State v. VittelloneState v. Vittellone
- Reporters:
- ,
- Before:
- Furman, Gaulkin, Trautwein
Defendant was convicted of unlawful possession of heroin, cocaine and diazapam, contrary to
Detective Kelly of the Clifton Police Department was the only witness at the suppression hearing. Undisputed facts are as follows. Defendant‘s sister, who lived upstairs, reported to the police that defendant was outside the house brandishing a revolver and threatening their cousin Robert DeVita. Upon their arrival defendant admitted the police, Kelly and two others, to the house. Kelly advised defendant verbally of his right to remain silent and his right to an attorney, complying with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), according to a finding by the trial judge.
At Kelly‘s request defendant agreed to show the police his gun and led them to the desk in his bedroom. He represented that the gun was in one of the drawers. He inquired if the police needed a warrant to search the drawer. Kelly indicated not. Kelly unlocked the drawer by the key in its lock. One of the other officers pulled out a loaded .22-caliber revolver. Kelly also observed within the drawer a plastic bag containing what appeared to be marijuana and the locked canvas bank deposit bag. After the revolver was seized, defendant became agitated. The police handcuffed him. Kelly asked defendant what was in the canvas bag. According to Kelly, defendant “indicated paraphernalia used to smoke marijuana.” He pointed out to Kelly the key to the canvas bag. Kelly unlocked and opened the
In denying defendant‘s motion to suppress both the revolver and the contents of the canvas bag, the judge below rested his decision on the exigent circumstances exception to the constitutional prohibition against unreasonable searches and seizures. He reached a finding of no consent to the search of the desk drawer. This appeal involves only the denial of defendant‘s motion to suppress the contents of the canvas bag, in view of his acquittal by the jury on a charge against him of possession of a weapon for an unlawful purpose. We agree with the trial judge that the opening of the desk drawer was a reasonable search under the exigent circumstances that defendant was reported to be armed and represented that his gun was there.
Possession of narcotics paraphernalia, including paraphernalia for smoking marijuana, was a disorderly persons offense at the time of the seizure of the contents of the locked canvas bank deposit bag;
United States v. Ross, ___ U.S. ___, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), upholds the constitutionality of a warrantless search and seizure, upon probable cause, of every part of a lawfully stopped vehicle and its contents, including closed containers, without distinction among such closed containers based upon relative expectations of privacy. In so ruling, the Supreme Court distinguished United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), which struck down as unconstitutional searches and seizures of closed luggage within vehicles, on the ground that factually in those two cases,
We conclude, nevertheless, that Chadwick and Sanders, as applied to the facts on the appeal before us, do not mandate the suppression of the contents of the locked canvas bank deposit bag. Under the facts of both Chadwick and Sanders, law enforcement authorities had reliable information, well in advance, of the arrival of contraband, with ample opportunity to obtain search warrants. That was not so factually on this appeal. The police had no prior notice of any drug offense and no opportunity in advance to apply for a search warrant. Defendant, who had been given the Miranda warnings, acknowledged to the police that the canvas bag contained marijuana-smoking paraphernalia. Because of the presence nearby of defendant‘s mother and, possibly, his sister, the contraband in the canvas bag would not have been safe against removal or destruction if the police had departed without it. The alternatives open to the police were an immediate search of the canvas bag or delay and some inconvenience in taking the canvas bag to police headquarters, posting a guard over it or otherwise securing it until a search warrant had been obtained. The decision to conduct the immediate search was made by the police upon defendant‘s admission of contraband; in view of that admission, judicial discretion in evaluating whether there was probable cause to issue a search warrant would not have been a significant factor.
State v. DeLorenzo, 166 N.J. Super. 483 (App.Div. 1979), like Chadwick and Sanders, is distinguishable factually. In DeLorenzo the police, after impounding an unregistered automobile, searched a duffel bag which had been on the passenger seat and seized four ounces of marijuana inside it, without a search warrant. That warrantless search and seizure was struck down as constitutionally impermissible in the absence of exigent circumstances.
On appeal the State also defends the warrantless search and seizure of the canvas bag as one incidental to the arrest of defendant and, thus, constitutionally permissible. The trial judge did not so rule. We disagree with that alternative argument by the State. Defendant was handcuffed at the time; there was no reasonable basis for an apprehension that his mother or sister would attack the police with a weapon seized from the canvas bag. Cf. Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 2039-40, 23 L.Ed.2d 685 (1969); State v. Evans, 181 N.J. Super. 455, 461 (App.Div. 1981).
We affirm.