Petition for Writ of Certiorari — Smith v. New Jersey

84-18 160

ae

Ottiter ser

KF 1

In The

Supreme Court of the United

October Term, 1984

LARRY SMITH,

Petitioner,

VS.

STATE OF NEW JERSEY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME

COURT OF NEW JERSEY

STEVEN D. ALTMAN

A Member of the Bar of this

Court and Counsel of Record

BENEDICT AND ALTMAN

Attorneys for Petitioner

247 Livingston Avenue

New Brunswick, New Jersey 08901

(201) 745-9000

2177

tx *NJ (201) 257-6850°NY (212) 840-9494°PA (215) 563-5587 CAN

Ne ms.ime. MA (617) 542-1114*DC (202) 783-7288°USA (800) 5 APPEAL

%

7

QUESTIONS PRESENTED FOR REVIEW

The petitioner Larry Smith, a resident of the State of Florida,

respectfully petitions for review of the following questions which

have not heretofore been addressed or decided by this Court and

which arise under the Fourth Amendment of the United States

Constitution:

1. Where a police officer stops an automobile for a motor

vehicle violation and then satisfies himself that no such violation

exists, does he then have the right to physically enter the passenger

compartment of the automobile to observe the driver retrieve the

vehicle’s registration or identification documents?

2. Where a police officer requests permission of the driver

of an automobile to look in the trunk, which is granted, should

that consent to view the interior of the trunk be considered consent

to search luggage or other containers found within the trunk, or

is separate consent necessary for each item sought to be searched?

ii

PARTIES TO THE PROCEEDING BELOW

The following is a list of all parties to the proceedings before

the Supreme Court of New Jersey:

1. State of New Jersey, Plaintiff

By Irwin I. Kimmelman, Esq.

Attorney General of New Jersey

Richard J. Hughes Justice Complex

Trenton, New Jersey 08625

Telephone: (609) 984-6500

2. Larry Smith, Defendant

By Steven D. Altman, Esq.

Benedict and Altman, Esqs.

247 Livingston Avenue

New Brunswick, New Jersey 08901

Telephone: (201) 745-9000

ili

TABLE OF CONTENTS

Page

Questions Presented for Review ..................0e00: i

Parties to the Proceeding Below ....................... il

sana ks (hess ons dudes vs seteeeneees ili

NS aoa henc 6-08 6 wan 30.0 0000 60060 0 6 émye-0 8's iv

I rE NED GUIDO on ccc ccceacsnctenescocce l

oe aidan edd Chehab cdwes ocd en cocessuwhe 2

Constitutional Provisions and Statutes Involved ......... 3

CN RS eer rts Pree rr rere eS 4

Reasons for Granting the Writ

I. The entry of the officer into the passenger

compartment of the automobile to observe petitioner

retrieve documents for the automobile was in violation

OE Gee ee FRIIS, ecw chee sce desde 7

II. Where consent is given to open and inspect the trunk

of an automobile, that consent should not be extended

to include searches of the luggage inside the trunk. 11

NN Bd er Pe Od 5 aes oe Soe es 6a ee Oe 13

iv

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L.

Ed. $43 (1925), cert. denied, 282 U.S. 873, 51 S. Ct.,

2 8e 2 | | rrr rrr ery Tr 9

Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L.

Ed. 419 (1970), reh. denied, 400 U.S. 856, 91 S. Ct.

ee a es ca dices sosekbbub skeen kes 9

Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022,

29 L. Ed. 2d 564 (1971), reh. denied, 404 U.S. 874, 92

em S ae & Ff, Pee 10

Draper v. Maryland, 265 F. Supp. 718 (D. Md. 1967)

TF gee ed kee eee 6 Cale eiedaktaans cae aad 10

Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L.

I a a a a ae 10

Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L.

I og oa! eS Cee a ou tee Cid wig a's 12

Luxenburg v. State, 384 So. 2d 742 (Fla. App. 1980)

a I te a 12

Moorehead v. State, 378 So. 2d 123 (Fla. App. 1980)

Phas as Secs SAC GG3S 80k ik En ae a ie ee 12

New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L.

Ed. 2d 768 (1981), on remand, 55 N.Y. 2d 49, 432

fe £ PPP oe PT errr TTT TT Tr Tree 9

Contents

Page

People v. Prochnau, 59 Cal. Rptr. 265 (Ct. App. 1967)

EE PT EEO Yr Ee Pe PN SP RE kn a ay fn Pet 10

People v. Sanders, 44 Ill. App. 3d 510, 358 N.E. 2d. 375

Pe ne eae yee NER AS mes as eN gre 12

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041,

36 L. Ed. 2d 854 (1973), on remand, 479 F. 2d 1047

ee es CP 1 605 obs 0k Or eee dh eed canes 12

State v. Carnek, 423 So. 2d 511 (Fla. App. 1982)....... 12

State v. Cuzick, 21 Wash. App. 501, 585 P. 2d 485 (1978)

PPT Ee PETE TT PO EE PT TO OPPO rt Orig aye 12

State v. Johnson, 68 N.J. 349, 346 A. 2d 66 (1975) ..... 5

State v. Jones, 195 N.J. Super. 119, 478 A. 2d 424 (App.

