State v. AstalosState v. Astalos
Motion to suppress evidence as having been illegally obtained pursuant to a warrantless search is made by co-defendants Charles Van Allen and George Astalos. Based on testimony elicited at the hearing of this motion, the court finds the facts to be as follows.
On December 8, 1977 defendants’ vehicle, which was proceeding along Interstate 287 southbound, was radar-clocked as doing 74 m.p.h. in a 55 m.p.h. zone. On this basis, New Jersey State Trooper Androchek pursued the vehicle and activated the cruiser‘s overhead lights so as to indicate to defendants to pull off to the side of the road. Defendants’ vehicle did not stop immediately in response to the trooper‘s signal but proceeded for some distance down the road before finally coming to a halt.
The trooper approached the vehicle, which contained four passengers, two men and two women, and asked the driver, defendant Astalos, to produce driving credentials. At this point the officer noted a strong smell of burning marijuana emanating from the vehicle, and so informed the vehicle‘s occupants. The passengers in the vehicle denied this and offered as explanation that they had been smoking numerous cigars and cigarettes during their somewhat lengthy trip. Unpersuaded, the trooper asked Astalos to exit the vehicle. As Astalos got out the trooper observed a smoking pipe and a clear plastic bag which contained some substance wrapped in aluminum foil partially protruding from a side pocket of defendant‘s coat. The trooper immediately seized these
The trooper then proceeded to search each of these persons as well as the interior of the vehicle, including the glove box. This search revealed no further contraband or evidence of contraband use. The officer next inquired as to the ownership of the vehicle. When defendant Van Allen indicated that he was the owner, he was directed to open the vehicle‘s trunk. A search of that portion of the vehicle revealed a shotgun, broken down in its case. After admitting ownership of the firearm, defendant Van Allen was placed under arrest for possession of a firearm without a valid permit. The vehicle was subsequently impounded.
Turning to the merits of the motion, defendants question the validity of the trooper‘s actions with respect to the sequence of events leading to their arrest.
Surely, under the circumstances presented, the trooper was entitled to stop the vehicle in question. Such a stop is supportable under either the police‘s express statutory authority to apprehend motor vehicle code transgressors,
Similarly, any question regarding the propriety of the trooper‘s request that defendant Astalos exit the vehicle is foreclosed by the recent decision of the United States Supreme Court in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). In that case the court concluded that the de minimus intrusion occasioned by a
Next raised is the legality of the intrusion engendered by seizure of the hashish and smoking pipe from the pocket of defendant Astalos. The State asserts that the plain view observation of these articles, considered in light of the detected odor of marijuana, constitutes probable cause sufficient to justify the seizure of these items.
Several reported decisions of this jurisdiction support the proposition that probable cause to search may be posited on the presence of the smell of marijuana, at least when combined with some other corroborating indicia of contraband use or possession. This would presume, of course, adequate training in marijuana detection on the part of the law enforcement agent involved. So, for example, in State v. Lowry, 95 N.J. Super. 307 (Law Div. 1967), reasonable cause to search a vehicle was found where, in addition to smelling the “sweet smell” of marijuana, the arresting officer also observed several rolled-up cigarettes with crimped edges, as well as an open handkerchief which contained a chopped up tobacco-like substance. In State v. Murray, 151 N.J. Super. 300 (App. Div. 1977), the court held that the smell of marijuana, emanating from a vial containing a vegetative residue, and a plain view observation of a “roach clip,” were sufficient to conduct a further reasonable search of the stopped van. See also, State in Interest of A.C., 115 N.J. Super. 77 (App. Div. 1971), in which the observation of smoke in the vehicle together with a plain view of a homemade cigarette and two manila envelopes, considered a common container of marijuana, was deemed sufficient cause to seize these items. Cf. State v. Cohen, 73 N.J. 331 (1977).
