STATE OF NEW JERSEY v. VINCENT SALZILLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0983-06T50983-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VINCENT SALZILLO,

Defendant-Appellant.

________________________________________________________________

 

Argued June 26, 2007 - Decided August 6, 2007

Before Judges Parker and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 05-05-00185-1.

Gerard E. Hanlon argued the cause for appellant (Hanlon Dunn & Robertson, attorneys; Mr. Hanlon, of counsel and on the brief).

Thomas J. Reed, Assistant Prosecutor, argued the cause for respondent (David J. Weaver, Sussex County Prosecutor, attorney; Mr. Reed, of counsel and on the brief).

PER CURIAM

After denial of his suppression motion, defendant Vincent Salzillo entered a plea of guilty to second degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5b(2). He was sentenced on September 7, 2006 to a term of seven years, a six-month suspension of his driving privileges and the usual fines and penalties. This appeal focuses on the denial of defendant's motion to suppress, which we reverse.

The incident giving rise to these charges occurred on August 13, 2004, when defendant was a passenger in an automobile with out-of-state license plates operated by David Ramos. While Ramos was driving north on Route 15 in Sparta Township at approximately 1:00 in the afternoon, Sparta Police Officer Keith Hannam was driving southbound. Hannam made a U-turn through the median to head north. As Hannam headed north in the left lane, traffic in front of him moved to the right lane. When Hannam approached the Ramos vehicle, it also moved to the right but failed to signal. Hannam pulled the vehicle over and indicated that in addition to Ramos's failure to signal, his license plate could not be read because it had a dirty plastic cover.

When Hannam first approached the car, he noticed a "heavy odor of alcoholic beverage coming out of the vehicle." Hannam asked for Ramos's credentials and Ramos appeared nervous, his hands were shaking and he initially produced only his driver's license. Ramos then picked up a map and asked the officer for directions to Route 206. After Ramos produced his registration and insurance card, Hannam asked him to get out of the car to look at the dirty license plate. As Ramos was getting out of the car, Hannam noticed a Corona beer bottle cap on the driver's seat. Meanwhile, defendant remained in the front passenger seat.

After he showed Ramos the license plate, Hannam went back to the car to speak with defendant. He retrieved the Corona bottle cap from the driver's seat and then asked defendant about the cap and whether there were any alcoholic beverages in the vehicle. Defendant was "very cooperative;" he bent over, picked up a brown paper bag, pulled out two empty Coors Light beer cans and showed them to the officer. There were no Corona bottles matching the cap in the bag or on the front seat.

After showing the beer cans to the officer, defendant leaned over toward his backpack, which was between his legs, and the officer told him to hand it over. Before defendant could hand it to him, Hannam "grabbed" the backpack and took it to the rear of the vehicle while defendant remained in the passenger seat. Hannam unzipped the backpack and found what was ultimately determined to be sixty-eight grams of cocaine. Hannam asked defendant if the backpack was his and, when defendant answered "yes," he was placed under arrest. The vehicle was then searched and additional CDS and drug paraphernalia were found.

The trial court found that the stop was legitimate, based upon Hannam's testimony that the driver failed to signal. The court further found that the bottle cap, together with the "strong odor of alcohol coming[,] not particularly from the operator or person, but from the vehicle," was sufficient to inquire about open containers:

What happened here is that we had the odor of alcohol, the nervousness, I don't put too much weight into that because people are nervous in those kinds of situation[s] . . . . So, nervousness is an element but not necessarily [a] decisive one in our scenario.

But what I think is sensitive here, in [the] Fourth Amendment sense, is the next sequence of events . . . and that is the observation of a bottle cap in the course of this interaction with asking the driver to get out of the vehicle. This is the predicate to the ultimate search that I think is challenged and certainly the point of sensitivity, in my view, on the Fourth Amendment analysis.

In denying the suppression motion, the trial court queried whether "the presence of the bottle cap is a sufficient basis to get into the [backpack]." The court referred to State v. Jones, 326 N.J. Super. 234 (App. Div. 1999), in which we reversed the denial of a suppression motion under circumstances somewhat similar to those presented here. It concluded "that the bottle cap is a distinction from the . . . Jones scenario in that it does justify the search we have here."

