STATE OF NEW JERSEY v. DARIUS S. MANSOORY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5735-08T45735-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DARIUS S. MANSOORY,

Defendant-Respondent.

_______________________________________

 

Submitted February 8, 2010 - Decided

Before Judges Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-10-00766.

Robert L. Taylor, Cape May County Prosecutor, attorney for appellant (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

April & Maudsley, P.A., attorneys for respondent (Mary J. Maudsley, on the brief).

PER CURIAM

By leave granted, the State appeals from an order of the Law Division dated June 25, 2009, suppressing evidence obtained in an inventory search of defendant's vehicle. For the reasons that follow, we affirm.

I.

The following facts are pertinent to our decision, drawn from the testimony presented at the suppression hearing. On July 23, 2008, Timothy Moore, a security officer with the Delaware River Bay Authority (DRBA), was directing traffic in the staging area at the ferry depot in Cape May, New Jersey, where passengers park their vehicles before driving aboard the ferries that operate between Cape May and Lewes, Delaware. There are eighteen lanes in the staging area.

Moore testified that, at approximately 2:30 p.m., a toll collector informed him that a black Lexus sport utility vehicle with a Delaware registration, was parked in lane fourteen, which was one of the lanes designated for the 2:30 p.m. ferry. The toll collector said that the vehicle was in the wrong lane because it was booked on the ferry departing at 3:30 p.m. Moore approached the car and informed the driver that he was in the wrong lane. Moore identified defendant as the driver. Moore said that defendant had a female passenger with him in the car. Moore told defendant to pull over to lane one.

Moore said that it appeared the defendant was going to move his car but apparently decided to remain where he was. Moore approached the car a second time and told defendant that he was supposed to be in lane one. Defendant did not say anything but began to maneuver the car as if he was going to go in the direction of lane one. Moore approached the car a third time to remind defendant that he was supposed to be in lane one. Defendant started to drive in that direction but then abruptly turned and pulled into the rear of line thirteen, which also was designated for the 2:30 p.m. ferry. Defendant then backed up and returned to lane fourteen.

Moore contacted DRBA patrol officer Brian Austin (Austin) and told him that a black Lexus was supposed to be in lane one for the 3:30 p.m. ferry but was attempting to get onto the 2:30 p.m. ferry. Austin said that because there was a high volume of traffic in line for the 2:30 p.m. ferry, defendant's operation of his vehicle had created a dangerous situation and could have caused an accident.

Austin approached the driver's side window of defendant's car. Austin testified that he detected a strong odor of an alcoholic beverage emanating from the vehicle and defendant's body. Austin asked defendant for his driver's license, vehicle registration and insurance information. Defendant provided Austin with the documentation. Austin then asked defendant to step out of the vehicle. Austin administered field sobriety tests. Austin testified that, based on the results of those tests and his training and experience, he believed defendant was intoxicated.

Austin placed defendant under arrest. Defendant's passenger was identified as Denise Norman (Norman). Austin told defendant that he could not leave the car in the staging area because it was blocking traffic going to the ferry. Austin asked defendant whether Norman would take custody of the car and drive it off the DRPA property. Defendant agreed but Norman told Austin that her driver's license had been "revoked and suspended" in Delaware for driving under the influence of alcohol.

Austin informed defendant that he would have to impound the vehicle because neither defendant nor Norman could drive it away. Austin asked defendant if he needed anything in the vehicle. Austin testified that it is the DRPA's policy to allow individuals "to take anything they want out of their vehicle before it's impounded." Defendant told Austin that he did not need anything in the car. Defendant was taken to the Lower Township police department for a breathalyzer test.

DRPA Officer James Spahr (Spahr) was instructed to impound the vehicle and he proceeded to the staging area. Spahr testified that Norman was with the car. Spahr asked Norman if she wanted to take anything out of the car. Norman removed a cell phone and a brown leather travel bag. Norman walked to the terminal to wait for defendant.

Spahr further testified that the DRPA's policy is to inventory the contents of any legally impounded vehicle. Spahr inventoried the contents of defendant's car. He recorded the valuables in the vehicle on a report. They were: a case of cans of Red Bull, a three-piece tool set, extension cords, clothing and one black leather wallet. Spahr testified that he found the wallet "in a little pocket" in the driver's side door. Spahr removed the wallet and left the other items in the car.

