On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-07-01169.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Lisa.
Defendant Jose Escobar pled guilty to first-degree financial facilitation of criminal activity (money laundering), N.J.S.A. 2C:21-25a, pursuant to a plea agreement after his motion to suppress evidence was denied by the trial court. He appeals from the order denying his motion to suppress the currency contained in a duffel bag seized by police during a routine safety inspection of his commercial tractor-trailer. We affirm.
The facts, which are set forth in detail in the trial court's written opinion appended to the order, are not in dispute. Accordingly, we recite only those facts necessary to place our opinion in context. Trooper David DeJesus of the New Jersey State Police testified at the suppression hearing. Early in the morning on April 7, 2009, Trooper DeJesus, a certified United States Department of Transportation (USDOT) inspector, observed a commercial tractor-trailer obstructing an entrance ramp and parked in a "no parking" area of the Grover Cleveland Service Area on the Turnpike. A computer lookup revealed the license plate was unregistered and the USDOT number on the truck was not on file.
The trooper approached the driver, later identified as defendant, who was asleep in the vehicle's cabin. The trooper advised he would be conducting a Level II commercial vehicle inspection in accordance with federal regulations and had defendant move the vehicle to the truck lot. Defendant conceded the vehicle's inspection had expired and the trooper found numerous violations in defendant's log book. The trooper also noted a violation two days prior for an unsecured or discharged fire extinguisher. Accordingly, while the trooper was conducting a visual safety inspection of the truck, he asked defendant about the location of the emergency equipment. When defendant responded he was unsure, Trooper DeJesus explained that, typically, the fire extinguisher is located near the driver's seat and the emergency triangles are located underneath the bunk in the sleeping berth.
The fire extinguisher was not under the driver's seat. When defendant lifted the mattress in the sleeping berth, he began to sweat profusely and his hands visibly shook. The compartment contained safety triangles but not the fire extinguisher. Amid greasy chains and leaking mechanical fluid, the trooper observed a clean duffel bag. Assuming the bag contained personal items, such as clothing, trooper DeJesus asked defendant why he put it in the dirty sleeper compartment and not in the closet, which was empty. Defendant denied it was his bag, but added that he thought it contained clothes.
For safety reasons, because he was alone with defendant inside the truck, the trooper instructed defendant to lift the bag and place it on the mattress. When the trooper commented that the bag appeared "to be kind of heavy to be clothes," defendant said he thought it was money. Of his own volition, defendant began unzipping the bag, revealing "black bundles." Believing it was drugs, the trooper handcuffed defendant, left the bag where it was, removed defendant from the truck, and called for back-up. Defendant was read and acknowledged understanding his Miranda*fn1 rights and he was then placed in the back-up patrol car. Based on defendant's demeanor and inconsistencies regarding the bag, Trooper DeJesus presented him with a consent to search form, covering the duffel bag, tractor and trailer, and its contents, and read the form to him verbatim. Defendant consented in writing to the search.
Trooper DeJesus then retrieved $520,420 in United States currency from the duffel bag, packaged in shrink-wrapped bundles with a number written in magic marker on top of each bag. A further search of the vehicle disclosed packages of shrink-wrap.
Defendant was indicted on the money laundering charge. He filed a motion to suppress the evidence found in the search of the tractor-trailer. Defendant argued the warrantless search on his vehicle was unreasonable and Level II inspections do not cover safety equipment, including fire extinguishers. Defendant alternatively challenged N.J.S.A. 2C:21-25 and -26 as unconstitutionally vague. The State justified the search of the duffel bag under the plain view exception to the warrant requirement and further asserted the trooper obtained lawful consent to search.
Judge DeVesa denied defendant's motion in a written opinion of January 26, 2010. Relying on our opinion in State v. Hewitt, he rejected defendant's argument that inspections for safety equipment such as fire extinguishers are beyond the authority of an officer during Level II inspections. See 400 N.J. Super. 376, 381 (App. Div. 2008) (permitting a Level II inspection of a commercial truck, noting violations for an unsecured fire extinguisher and positioning of the load, and search of a hidden compartment as within the administrative search exception to the warrant requirement). The judge concluded the trooper, who was charged with the duty to ensure compliance with federal regulations, maintained the authority to inspect all areas of the vehicle that did not require physically getting underneath it. See U.S. v. Mendoza-Gonzalez, 363 F.3d 788, 791 (8th Cir. 2004) (holding that Level II inspections include "all safety equipment that can be examined without physically getting under the vehicle, such as lights, tires, emergency equipment, and safety belts.") (cited with approval in Hewitt, supra, 400 N.J. Super. at 385, 386). The judge was satisfied the sleeper berth and compartment beneath the mattress did not exceed the "spatial scope" authorized by administrative regulations. See Hewitt, supra, 400 N.J. Super. at 386.
Judge DeVesa further explained that when the trooper discovered the duffel bag, he simply asked defendant to place it on top of the mattress. He noted defendant's completely voluntary act in opening the bag, and the trooper's subsequent plain-view observation of the plastic bundles that he believed were contraband. The judge also found defendant voluntarily, intelligently and knowingly consented to the search of the bag.
The judge further rejected defendant's reliance on State v. Carty, 170 N.J. 632, 635 (2002), requiring a reasonable and articulable suspicion of criminal wrongdoing prior to consent searches, noting its limited holding, State v. Domicz, 188 N.J. 285, 304 (2006), and finding its principle inapplicable to a commercial vehicle such as defendant's tractor-trailer. Nonetheless, Judge DeVesa found, based on the totality of the circumstances, that the trooper possessed ...