Motion to suppress evidence.
Maurice A. Walsh, Jr., J.s.c.
The defendants have filed a motion to suppress giving rise to a novel question in this jurisdiction. The main issue is whether the principles enunciated in Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), permit a limited search of an automobile prior to an arrest when the area searched is beyond the immediate reach of defendants.
Because the evidence in question was seized without a warrant the burden of proof lies with the State. State v. Contursi , 44 N.J. 422 (1965); State v. Whittington , 142 N.J. Super. 45 (App. Div. 1976). To support their respective positions both parties, per R. 3:5-7, have submitted statements of facts and the law.
The State alleges that at about 4 A.M. on December 1, 1977 Trooper Al Drummond, a New Jersey State Trooper, observed an automobile on the New Jersey Turnpike containing defendants, swerving between the marked lanes and tailgating another vehicle. Responding to what he apparently believed was reckless driving, Trooper Drummond turned on his overhead light to pull defendants' vehicle to the side of the road. At this time he noticed that the rear passenger, later identified as Larry Brown, leaned down as though he were attempting to conceal something beneath the rear seat. As the driver of the vehicle produced his registration and license, Trooper Drummond again saw the defendant allegedly reach beneath the rear seat. This prompted the officer to believe that defendants might have a weapon, at which point he ordered defendants to step out of the vehicle so that they could be frisked. In addition, Trooper Drummond checked the area beneath the rear seat of the automobile, whereupon he found a .38-caliber revolver. Defendants were then arrested for the unlawful possession and carrying of a revolver without a permit, in violation of N.J.S.A. 2A:151-41.
Defendant Larry Brown states that he was merely dozing when the vehicle was stopped by Trooper Drummond. He
denies making any furtive movement with his hands, nor does he know the reason why he and the other defendants were stopped. Furthermore, he alleges that he does not know where the gun was found. Brown, through counsel, concedes that if the court should find that the search was performed under the circumstances as outlined by the State, then the search was valid.
When material facts are in dispute, as they are here, R. 3:5-7(c) provides that testimony shall be taken in open court. Accordingly, the court heard the testimony of Trooper Drummond and finds that his live testimony coincides in the main with the State's statement of facts filed herein. The court also finds Trooper Drummond's testimony to be credible. Although given an opportunity to do so, the three defendants did not produce any witnesses or evidence at the hearing. State v. Gonzalez , 75 N.J. 181 (1977).
The main issue is whether the officer had the authority to conduct the limited search of the area beneath the rear seat. The State contends that Trooper Drummond's action was part of a protective search. However, since defendants were out of the vehicle when the limited intrusion occurred and thus were not within reach of the area searched, there is some question as to whether the police went beyond their prescribed authority in stop and frisk situations. The leading case on stop and frisk searches is Terry v. Ohio, supra. There the United States Supreme Court stated that protective searches -- stop and frisk searches -- required a two-fold inquiry. First, the court said, it must be determined whether the initiation of the investigation by the police is permissible, and second, the scope of the search must be justified by the circumstances.
As for the first inquiry, the test is simply whether a reasonably prudent man in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger. Terry v. Ohio, supra , 392 U.S. at 27, 88 S. Ct. 1868. Based on the facts
as alleged in the State's statement of facts and the testimony of Trooper Drummond, this court finds that there was sufficient reasonable belief that defendants may have been armed, thus warranting the stop and frisk of defendants. Further, in view of the circumstances, this court finds that the officer was justified in requiring them to step out of the vehicle. In a recent United States Supreme Court decision, the court, addressing itself to just this type of situation, stated that "even where there is no reason to suspect foul play," ordering the driver out of the vehicle is so de minimis an intrusion as to amount to a "mere inconvenience which cannot prevail when balanced against the legitimate concern for the officer's safety." Pennsylvania v. Mimms , 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331 (1977). In light of the trooper's testimony that ...