Ps da 66 0 do ab eddy aah andere neleerisaer ie. 10

State v. Parker, 153 N.J. Super. 481, 380 A. 2d 291 (App.

es GED Wav inn ds505s obs cece eked aera 12, 13

State v. Taras, 19 Ariz. App. 7, 504 P. 2d 548 (1973)

POT STE ET, EET Or eee LMT el my Tra 10

United States v. Ferri, 357 F. Supp. 487 (W.D. Wisc.

gt PERT E EE COC ECE TE OT CORIO TE I Oe MER P 10

United States v. Lopez, 474 F. Supp. 943 (C.D. Cal. 1979)

Sidevadsa¥uecvs aewheseoch?srwwsdwaven ceetiovekss 10

United States v. Strahan, 674 F. 2d 96 (Ist Cir. 1982), cert.

denied, 456 U.S. 1010, 102 S. Ct. 2304, 73 L Ed. 2d

Te RCC bai aura en erm ioe kane cae te ete 10

vi

Contents

Page

Vale v. Louisiana, 399 U.S. 30, 90 S. Ct. 1969, 26 L. Ed.

ee SF, . Spree ree 12

Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9

es F FF Freee ee 11

Statutes Cited:

RODD, BMAD. cccccocccccssecdécededsccknweadunen 3

N.J.S.A. 24:21-19(BM2) 2... ccc ccc ccc cece ccc ccccccces 6

aD Wee. SHOR Gc ook accctodececcudedeéeseuess 2

Rules Cited:

Supreme Court Rules, Rule 20(1) ...... 2... 0 6... ee eee 2

United States Constitution Cited:

Fourth Amendment ..................4.- i, 3, 6, 7, 9, 10, 13

APPENDIX

Order of the Supreme Court of New Jersey Denying

Petition for Certification, Issued March 19, 1985

0 00:000060c0nedsedeed ne as 000 ks eS la

Opinion of the Superier Court of New Jersey, Appellate

Division, Affirming the Denial of the Motion to

Suppress Evidence, Decided January 2, 1985 ........ 3a

vil

Contents

Page

Order of the Superior Court of New Jersey Law Division

Denying the Motion to Suppress Evidence, Issued

SURE Ghilaus vaususeesensccdueeesactencede Sa

Transcript of the Opinion of the Superior Court of New

Jersey, Law Division Denying the Motion to Suppress

Evidence, Decided May 20, 1985 .................. 7a

Judgment of Conviction of the Superior Court of New

Jersey, Law Division, Issued January 18, 1984 ...... 1Sa

Middlesex County Grand Jury Indictment No. 32-82..... 19a

No.

In The

Supreme Court of the United States

>.

October Term, 1984

LARRY SMITH,

Petitioner,

vs.

STATE OF NEW JERSEY,

Respondent.

PETITION FOR WRIT OF CERTIORARI FO THE SUPREME

COURT OF NEW JERSEY

OPINIONS OF THE COURTS BELOW

The order of the Supreme Court of New Jersey denying the

petition for certification is reported at ___ N.J.___., A.2d

__. (1985) and is reproduced in the appendix at p. la.

The opinion of the Superior Court of New Jersey, Appellate

Division was not officially reported, but is set forth in the appendix

at p. 3a.

The transcript of the opinion of the Superior Court of New

Jersey, Law Division, denying the motion to suppress evidence

is set forth in the appendix at pp. 7a. The order of the Superior

Court of New Jersey, Law Division, is reproduced in the appendix

at p. Sa.

JURISDICTION

Petitioner seeks review of the denial of a petition for

certification by the Supreme Court of New Jersey which was

rendered on March 19, 1985 and was filed on March 21, 1985.

This petition has been filed within sixty days of that date pursuant

to Rule 20(1), Rules of the Supreme Court.

The jurisdiction of this Court to review the judgment of the

Supreme Court of New Jersey by writ of certiorari is conferred

by 28 U.S.C. Section 1257(3) which provides in pertinent part:

Final judgments or decrees rendered by the highest

Court of a State in which a decision could be had,

may be reviewed by the Supreme Court as follows:

(3) By writ of certiorari, where the validity of a

treaty or statute of the United States is drawn in

question or where the validity of a State statute

is drawn in question on the ground of its being

repugnant to the Constitution, treaties or laws of

the United States, or where any title, right, privilege

or immunity is specially set up or claimed under

the Constitution, treaties or statutes of, or

commission held or authority exercised under, the

United States.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

United States Constitution, Amendment IV

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and No Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched,

and the persons or things to be seized.

N.J.S.A. 24:21-19. Prohibited acts A.- Manufacturing,

distributing, or dispensing - Penalties

a. Except as authorized by this act, it shall

be unlawful for any person knowingly or

intentionally:

(1) To manufacture, distribute, or dispense,

or to possess or have under his control with intent

to manufacture, distribute, or dispense, a

controlled dangerous substance; or

b. Any person who violates subsection a. with

respect to:

(2) A substance, in a quantity of one ounce

Or more including any adulterants or dilutants,

classified in Schedules I or II which is a narcotic

drug, provided that there are included at least 3.5

grams of the pure free base Schedule I or II

narcotic drug, is guilty of a high misdemeanor and

shall be punished by imprisonment for up to life,

a fine of not more than $25,000.00, or both; or

STATEMENT OF THE CASE

At approximately 9:10 p.m. on January 18, 1982, petitioner

Larry Smith and John Bagley, his passenger, were traveling

northbound on the New Jersey Turnpike in a rented Ford Futura

bearing a Florida registration when the automobile was stopped

by New Jersey State Trooper Harold Vliet for weaving in the

righthand lane. The reason given by the trooper for stopping the

automobile was that he was concerned that the driver was either

tired or intoxicated or that the vehicle was mechanically defective.

When both vehicles came to a stop, petitioner exited his vehicle

and walked towards the trooper’s automobile at which time the

trooper concluded from his observations that petitioner was neither

tired nor intoxicated. Although petitioner presented a valid Florida

driver’s license, he advised the trooper that the car was rented

and that the registration and rental agreement were still in the

glove compartment of the car. Petitioner then offered to produce

the vehicle’s registration and walked back to his car. According

to Trooper Vliet, he followed petitioner because he was curious

and because he was fearful that petitioner might have a weapon

in the vehicle, although no pat-down for weapons was conducted

nor was he placed under arrest.

