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State v. Cook

Decided: September 25, 1979.

STATE OF NEW JERSEY, PLAINTIFF,
v.
HERBERT COOK AND BENJAMIN JACKSON, DEFENDANTS



Joseph F. Walsh, J.s.c.

Walsh

This is a motion to suppress currency and gambling slips, allegedly taken from defendant Jackson after he made certain responses to a police officer who had not as yet given the Miranda warnings. The seizure was based on these responses.

Presently there are two issues before the court. First, was defendant's inculpatory statement obtained in violation of his fifth amendment protection against self-incrimination? And if so, is the physical evidence discovered as a result of the statement tainted and also excluded from evidence?

The facts are as follows:

Newark police officers spotted a 1970 Buick. The officers' suspicions were initially triggered by the automobile's irregular stopping movement as it approached a parked school bus. The automobile then proceeded down the street, applying the brakes frequently, and stopping in the middle of the street for no apparent reason. The officers stopped the car. The driver, defendant Cook, was ordered out of the car. He had neither a license nor registration. He was frisked and placed in custody on suspicion of being in possession of a stolen vehicle.

The passenger was then searched for weapons. The officer noted several large bulges which he candidly stated were soft and led him to believe they were not weapons or anything he had to fear. He stated he could see money. He also testified at that point that defendant was not free to leave the area if he desired. Pointing to the money, the officer asked "What's this?" Defendant replied "Money." Again the officer asked the question, "Money?" and defendant in substance replied that he didn't want to waste time and that he was a numbers runner and indicated he wanted to make a deal. Thereupon the officer seized the evidence consisting of $1,132.90 in cash and lottery bets and slips totaling $6,403.30.

In light of the recent Supreme Court decision of Delaware v. Prouse , 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), the officers had probable cause to pull over the vehicle. The court's holding specifically excepted situations where the police have at least an "articulable and reasonable suspicion" of a traffic or safety violation.

The present set of facts clearly give rise to an articulable suspicion. The miscalculated avoidance of the parked school bus and the frequent unnecessary stopping provided the officers with "reasonable suspicion" of the commission of a traffic violation.

Likewise, the inability to produce a license and registration gave the investigating officers reasonable grounds to believe

that the automobile was stolen. Thus, it is clear that the police were justified in conducting a pat down search for their own protection. Recently, the highest court of this State reaffirmed the principle that reasonable grounds for a protective search requires a substantially lesser degree of certainty than does probable cause to arrest. State in the Interest of H.B. , 75 N.J. 243, 251 (1977).

The court in H.B. did point out that a protective frisk comprehends only weapons (lethal material) and not narcotics or ...


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