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State in Interest of H.B.

Decided: February 25, 1976.


Lynch, Larner and Horn. The opinion of the court was delivered by Larner, J.A.D. Horn, J.A.D. (dissenting).


Defendant was adjudicated a juvenile delinquent for possession of a revolver in violation of N.J.S.A. 2A:151-41. He urges as the sole ground for reversal error in denial of his motion to suppress the gun which was taken from his person by the police.

At the suppression hearing the judge found the following operative facts which are supported by the credible evidence and accepted by us as a basis for decision. State v. Johnson , 42 N.J. 146, 162 (1964).

On December 16, 1974 Patrolman Finn of the Newark Police was on duty in a radio car when he received a radio dispatch from police headquarters that a black individual wearing a black hat, black leather coat and checkered pants was in Ray's Luncheonette at 407 South Orange Avenue with a gun in his possession.

Officer Finn and his partner proceeded to the location. As Finn entered the front door he saw approximately 15 persons in the luncheonette. He also observed a black man with a black hat, black leather coat, checkered pants and sneakers seated in a rear booth with three girls.

He thereupon walked up to the booth and told the male occupant, identified as defendant, to stand and put his hands on the wall. Finn then patted him down or frisked him, and as he was doing so he felt an object in the right hand coat pocket which felt like a gun. He reached into the pocket and removed a .32 caliber revolver.

The trial judge sustained the validity of the pat down and search and denied the motion to suppress. Defendant urges that the warrantless search was unreasonable and in violation of the Fourth Amendment because of the absence of probable cause which would normally sustain the validity of a search warrant.

This position overlooks a recognized exception to the norm of probable cause where the initial contact between the police officer and the suspect consists of a limited search for protective purposes by way of frisk or pat down rather than a full-blown search. The landmark case authorizing a limited search by way of frisk for weapons is Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See also, State v. Lakomy , 126 N.J. Super. 430 (App. Div. 1974).

Chief Justice Warren, writing for the majority in Terry , noted that the Constitution does not forbid "all searches and seizures, but unreasonable searches and seizures." 392 U.S. at 9, 88 S. Ct. at 1873, 20 L. Ed. 2d at 899, quoting from Elkins v. United States , 364 U.S. 206, 222, 80 S. Ct. 1437, 1446, 4 L. Ed. 2d 1669, 1680 (1960). In sustaining a limited search for weapons in that case the court in Terry pointed out:

The crux of this case, however, is not the propriety of Officer McFadden's taking steps to investigate petitioner's suspicious behavior, but rather, whether there was justification for McFadden's invasion of Terry's personal security by searching him for weapons in the course of that investigation. We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.

In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause

for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. [392 U.S. at 23-24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 907-908]

In arriving at the balance to be struck between the constitutional guarantees of a defendant and the necessity for a law enforcement officer to protect himself and other prospective victims of violence, the court held that there must be a narrowly drawn authority to permit a limited pat down search where the police officer has reason to believe that he is dealing with an armed and dangerous individual "regardless of whether he has probable cause to arrest the individual for a crime." Terry v. Ohio, supra , 392 U.S. at 27, 88 S. Ct. 1883, 20 L. Ed. 2d at 909 (emphasis added). It must be emphasized that the officer's belief must be reasonable under the circumstances. See also, Adams v. Williams , 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972).

We now proceed to apply the standards of Terry to the circumstances involved herein. We are satisfied that the contents of the radio dispatch from headquarters accompanied by a rather explicit description of the clothing worn by the individual, was sufficiently reliable for a reasonable suspicion by the police officer that defendant was the person referred to and that it was necessary in the process of investigation to pat him down for the protection of himself and the group of customers in the luncheonette. We further find that the officer conducted only a limited search warranted by the necessity of the occasion, and that such limited frisk revealed an object which felt like a gun. This revelation, in turn, constituted probable cause for a further search and seizure.

For the limited purpose of a search for weapons which is reasonably necessary for the protection of the life and limb of the officer and ...

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