, was parked in lane fourteen, which was one of the lanes designated for the 2:30 p.m. ferry. The toll collector said that the vehicle was in the wrong lane because it was booked on the ferry departing at 3:30 p.m. Moore approached the car and informed the driver that he was in the wrong lane. Moore identified defendant as the driver. Moore said that defendant had a female passenger with him in the car. Moore told defendant to pull over to lane one.
Moore said that it appeared the defendant was going to move his car but apparently decided to remain where he was. Moore approached the car a second time and told defendant that he was supposed to be in lane one. Defendant did not say anything but began to maneuver the car as if he was going to go in the direction of lane one. Moore approached the car a third time to remind defendant that he was supposed to be in lane one. Defendant started to drive in that direction but then abruptly turned and pulled into the rear of line thirteen, which also was designated for the 2:30 p.m. ferry. Defendant then backed up and returned to lane fourteen.
Moore contacted DRBA patrol officer Brian Austin (Austin) and told him that a black Lexus was supposed to be in lane one for the 3:30 p.m. ferry but was attempting to get onto the 2:30 p.m. ferry. Austin said that because there was a high volume of traffic in line for the 2:30 p.m. ferry, defendant's operation of his vehicle had created a dangerous situation and could have caused an accident.
Austin approached the driver's side window of defendant's car. Austin testified that he detected a strong odor of an alcoholic beverage emanating from the vehicle and defendant's body. Austin asked defendant for his driver's license, vehicle registration and insurance information. Defendant provided Austin with the documentation. Austin then asked defendant to step out of the vehicle. Austin administered field sobriety tests. Austin testified that, based on the results of those tests and his training and experience, he believed defendant was intoxicated.
Austin placed defendant under arrest. Defendant's passenger was identified as Denise Norman (Norman). Austin told defendant that he could not leave the car in the staging area because it was blocking traffic going to the ferry. Austin asked defendant whether Norman would take custody of the car and drive it off the DRPA property. Defendant agreed but Norman told Austin that her driver's license had been "revoked and suspended" in Delaware for driving under the influence of alcohol.
Austin informed defendant that he would have to impound the vehicle because neither defendant nor Norman could drive it away. Austin asked defendant if he needed anything in the vehicle. Austin testified that it is the DRPA's policy to allow individuals "to take anything they want out of their vehicle before it's impounded." Defendant told Austin that he did not need anything in the car. Defendant was taken to the Lower Township police department for a breathalyzer test.
DRPA Officer James Spahr (Spahr) was instructed to impound the vehicle and he proceeded to the staging area. Spahr testified that Norman was with the car. Spahr asked Norman if she wanted to take anything out of the car. Norman removed a cell phone and a brown ...