On appeal from the Superior Court of New Jersey, Law Division, Union County.
Michels, Petrella and Baime. The opinion of the court was delivered by Michels, P.J.A.D.
Pursuant to leave granted by this court, the State appeals from an order of the Law Division which granted the motion of defendant Richard Alan Wanczyk to suppress evidence seized following his arrest as well as statements made thereafter while he was in police custody.
Defendant was indicted by the Union County Grand Jury and charged with aggravated arson, a crime of the second degree, in violation of N.J.S.A. 2C:17-1(a)(2), arson, a crime of the third degree, in violation of N.J.S.A. 2C:17-1(b)(2), and threatening to kill a police officer, James Weinberg, a crime of the third degree, in violation of the provisions of N.J.S.A. 2C:12-3(b). Defendant was arraigned on June 25, 1984, at which time an order of arraignment fixing time limitations was entered which provided that "[a]ll pretrial motions, including motions to suppress, shall be filed . . . within 14 days of an assignment of counsel." Counsel was assigned to defendant on June 25, 1984. On August 20, 1984, the matter came on for trial. Following the selection of a jury panel, but before the panel was sworn, the trial court held a Miranda hearing. During the course of the Miranda hearing, the defense counsel made a motion to suppress evidence seized in a search following defendant's arrest incident to an investigatory stop by police of a car in which defendant was a passenger. The trial court granted defendant's motion to enlarge the time for making the motion to suppress. We then granted the State's motion for leave to appeal. However, we ruled that the proceedings on the motion to suppress should continue, pointing out that if the motion were granted the trial would be stayed pending appeal.
According to the State's proofs at the suppression hearing, sometime between 10:15 and 10:30 p.m. on May 2, 1984, Officers Weinberg of the Union County Police Department and Todd Brian Turner of the Mountainside Police Department responded in their vehicles to the Watchung Reservation where they found the Airs Barn, a historical landmark located near
the Reservation's Trailside Museum, engulfed in flames. Fire apparatus from the Mountainside Fire Department also arrived at about the same time to fight the fire. Weinberg remained at the scene to direct traffic in the parking lot near the fire, and Turner and another officer drove their vehicles around the surrounding area in search of arson suspects or witnesses to the fire. Though the police had not yet formally commenced an arson investigation, Turner testified that he undertook his search because on a prior occasion he had successfully apprehended an arson suspect by searching the area surrounding a fire immediately after its discovery.
While Weinberg was directing traffic, Captain Gerity of the Summit Fire Department approached him. Gerity told Weinberg that he had "seen a possible suspect or witness" leaving the area at the time of the fire and gave Weinberg a detailed description of the individual. Gerity said that he had seen the individual coming from the "loop area" [near the Airs Barn and Trailside Museum] through the woods and that the individual had headed towards the "Summit circle" away from the fire. Weinberg immediately notified headquarters "of the possible witness or suspect" and reported the description the fireman had provided him. Weinberg then left the parking lot in his vehicle and circled the area looking for the possible suspect or witness. A few minutes later he received another report that the individual had been seen entering a brown or tan-colored Chevy with license plate number 591-EIB. Officer Turner also heard the report on his radio, which monitors the County Police Band. The dispatcher at police headquarters subsequently informed the officers that the car was registered to "Mr. Wanczyk" (defendant's father), and that the car had been spotted heading down New Providence Road toward Route 22.
Weinberg immediately proceeded to that area and spotted the car while it was stopped for a red light at the intersection of New Providence Road and Route 22. Weinberg activated his overhead red lights and stopped the car. Turner, who was also patrolling on New Providence Road, saw Weinberg activate his
lights and pulled up to the left of the suspect's car to assist Weinberg in the stop. Both officers approached the car, with Weinberg on the passenger side and Turner on the driver's side. Turner testified that the vehicle was driven by an elderly man, defendant's father, who was extremely cooperative when Turner asked him to turn off the vehicle's motor and to show his credentials. However, defendant, who was "sitting low in the backseat in a crouched position, looked very nervous because he kept looking around; he was perspiring very badly." Weinberg asked defendant his name and then requested that he step out of the car. Turner testified that he wanted defendant to get out of the car "because he fit the physical description [of the possible suspect or witness] that [had been] broadcast[ed] on the police radio."
When defendant stepped out of the car the officers had him move toward the rear to avoid the traffic on New Providence Road. As he did so Turner spotted a cylindrically-shaped bulge in the left sleeve of defendant's shirt. Fearing that defendant had a weapon in his possession, the officers took defendant's arms and placed them on the lid of the car's trunk. Turner then retrieved the object which turned out to be a tightly rolled-up "pornographic magazine." Turner, believing defendant might have other objects, such as weapons, concealed in the same fashion as he had concealed the magazine, continued the pat-down search for weapons. Turner explained that:
It seemed a bit peculiar that someone would conceal a magazine in that fashion, and I thought it may be a good idea to continue a pat-down because maybe he might have concealed other objects in that fashion; plus, I was ...