In this appeal, defendant argues:

POINT ONE

THE STOP OF THE VEHICLE FOR FAILURE TO SIGNAL WAS INVALID AND ALL EVIDENCE SEIZED SHOULD BE SUPPRESSED

POINT TWO

THERE WAS NO PROBABLE CAUSE TO BELIEVE A CRIME WAS COMMITTED OR THAT EVIDENCE OF CRIME WOULD BE FOUND TO JUSTIFY A WARRANTLESS SEARCH

POINT THREE

THE SEARCH OF THE VEHICLE WAS INVALID BECAUSE ONCE THE OFFICER ESTABLISHED THE VIOLATION HE SHOULD HAVE ISSUED A SUMMONS AND RELEASED THE VEHICLE

POINT FOUR

THE DETENTION OF THE VEHICLE AND THE UNWARRANTED QUESTIONING OF MR. SALZILLO WAS DESIGNED TO ILLICIT INCRIMINATING STATEMENTS

A. MR. SALZILLO WAS NEVER ADVISED OF HIS RIGHT TO REFUSE CONSENT TO SEARCH

B. THE OFFICER'S QUESTIONS WERE DESIGNED TO ILLICIT INCRIMINATING STATEMENTS IN VIOLATION OF MIRANDA PROTECTIONS

Defendant contends that the initial stop was invalid because N.J.S.A. 39:4-126 requires that a driver signal when "mov[ing] right or left upon a roadway" only "in the event any other traffic may be affected by such movement." He maintains that Hannam's testimony that Ramos pulled over immediately in response to the officer activating his lights indicates that there was no traffic in the vicinity that was affected by the absence of a signal for the lane change. If the lane change was the only basis for the stop, we might agree. Hannam further testified, however, that Ramos's license plate was obscured by a dirty plastic cover. N.J.S.A. 39:3-33 requires that license plates shall not be concealed or otherwise obscured, and N.J.A.C. 13:20-32.4(b) prohibits the use of glass or plastic covers on license plates.

Under the circumstances presented, we are satisfied that the officer had "'a reasonable and articulable suspicion' that the driver's failure to signal is 'to some degree likely to' affect traffic." Jones, supra, 326 N.J. Super. at 239 (quoting State v. Williamson, 138 N.J. 302, 304 (1994)). The obscured license plate was a further basis for the stop.

Defendant next argues that the routine motor vehicle stop did not justify a warrantless search when the driver produced the appropriate credentials, was cooperative and gave no indication of violating any laws other than failing to signal and having a dirty license plate. Again, we might agree with defendant's position but for Hannam's testimony that when he first asked Ramos for his driver's credentials, he "[s]melled [a] heavy odor of alcoholic beverage coming out of the vehicle[,] from inside the vehicle." Thus, the "plain smell" doctrine came into play from the outset of the stop. Kevin G. Byrnes, Current N.J. Arrest, Search & Seizure, ch. 17:3-2a at 446 (2006-07) (Byrnes, Search & Seizure).

The "plain smell" doctrine is first cousin to the "plain view" doctrine, which allows a police officer to investigate contraband observed in "plain view" and to undertake a warrantless search. State v. Nunez, 262 N.J. Super. 251, 253-56 (App. Div. 1993) (holding that an officer's observation of a partially consumed bottle of rum in plain view on the rear floor of a vehicle stopped for speeding justified a warrantless search for additional open containers).

In State v. Birkenmeier, 185 N.J. 552, 562 (2006), the officer smelled "'a very strong odor of marijuana'" and observed a tote bag on the front passenger seat of the defendant's car. The Supreme Court held that the strong smell of marijuana and observation of the tote bag "sufficed to provide the probable cause and exigent circumstances needed for the invocation of the automobile exception and the ensuing search of the passenger compartment of defendant's car." Id. at 563.

Similarly, in State v. Judge, 275 N.J. Super. 194, 201 (App. Div. 1994), we held that the smell of burnt marijuana in a car stopped for speeding "creates an inference that marijuana is not only physically present in the vehicle, but that some of it has been smoked recently." We distinguished between the smell of marijuana - possession of which is per se unlawful - and the smell of alcohol - which is not - and stated that a smell of burnt marijuana "created a heightened and reasonable suspicion that an offense was being committed." Id. at 202.

In Jones, supra, 326 N.J. Super. at 238, a state trooper observed a car change lanes without signaling. The trooper stopped the vehicle and the defendant produced the appropriate credentials. The trooper then asked the defendant to activate his directional signals and they discovered that the blinker on the dashboard was not working. At the trooper's direction, he and the defendant went to the back of the vehicle and observed that the signal light was working. In speaking to the defendant, the trooper noticed an odor of alcohol on his breath and asked if he had been drinking. The defendant responded that he drank a bottle of Heineken. After doing a pat-down search of the defendant and other occupants of the vehicle for weapons, the trooper searched the vehicle for open containers of alcohol. Under the driver's seat, he found a plastic bag with a white substance, which ultimately proved to be cocaine. Ibid. Additional bags of cocaine were found hidden in other places in the car. Id. at 238-39. After hearing the suppression motion,

The trial judge found that the smell of alcohol on Jones's breath, combined with his admission of consumption of beer, his apparent nervousness, his failure to use the turn signal, and what [the Trooper] believed was an unusually long time to stop the vehicle [15 seconds], established probable cause on the part of a trained police officer to believe that a violation of the law had been or was committed, namely the possession of open containers of alcohol.

