State v. KahlonState v. Kahlon
Thomas E. Lenahan, Jr. argued the cause for respondent (Franchino & Lenahan, attorneys).
The opinion of the court was delivered by KOLE, J.A.D.
Dеfendant was indicted for possession of over 25 grams of marijuana and possession thereof with intent to distribute. He moved for suppression of all evidence obtained from the
We grаnted the State leave to appeal from the ensuing order. We reverse the order to the extent that it suppresses the evidence seized from the trunk of the car and the statements made by defendant after such search. We hold that such evidence was legally seized and, of course, the later statements were not tainted thereby.
We agree generally with the factual findings made by the judge. They are sustained by sufficient credible evidence. However, we are compelled to make indеpendent supplemental findings based on the record in order to give a more complete background of the facts upon which we predicate our determination.
On October 3, 1978, at about 4:20 p.m., State Trooper Toth stopped defendant‘s vehicle as it was traveling south on Interstate Highway 287 in Bridgewater Township, since Toth‘s radar device showed that it was proceeding at 30 miles an hour, considerably less than the normal speed for that highway. The vehicle was traveling in the center lane and, at that rate of speed, was causing other motorists to pass it on the right.
Toth ordered defendant out of the car and informed him that he knew that somebody was smoking marijuana in the car. Defendant first stated that his two passengers, hitchhiking students from France рicked up by him near Harrisburg, were smoking it. After Toth directed the students out of the vehicle and began to question them, defendant interrupted Toth‘s interrogation and stated that defendant alone was smoking marijuana.
Following this admission Toth gave defendant Miranda warnings and subjected the occupants of the car to a protective “pat down.” He then returned to defendant‘s vehicle to determine the area from which the odor of marijuana had emanated. He checked the vehicle‘s ashtray and found a half-burned marijuana cigarette (roаch) approximately one inch long. From his training Toth thought the roach to be unusually large. It was neither burning nor hot when discovered.
In checking the interior further, Toth found a clear plastic bag filled with what was later determined to be approximately 1/2 ounсe of marijuana and a package of cigarette wrapping papers. The bag and papers were hidden behind the sun visor on the passenger‘s side. Toth returned to the three people and advised them that they were under arrest. Defendant asked Toth not to arrest the French students as they had no knowledge that there was any marijuana in the vehicle.
Toth took the keys from the ignition and opened the trunk. Again he smelled a very heavy odor of unburned marijuana. Inside the trunk were several suitcases and a cardboard box labeled “Cooler Keg.” The box appeared to be a 30-dozen caрacity egg crate. Although the box flaps were closed, there was a six-inch square opening on top. The flaps did not cover the box top completely.
Green plastic, similar to the type used in garbage bags, was visible from the box opening. Toth lowered his nose to the opening. He was positive that the odor of unburned marijuana emanated from the plastic bag in the box. Upon opening the box flaps Toth discovered that the bag, although tied shut, had two or three tears in it. He enlarged onе of the tears and observed what was determined to be marijuana. He also found the scale underneath a clothing bag in the trunk of the car.
At about this time a backup unit arrived at the scene. It transported the French students to the Somerville State Police station. Defendant and Toth awaited a tow truck at the scene. While defendant‘s vehicle was being towed to the station Toth questioned defendant about the quantity of marijuana in the bag and learned that it was about 30 pounds. Toth had already warned defendant of his Miranda rights after he had volunteered that he was smoking the marijuana. Defendant also told Toth that he had over $3,000 in the bottom of a plastic clothing bag in the car trunk.
When the police were satisfied that the French students were innocent of any illegаl activities, they were released.
There were also sufficient exigent circumstances here justifying the warrantless search оf the trunk and the search and seizure of the box contained therein and its contents, as well as the scale and the money. Under the circumstances of this case, that warrantless search and seizure were entirely reasonable and legally unassailаble.
Ever since Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), courts have recognized what has come to be known as the “automobile exception” to the warrant requirement. The validity of this exception was reaffirmed and its underlying rationale was restated by the Supreme Court in Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed.2d 235 (1979). The court there addressed the question whether, in the absence of exigent circumstances, police are required to obtain a warrant before searching luggage taken from an automobile stopped and searched for contraband. However, Sanders further held that given probable cause to search and the mobility of the vehicle when it is stopped, the stop and search оf the automobile itself is legally permissible.
The inquiry to be made as to the validity of the warrantless search in the present case is twofold: (1) at the scene did the police have probable cause to search the trunk of the automobile, and (2) were the exigencies then arising from the movable nature of the vehicle such that a warrantless search was justified? If the answer to both questions is in the affirmative, the search was constitutionally valid. See Sanders, supra, 442 U.S. at 765, n. 14, 99 S. Ct. at 2594, n. 14, 69 L. Ed.2d at 246, n. 14; Texas v. White, 423 U.S. 67, 96 S. Ct. 304, 46 L. Ed.2d 209 (1975), cited in State v. Ercolano, 79 N.J. 25, 46 (1979). We answer both inquiries in the affirmative.
The search of the box found in the trunk was lawful. It was from this box that the odor of marijuana emanated and in which the marijuana was found. Unlike the luggage in Arkansas v. Sanders, supra, the flaps of the box did not completely cover it, the opening at the tоp of the box plainly showed a green plastic bag from which the odor could be detected and
In any event, even if a warrant for the search of the box were rеquired by reason of Arkansas v. Sanders, supra, we have concluded for reasons expressed in State v. Howery, 80 N.J. 563 (1979), Sanders is not retroactive to a search and seizure, as here, that occurred prior to the date of its determination. Compare State v. Pace, 171 N.J. Super. 240 (App. Div. 1979), where the matter of the retroactivity of Sanders was not discussed and apparently not raised. But see State v. Carpentieri, 168 N.J. Super. 589 (App. Div. 1979), certif. granted, 81 N.J. 406 (1979), with which we do not agree.
We note that the police officer here was alone and could reasonably believe that under the then existing law, given probable cause to search an automobile on the highway even though defendant and the two passengers were under arrest, exigent circumstances justified the warrantless search of the box. See State v. Gray, 59 N.J. 563 (1971); State v. McCarthy, supra. See, also, State v. Parker, 153 N.J. Super. 481, 487 (App. Div. 1977).
We find no indication that our courts аnticipated the holding in Sanders. Thus, for example, State v. DeLorenzo, 166 N.J. Super. 483 (App. Div. 1979), and State v. Parker, supra, deal with the search of bags or luggage already secured in police facilities, rather than the search of luggage stored in a car stopped on the highway. They are thus distinguishable from Sanders.
The provisions of the order which suppressed evidence and defendant‘s statements are reversed.