On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 09-03-0266.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Sapp-Peterson.
In this appeal we consider whether there was a basis upon which to conduct a Terry*fn1 frisk of defendant for weapons and whether the subsequent warrantless search of defendant's vehicle was justified on the basis of exigent circumstances. We conclude that none of the factors the Pena-Flores*fn2 Court articulated that justify the warrantless search of a vehicle were present here. We therefore reverse the denial of defendant's suppression motion insofar as the search of defendant's vehicle but affirm the Terry frisk and evidence seized as a result thereof.
Based upon information received from Dispatch that there was a suspicious vehicle on Tyler Road in Dennis Township, Trooper Christopher Neuman proceeded to the area. Dispatch described the vehicle as a white pickup truck with a mattress in the rear of the truck bed. The driver of the vehicle, later identified as defendant Christopher Mauro, was reportedly bobbing his head up and down. At 8:23 a.m., Trooper Neuman located the vehicle stopped for a light at the intersection of Tyler Road and State Highway 47 (Highway 47). When the light changed to green, the vehicle turned left onto Highway 47 and proceeded in a southerly direction. Trooper Neuman followed the vehicle. There were two or three vehicles between his vehicle and the pickup truck, but he was able to observe that the vehicle was traveling slower than other vehicles on the road, at one point crossing the fog line and, at another point, crossing the double yellow line as it negotiated a curve. After approximately one-quarter mile, Trooper Neuman activated his overhead lights, drove around the cars in front of him, and directed defendant to pull over. Mauro abruptly stopped the vehicle, nearly causing the trooper to strike its rear. Mauro pulled the vehicle over to the shoulder and stopped.
Trooper Neuman indicated that traffic on Highway 47 on that day was heavy because it was the morning rush hour. The specific area of the stop was around milepost 18.3 just north of the Dennisville Wawa. The shoulder of the roadway was about the width of one car and its length extended throughout most of Dennis Township. He testified that Highway 47 "has a smaller shoulder" and because he had investigated numerous fatal accidents along Highway 47, he therefore took "more caution in stopping vehicles out there and checking on motorists' aids."
As he approached the vehicle, he observed defendant's head leaning down near the center console. This conduct aroused his suspicion and he concluded that something was going on because "[i]t's not usual that somebody reaches down center and dips their head that far down even to get their license and registration." When he commenced speaking with Mauro, the first thing he noticed was that Mauro appeared nervous, his hands shook, he avoided eye contact, and his nose was red. Because the caller had described the driver as bobbing his head up and down and, due to how Mauro was addressing him, he suspected that Mauro was impaired. He also noticed that Mauro's pupils were constricted and that his face was pale. Mauro was unable to produce a driver's license but provided a driver's license number. At that point, Trooper Neuman decided to remove Mauro from the vehicle to conduct a further investigation and also to remove him from the area where he had earlier observed Mauro reaching. He intended to administer field sobriety tests.
Trooper Neuman escorted Mauro to the front of the vehicle. Mauro kept reaching towards his pockets and, as he did, the trooper noticed that there was a bulge protruding from Mauro's pocket. He asked Mauro what was in his pocket and Mauro told him that he had a penknife in his right front pocket. Trooper Neuman then conducted a protective frisk because he was the only trooper out there and also because he intended to conduct field sobriety tests. During the frisk, he recovered the penknife and, for further safety reasons, conducted a full frisk. He felt another hard object in Mauro's left front pocket.
Suspecting that the object could also be a weapon, he removed it and noticed that it was "like a pipe or a plastic tube, and stuck to the end of that plastic tube was a druggist fold consistent with the packaging of [a controlled dangerous substance], and there was also white powdery residue . . . within that object."
Trooper Neuman placed Mauro under arrest, handcuffed him, and conducted a search incident to arrest during which he discovered additional druggist folds in Mauro's wallet. He then escorted him to the troop vehicle and secured him in the rear of the vehicle from which defendant could not alight because of child safety locks on the doors.
Once defendant was secured in the troop car, Trooper Neuman returned to Mauro's vehicle and conducted a full search of its interior, uncovering suspected narcotics, paraphernalia and cash. When asked on direct why he searched the vehicle following the arrest, the trooper responded: "Well, he had just used drugs so I went in the vehicle to find out if there were anymore drugs and it's - the roadway there is -" Defense counsel interposed an objection, and once the court overruled the objection, he again attempted to respond to the question why he undertook the search of the vehicle:
Yes. There were multiple factors. It wasn't - the totality of the DWI arrest which I believed he consumed the narcotics.
I don't know if I can answer it that way but I believe he consumed narcotics and that he was under the influence with the white powdery substance, the physical observations, and also the -Defense counsel interrupted with another objection, which the court once again overruled. Trooper Neuman then testified: "I searched the vehicle after Mr. Mauro was arrested. There were multiple factors why I did that. Number ...