On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 03-05-0678; 04-04-0466;*fn1 06-10-1521.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 16, 2011 - Decided: Before Judges Cuff and Simonelli.
Following denial of his motion to suppress evidence seized as a result of a warrantless search of defendant's automobile, defendant Christian Blanco pled guilty to third degree possession of a controlled dangerous substance (marijuana) with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(11). At sentencing, the judge imposed a three-year prison term.*fn2 On appeal, defendant argues that his motion to suppress should have been granted. We affirm in part and reverse in part.
At approximately 4:30 p.m. on July 23, 2006, defendant was driving a rental car eastbound on Leonardine Avenue in South River. Having set up a radar checkpoint at the intersection of Leonardine and Sheinfeine Street, Patrolman Alphonso Saucedo was observing passing vehicles. As defendant's car passed the officer's observation post, the officer noticed defendant look at his car, "and then he did a double take." In doing so, the officer saw defendant turn his body to look at him. At this time, Saucedo noticed defendant was not wearing a seatbelt.
Saucedo stopped defendant's motor vehicle on a portion of Leonardine, where there was a slight bend in the road, and no shoulder. Although Leonardine is a busy thoroughfare, July 23 was a Sunday, so the traffic was not as heavy as it normally is on a weekday. In fact, a line of vehicles never formed to maneuver around the stopped cars, although the stop closed one lane of the road.
After notifying the dispatcher of the stop, Saucedo approached defendant's car and noticed defendant "leaning over towards . . . the passenger seat." As defendant righted himself, Saucedo approached the vehicle, advised defendant of the reason for the stop, and asked him for his license, registration, and insurance card. He also inquired why defendant was moving around so much; defendant replied he was looking for his paperwork. Saucedo noticed paperwork strewn all over the passenger seat of defendant's car.
After receiving defendant's credentials, Saucedo advised him not to move around any more and told him he would return shortly. Saucedo entered the police car to check defendant's credentials. Patrolman Joseph Castellano, the supervisor that day, arrived on the scene as a matter of protocol. Saucedo informed Castellano that defendant was "making movements towards the passenger seat," and asked Castellano to watch defendant as he wrote the ticket.
Castellano stationed himself at the rear passenger side bumper of the defendant's car, where he had an unobstructed view of defendant. Shortly thereafter, he noticed defendant leaning over and yelled at him to stop. Defendant immediately sat up. Saucedo looked up as he was writing the summons and also noticed defendant's actions. Castellano started to walk along the passenger side of the vehicle; Saucedo put down his summons book and approached the driver-side window. Saucedo asked defendant why he was moving around, and "he stated that he was just fixing papers and picked up papers like that . . . he got like upset [a] little bit." When defendant picked up the papers, Saucedo observed approximately three inches of a clear plastic bag. The bag contained "greenish brown vegetation," and was "partially tucked between the passenger [seat] and the middle console area."
Saucedo opened the driver's door, directed defendant to step out of the vehicle and stand by the rear of the car. Castellano then moved from his position on the passenger side towards defendant. Saucedo placed one knee on the driver's seat and reached into the car to retrieve the bag. As he did so, Saucedo smelled the odor of marijuana, but assumed it emanated from the bag he had just retrieved. After showing the bag to defendant, Saucedo placed defendant under arrest, escorted him to his patrol car, conducted a pat down, and secured defendant inside the back of the car.
Saucedo called for a tow after securing defendant because he did not want to leave the car in the bend of the road. Moreover, because the car was rented, there was no owner available to remove the car. Initially, the car was to be towed to a garage, not the police station.
In anticipation of the arrival of the tow truck, Castellano leaned into the car and removed the keys from the ignition. As he pulled the key from the ignition, he smelled raw vegetation. Castellano "took the keys, put them in [his] top pocket and then [he] put more of [his] body in between the driver's side seat and the passenger seat to smell where the odor was coming from." He decided that he needed to search the car further.
Castellano looked around the front seat, but did not see anything; therefore, he focused his attention on the back seat. Castellano entered the back seat, where the odor was the strongest, and laid on the floor. Not finding anything, he attempted to pull down the armrest in the back seat. Because it seemed stuck, he pulled hard and "half of the seat folded down."
Castellano observed a large plastic bag with "a large amount of greenish brown vegetation which looked to be marijuana . . . ." Castellano removed that bag from behind the rear seat. Once he removed the first bag, Castellano was able to see a partially open bag inside the compartment. Using his flashlight, he "saw more greenish brown vegetation." Castellano retrieved that bag as well. Due to the large amount of marijuana ...