[Id. at 239.]

We reversed and remanded, finding that:

The record before us [was] completely devoid of facts which support a reasonable suspicion that defendants . . . possessed open containers of alcohol to establish probable cause necessary to conduct a search of the interior of the vehicle. The odor of alcohol the Trooper detected on [defendant's] breath, together with his nervousness and admission concerning the consumption of one beer, does not, when viewed with the other existing circumstances, establish a well-grounded suspicion that either Jones or his passengers had open containers of alcohol in the vehicle in violation of N.J.S.A. 39:4-51a . . . .

A naked suspicion is one without any reasonable basis in fact. Here, the Trooper's suspicion that the occupants of the vehicle had open containers is at best a mere hunch and, therefore, no better than a naked suspicion. The rush hour traffic conditions which justified the stop also would justify the defendant driver's prudent gradual, rather than immediate, pull off to the shoulder. The nervousness of the driver, considering the fact of the stop itself, along with his consumption of alcohol, is expected. The mere smell of alcohol and admission of consumption may not, by itself, warrant a sobriety test, let alone search of the vehicle for open containers. Had the Trooper observed open containers in plain view or any outward signs such as spilled alcohol when he asked the driver for his identification, a further search of the vehicle including the passenger area would have been warranted.

[Id. at 244-45 (emphasis added).]

Here, the officer smelled alcohol in the car at the outset of the stop. He gave no indication that the odor emanated from Ramos. When he retrieved the Corona bottle cap from the driver's seat, Hannam asked defendant whether there were any open containers in the car and defendant volunteered the bag containing two Coors Light cans.

Defendant now argues that he was questioned about the open containers without being advised of his right to refuse to consent to the search. Having smelled the alcohol, however, the officer properly posed an initial investigatory question to defendant. State v. Hickman, 335 N.J. Super. 623, 631 (App. Div. 2000); see also State v. Ebert, 377 N.J. Super. 1, 8-11 (App. Div. 2005).

Defendant argues in his reply brief that Jones is controlling and that Hannam lacked probable cause to search the backpack because "at no time were open containers in plain view;" the vehicle was not searched until after the backpack was searched without consent; and alcohol is not illegal per se. We note, however, that in Jones we stated that "any outward signs such as spilled alcohol" would justify further search of a vehicle for open containers. 326 N.J. Super. at 245. In our view, the "plain smell" of alcohol in a vehicle - rather than on an occupant's breath - together with the empty Coors Light cans volunteered by defendant, justified a warrantless search of the vehicle for open containers.

Finally, defendant argues that because the open container statute, N.J.S.A. 39:4-51a, is a motor vehicle law, not a criminal law, defendant had a greater expectation of privacy in the backpack. This argument gives us pause to consider whether the officer had probable cause to invade the backpack - after the two Coors cans were produced - but before the car was searched for the Corona bottle to match the cap found on the driver's seat. The validity of a warrantless search of closed containers found in a vehicle was decided by the U.S. Supreme Court in California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991). There, the Court articulated "one rule to govern all automobile searches. The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained." Id. at 580, 111 S. Ct. at 1991, 114 L. Ed. 2d at 634.

The New Jersey Supreme Court, however, "has rarely ruled on the issue of containers in vehicles." Byrnes, Search & Seizure, supra, ch. 17:2-3 at 419. Nevertheless, Byrnes notes in his treatise that New Jersey has apparently adopted a rule requiring the police to demonstrate exigent circumstances before undertaking a warrantless search of a closed container found in a vehicle. Id. at 420. For example, in State v. Young, 87 N.J. 132, 144 (1981), the Court expressly held that

[f]uture searches . . . if not valid under New York v. Belton . . . as incident to a lawful arrest, will be governed by the doctrine of Chadwick . . . and Sanders . . . . Under that doctrine[,] the police themselves may not make the determination whether probable cause exists for the search of luggage found in a car.