Before stopping petitioner’s vehicle, Trooper Vliet had called

for a backup and Trooper Nicolas Theodus arrived at the scene

before petitioner re-entered his car to retrieve the registration and

the rental agreement. Trooper Theodus was positioned outside

the front passenger’s door watching John Bagley, who remained

seated in the vehicle. Petitioner sat on the driver’s seat leaving

the driver’s door ajar and reached towards the glove compartment

which was in front of Mr. Bagley who was sitting in the front

passenger seat. Although the testimony of Trooper Theodus was

conflicting at the motion to suppress, the common thread

throughout most of his testimony was that as petitioner leaned

over, a space was created in the interior portion of the vehicle,

and Trooper Vliet, at least from his shoulders up, entered the

vehicle or stuck his head and shoulders into it, to observe what

petitioner was doing and to ‘‘look around’’ the car. According

to Trooper Vliet he entered the vehicle to insure that petitioner

would not reach for a weapon. While his head and shoulders were

in the car, he observed a greenish-brown vegetation in the ashtray

which he believed was marijuana. In fact, the quantity of substance

in the ashtray was so minimal that it was insufficient for the State

Police Laboratory to even analyze. While inside the car, Trooper

Vliet shined a flashlight on the interior, and Trooper Theodus

did likewise while standing outside the car. Trooper Theodus

alleged that from his vantage point, he could also observe the

greenish-brown vegetation in the ashtray notwithstanding the

obstacle that both John Bagley and petitioner created when

petitioner reached over to retrieve the papers from the glove

compartment.

After the rental agreement was produced, both individuals

were ordered out of the car and arrested. After explaining to

petitioner his Miranda rights, the trooper requested permission

to ‘‘look in’’ the car even though he never re-entered the car to

examine the contents of the ashtray. The trooper and petitioner

then walked to the rear of the car, where, according to the trooper,

he advised petitioner of his rights under State v. Johnson, 68 N.J.

349, 346 A.2d 66 (1975), which provides that before a valid consent

can take place, an individual must be advised of his right to refuse

the police permission to search and if initially granted can tell

the police that they can search no longer. Although he could not

recall petitioner’s exact words, the trooper testified that petitioner’s

response was in the affirmative. Trooper Theodus indicated that

he also advised both individuals of the same rights. Consent to

search forms, which are normally provided to the State Police,

were not executed since neither trooper had any in his possession.

The trunk was opened and nothing suspicious was observed

since all the trunk contained were articles of luggage. Because

of Trooper Vliet’s suspicions based upon his observation of the

greenish-brown vegetation in the ashtray, he wanted to search

the bags within the trunk and intended to do so. At the trooper’s

command, petitioner opened the first article of luggage and nothing

unusual was found. Beneath the suitcase was a garment bag which

Trooper Vliet patted down in order ‘‘to find out what was

happening’’ and not because of any fear. Finding a lump in the

shape of an oblong sphere in the garment bag, the trooper opened

the bag and removed a package wrapped in masking tape which

petitioner said contained fruit. According to the trooper, when

he commented that the package did not appear to contain fruit,

petitioner told him he could open the package if he did not believe

him. The package was opened and found to contain two pounds

of cocaine. Subsequently, the State Police secured a search warrant

to further search the car and later requested petitioner to sign

a consent form, which he declined to sign.The execution of the

search warrant uncovered more controlled dangerous substances.

In all, the police discovered four pounds of cocaine in the vehicle.

On November 23, 1982, petitioner timely filed a motion to

suppress the evidence, alleging that the search of the automobile

and the seizure of the cocaine was in violation of the Fourth

Amendment of the United States Constitution. After four days

of testimony, the Superior Court of New Jersey denied the motion

by order dated June 9, 1983, ruling that the automobile was

lawfully stopped and that the seizure of cocaine resulted from

a valid consent search of the trunk and luggage contained therein

(see transcript of court’s opinion set forth in appendix).

On November 11, 1983, petitioner entered a plea of guilty

to an indictment charging him with possession of more than one

ounce of cocaine with intent to distribute in violation of N.J.S.A.

24:21-19(b)(2) and was subsequently sentenced on January 18,

1984 to serve a term of six years in the New Jersey State Prison.

A notice of appeal to the Superior Court of New Jersey,

Appellate Division was timely filed on January 31, 1984. Petitioner

appealed from the denial of the motion to suppress tlie evidence,

again urging that the search and seizure was in violation of the

Fourth Amendment of the United States Constitution. In an

opinion dated January 2, 1985, the Appellate Division affirmed

the denial of the motion to suppress the evidence. The Appellate

Division affirmed the trial court’s ruling that the automobile was

lawfully stopped and that the cocaine was seized following a valid

consensual search of the contents of the trunk.

A notice of petition for certification was thereafter timely

filed with the Supreme Court of New Jersey on February 11, 1985.

By order dated March 19, 1985, the petition for certification was

denied by the New Jersey Supreme Court without an opinion on

the merits being issued. Petitioner now seeks review by this Court

of federal constitutional issues raised in the courts of New Jersey

and decided adversely to petitioner.

REASONS FOR GRANTING THE WRIT

The entry of the officer into the passenger compartment of

the automobile to observe petitioner retrieve documents for the

automobile was in violation of the Fourth Amendment.

As noted earlier, the petitioner and a co-defendant were

stopped on the New Jersey Turnpike for a minor traffic violation.

The petitioner exited his vehicle, walked towards the troop car,

and upon request produced a valid Florida driver’s license. He

advised the officer that the vehicle was rented, and that the rental

agreement was located in the interior of the car. Petitioner walked

back to the automobile and entered it from the driver’s side,

reaching over towards the glove box to retrieve the rental

agreement.

