On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 07-03-0726 and 07-09-2072.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2010 - Decided Before Judges Gilroy and Nugent.
On March 21, 2007, a Monmouth County Grand Jury charged defendant under Indictment No. 07-03-0726 with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1). On June 22, 2007, the trial court denied defendant's motion to suppress evidence. On July 9, 2007, defendant pled to the charge. On January 25, 2008, the court sentenced defendant to a three-year term of imprisonment, concurrent with a term of imprisonment imposed on the same date on defendant's conviction for third-degree possession of a CDS (heroin), N.J.S.A. 2C:35-10a(1), under Indictment No. 07-09-2072.
On appeal, defendant argues:
THE SEARCH OF [DEFENDANT'S] BAG, AFTER SHE WAS ARRESTED AND SECURED IN THE BACK OF THE PATROL VEHICLE, VIOLATED ARTICLE 1, ¶ 7 OF THE NEW JERSEY CONSTITUTION AND THE FOURTH AMENDMENT OF THE FEDERAL CONSTITUTION.
After considering defendant's argument in light of the record and applicable law, we affirm. We briefly state the facts as adduced from the transcripts of the hearing on the motion to suppress evidence.
Early in the morning on December 30, 2006, Patrolman Gary Olsen of the Brielle Borough Police Department overheard a radio transmission regarding a possible intoxicated automobile driver. Responding to the radio transmission, Olsen observed the suspected motor vehicle. Olsen followed the vehicle for approximately one mile. Although Olsen did not observe any moving violations by the operator of the vehicle, he did observe that the vehicle's driver's side mirror was missing. Based on that motor vehicle violation, Olsen made a stop of the vehicle and identified defendant as the operator.
Upon conducting a credential check of defendant and the vehicle, Olsen learned that there was an outstanding warrant for defendant's arrest from the Neptune City Municipal Court. While defendant remained seated in her vehicle, Olsen confirmed the warrant's validity with his radio dispatcher. In so doing, Olsen observed defendant's head quickly disappear from his view. Concerned for his safety, Olsen exited his patrol car and walked toward defendant's vehicle to ascertain what defendant was doing.
On approaching the vehicle, Olsen saw that defendant had both of her hands inside a plastic bag that was lying on the front passenger seat. Defendant told Olsen that she was attempting to retrieve a breakfast sandwich from the bag; however, Olsen observed that the sandwich was lying on the dashboard directly in front of defendant. Olsen instructed defendant to stop moving about in the vehicle, and defendant complied by retracting her hands from the bag.
With the arrest warrant having been confirmed, Olsen instructed defendant to step out of her vehicle. Defendant quickly grabbed the plastic bag and exited. Believing that the bag may have contained a weapon, Olsen grabbed the bag from defendant's possession. Olsen placed the bag on the rear of defendant's vehicle and secured her in the rear of his patrol car. After defendant was secured, Olsen looked into the bag and found a closed translucent plastic container and a closed Altoids tin. Olsen illuminated the translucent container with his flashlight and observed what he believed were pieces of crack cocaine. A field test at the scene supported Olsen's belief. On opening the Altoid tin, Olsen observed marijuana.
At the hearing, defendant did not challenge the validity of the motor vehicle stop or her arrest. Rather, defendant only challenged the validity of the search of the plastic bag. Defendant contended that the search could not be justified as incident to her arrest because at the time of the search, she had already been secured in the rear of the police vehicle by Olsen. The court rejected defendant's argument, determining that the warrantless search was lawful as incident to defendant's arrest. In so doing, the court reasoned:
In this particular case, our facts are as I've indicated . . . that when she exited the vehicle, she took that bag with her. She had it physically in her hands and the police officer grabbed it from her and put it on the back of the squad car and then secured her in the back of the patrol vehicle.
The defendant asserts that . . . State v. Eckel, 185 N.J. 523 [(2006)] controls this particular issue. And that, therefore, the items [found] inside the bag are inadmissible because she was already secured in the ...