Spahr inventoried the contents of the wallet. He said that the wallet contained: six business cards, two US Airway cards, a health insurance card, a Borgata card, a Cosco card, and various credit cards with defendant's name. Spahr also found three folded white pieces of paper in the wallet. Spahr unfolded the papers and inside of each he found white powder, which he believed to be cocaine. The substance was later tested and confirmed to be cocaine.

On cross examination, Spahr said that the papers in the wallet were "partial pieces" of paper with ripped ends that appeared as if "they had been torn and folded." The papers were folded tightly but they were not sealed. To get inside, Spahr had to unfold the papers.

Spahr also stated that he inventoried the contents of the wallet to ensure that there were no valuables in the wallet that someone could claim he had taken. Spahr added that he "found the folded paper[s] suspicious because from [his] experience [he knew] that cocaine is packaged like that." He unfolded the papers for that reason.

The court rendered a decision from the bench. The court found that the officers had validly impounded the vehicle because defendant was impaired and had been taken into custody. Moreover, defendant's passenger could not lawfully operate the vehicle. The court determined, however, that the officers did not give defendant a "clear opportunity to retrieve his personal items." The court stated that defendant was in handcuffs and was not given the opportunity to secure his own items. The court added that, although Norman was given the opportunity to retrieve any personal property from the car, it could not be assumed that she knew about the wallet or where it was stored.

The court additionally found that the officer was lawfully permitted to inventory the items in the car. The court said that it was appropriate for an officer to look into the wallet to determine if there were any valuables inside. The court found, however, that it was not reasonable for the officer to open the folded papers. The court pointed out that Spahr had testified that the reason he unfolded the papers was because he became suspicious and believed that the papers might contain "drug paraphernalia or something to do with drugs."

The court stated that, if the officer was suspicious that the folded papers contained illegal drugs or drug paraphenalia, he should have obtained a search warrant to search the contents of the papers. The court said that, when the officer unfolded the papers, he went beyond the permissible scope of an inventory search because he was no longer looking for items of value for purposes of safekeeping.

The court thereupon granted defendant's motion to suppress the cocaine found within the folded pieces of papers. The court entered an order dated June 25, 2009, memorializing its decision on the suppression motion. By order dated July 28, 2009, we granted the State's motion for leave to appeal.

II.

The State argues that the trial court erred by granting defendant's motion to suppress. We disagree.

The Fourth Amendment to the United States Constitution and Article I, par. 7 of the New Jersey Constitution do not preclude law enforcement officers from impounding a vehicle, without a warrant, after the driver has been arrested if the vehicle "constitutes a danger to other persons or property or the public safety, and the driver cannot arrange for alternate means of removal[.]" State v. Ercolano, 79 N.J. 25, 52 (1979). Here, the DRPA officers validly arrested defendant because they had probable cause to believe that defendant was driving while intoxicated in violation of N.J.S.A. 39:4-50.

Furthermore, the record shows that defendant's vehicle created a danger to the public safety because it was parked in the lane of travel for motorists waiting to drive aboard the ferry. Moreover, defendant could not operate the vehicle because he had been taken into custody and his passenger was incapable of driving the car because she did not have a valid driver's license. Thus, we conclude that the impoundment of defendant's vehicle was valid under Ercolano.

Although the DRPA police were authorized to impound defendant's vehicle, "[m]ere legal custody of an automobile by law enforcement officials does not automatically create a right to search its interior." Ercolano, supra, 79 N.J. at 52 (Pashman, J., concurring). As we explained in State v. McDaniel, 156 N.J. Super. 347 (App. Div. 1978), the State must establish that the police inventoried the contents of the vehicle to fulfill one or more of the purposes identified in South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). McDaniel, supra, 156 N.J. Super. at 353. Those purposes are "'to protect the owner's property, to protect the police against claims over lost or stolen property and to protect the police from 'potential danger.'" Ibid. (quoting Opperman, supra, 428 U.S. at 368-69, 96 S. Ct. at 3097, 49 L. Ed. 2d at 1005).

Here, the State established that it inventoried the contents of defendant's vehicle to identify and make a record of all items of value in the car. Thus, the inventory was undertaken to protect the owner's property and the police against claims over lost or stolen property. To fulfill these purposes, the DRPA officer validly inventoried the wallet. In doing so, the officer was permitted to look inside the wallet to determine whether it contained items of value.

