STATE OF NEW JERSEY v. STEPHEN CIASULLI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6633-04T16633-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN CIASULLI,

Defendant-Appellant.

________________________________

 

Argued December 19, 2005 - Decided

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No.

04-10-2515.

Marc C. LeMieux, Assistant Prosecutor, argued the cause for appellant (Luis A. Valentin, Monmouth

County Prosecutor, attorney; Mr. LeMieux, of counsel and on the letter brief).

Mitchell J. Ansell argued the cause for respondent

(Ansell, Zaro, Grimm & Aaron, attorneys; Mr. Ansell, of counsel; Mr. Ansell and Greg S. Gargulinski, on

the brief).

PER CURIAM

The State appeals, on leave granted, from the motion judge's order suppressing evidence seized without a warrant. We reverse and remand.

These are the salient facts. While on patrol, on June 28, 2004, at approximately 12:30 a.m., Officer Elio Scarpa observed a silver vehicle with a dark tint on the rear and side windows, traveling northbound on Route 34 in Wall Township. Scarpa could not see in the windows and believed the tint was in excess of what would be factory-issued in violation of N.J.S.A. 39:3-77. The vehicle exited Route 34 and entered the ramp for the Garden State Parkway. The officer stopped the vehicle near the end of the ramp for the violation.

Scarpa conducted a vehicle check and discovered that the registered owner, defendant Stephen Ciasulli, had a $500 warrant out of Bridgewater Township for failure to appear. Scarpa then exited his police car, approached the vehicle, and asked the driver for his license and registration. The driver did not have the proper paperwork, but identified himself as Stephen Ciasulli. Scarpa advised defendant of the tinted windows violation and the outstanding warrant.

At that point, Scarpa radioed dispatch to confirm the warrant was still active, and he was advised that the warrant was valid and the Bridgewater Police Department would pick up defendant if the $500 bail was not posted. When Scarpa informed defendant of the warrant's validity, defendant asked if he could telephone a friend to raise the bail money, and Scarpa permitted him to do so.

After defendant made the telephone call, Scarpa advised him to park his vehicle in a commuter parking lot, approximately fifty feet from where defendant's vehicle was pulled over. Scarpa authorized this action out of concern for his and defendant's safety, since the initial stop was at the parkway entrance. Scarpa followed defendant in his vehicle into the parking lot and never lost sight of him.

Once defendant's vehicle was parked in the lot, Scarpa radioed for a tow truck. Officer Chris Lisewski of the Wall Township Police Department arrived to provide backup.

Defendant was ordered out of the car, escorted to the police vehicle, and placed under arrest for the active Bridgewater Municipal Court warrant. Prior to putting defendant in his patrol vehicle, and consistent with his department's standard operating procedure, Scarpa ordered defendant to empty his pockets and place the items on the hood of the vehicle. As defendant emptied his pockets, he dropped a small clear plastic baggie near the front tire of the patrol vehicle. Inside the bag was a white crystal substance which Scarpa believed to be methamphetamine.

Scarpa secured the plastic bag and placed defendant in the back of the police vehicle. The officer conducted an inventory search of defendant's vehicle and recovered two straws in the vehicle's center console and $57 from the driver's side floor board. After securing the evidence, defendant was transported to police headquarters.

Defendant was indicted for third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). In a series of complaints, he was also charged with possession with the intent to use drug paraphernalia, a disorderly persons offense, N.J.S.A. 2C:36-2; possession of a controlled dangerous substance in a motor vehicle, N.J.S.A. 39:4-49.1; and illegal tinted windows, N.J.S.A. 39:3-77. Defendant subsequently moved to suppress evidence of the drugs that dropped to the ground, and the judge granted the motion, reasoning:

This was after all a minor type offense, but minor or not, the officer had the right to take him into custody. He had no other option and that custody would be pursuant to an arrest for a[] warrant that was issued. So I don't have any problem with the fact that the officer was placing the defendant under arrest, was going to remove him to headquarters until the actual bail could be posted.

The main issue in this case for this court . . . is what transpired prior to placing the defendant into the automobile.

. . . .

I initially would state that I would have absolutely no problem with the officer doing a Terry type frisk of the defendant prior to putting him into the back of the police [vehicle]. There was a valid arrest and that certainly in this Court's mind would alleviate any fear that the officer would have for his safety in the searching for weapons of the individual. The interesting thing about search incident to an arrest is the words, since search incident to arrest never has been defined that I could tell from the different cases that I looked at.

. . . .

So, having analyzed the cases, having looked at these specific facts as they apply to this specific case, and asking myself, hopefully the reasonable person or the reasonable person in the officer's situation if a stop and frisk would have sufficed for the officer's safety, that search incident to the lawful arrest in putting him in the back of the car which in this Court's mind would have not been brought to the officer's attention this packet in his pocket. And in effect the defendant may have been able to go through the booking procedure and leave without it being found.

Did the act of asking him to empty his pockets so that everything could be looked at, did that violate his constitutional rights? That is the issue. And as you can see by the delay in my reaching my opinion I am still troubled by it. Is it unreasonable to ask someone to empty their pockets pursuant to a valid arrest, prior to putting him into a police car knowing full well that Pierce says at pages 213 and 214 our holding does not affect the right of a police officer following a valid custodial arrest for a motor vehicle violation or for a criminal offense. And I would also state for a warrant outstanding where bail has been set, to conduct a search of the person of the arrestee solely on the basis of the lawful arrest. Pierce says you can do that. But what does that search mean? A complete search, a strip search, an empty all of your pockets search, or a pat down search for safety because that is really what the search incident to the arrest is for. Either safety or the destruction of evidence that an officer reasonably believes may be on his person.

