On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 08-05-00228.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Reisner.
By leave granted, the State appeals from the order granting defendants Ramon Hernandez and Fernando Fernandez's joint motion to suppress evidence. Defendants were arrested and indicted for fourth degree possession of more than fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(3), and second degree possession with an intent to manufacture, distribute, or dispense five or more pounds of marijuana, N.J.S.A. 2C:35-5(a)(1) and -5(b)(10). Defendants moved to suppress the evidence found during an administrative inspection of their commercial vehicle. During the inspection, a State Police Trooper searched the sleeping compartment of the commercial truck and then opened three duffel bags, revealing the drug contraband.
The judge held an evidentiary hearing and granted defendants' motion, concluding that a search based on consent was not authorized pursuant to State v. Carty, 170 N.J. 632, modified, 174 N.J. 351 (2002). We conclude that even if Carty applied, the inspector had a "reasonable and articulable suspicion" of crime before seeking consent to search the sleeping compartment and the bags. This suspicion was based on the conduct of both defendants, which provided a basis to believe that defendants were concealing contraband. We therefore reverse and remand for trial.
These are the proofs presented by the Sate at a hearing on the motion to suppress. On January 16, 2008, New Jersey State Police Sergeant Andrew Thomas had twenty-two years experience as a police officer, with twelve years as a commercial inspector. That day, he pulled over a commercial truck for a random inspection. Hernandez was driving the truck and Fernandez was his passenger. As Thomas waved the truck over, Fernandez stared ahead and never looked at Thomas, nor did he look to the lane next to him to see if a vehicle was coming. Hernandez cut the vehicle's wheel abruptly and narrowly missed the curb. Although Thomas said trucks normally stop right away, this truck crept along slowly for approximately 150 feet.
As Thomas approached the truck, the passenger door opened and Fernandez quickly dropped to the ground, "barely even using the steps." Thomas found this unusual and grabbed the back of Fernandez's coat and told him not to move. Thomas then peeked into the open door and saw that the driver's door was also wide open and Hernandez was not in the driver's seat. He also noted that the curtain to the sleeper berth was closed. Thomas thought perhaps Hernandez went into the sleeper to get his credentials, but he also feared Hernandez might come around the front of the truck and start shooting. Thomas did not call for backup because he did not have a portable radio with him.
While still holding on to Fernandez, Thomas came around the front of the truck and saw Hernandez at the back of the trailer. Thomas thought this was suspicious, but rationalized that sometimes truckers are "half asleep" or "confused" and that there is often a "bit of a language barrier." After Thomas motioned him forward, Hernandez approached and presented a Florida driver's license and stated that "everything is okay." Thomas noticed that Hernandez seemed "a little nervous" and was wearing open-toed slippers, socks, and no coat, despite the weather being only twenty degrees. Hernandez's carotid artery was pulsating.
Thomas asked both men to get back into the cab of the truck. At first, Hernandez stood at an angle with his body between Thomas and the cab, but after Thomas asked a second time both men went back into the vehicle. These commands were all given in English and the men complied.
For his safety and to ensure no person or dog was behind the curtains, Thomas asked the men to open the curtain. They did. There were air fresheners hanging from the curtain and a strong "Febreeze-type" odor. According to Thomas, drivers often like to keep the cab smelling nice, but the air fresheners can also be used for drug odor concealment. He also noticed a can of air freshener and that the cab was unusually clean.
Thomas returned to his car to finish the inspection. After entering the truck's "DOT number," the computer system revealed that the trucking company had a horrible safety rating and that a "Level 1" safety inspection was required. Thomas ran a quick check on the two men. The Immigrations and Customs Service system revealed that Hernandez might possibly be wanted. However, Thomas knew that Hernandez was a common last name. Thomas called another Trooper for backup. As both Troopers began the inspection, defendants once again jumped out of the truck. They returned only after Thomas advised them to do so.
The Troopers proceeded with the Level 1 inspection. Thomas testified that this entails an exterior check and an inspection of the cab to make sure everything is properly secured. As Thomas approached the cab, Hernandez was sitting in the driver's seat watching a movie. Thomas indicated that he wanted to inspect the interior of the cab. Hernandez once again jumped out of the cab in a hurried manner. This time, he went to the front of the truck, opened the hood, and said "[S]ee, it's good, it's good. Everything's okay."
Thomas testified that he had a "heightened suspicion that they didn't want [him] near their cab." Because of this suspicion, Thomas requested that Hernandez consent to a search of the truck and its contents. Hernandez signed a consent form written in Spanish. Thomas then searched the cabin sleeper and found two duffel bags in a curtained off storage area under the bed. This area is often where truckers keep their emergency triangles or fire extinguishers, which, according to Thomas, are both subject to inspection. Thomas unzipped the bags and saw greenish vegetation, ...