The trooper followed petitioner because he was ‘‘curious’’

and he was concerned that petitioner might have a weapon in

the vehicle, although he never patted him down. As petitioner

was leaning over in the direction of the glove box, the trooper

stuck his head and shoulders into the car in order to observe

petitioner’s hands. It was at this point that the trooper, looking

around the interior of the car, observed what he believed to be

marijuana in the ashtray, and petitioner and his passenger were

placed under arrest. Thereafter, following further investigation,

petitioner consented to the opening of the trunk and various items

of luggage were searched, resulting in the discovery of cocaine.

The physical entry of the officer into the passenger

compartment of the vehicle is especially significant, because it

was at this time that the officer observed a small amount of

marijuana leading to the arrest of the two occupants of the car.

Up to this point the only violation of law if any, observed by

the trooper was a minor motor vehicle offense, and certainly the

officer would not have sought to search the trunk and the luggage

as a result of the traffic offense. It was only after the observation

of the marijuana that the officer felt it appropriate to request

permission to open the trunk of the automobile.

It must be noted that a back-up trooper arrived on the scene

and remained outside the vehicle on the passenger side while

petitioner sought to retrieve the documentation for the automobile.

Although that trooper testified that he too observed the marijuana

in the ashtray, but from outside the automobile, it appears that

the veracity of his testimony was highly suspect. The defense had

called as a witness at the motion to suppress the evidence, a former

DEA officer who had conducted tests using an identical automobile

and testified that such a small amount of marijuana could not

be observed in the ashtray from outside the vehicle.

Nevertheless, there is no doubt that one officer physically

entered the passenger compartment of the automobile as petitioner

4

nye

sought to retrieve the rental agreement from the glove

compartment. It was during this physical intrusion that the officer

observed the marijuana which resulted in the arrest of the

occupants of the car. Petitioner submits that this physical entry

into the passenger compartment of the automobile was without

probable cause and in violation of the Fourth Amendment.

It is well settled that a motor vehicle which has been stopped

by the police may be searched without a search warrant if there

is probable cause to believe that it contains contraband or evidence

of acrime. Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280,

69 L. Ed. 543 (1925), cert. denied, 282 U.S. 873, 51 S. Ct. 78,

75 L. Ed. 771 (1930). Moreover, the mere arrest of an occupant

of the automobile gives the police broad power to search the

passenger compartment of the automobile. See Chambers v.

Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970),

reh. denied, 400 U.S. 856, 91 S. Ct. 23, 27 L. Ed. 2d 94 (1970).

Any container found in the passenger compartment may also be

searched without the police first obtaining a search warrant. New

York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768

(1981), on remand, 55 N.Y. 2d 49, 432 N.E. 2d 196 (1982).

In the instant case, clearly there was no probable cause to

believe that the automobile contained contraband or evidence of

a crime. Nor had the occupants been arrested prior to the officer

entering the vehicle. At worst, petitioner had committed a minor

traffic violation, and after the production of the necessary

documents, such as his driver’s license, registration, and rental

agreement, would have been permitted to proceed on his way.

The events which developed, however, led ultimately to the

arrest of petitioner and his passenger. Upon the officer’s request

to produce the rental agreement for the automobile, the petitioner

returned to the driver’s seat and reached to the glove compartment

to obtain the requested paperwork. The trooper, who was leaning

10

into the vehicle from the driver’s side observed a small amount

of marijuana in the ashtray, and both occupants of the car were

arrested.

It must be noted that items within plain view of an officer

may be seized without a warrant, if the officer had a right to

be where he was at the time he first observed the evidence. Coolidge

v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d

564 (1971), reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed.

2d 120 (1971); Harris v. United States, 390 U.S. 234, 88 S. Ct.

992, 19 L. Ed. 2d 1067 (1968). In the case at bar, petitioner submits

that the officer had no right to be inside the car as petitioner

retrieved the rental agreement and therefore the marijuana was

neither lawfully observed or legally seized.

Courts in both New Jersey and other jurisdictions have

recognized that under certain circumstances it is reasonable for

the police to make a limited search of a vehicle in an effort to

determine or verify ownership. United States v. Strahan, 674 F.2d

96 (Ist Cir. 1982), cert. denied, 456 U.S. 1010, 102 S. Ct. 2304,

73 L. Ed. 2d 1306 (1982); United States v. Lopez, 474 F. Supp.

943 (C.D. Cal. 1979); United States v. Ferri, 357 F. Supp. 487

(W.D. Wisc. 1973); Draper v. State of Maryland, 265 F. Supp.

718 (D. Md. 1967); State v. Taras, 19 Ariz. App. 7, 504 P.2d

548 (1973); People v. Prochnau, 59 Cal. Rptr. 265 (Ct. App. 1967);

State v. Jones, 195 N.J. Super 119, 478 A.2d 424 (App. Div.

1984). However in the case at bar, petitioner had not failed to

produce the requested documentation, but rather was in the process

of retrieving it when the officer entered the automobile. To

condone the intrusion of the officer into the vehicle to observe

petitioner retrieve the documents permits the police to conduct

a visual inspection of the interior of the automobile from a vantage

point not otherwise permitted.

In summary, petitioner submits that the intrusion of the

officer into the automobile was in violation of the Fourth

11

Amendment, and that the observation and seizure of the marijuana

in the ashtray was therefore unlawful. Moreover, the consent

searches of the trunk and the luggage, resulting in the seizure

of cocaine were clearly the direct result of the exploitation of the

initial violation of petitioner’s constitutional rights, and therefore

must be suppressed as being the ‘‘fruit of the poisonous tree’’.

Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L.

Ed. 2d 441 (1963).

Where consent is given to open and inspect the trunk of an

automobile, that consent should not be extended to include

searches of the luggage inside the trunk.

