STATE OF NEW JERSEY v. DAVID ANTHONY YOUNG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1764-05T11764-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID ANTHONY YOUNG,

Defendant-Appellant.

_______________________________________________________________

 

Argued November 14, 2006 - Decided December 4, 2006

Before, Judges R. B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 04-117.

Susan B. Reed argued the cause for appellant (Nusbaum, Stein, Goldstein, Bronstein & Kron, attorneys; Ms. Reed, of counsel and on the brief; Robert D. Kobin, on the brief).

Vincent Leo III, Assistant Prosecutor, argued the cause for respondent (Michael M. Rubbinaccio, Morris County Prosecutor, attorney; Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

The sole issue presented for our consideration in this appeal is whether the trial court erred when it denied defendant's motion to suppress evidence of defendant David Anthony Young's possession of marijuana found in the pocket of his jacket during a pat-down search incident to defendant's arrest for driving while intoxicated and related motor vehicle violations. We affirm the order denying the motion to suppress and the judgment of conviction from which defendant appealed.

On December 24, 2004, defendant's motor vehicle was stopped by Patrol Officer Brian Bigham of the Washington Township Police Department on Shooley Mountain Road. Based upon the ensuing investigation and observations by the officer, defendant was arrested and charged with numerous offenses. Those offenses included possession of marijuana, N.J.S.A. 2C:35-10a(4); possession of paraphernalia, N.J.S.A. 2C:36-2; refusing fingerprinting, N.J.S.A. 53:1-14; failure to keep right, N.J.S.A. 39:4-82; reckless driving, N.J.S.A. 39:4-96; driving while intoxicated, N.J.S.A. 39:4-50; refusal to submit to breathalyzer, N.J.S.A. 39:4-50.2; and possession of a controlled dangerous substance in a motor vehicle, N.J.S.A. 39:4-49.1.

Following the denial of defendant's motion to suppress the evidence, the municipal court judge found defendant guilty of all the offenses with which he was charged. On the de novo review in the Law Division, Judge N. Peter Conforti denied defendant's motion to suppress evidence relating to defendant's possession of marijuana discovered in the search incident to arrest, but defendant's motion to suppress evidence of paraphernalia found during the search of the motor vehicle was granted. The State has not cross-appealed from that ruling. In his appeal, defendant does not contest the validity of the initial stop nor his arrest and convictions on the intoxication and driving related offenses.

Defendant's challenge to the seizure of the marijuana and his conviction for possession stems from his assertion that the officer had placed him under arrest and handcuffed him before conducting a pat-down search. Defendant argues the officer had no justification for removing the marijuana from defendant's jacket pocket because the bag the officer felt was soft and could not possibly have been a weapon. Defendant argued that under such circumstances, the officer would have had no reason to fear for his safety and no basis for removing the item from his pocket.

The State contends that, based upon the officer's training and experience, he had a reasonable basis to believe the item he felt during the lawful pat-down was contraband, and that consequently, the seizure comes within the exception allowed for searches incident to arrest.

We agree with the State. When an arrest is effectuated -- here the validity of the arrest is not disputed -- the arresting officer may, incident to the arrest, lawfully search the person of the arrestee. State v. Pierce, 136 N.J. 184, 213-14 (1994).

This case does not involve the more delicate question of whether the police may conduct a warrantless search of an automobile as incident to an arrest after the occupants have been removed from the vehicle and secured in police custody. See, e.g., State v. Eckel, 185 N.J. 523, 541 (2006) (noting that once the occupants have been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception inapplicable). Here, the bona fide arrest of the defendant and the seriousness of the offenses are not in question since there is no dispute that defendant was intoxicated and he posed a hazard as a driver. See State v. Pierce, supra, 136 N.J. at 205-08.

Affirmed.

 

We find it unnecessary to determine whether the seizure is sustainable under the "plain feel" or "plain touch" theory argued by the State. See State v. Cargill, 312 N.J. Super. 13 (App. Div. 1998); State v. Butler, 278 N.J. Super. 93 (App. Div. 1994); and State v. Jackson, 276 N.J. Super. 626 (App. Div. 1994).

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A-1764-05T1

December 4, 2006