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State v. Herbin

October 22, 2010


On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-09-0769.

Per curiam.


Submitted: September 29, 2010

Before: Judges Cuff and Fasciale.

In this case involving a warrantless search, defendant, Candida Herbin, appeals from a February 8, 2008 order denying her motion to suppress marijuana and cocaine seized from a car in which she was a passenger.*fn1 Defendant was justifiably removed from the car, marijuana was observed in plain view, and exigent circumstances existed warranting a search under the front passenger seat where cocaine was located. We affirm.

At 12:30 a.m., Bedminster Township Officer John Dapkins observed a small two-door Acura with Pennsylvania license plates speeding in the center lane of Interstate 78 westbound. Dapkins paced the Acura, determined its speed to be eighty miles per hour, and observed it weaving from left to right in the lane. The Acura approached a slower moving car in the same lane, tailgated it, and then switched from the center lane to the left lane as if to pass it. Instead of passing the slower moving car, the Acura traveled next to it for a "period of time." Dapkins notified dispatch that he intended to make a stop, pulled into the left lane, and activated his emergency lights. Dapkins followed the Acura approximately one and one-half miles before the Acura pulled over in the right-hand shoulder.

Dapkins approached the Acura on the passenger side because it was about to rain heavily and it was safer. Through the passenger window, Dapkins asked the driver, Treese, to produce his license and registration. Treese indicated he had no identification for himself or the Acura. Dapkins requested Treese to step out of the car and instructed defendant and Heintzelman to remain in the Acura and not move.

Dapkins walked Treese about ten to fifteen feet in front of the Acura and asked him for his name. Treese attempted to give Dapkins his name but had difficulty spelling it correctly. Dapkins observed Treese's speech and body movements were "very rapid" and his pupils were "extremely large." Dapkins, a drug recognition expert with extensive experience evaluating whether someone is under the influence of drugs, concluded that Treese exhibited signs of ingesting a stimulant.

Dapkins conducted a pat down search to determine if Treese had any weapons. He identified a sponge-like object in his front pocket, "a large squishy ball," that Treese voluntarily removed. Dapkins observed that the object was a stainless steel scouring pad that he recognized was commonly used to smoke crack cocaine.

While Dapkins was talking to Treese, Dapkins observed that defendant and Heintzelman were having a heated conversation and that defendant turned around and faced Heintzelman in the back seat. He shone his flashlight at the car, defendant turned around, and both looked straight ahead. Dapkins instructed Treese to remain still, and he returned to the Acura rapidly.

Dapkins asked defendant and Heintzelman for identification. Heintzelman indicated he had none and defendant produced her New York identification. Both told Dapkins that they traveled to the Bronx to celebrate defendant's birthday and that they "had just dropped off her three children." Dapkins questioned them about how six people could fit in the compact Acura, especially because Heintzelman was a large man who occupied most of the back-seat, and Heintzelman responded that "we managed."

Dapkins told both to remain in the car and he returned to Treese and questioned him about whether there were any other people in the car that night. Treese indicated that no other people had been in the car. Dapkins used defendant's New York identification and asked if Treese knew who she was. Treese attempted to read her name off the identification card in Dapkin's hand and then accused Dapkins of asking a trick question.

Dapkins returned to the Acura, asked defendant to step out, and inspected her clothing visually to determine if she had any weapons. He looked into the car and observed marijuana in plain view, located in the center console area near the front passenger seat. Dapkins immediately contacted dispatch and requested back-up.

Dapkins asked Heintzelman to step out of the Acura but Heintzelman did not comply immediately. While Dapkins told him repeatedly to exit the Acura, Dapkins observed Heintzelman kicking his left foot under the front passenger seat multiple times. Dapkins directed him to exit the Acura and proceed to the patrol car but Heintzelman ...

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