However, as the trial court determined, when the officer unfolded the papers found within the wallet, the officer exceeded the permissible scope of the inventory. The papers did not appear to be valuable. Furthermore, Spahr testified that he unfolded the papers because he suspected that they contained illegal drugs or drug paraphernalia. Therefore, the search of the contents of the papers found in the wallet was not undertaken for one of the purposes identified in Opperman.

III.

The State argues, however, that the search was permissible because signs posted at the entrance to the Cape May-Lewes ferry terminal advised defendant and other potential passengers that, "by entering this facility you agree to: Provide Photo ID[,] Video Surveillance [and] Searches of: your person[,] your baggage [and] your vehicle." The State cites United States v. Hartwell, 436 F.3d 174 (3d Cir.), cert. denied, 549 U.S. 945, 127 S. Ct. 111, 166 L. Ed. 2d 255 (2006), in support of this contention.

In Hartwell, the defendant set off the magnetometer at an airport. Id. at 175. The security agent told the defendant to remove all items from his pockets and to walk through again. Ibid. The defendant removed several items from his pockets, including a large quantity of cash, and walked through again. Ibid. A security agent then used a hand-held magnetometer, which indicated that there was a solid object in the defendant's pants pocket. Id. at 176. The defendant refused several requests to reveal what was in his pocket. Ibid. The security agent then reached into the defendant's pocket and found a package of drugs. Ibid.

The court in Hartwell held that the search was permissible under the administrative search doctrine. Id. at 177. The court stated that such "searches are permissible without a warrant when: 1) a substantial government interest informs the regulatory scheme under which the search is made; 2) the search is necessary to further the regulatory scheme; and 3) the statute's inspection program is a 'constitutionally adequate substitute for a warrant.'" Id. at 178 n.6 (quoting New York v. Burger, 482 U.S. 691, 703, 107 S. Ct. 2636, 2644, 96 L. Ed. 2d 601, 614 (1987)). The court stated that the government had a compelling interest in searching travelers for weapons and explosives before allowing them to board an aircraft. Id. at 179. The search in question was necessary to further that regulatory scheme. Id. at 179-80. Furthermore, the procedures involved "were minimally intrusive." Id. at 180.

In our view, the State's reliance upon Hartwell is misplaced. The search of the papers found in the wallet was not undertaken in furtherance of a policy to search passengers and vehicles for weapons and explosives. The search was undertaken in accordance with the DRPA's policy to conduct inventory searches of impounded vehicles to protect the owner's property and the DRPA from claims regarding lost or stolen property.

The State also cites Cassidy v. Chertoff, 471 F.3d 67 (2d Cir. 2006), in support of its argument that the warrantless search of the papers in the wallet involved in this case was valid. In Cassidy, the plaintiffs challenged a ferry company's policy of searching the carry-on baggage of randomly selected passengers and inspecting randomly selected vehicles. Id. at 70. The ferry company had posted a notice at its ticket booths informing passengers that it had been required by the federal Department of Homeland Security and the United States Coast Guard to conduct random screenings of passengers, cargo and vehicles, and that persons refusing to submit to such searches would not be permitted to board the ferry. Id. at 72.

The court in Cassidy found that the plaintiff's had an undiminished expectation of privacy in their carry-on baggage and may have such an expectation of privacy in the contents of the trunks of their vehicles. Id. at 76-78. The court further found that the searches at issue were minimally intrusive and the government had a special need to prevent or deter terrorist attacks. Id. at 83-84. The court concluded that the searches were "a reasonable method to discourage prohibited conduct[.]" Id. at 87.

The State's reliance upon Cassidy is misplaced. The search at issue here was not undertaken pursuant to a policy designed to prevent or deter a terrorist attack upon a ferry. As we have explained, the search was in furtherance of the DRPA's policy to inventory the contents of an impounded vehicle.

Affirmed.

 

We note that N.J.S.A. 39:4-50.23 authorizes the police to temporarily impound a vehicle if the driver is arrested for driving while intoxicated or refuses to submit to a chemical breath test. The Attorney General's directive to law enforcement regarding its implementation of this statute notes, however, that it "does not negate the [c]onstitutional right of the arrested person to make other arrangements for the removal of the vehicle by another person who is present at the scene of the arrest." Attorney General Law Enforcement Directive No. 2004-1, Appendix B, Guidelines, Mandatory 12-Hour Impoundment of Motor Vehicles (February 20, 2004).

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A-5735-08T4

March 17, 2010