The issue presented in this case has not previously been

addressed by this Court. Specifically, the issue raised is when and

under what circumstances will a consent by a party to a cursory

inspection of a particular area permit a more intrusive search of

closed containers within that area. Petitioner submits that under

the circumstances of this case the consent to a cursory inspection

of the trunk of the vehicle did not permit, absent further consent,

a search of closed containers within the trunk. In the present case,

the contraband seized was discovered in a package wrapped with

masking tape inside a garment bag which was located within the

trunk of petitioner’s vehicle. The record below supports a finding

that initial consent was given to inspect the trunk of the vehicle

and although it could be inferred that permission was given to

open the wrapped package the record does not support a finding

that consent was given to either ‘‘pat-down’’ the garment bag,

open the garment bag or remove the wrapped package from the

garment bag. To the extent that a separate consent is required

for each stage of the search, petitioner submits that consent to

an inspection of the trunk should not operate to forgive the failure

by the State to obtain consent to pat-down and open the garment

bag and remove the wrapped package.

12

There is no doubt that where valid consent is given, a search

may be conducted without a warrant and without probable cause.

Vale v. Louisiana, 399 U.S. 30, 90 S. Ct. 1969, 26 L. Ed. 2d

409 (1970); Katz v. United States, 389 U.S. 347, 88 S. Ct. 507,

19 L. Ed. 2d 576 (1967). For consent to be valid, the State must

prove that the consent was freely and voluntarily given.

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L.

Ed. 2d 854 (1973), on remand, 479 F.2d 1047 (9th Cir. 1973).

However, several courts have held that consent to a cursory

inspection of a particular area will not be interpreted to authorize

a search of containers within that area. Thus, the Court in People

v. Sanders, 44 Ill. App. 3d 510, 358 N.E. 2d 375 (1976) stated:

The officer asked the defendant, with whom he

was on a first-name basis and who was not under

arrest, if he could look into the trunk (of his car).

The defendant might reasonably have expected that

the officer was looking for some bulky item of

stolen property that would be immediately

apparent if present in the trunk of an automobile.

By acquiescing in the request to look into his trunk,

he did not, we think, consent to a probing

exploration into a closed container within the

trunk.

See also, Luxenburg v. State, 384 So. 2d 742 (Fla. App. 1980)

(consent to search box did not permit opening of black plastic

bag within box); Moorehead v. State, 378 So. 2d 123 (Fla. App.

1980) (consent to look at pool cue did not permit opening of pool

cué to discover contents); State v. Cuzick, 21 Wash. App. 501,

585 P.2d 485 (1978) (consent to ‘‘look in’’ car did not permit

search of suitcase within car); State v. Carnek, 423 So. 2d 511

(Fla. App. 1982) (consent to ‘‘go aboard”’ vessel did not permit

search of vessel and containers within it); State v. Parker, 153

13

N.J. Super 481, 380 A.2d 291 (App. Div. 1977) (consent to search

trunk did not permit search of satchel within trunk).

Thus, it is respectfully submitted that the courts below erred

in finding that there was a valid consent for the pat-down

examination of the garment bag and the removal of the package

of cocaine. Although the record supports, to some extent, a

consent to open the trunk, the consent should not have been

construed to operate as a consent to search the luggage contained

therein. It is urged that the scope of the search was in violation

of the Fourth Amendment, and as such is a proper subject for

consideration by this Court.

CONCLUSION

For the foregoing reasons, it is respectfully submitted that

this petition for certiorari should be granted to review the decisions

of the courts of the State of New Jersey concerning the significant

issues arising pursuant to the Fourth Amendment of the United

States Constitution.

Respectfully submitted,

STEVEN D. ALTMAN

BENEDICT AND ALTMAN

Attorneys for Petitioner

la

ORDER OF THE SUPREME COURT OF NEW JERSEY

DENYING PETITION FOR CERTIFICATION, ISSUED

MARCH 19, 1985

SUPREME COURT OF NEW JERSEY

C-640 September Term 1984

23,651

STATE OF NEW JERSEY,

Plaintiff-Respondent,

Vv.

LARRY SMITH,

Defendant-Petitioner.

ON PETITION FOR CERTIFICATION

To the Appellate Division, Superior Court:

A petition for certification of the judgment in A-2474-83T4

having been submitted to this Court, and the Court having

considered the same;

It is ORDERED that the petition for certification is denied

with costs.

WITNESS, the Honorable Robert N. Wilentz, Chief Justice,

at Trenton, this 19th day of March, 1985.

s/ Stephen W. Townsend

CLERK OF THE

SUPREME COURT

FILED

SUPREME COURT

MAR 21, 1985

s/ Stephen W. Townsend

D. CLerk

3a

OPINION OF THE SUPERIOR COURT OF NEW JERSEY,

APPELLATE DIVISION, AFFIRMING THE DENIAL OF

THE MOTION TO SUPPRESS EVIDENCE, DECIDED

JANUARY 2, 1985

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

AP?ELLATE DIVISION

A-2474-83TA

STATE OF NEW JERSEY,

Plaintiff-Respondent,

LARRY SMITH,

Defendant-Appellant.

OPINION OF APPELLATE DIVISION

Submitted December 10, 1984 - Decided JAN 2, 1985

Before Judges King, Deighan and Bilder.

On appeal from the Superior Court of New Jersey, Law

Division, Middlesex County.

Benedict and Altman, attorneys for appellant (Steven

DD. Altman, on the brief).

‘ Irwin I.. Kimmelman, Attorney General of New Jersey,

4a

Opinion

attorney for respondent (Gilbert Miller, Deputy

Attorney General, of counsel and on the letter-brief).

PER CURIAM

Following a retraxit plea of guilty to possession of more than

one ounce of cocaine with intent to distribute, N.J.S.A.

24:21-19(b)(2), defendant received a sentence of six years to state

prison and a $25 penalty pursuant to the Violent Crimes

Compensation Act. Defendant appeals ciaiming error in the denial

of his motion to suppress evidence seized in a Turnpike search

of his car.

