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State of New Jersey v. Daniel M. Bestulic

April 4, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DANIEL M. BESTULIC, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-09-1838.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 21, 2012

Before Judges Fuentes and Haas.

After his motion to suppress was denied, defendant Daniel Bestulic pled guilty to third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). He was sentenced to two years of probation. Defendant appeals the denial of his motion to suppress. We affirm.

I.

At 12:55 p.m. on July 8, 2009, Bryce Byham, a Neptune Township police officer, was conducting surveillance of possible drug sales in the parking lot of a Popeye's restaurant located on State Highway 35. Byham observed two male drivers leave their cars and enter the restaurant bathroom. One of the men was later identified as Brian Mignelli, but the second man was never identified. The two men soon exited the restaurant, together with a third male, later identified as defendant. Mignelli and defendant were talking. Mignelli got into a black Chevy and defendant left in a burgundy Dodge Durango. Both drivers ran a stop sign when they exited the parking lot.

Byham decided to follow Mignelli, but he was able to record defendant's license plate number. Mignelli stopped to pick up a woman, who was later identified as his wife, Erin. After two miles, Byham stopped Mignelli for the traffic violation and questioned the couple. When Byham asked about buying drugs at the restaurant, Ms. Mignelli told him that she had gone to the restaurant with her friend, Dan, to buy drugs and that he had purchased more drugs than she and her husband had. Byham arrested the couple for wandering and a search incident to that arrest revealed that they were in possession of methadone.

Late in the afternoon the next day, Byham observed defendant driving the Dodge Durango in the area of the restaurant. As Byham passed defendant, he saw that the Durango had an expired inspection sticker. Because it was unsafe for Byham to turn his vehicle around to pursue defendant, he remained in the area and waited to see if defendant returned. About ten minutes later, defendant drove by again and Byham activated his vehicle's lights to pull him over. As defendant drove his car to a stop in response to the command to pullover, Byham saw him reach up toward the visor area above his head. From his experience, Byham knew that drugs are sometimes hidden near the visor in the area where the seam of the roof of the car meets the windshield.

After requesting and receiving defendant's credentials, Byham asked him where he was coming from. Defendant replied that he had just taken an hour-long walk on the boardwalk, a response that Byham knew to be false based upon his observations of defendant driving in the area. Byham confronted him with his suspicion that defendant was in the area to purchase drugs. After another officer arrived, Byham asked defendant to step out of the car and he was patted down for weapons.

Byham then asked defendant if he would consent to a search of his car. Defendant agreed. Byham completed a written consent form and went over it, line-by-line, with defendant. Defendant initialed each answer that he gave to the questions asked on the form.

After defendant signed the consent form, Byham searched the area around the driver's side visor. He found a hypodermic needle, nine glassine bags of heroin, and one empty bag of heroin secreted in an area between the cloth roof of the car and the windshield.

The motion court denied defendant's motion to suppress, finding that Byham had properly stopped defendant's vehicle due to the expired inspection sticker. Based upon Byham's observation of defendant apparently hiding something in the area above the car's visor and defendant's false statements as to his activities immediately preceding the stop, the court found Byham had a reasonable basis for asking defendant to consent to ...


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