On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-08-2242.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2012
Before Judges Sabatino and Maven.
After the denial of his motion to suppress evidence of marijuana that police seized from his pickup truck without a warrant, defendant Timothy Pheasant entered into a guilty plea to third-degree manufacturing, distributing or dispensing of marijuana, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11). He was sentenced to a three-year custodial term, concurrent to any sentence that may be imposed arising from defendant's violation of probation on a prior conviction in Texas. Defendant's present conviction was conditioned on his right, which he has now exercised, to appeal the trial court's suppression ruling. Because the trial court's analysis erroneously co-mingled the respective and discrete elements of the "inevitable discovery" doctrine and the "independent source" doctrine under the Fourth Amendment, we remand for further consideration of the suppression motion and a renewed analysis of the applicable standards.
Although some aspects of the facts relating to this warrantless search remain disputed, the relevant background is essentially as follows. Based upon a tip from an informant that defendant was a marijuana seller, officers of the Bellmawr police department arranged a controlled purchase of one pound of marijuana from defendant on May 13, 2010. After defendant arrived at the informant's home to conduct the transaction, the police officers, who had been conducting a surveillance of the property, confronted defendant.
Defendant's version of what was said and what happened thereafter conflicts with that of the police detective who testified at the suppression hearing. In any event, the record indicates that the detective, while at the scene, confronted defendant and asked him if he had any marijuana in his pickup truck, which was then parked in the informant's driveway.*fn1
Defendant allegedly responded in the affirmative, indicating that marijuana was in a tool box in the back of his truck and the detective "could go get it." Without obtaining a warrant, the police searched the tool box and found marijuana inside. Defendant was then arrested.
Defendant was subsequently charged by a grand jury with possession of a controlled dangerous substance ("CDS"), N.J.S.A. 2C:35-10(a)(3) (count one); possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) (count two); possession of CDS with intent to distribute it within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); and possession of CDS with intent to distribute it within 500 feet of a public housing facility, park, or public building, N.J.S.A. 2C:35-7.1(a) (count four).
Defendant moved to suppress the seized marijuana evidence, arguing that his constitutional rights had been violated by the warrantless search of his vehicle. In opposition, the State contended, as a threshold matter, that defendant's constitutional rights of privacy had not been "triggered" because defendant had voluntarily disclosed to the police that he had marijuana in his truck's toolbox and informed the detective that he could retrieve it. The State maintained that the police detective's inquiry as to whether there was marijuana in his vehicle did not comprise an express or implied request to search the truck. The State further argued that even if, for the sake of discussion, the search of the truck implicated defendant's privacy rights, admission of the marijuana from the ensuing search and seizure was justified based upon what is known as the inevitable discovery doctrine.*fn2 See, e.g., State v. Sugar, 100 N.J. 214, 236-37 (1985)("Sugar II").
After hearing testimony at the suppression hearing from defendant and from Detective William Perna, the Bellmawr police officer who spoke with defendant at the scene and who seized the drugs from the truck, the motion judge denied defendant's motion. In her oral opinion, the judge expressed a conclusion that the State had fulfilled the elements of the inevitable discovery exception. However, as we show in Part II of this opinion, infra, the judge mistakenly incorporated into her inevitable discovery analysis elements of the related, but distinct, independent source exception recognized under the Fourth Amendment. See State v. Holland, 176 N.J. 344, 355 (2003).
Following the denial of his suppression motion, defendant entered into a plea agreement with the State, preserving his right to appeal the court's suppression ruling. Sentence was ...