After four days of testimony, the trial judge found that the

defendant was lawfully stopped by a state trooper on the New

Jersey Turnpike and that cocaine was discovered following a

consensual search of the contents of the trunk. An examination

of the record shows the findings are fully supported by credible

evidence present in the record. See State v. Johnson, 42 N.J. 146,

162 (1964).

Defendant’s reliance on Delaware v. Prouse, 440 U.S. 648

(1979) is misplaced. Unlike that case, defendant was not randomly

selected for police attention but was stopped because of his erratic

driving. The car was ‘‘weaving’’ on the highway. The subsequent

search, having been consented to, was valid. See State v. Johnson,

68 N.J. 349 (1975).

Affirmed.

A TRUE COPY

s/ Elizabeth McLaughlin

Clerk

Sa

ORDER OF THE SUPERIOR COURT OF NEW JERSEY

LAW DIVISION DENYING THE MOTION TO SUPRESS

EVIDENCE, ISSUED JUNE 9, 1983

RICHARD S. REBECK

Middlesex County Prosecutor

County Administration Building

New Brunswick, New Jersey 08903

Telephone: (201) 745-3300

SUPERIOR COURT OF NEW JERSEY

COUNTY OF MIDDLESEX

LAW DIVISION (CRIMINAL)

FILE NOS. 82-392; 82-393

IND. NO. 32-82

STATE OF NEW JERSEY,

Plaintiff,

V.

LARRY SMITH,

JOHN D. BAGLEY,

Defendant.

ORDER

This matter being opened to the Court on motion of Steven

D. Altman, Esq., and Robert S. Willis, Esq., pro hace vice,

attorneys for defendant Larry Smith; Bradley J. Ferencz, Deputy

Public Defender, attorney for defendant John D. Bagley; Assistant

Prosecutor Vincent LeBlon appearing on behalf of the State; and

6a 4

Order

the Court having considered arguments of counsel, testimony of

witnesses, and for good cause shown;

IT IS ON this 9th day of June, 1983,

ORDERED that defendants’ motion to suppress the evidence

be and is hereby denied.

s/ Richard P. Muscatello

RICHARD P. MUSCATELLO,

PF tl

7a

TRANSCRIPT OF THE OPINION OF THE SUPERIOR

COURT OF NEW JERSEY, LAW DIVISION DENYING

THE MOTION TO SUPPRESS EVIDENCE, DECIDED

MAY 20, 1985

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION — MIDDLESEX COUNTY

INDICTMENT NO. 32-82

APP. DIV. DOCKET NO. A-02474-83-T04

STATE OF NEW JERSEY,

Plaintiff,

VS.

LARRY SMITH and JOHN D. BAGLEY,

Defendants.

May 20, 1983

Middlesex County Courthouse

New Drunswick, New Jersey

STENOGRAPHIC TRANSCRIPT OF PROCEEDINGS

BE? QO &E:

THE HONORABLE RICHARD P. MUSCATELLO,

ISL.

TRANSCRIPT ORDERED BY:

STEVEN D. ALTMAN, ESQ.

8a

Transcript

APPEARANCES:

VINCENT LeBLON, ESQ.

Assistant Prosecutor

Attorney for the State

STEVEN D. ALTMAN, ESQ.

ROBERT S. WILLIS, ESQ.

Attorneys for Defendant, Larry Smith

BRADLEY J. FERENCZ, ESQ.

Attorney for Defendant, John D. Bagley

Georgeann Enright, C.S.R.

Official Court Reporter

Middlesex County Courthouse

New Brunswick, New Jersey 08901

* * *

[69] I’m not suggesting that you must reply.

Is there anything else you would like to say to me?

MR. LeBLON: No, Judge. I would just say that I’m not

looking to turn the tables around.

THE COURT: That’s the defense’s position. I understand.

MR. LeBLON: I recognize the burden. I believe the State

has met the burden.

THE COURT: Thank you.

9a

Transcript

All right.

This, gentlemen, as you know, is an application seeking to

suppress evidence which was seized as a result of what was initially

a stop on the Turnpike; and resulted later in the search of the

vehicle involved.

The State’s position is that the stop was a proper one; and

the search was made under one or two or a combination of

circumstances—either the observation of marijuana, and also some

untaxed cigarettes, which would give rise to probable cause to

search further in the vehicle—namely, in the trunk—as well as

consent; and I think the State’s position is that the [70] consent

was given voluntarily by both defendants.

The situation commences with Trooper Vliet being on the

Turnpike observing a vehicle which he says was weaving. The

vehicle being an out-of-state vehicle, late at night, and that because

of the weaving, which I don’t think there is any question that

we’re not speaking of going beyond a particular lane—weaving

between the lane—but he came to the conclusion that, perhaps,

the operator might be possibly very tired or drunk—to use that

language—and they followed the vehicle for approximately a mile

and pulled it over. And upon pulling it over, the operator of the

vehicle emerged from the vehicle. And that a conversation relative

to 1.D.—and by ‘‘I.D.’’ I mean the driver’s license, registration—

the driver did produce a valid driver’s license. I believe it was

a Florida driver’s license.

But on the question of the registration he had—instead—a

rental agreement—in that this was a rented or hired vehicle; and

that to get the rental agreement—if I’m wrong as to the facts,

tell me so—the rental agreement was in the glove compartment;

10a

Transcript

is that [71] right? And that the gentlemen—I believe it was the

driver—the driver is Mr. Smith; am I correct?

Smith said he had to get the rental agreement out of the glove

compartment.

And the Trooper—as I recall—for his own protection—to

be sure that the man wasn’t getting something in the glove

compartment which could possibly be a threat—accompanied him

to the car and looked in—or possibly even leaned in while he

was going into the glove compartment to bring out the rental

agreement, which turned out to be a valid rental agreement.

