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State v. Wilcox

Decided: August 12, 1981.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES WILCOX, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Mercer County.

King, Francis and Furman. The opinion of the court was delivered by Furman, J.A.D.

Furman

After his conviction of possession of heroin with intent to distribute on a retraxit plea of guilty, defendant appeals under R. 3:5-7(d) from the denial of his motion to suppress evidence.

A suppression hearing was held and factual findings reached by Judge Barlow, who found Police Detective Hunt's testimony to be "the credible version of the facts and circumstances." Hunt, who had been a member of the Ewing Township police force for nine years, testified as follows.

A search warrant had been issued for the person of Daniel Roberson, his 1973 Chevrolet car and his business known as the Style Machine, a barbershop in Ewing Township, upon information that Roberson was involved in the distribution and sale of narcotics. Hunt and another police officer were maintaining surveillance of the barbershop. Several other police officers were available nearby for backup duty. Shortly after one o'clock on the afternoon of June 1, 1977, Roberson drove up in his 1973 Chevrolet and parked across the street from the barbershop. There was one passenger in his car, later identified as defendant. Roberson entered the barbershop, while defendant entered a sandwich shop next door.

Upon execution of the search warrant inside the barbershop, packets of heroin and cocaine were seized on Roberson's person. Hunt observed defendant standing by the door of the barbershop. He went outside and asked defendant for his identification. Defendant acted nervous. He gave his name as Bruce Wilcox, in fact his brother's name. Hunt saw what appeared to be the bulge of a wallet in one of defendant's pants pockets. He

asked if defendant had any identification in his wallet. Defendant took the wallet out. As defendant was thumbing through it Hunt observed an identification for Charles Meakins,*fn1 who he knew was in jail.

Hunt then searched defendant and seized 18 individually wrapped packets of heroin, a packet of quinine and number slips from a pants pocket and a shirt pocket. As a consequence, Hunt arrested defendant.

The police officers subsequently searched Roberson's car and found a handgun, more narcotics and some of defendant's clothing. But the seizure of incriminating evidence from Roberson's car cannot validate retroactively the search of defendant's person. Cf. State v. DeSimone , 60 N.J. 319 (1972).

In his testimony Hunt never stated any apprehension that defendant might be armed with a concealed weapon and that his own safety was endangered. The decisional authorities upholding the constitutionality under the Fourth Amendment of protective frisks are thus inapplicable. Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State in the Interest of H.B. , 75 N.J. 243 (1977).

We are faced with the issue of the constitutionality under the circumstances of a police stop of defendant, demand for identification and search of his person, without an arrest and without his consent, after he had shown an identification which was known by the police detective to be false and may reasonably have been suspected by him to have been stolen, as well as the wallet which contained it.

No United States Supreme Court opinion is squarely in point. Adams v. Williams , 407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972), upholds as reasonable a "brief stop of a suspicious ...


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