In the present case the strong odor of marijuana was detected by the trooper, whose expertise was adequately established before this court, immediately upon approaching the vehicle. Additionally, the trooper observed a smoking pipe and an aluminum foil packet wrapped inside a plastic bag protruding from defendant‘s pocket. Such paraphernalia and containers of the type described, regarded as a common repository of contraband, State v. Waltz, 61 N.J. 83 (1972); State v. Marchitto, 132 N.J. Super. 511 (App. Div. 1975), are highly indicative of contraband use or possession. Thus the trooper clearly had probable cause to seize these items and search the packet to ascertain its contents. The mobility of the automobile and the opportunity for destruction of evidence plainly presented exigent circumstances dispensing with the warrant requirement. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. 2d 419 (1970), reh. den. 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94. Therefore, insofar as the instant motion seeks to suppress the hashish seized from defendant Astalos, the motion is denied.
The final issue raised by this motion is the propriety of the trunk search which revealed the shotgun owned by defendant Van Allen. Suppression is urged on the basis of two independent theories. First, it is asserted that the search of the trunk was the result of an illegal seizure of the hashish and that, therefore, the shotgun was an illegal “fruit” thereof. This argument must, of course, fail in light of this court‘s prior ruling as to the legality of such seizure.
In addition, however, defendant asserts that the discovery of the hashish, even though valid, did not justify the further search of the vehicle‘s trunk. This argument necessarily
The Fourth Amendment permits only such searches as are reasonable. Chambers v. Maroney, supra; Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). It is recognized that a search, although validly initiated, may become unreasonable because of its intolerable intensity and scope. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As stated by the Terry court: “The scope of the search must be `strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” 392 U.S. at 19, 88 S.Ct. at 1878. Searches deemed necessary must be as limited as possible. Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971), reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120. Applying this constitutional principle in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the court held that, as incident to a valid arrest based on probable cause, the police must limit the incidental search only to that area which is within the arrestee‘s immediate control so as to prevent access to a weapon or destruction of evidence.
The legally permissible extent of an automobile search must take account of the nature of the circumstances justifying its inception, the protected zone of privacy invaded and the extent of the intrusion. The United States Supreme Court has recognized that different portions of an automobile implicate different zones of privacy, as to which there may be a greater or lesser reasonable expectation of privacy. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). In that case the court concluded that a search and seizure involving the exterior of a vehicle was far less intrusive than one involving the interior of the vehicle, implicity requiring less in the way of probable cause. Other courts have recognized a heightened expectation of privacy in locked and enclosed areas of a vehicle, requiring independent
In the instant case, then, the relevant inquiry is whether the discovery of a small amount of hashish on the driver of a vehicle, who is not its owner, provides reasonable cause to believe that further quantities are to be found in its trunk.
In State v. Murray, 151 N.J. Super. 301 (App. Div. 1977), the court considered the permissible extent of intrusion into a vehicle based on the discovery of a small amount of marijuana in its interior. The court concluded that a search which interfered with the structural integrity of the vehicle, based on the slight quantum of probable cause disclosed by a small amount of marijuana, was fatally defective since excessive in scope and intensity. The court recognized that entries into areas of a vehicle as to which there is a heightened reasonable expectation of privacy
This court is persuaded by the reasoning of these cases and holds that, in the circumstances of this case, where only a small quantity of hashish is found on the driver of the vehicle, not its owner, no reasonable basis to believe further quantities are to be found in its trunk is provided. Such evidence provides only a bare suspicion that further quantities might be found therein, and does not rise to the level of probable cause as required by the Fourth Amendment. Chambers v. Maroney, supra. A search of the trunk area of the vehicle, based only upon the discovery of a small amount of contraband, is excessive in scope and therefore invalid. To hold otherwise would permit a general search on but slight pretext. Such a holding does not, of course, preclude a trunk search when there is independent justification to believe that contraband or evidence of crime may be found therein. See e.g., State v. McCarthy, 130 N.J. Super. 540 (App. Div. 1974); People v. Podesto, 62 Cal. App.3d 708, 133 Cal. Rptr. 409 (D. Ct. App. 1976).