dissenting.
The issue here is whether the evidence and inferences drawn from “the factual and practical considerations of everyday life,” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949), support the trial court’s conclusion that the search of the trunk of the car was reasonable. The majority repeatedly insists that the existence of a small amount of drugs consistent with casual personal use did not warrant a search of the trunk. It thus misconceives the totality of the circumstances. In my opinion the state trooper had a well-grounded suspicion, State v. Burnett, 42 N.J. 377, 387 (1964), justifying a search of the trunk when due regard is given to all the factors existing before the trunk was opened.
The following evidence was produced at the hearing on the motion to suppress:
Elmer Phillips, a New Jersey State Police Trooper who had been a police officer for about 13 years, stopped a 1968 Chevrolet convertible for a random check. The car had been traveling south on Route 73 in Mt. Laurel Township toward the New *21Jersey Turnpike. As Phillips approached the vehicle the passenger, Lucio Patino, handed over an insurance paper, a motor vehicle registration card and a driver’s license to the driver, Guillermo Barriga. Barriga then gave the officer the registration and driver’s license. The license was in the name of Lucio Patino and the registration listed Nancy Patino as the owner. The trooper asked Barriga and Patino for other identification, but they had none.
Barriga told the trooper his sister owned the car. At that time Phillips spotted a clear plastic cylindrical container about an inch in diameter and six inches long on the floor of the car. It was half full with green vegetation that he believed was marijuana.
At Phillips’ request the defendants got out of the car. The trooper placed them under arrest and patted them down. Barriga then admitted he did not have a driver’s license and that the license he had shown the officer belonged to the passenger. When the officer picked up the container of marijuana, he also found a hand-rolled marijuana cigarette. He tried to open the glove compartment, but it was locked. At the officer’s request Patino unlocked the glove compartment. It was empty. Phillips asked Patino to open the trunk. There beneath a pillow in a John Wanamaker shopping bag he found over three pounds of cocaine.
Barriga was the only witness for the defendants. He testified that, when he saw the state trooper approaching the car, he told Patino, who was holding the vial of marijuana, to “stash it.” Barriga claimed that Patino hid the container under the passenger seat and that was where Phillips found it. Nonetheless, Barriga did not deny that (1) he had no driver’s license; (2) he had lied when he claimed Patino’s license belonged to him and the owner of the car was his sister; (3) he admitted these falsehoods to the trooper; (4) both Patino and he could not prove their identities; (5) the vial with marijuana was in the *22car; and (6) there was also a hand-rolled marijuana cigarette on the floor.
The pattern portrayed by all the circumstances supported a further search of the vehicle by the police. The officer had found contraband in the car. The attempt to avoid any detention by Barriga’s palming off another person’s driver’s license, coupled with Barriga’s and Patino’s subsequent inability to produce identification, suggested that the vehicle might well have been stolen. Surely, if defendants had more or other controlled dangerous substances, the likelihood was that they would be secreted, as they were, in another part of the car. In State v. Waltz, 61 N.J. 83 (1972), a police officer found a small bottle with narcotics in the front of a van and received an evasive answer to his inquiry. This Court concluded that “once the officer found what he thought to be narcotics in the bottle probable cause existed to arrest the occupants and search the entire van.” Id. at 88. In this case, the finding of contraband in the car accompanied by the other suspicious circumstances satisfied the State’s burden to prove “by a fair preponderance of the evidence” that probable cause existed for the search. State v. Slockbower, 79 N.J. 1, 16 n.1 (1979) (Schreiber, J., concurring). See also State v. Whittington, 142 N.J.Super. 45, 51-52 (App. Div.1976); Saltzburg, “Standards of Proof and Preliminary Questions of Fact,” 27 Stan.L.Rev. 271, 296-297 (1975).
My Brother Pashman in his concurring opinion urges that even if probable cause existed to search the trunk, the warrant-less search of the open shopping bag was proscribed by Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), and United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).1 Ante at 16. However, the principle in *23those cases should not be applied retroactively to this case since the search occurred before those decisions. See State v. Carpentieri, 82 N.J. 546 (1980), and State v. Howery, 80 N.J. 563 (1979). This is in accord with the majority of federal circuits that have addressed the issue. See United States v. Calandrella, 605 F.2d 236, 250-252 (6 Cir. 1979), cert. den. 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1980); United States v. Choate, 576 F.2d 165, 182 n.20 (9 Cir. 1978), cert. den. 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978); United States v. Berry, 571 F.2d 2, 3 (7 Cir. 1978) (on rehearing), cert. den. sub nom. Richardson v. United States, 439 U.S. 840, 99 S.Ct. 129, 58 L.Ed.2d 138 (1978); United States v. Reda, 563 F.2d 510, 511-512 (2 Cir. 1977), cert. den. 435 U.S. 973, 98 S.Ct. 1617, 56 L.Ed.2d 65 (1978); United States v. Montgomery, 558 F.2d 311, 312 (5 Cir. 1977). Contra, United States v. Schleis, 582 F.2d 1166, 1173-1174 (8 Cir. 1978) (en banc). But see United States v. Dien, 609 F.2d 1038, 1046 (2 Cir. 1979) (applying Sanders to a post-Chadwick search).
Moreover, there is another disturbing aspect in this case brought about by R. 3:5-7(d) which permits a defendant who has pleaded guilty to appeal from a denial of his motion to suppress evidence. Here, after the trial court had denied their motion to suppress the evidence uncovered in the trunk, defendants pleaded guilty. Before their guilty pleas were accepted, they explained that they had been paid to transport over three pounds of cocaine from Philadelphia to New York and were in the process of doing that when apprehended. See R. 3:9-2.
R. 3:5-7(d), effective January 28, 1977, was adopted for the purpose of relieving congested criminal trial calendars. Report of Supreme Court Committee on Criminal Practice, 99 N.J.L.J. 444 (May 20,1976). I do not believe that the stated administra*24tive goal should be pursued in this manner. When a defendant escapes conviction after he voluntarily has confessed to the court the factual details of his crime, undue light is cast on the regrettable aspect of the exclusionary rule—that “[t]he criminal is to go free because the constable has blundered.” People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (Ct.App.1926) (per Cardozo, J.) Public confidence in the judicial process is thereby further undermined.
I would not denigrate the effect of a voluntary plea under such circumstances. Philosophically, the cost to society outweighs the “judge-made device to deter future acts of insolence in office . . . .” State v. Zito, 54 N.J. 206, 210 (1969). Legally, defendants who have pled guilty and acknowledged the factual underpinnings of the plea should be estopped from raising or be deemed to have waived the issue. See State v. Raymond, 113 N.J.Super. 222, 225-227 (App.Div.1971). For a contrary view see Note, “Conditional Guilty Pleas,” 93 Harv. L.Rev. 564 (1980). There is no manifest denial of justice in confirming such convictions.
I would reverse the Appellate Division and reinstate the convictions.
Chief Justice WILENTZ and Justices SULLIVAN and PASHMAN concur in result.
For affirmance—Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, HANDLER and POLLOCK —6.
For reversal—Justice SCHREIBER—1.
But see United States v. Ross, (D.C. Cir. 1980), wherein the court held that Sanders did not proscribe the search of a paper bag found in an automobile trunk, “[b]ecause a paper bag’s general vulnerability suggests no reasonable expectation of privacy after its seizure . . . and because the police justifiably believed that this paper bag was not being used to store personal *23items ...” See also State v. Schrier, 283 N.W.2d 338 (Iowa 1979) (knapsack); Webb v. State, 373 So.2d 400 (Fla.Dist.Ct.App. 1979)) (dictum) (paper bag).