In State v. Santiago, 319 N.J. Super. 632, 639 (App. Div. 1999), decided after Acevedo, we held that, absent exigent circumstances, the warrantless search of a sealed package found in the trunk of the defendant's car was not justified. There, a postal inspection of a package addressed to the defendant disclosed that the package contained marijuana and a warrant was obtained. Id. at 635. When the defendant picked up the package at the post office, a second package with the same return address was delivered to her. Ibid. She put both packages in the trunk of her car and was stopped shortly after leaving the post office. Ibid. Armed with a warrant to search and seize the first package, the police searched the second package, as well, and found more marijuana. Ibid. We held that, notwithstanding the warrant to search the first package and the knowledge that it contained CDS, there was no justification for the warrantless search of the second package. Id. at 639-40. We indicated that the circumstances of that case were such that the police knew what to expect and had no reason not to obtain a warrant before searching the second package. Id. at 640. We noted that even though the United States Supreme Court had eliminated the exigency requirement for searching a closed container found in an otherwise valid search of a car in Pennsylvania v. Labron, 518 U.S. 938, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996), we saw no reason to depart from our Supreme Court's holding in State v. Colvin, 123 N.J. 428 (1991), which held that Article one, paragraph seven of the New Jersey Constitution required the police to obtain a warrant to search a car, in the absence of exigent circumstances. Id. at 642-43.

In Colvin, the Court emphasized that "[t]he justification [for a warrantless search of an automobile] turns on the circumstances that make it impractical to obtain a warrant when the police have probable cause to search the car." Id. at 437. Here, obtaining a warrant for the backpack was no more impractical than in Santiago. And, as we noted in Santiago, the search and seizure provision of the New Jersey Constitution supports our departure from the federal rule articulated in Acevedo. 319 N.J. Super. at 642.

In Eckel, supra, 185 N.J. at 538, 540, decided well after Acevedo, our Supreme Court declined to follow the federal rule articulated in Belton, when it held that Article one, paragraph seven of the New Jersey Constitution "afford[s] our citizens greater protection against unreasonable searches and seizures . . . than would be the case under its federal counterpart." The Court in Eckel concluded that "[o]nce the occupant of a vehicle has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent" and the police must obtain a warrant to search the vehicle in which the defendant was an occupant. Id. at 541. In other words, after the defendant was under arrest and secured, there were no exigent circumstances to justify a warrantless search of the vehicle.

In light of Colvin and Eckel - in which our Supreme Court relied on the New Jersey Constitution in departing from federal search and seizure jurisprudence - we see no reason to allow the warrantless search of a zippered backpack unless exigent circumstances are present.

Here, the Corona bottle cap justified the officer's inquiry as to whether there were any open containers in the car. When defendant voluntarily produced the two empty Coors Light cans, further search of the car for open containers was justified. The search of the backpack before searching the car, however, was not. When Hannam seized the backpack, he had no reason to believe it contained the Corona bottle or any other open containers. Hannam testified that he "grabbed" the backpack from the floor where it was located between defendant's legs as defendant leaned toward it. Hannam's seizure of the backpack before searching the car was based on a "naked suspicion" - "one without any reasonable basis in fact." Jones, supra, 326 N.J. Super. at 244. There were no exigent circumstances that justified the warrantless search of the backpack before the car was searched and before defendant was placed under arrest.

We have no doubt that the smell of alcohol in a vehicle is sufficient justification for further investigation of whether there are open containers in the vehicle. See Id. at 245. The question then is whether there was justification for seizing the backpack and opening it without a warrant before the car was searched for open containers and contraband was found. Based upon current jurisprudence under Article one, paragraph seven of the New Jersey Constitution, the answer is no. Evidence found in the vehicle during the search for open containers is admissible. Jones, 326 N.J. Super. at 245.

Accordingly, we reverse the trial court's denial of defendant's suppression motion and reverse his conviction. We remand for a determination of whether the State has sufficient evidence to proceed against defendant on any other evidence.

 
Reversed and remanded.

Defendant was sentenced to the mid-range term of seven years, rather than a minimum of five years, for this first offense.

Ramos was admitted into the Pretrial Intervention Program (PTI) for his role in the incident.

453 U.S. 454, 460, 101 S. Ct. 2860, 2864, 28 L. Ed. 2d 768, 775 (1981) (holding that when an officer has made a lawful arrest of an occupant of a car, that officer may "as a contemporaneous incident of that arrest, search the passenger compartment of that automobile"). But see State v. Eckel, 185 N.J. 523, 540-41 (2006) (declining to adopt Belton - "a theoretically rootless doctrine that would erode the rights" of New Jersey's citizens).

United States v. Chadwick, 433 U.S. 1, 11, 97 S. Ct. 2476, 2483, 53 L. Ed. 2d 538, 548 (1977) (holding that where the occupant of a car places a locked footlocker in the trunk of that car, the police regardless of probable cause, cannot conduct a warrantless search of that object absent exigent circumstances).

Arkansas v. Sanders, 442 U.S. 753, 763-64, 99 S. Ct. 2586, 2593, 61 L. Ed. 2d 235, 244-45 (1979) (holding that absent exigent circumstances, police may not conduct warrantless searches of items found within an automobile once those items have properly been removed from the automobile, regardless of probable cause).

(continued)

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A-0983-06T5

August 6, 2007