There appeared to be some question as to whether the

agreement named the driver as the person authorized to operate

the vehicle; and that ultimately it was learned on the face of it

it did not; but behind the first sheet, there was another small

sheet, which was in the nature of what—in the mind of the

insurance company—sometimes it might be called a binder

addendum, which did name the defendant as the person—one

of two who was authorized to drive the vehicle.

In the context of that situation, it [72] is the Trooper’s

testimony that he observed-this was while he was partially in the

vehicle or—at least—leaning into it—or—at least—not in the

vehicle—he saw some marijuana in the ashtray area, or marijuana

residue in the ashtray, and also some untaxed cigarettes—not

bearing the New Jersey tax—on the seat.

I don’t recall if there were three or four of them—three or

four packs of cigarettes—untaxed—bearing—is it the Carolina

stamp?

MR. FERENCZ: North Carolina tax stamp.

lla

Transcript

THE COURT: And that observation—which he saw in the

ashtray—was made as a result—I believe—of what is—with the

assistance of his flashlight; because this was at night.

And that thereupon the Trooper indicated that when asked,

‘*Do you mind if I look in your car,’’ at one point in this—the

basis of the consent really starts with that. And the testimony

of the State is that the answer is, ‘‘go ahead,”’ or ‘‘I don’t mind.”’

Something like that. An affirmative reply. [73] There was no

objection.

The other Trooper—Trooper Theodos—and I might say that

I found the testimony somewhat—I found there was different

types—how should I put it—I may be wrong—Theodos was an

older person than Vliet—a person who was more experienced—

at least he sounded so on the stand. He seemed to be somewhat

more affirmative about his testimony. He said he also observed

the marijuana from the passenger’s side. Vliet —having observed

it from the driver’s side. And that subsequent to the consent being

given—and the testimony is one of the Troopers indicates that

they both gave the consent—the other Trooper—in this case—

recalled that one of them ultimately led them to the trunk.

Now, gentlemen, I don’t recall—you can help refresh my

recollection—who opened the trunk? Was it one of the defendants

allegedly?

MR. LeBLON: The Trooper testified that the defendant,

Smith, produced the keys.

THE COURT: Produced the keys?

MR. LeBLON: And opened it.

12a

Transcript

[74] THE COURT: I think the Trooper possibly opened it.

Let me say, first, we'll get to where we’re going—the stop

at the very beginning—it’s my understanding or finding that the

stop was a valid stop. Otherwise, I wouldn’t be going to the trunk

or anywhere else. It’s not a heavy case. I have seen very many

motor vehicle stops; but I do think that based on the time of

night, the fact that it was a vehicle from out-of-state, I can conceive

that it would not be unreasonable for the officer to feel that this

might be someone dozing off or someone who might go into

another lane and strike another automobile. I conceive that the

weaving—rather than a zig-zagging—this is not a zig-zagging—

could be a hazard or present the initial start of a hazard. I think

it was reasonable for them to stop the vehicle under those

circumstances.

But let me put to rest the cigarettes before I go to the question

of the search. I think the cigarettes play a part in the picture.

I, frankly, am not clear in my own mind whether the Trooper

thought that the trunk contained other cigarettes. I do think they,

however, add [75] to the climate of what was happening here.

They saw the marijuana and the cigarettes. ©

Frankly, | feel, based on what I have here, there was a valid

consent given. They did have the right to go to the trunk.

As I recall, from the testimony, and, frankly, I’m not so

much talking about Vliet; but Theodos really impresses me as

being a credible, intelligent officer, who, I think, had a fairly

good recall of what happened. He was subjected to a barrage

of very heavy and very expert cross-examination. As good as |

have seen in any Court. I don’t say that to pin flowers on anybody.

I think Counsel in this case—both Mr. Ferencz and Mr. Willis

and Mr. Altman did an excellent job of cross-examination.

l3a

Transcript

And I don’t think Theodos was damaged very, very much.

It’s true that we have a problem with respect to some of these

times; but I believe that Theodos is giving what I think to be

a fairly accurate—I’m not speaking of truthfulness—I’m accepting

the truthfulness—whether it’s accurate—I think that his testimony

makes—seems to help; and I believe the officers when they say

that consent was [76] given in this case. I think, perhaps, these

gentlemen might have been bluffing. Maybe they figured that

maybe they wouldn’t bother and we'll keep going with it. I think

they have the right to go to the trunk under those circumstances.

And I think that the consent continued.

My recollection of the facts was that as they got to each

item—almost item for item—as I recall—there was a request and

there was no objection—or an assent to some degree in the

language.

Accordingly, I find no violation of the constitutional rights.

And I’m denying the application, gentiemen.

Submit to me an appropriate o-der. I'll sign it.

Thank you, Counsel.

MR. LeBLON: Thank you, Judge.

MR. ALTMAN: Thank you, your Honor.

MR. WILLIS: Thank you, your Honor.

MR. FERENCZ: Thank you, your Honor.

(The hearing concluded.)

l4a

Transcript

CERTIFICATE

1, GEORGEANN ENRIGHT, a Certified Shorthand

Reporter of the State of New Jersey, do hereby certify that the

foregoing is a true and accurate transcript of my stenographic

notes of the within proceedings, to the best of my ability.

s/ Georgeann Enright, CSR

GEORGEANN ENRIGHT, C.S.R.

Dated: 3-7-84

lSa

JUDGMENT OF CONVICTION OF THE SUPERIOR COURT

OF NEW JERSEY, LAW DIVISION, ISSUED JANUARY 18,

1984

NEW JERSEY SUPERIOR COURT

MIDDLESEX COUNTY

LAW DIVISION — CRIMINAL

S.B.1. No. 260621516

DATE OF ARREST 1/18/82

THE STATE OF NEW JERSEY

vs.

