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State v. Pompa

July 2, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ENDER F. POMPA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 07-05-0185.

The opinion of the court was delivered by: Fisher, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted June 9, 2010

Before Judges Axelrad, Fisher and Sapp-Peterson.

Defendant was convicted of various drug offenses after more than thirty pounds of marijuana were seized from the sleeper cabin of his tractor trailer. Among other things, defendant argues the judge erred in denying his motion to suppress the seized evidence. We conclude the closely regulated business exception permitted a warrantless administrative inspection of certain areas of the tractor trailer, but the search turned unlawful when it progressed into unregulated areas without the exigent circumstances required by State v. Pena-Flores, 198 N.J. 6, 28 (2009). We reverse the order denying the suppression of evidence and, as a result, vacate the judgment of conviction and remand for a new trial.

I.

The record reveals that at approximately 8:30 a.m. on January 28, 2007, Trooper Michael Budrewicz stopped a tractor trailer driven by defendant on Interstate Highway 78 in Greenwich Township. Trooper Budrewicz was suspicious because it appeared there was tampering with the vehicle USDOT number;*fn1

when he entered the number into his computer, it did not correspond with the company name on the side of the vehicle.

Trooper Budrewicz activated his sirens and directed defendant to pull over.

Shortly after Trooper Budrewicz exited his vehicle, defendant emerged from the cab, nervously waving his keys and requesting the Trooper to look inside the trailer. The Trooper signaled defendant to remain inside the cab.

Once defendant was back inside the cab, Trooper Budrewicz approached the driver's side door to speak with him. As he stepped up on the running board, the Trooper could feel it was extremely cold inside the cab, as it was outside, and the windows were noticeably foggy, yet it did not appear defendant was using the heat or defroster. In addition, Trooper Budrewicz detected an "overwhelming" odor of air fresheners and counted roughly twenty of them hanging throughout the cab.*fn2 He also observed that defendant appeared nervous and, when asked for his driving documents, defendant turned the truck radio up "extremely loud."

After fumbling with his paperwork for a few seconds, defendant provided his driver's license, social security card, permanent residence card, and log book,*fn3 but was unable to produce a bill of lading. According to Trooper Budrewicz, defendant was the first of approximately 2,000 truck drivers he had stopped who could not produce a bill of lading. Trooper Budrewicz returned to his cruiser and began reviewing defendant's paperwork but, once again, defendant exited the cab and tried to approach. The Trooper again ordered defendant to remain in his vehicle and defendant complied. The log book indicated defendant had driven more than fourteen consecutive hours of drive time without taking at least ten hours of rest in violation of federal regulations.*fn4 At this point, based on defendant's "nervousness," "the ridiculous odors of air freshener," defendant's repeated attempts to exit the cab, defendant's eagerness "to show . . . the trailer," and the irregularities in the log book, Trooper Budrewicz decided to perform a North American Standard Level II safety inspection of defendant's vehicle.*fn5

Trooper Budrewicz began his Level II inspection by sitting in the driver's seat of the cab and checking the safety belts. He testified that, upon entering the cab, and apparently no longer affected by the overwhelming air freshener odor that had raised his suspicions, the Trooper "very quick[ly]" smelled "a strong odor of raw marijuana" coming from the sleeper cabin.*fn6 He entered the sleeper cabin, "looked back toward the sleeper bunk," and then into "the closet that didn't have a door on it." Inside the closet, Trooper Budrewicz found a black duffel bag and "stuck [his] nose down to the black duffel ba[g] without even touching it," whereupon, according to his testimony, he could smell marijuana inside.*fn7 Trooper Budrewicz opened the bag and found twenty to twenty-five hermetically sealed freezer bags filled with what appeared to be marijuana.

After making this discovery, the Trooper arrested defendant, advised him of his Miranda rights,*fn8 searched him for contraband, and radioed for backup. When backup arrived, Trooper Budrewicz performed a second warrantless search of the vehicle, finding inside the same closet another duffel bag and what was referred to as a rectangular "genesis box."*fn9 He also found two more bags on top of and underneath defendant's bed. All of these containers held what appeared to be marijuana.

The truck was impounded and defendant was transported back to State Police Barracks to be processed. Trooper Mike DelRio read defendant his Miranda rights, but did not interrogate him, asking only for defendant's personal information, such as his name, date of birth, residence, and occupation.*fn10 Nevertheless, as Trooper DelRio requested this information, defendant volunteered that the marijuana in the sleeper cabin was placed there by a man he met in Florida. Defendant also told Trooper DelRio he agreed ...


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