I am going to find on behalf of the defendant here because I find that this was less about safety in asking him to empty his pockets and more about seeing well now that I got him here is there something else I might find. That is my evaluation of the credibility of the witness and what was really going through his mind. Although it may be their policy I think that is the message behind the policy. Well now he is under arrest let's see what he has on him.

We disagree with the court's intimation that despite defendant's lawful arrest, the police were authorized only to conduct a Terry pat-down instead of a full-blown search.

Indisputably, defendant was validly arrested for the active municipal court warrant. As the motion judge properly recognized, defendant was not entitled to be released upon issuance of a summons rather than being arrested. See State v. Dangerfield, 171 N.J. 446, 463 (2002) (recognizing the legality of warrantless custodial arrests for a disorderly or petty disorderly persons offense under the New Jersey Code of Criminal Justice Code). Given the legality of defendant's custodial arrest, we are further satisfied that the search of defendant's person, including the request to empty his pockets, was valid solely on the basis of the lawful arrest.

It is well-settled that a search of an arrestee's person flowing from his lawful arrest comports with federal constitutional principles. See Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694, reh'g denied, 396 U.S. 869, 90 S. Ct. 36, 24 L. Ed. 2d 124 (1969). It is, after all, "the fact of the lawful arrest which establishes the authority to search." United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477, 38 L. Ed. 2d 427, 441 (1973). Such authority "while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect." Id. at 235, 94 S. Ct. at 477, 38 L. Ed. 2d at 440. Chimel remains the controlling source of analytical principles.

"Generally, [our courts] have not afforded greater protection regarding the scope of a search incident to a lawful arrest under our State Constitution than that provided in Chimel's interpretation of the Fourth Amendment." Dangerfield, supra, 171 N.J. at 463 (citing State v. Pierce, 136 N.J. 184, 214-15 (1994); State v. Henry, 133 N.J. 104, 118-19, cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993); State v. Welsh, 84 N.J. 346, 353-56 (1980); State v. Patino, 83 N.J. 1, 8-9 (1980); State v. Doyle, 42 N.J. 334, 344 (1964); State v. Bradley, 291 N.J. Super. 501, 509-11 (App. Div. 1996)). Although our Supreme Court has interpreted some provisions of New Jersey's Motor Vehicle Code to hold that the police may not undertake full-blown searches of a motor vehicle or its occupants "based . . . on contemporaneous arrests for [minor] motor-vehicle violations," Pierce, supra, 136 N.J. at 209-10, this restrictive approach concerning arrests for minor traffic offenses is not applicable to Code of Criminal Justice offenses, see, e.g., id. at 213-14, and furthermore implies no modification of the holding in Pierce "that recognizes 'the right of a police officer, following a valid custodial arrest for a motor vehicle violation or for a criminal offense, to conduct a search of the person of the arrestee solely on the basis of the lawful arrest.'" State v. Dangerfield, supra, 171 N.J. at 463 (quoting State v. Pierce, supra, 136 N.J. at 213-14; Bradley, supra, 291 N.J. Super. at 507 n.2.

Because probable cause to arrest the defendant was lacking in Dangerfield, the search incidental to that arrest was invalid and, therefore, the Court did not further resolve whether any limitations are appropriate on the right of police officers to search an arrestee in connection with a valid arrest for the petty disorderly persons offense of defiant trespass. Dangerfield, supra, 171 N.J. Super. at 457. Nevertheless, we perceive no meaningful distinction between, on the one hand, a warrantless search of a person in the context of a motor vehicle arrest that was sanctioned in Pierce and, on the other hand, the warrantless arrest in the present context. "[A]ll custodial arrests pose a threat to the safety of the arresting officer

. . . ." Pierce, supra, 136 N.J. at 216 (Handler, J., concurring). The Court has previously made clear the danger associated with all custodial arrests. "'Every arrest must be presumed to present a risk of danger to the arresting officer. There is no way for an officer to predict reliably how a particular subject will react to arrest or the degree of the potential danger.'" State v. Bruzzese, 94 N.J. 210, 231 (1983) (quoting Washington v. Chrisman, 455 U.S. 1, 7, 102 S. Ct. 812, 817, 70 L. Ed. 2d 778, 785 (1982) (citations omitted)), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). "[W]e know from bitter experience that every arrest, regardless of the nature of the offense, must be presumed to present a risk of danger to an officer." Id. at 233. See also State v. Smith,

134 N.J. 599, 615 (1994) ("The safety concerns of a police officer unquestionably merit grave consideration.").

 
Here, we are not concerned, as was the Court in Pierce, either with the extent of the area to be searched within the control of the arrestee or with the temporal proximity of the search in relation to the arrest. Suffice it to say, the search challenged here was contemporaneous with the arrest and limited to the person of the arrestee only. On this score, a search incident to arrest includes, as here, ordering the arrestee to empty his pockets. State v. Contursi, 44 N.J. 422, 432 (1965). Moreover, the search in this case preceded defendant's removal from the scene, placement in the patrol car, and transport to the police station in preparation of the complaint and the posting of bail. Under these circumstances, the search of defendant's person incident to his lawful arrest was necessary for the police officers' safety, and was a reasonable and legitimate precaution for the police officers to take; neither state nor federal constitutional principles preclude this search.

Reversed and remanded.

Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1869, 1879, 20 L. Ed. 2d 889, 905 (1968).

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A-6633-04T1

January 6, 2006