LARRY SMITH

Defendant.

JUDGMENT OF CONVICTION AND ORDER FOR

COMMITMENT

The defendant on was indicted on

Indictment #32-82-01.

The defendant on entered a plea of not

guilty to the Indictment for the crime(s) of:

(Please include Title, Statute and Degree) CT. 1-POSS. OF CDS

(PURE FREE BASE COCAINE) WITH INTENT TO

DISTRIBUTE; CT. 2-POSS. OF CDS (PURE FREE BASE

COCAINE) and the defendant having on 11/4/83

RETRACTED PLEA OF NOT GUILTY AND ENTERED A

PLEA OF GUILTY TO:

l6a

Judgment

CT. 1-POSS. OF CDS (PURE FREE BASE COCAINE) WITH

INTENT TO DISTRIBUTE 24:21-19(a)(1) AND 24:21-19(b)(2)

It is, therefore, on JANUARY 18, 1984 Ordered and Adjudged

that the defendant be and is sentenced ON COUNT |,

DEFENDANT IS COMMITTED TO THE CUSTODY Or

COMMISSIONER OF DEPT. OF CORRECTIONS FOR SIX

(6) YEARS. DEFENDANT IS GRANTED NINE (9) DAYS

CREDIT ON SENTENCE. $25.00 TO VCCB COUNT 2 IS

DISMISSED AS WELL AS IND. 32-82 AS IT RELATES TO

CO-DEFENDANT, JOHN BAGLEY THE EXECUTION OF

THE SENTENCE IS STAYED PENDING DISPOSITION OF

APPEAL. BAIL IS SET AT $25,000.00 NO 10%.

A penalty of $25 is imposed on each count on which the defendant

was convicted unless the box below indicates a higher penalty

pursuant to N.J.S.A. 2C:43-3.1.

Penalty imposed on count(s) 1 is $25.00 respectively.

Total Fine , Total Restitution

Total VCCB Penalty 25.00

Installment payments, if applicable, are due at the rate of

$ per

ATTORNEY FOR DEFENDANT

Upon Entry of Guilty Plea or Conviction

STEPHEN ALTMAN, ESQ.

At Time of Sentencing

STEPHEN ALTMAN, ESQ.

17a

Judgment

Defendant to receive R. 3:21-8 credit for time spent in custody

From to

Days Credit 9

RECEIVED Aug. 16, 1984

STATEMENT OF REASONS, R. 3:21-4(e)

THE AGGRAVATING CIRCUMSTANCES

ARE: SERIOUSNESS OF OFFENSE; PRIOR RECORD: RISK

DEFENDANT WILL CONTINUE TO COMMIT CRIME;

NEED TO DETER DEFENDANT AND OTHERS FROM

VIOLATING THE LAW.

IT IS FURTHER ORDERED THAT THE SHERIFF DELIVER

THE DEFENDANT TO THE AFORENAMED INSTITUTION

TO SERVE HIS SENTENCE.

s/ Thomas J. M.

County Clerk

Aug. 15, 1984

s/ G.J.N.

Judge

GEORGE J. NICOLA

A.O.C., Form No. LR-35 1/78

Rev. 2/81

cc: Chief Probation Officers

AOC Sentencing Research Project

Department of Corrections (where defendant sentenced to state

correctional institution)

18a

Judgment

County Penal Institution (where defendant sentenced to county

penal institution)

19a

MIDDLESEX COUNTY GRAND JURY INDICTMENT NO.

32-82

NEW JERSEY SUPERIOR COURT

MIDDLESEX COUNTY

LAW DIVISION

(CRIMINAL)

File No. 82-392; 393

Indictment No. 32-82

THIRD GRAND JURY

May 1982 Stated Session

September Term 1981

THE STATE OF NEW JERSEY

vs.

LARRY SMITH

JOHN D. BAGLEY

Defendant.

INDICTMENT

POSSESSION OF A CONTROLLED DANGEROUS (PURE

FREE BASE) SUBSTANCE W/I TO DISTRIB.

N.J.S. 24:21-19 (1)

N.J.S. 24:21-19b(2)

POSSESSION OF A CONTROLLED DANGEROUS

SUBSTANCE (PURE FREE BASE) 24:21-20(a)(2)

20a

Indictment

THE GRAND JURORS of the State of New Jersey, for the

County of Middlesex, upon their oaths, PRESENT THAT

LARRY SMITH AND JOHN D. BAGLEY, on or about the 18th

day of January, 1982, in the Township of South Brunswick,

County of Middlesex aforesaid and within the jurisdiction of this

Court, knowingly did possess a controlled dangerous substance,

namely Cocaine in an amount of one ounce or more with at least

3.5 grams of pure free base Schedule II narcotic drug with intent

to distribute the same; contrary to the provisions of N.J.S.

24:21-19(b)(2) and against the peace of this State, the government

and dignity of the same.

SECOND COUNT

THE GRAND JURORS of the State of New Jersey, for the

County of Middlesex, upon their oaths, PRESENT THAT

LARRY SMITH AND JOHN D. BAGLEY, on or about the 18th

day of January, 1982, in the Township of South Brunswick,

County of Middlesex aforesaid and wit 1 the jurisdiction of this

Court, knowingly did possess a controlled dangerous substance,

namely, cocaine, in an amount of one ounce or more with at

least 3.5 grams of the pure free base Schedule II narcotic drug;

contrary to the provisions of N.J.S. 24:21-20(a)(2) and against

the peace of this State, the government and dignity of the same.

s/ Richard S. Rebeck

County Prosecutor

By: Abraham Chasnoff

Assistant Prosecutor

A TRUE BILL:

s/ Raymond J. Blash

RAYMOND BLASH, FOREMAN