NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2013
On appeal from the Superior Court of New Jersey, Law Division, Cape May County Indictment No. 12-09-00579.
Robert L. Taylor, Cape May County Prosecutor, attorney for appellant (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).
Before Judges Reisner and Hayden.
A grand jury indicted defendant Joseph A. Salladino for third-degree theft of movable property, N.J.S.A. 2C:20-3, and third-degree possession of a Schedule II controlled dangerous substance (Oxycodone), N.J.S.A. 2C:35-10(a)(1). Prior to the trial, the court granted defendant's motion to suppress the Oxycodone seized from him during a warrantless search. We granted the State's motion to appeal from that December 3, 2012 order. We reverse and remand for further proceedings.
We discern the following facts from the record of the suppression hearing. Detective Michael P. Majane of the Lower Township Police Department, testified that at approximately 5:15 p.m. on January 7, 2011, he received a radio dispatch reporting a robbery at a home on Meadowview Road. En route, Majane received a report from the crime scene that the victim, Mark Koehler, alleged that two Caucasian males wearing black coats and ski masks had assaulted him in his home, stolen his wallet, and then fled on foot along a nearby bike path. Koehler stated that he could identify the suspects.
Majane drove along the bike path, but did not see anyone. As he drove past Weeks Landing Road, approximately 500 yards from Koehler's home, he saw two men wearing black coats and walking together near the bike path. Majane turned his vehicle around, but when he reached Weeks Landing Road, he found only one man, co-defendant Anthony Revak, who was out of breath, sweating, and had leaves stuck to the back of his jacket. Majane stopped Revak to question him.
Shortly thereafter, Patrolman Robert Fessler arrived at the Weeks Landing Road location. Majane told Fessler that the other subject may have fled west on Weeks Landing Road, which becomes Nummytown Road. Fessler located defendant, a Caucasian male wearing a black leather jacket, walking on Nummytown Road, approximately 150 to 300 yards from Majane's location. Fessler radioed the crime scene and asked for a more detailed description of the subjects. A patrolman responded that one of the subjects was wearing a black leather jacket with a large emblem on the back that resembled "a motorcycle gang emblem." Fessler confirmed that defendant was wearing a jacket that matched that description. Majane then instructed him to transport defendant to the Weeks Landing Road location for a show-up identification by Koehler.
At approximately 5:27 p.m., Fessler exited his vehicle and approached defendant, who did not attempt to run away, or make any threatening gestures, and was not was winded, sweaty, or wearing or carrying a ski mask. Before placing defendant in the rear seat of his police vehicle, Fessler conducted a pat-down search of defendant to ensure that defendant was not carrying a weapon. During the frisk, Fessler felt a "hard bulge" somewhere on defendant's person. Fessler did not suggest that he believed the "hard bulge" was a weapon. He retrieved the object, which was an orange pill bottle with no label or lid, containing what was later determined to be eighty-three Percocet pills. Fessler, whose main focus was the robbery, seized the pills and placed them in the center console of his vehicle for safekeeping and later investigation. He did not arrest defendant for possession of the pills, or otherwise count or attempt to identify the pills.
Fessler transported defendant the 150 yards to the Weeks Landing Road location within seconds of Majane's instruction to do so. When Koehler arrived at the location, he identified Revak and defendant as men who had been at his residence, which Majane understood meant the men who had robbed him.
At that point, the officers decided to place both defendant and Revak under arrest for the alleged robbery. The police searched defendant incident to the arrest. Fessler testified that if he had not removed the pill bottle and pills from defendant's person at the time of the pat-down, the items ...