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State v. Kuhn

Decided: October 21, 1986.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROY E. KUHN, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Camden County.

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

Dreier

[213 NJSuper Page 276] Defendant has appealed from his conviction for possession of a controlled dangerous substance (heroin), N.J.S.A. 24:21-20a, on a guilty plea entered after the denial of a suppression motion. He was sentenced to four years probation with credit for jail time previously served. The sentence was conditioned

upon drug rehabilitation and monitoring, as well as 200 hours of noncompensatory community service per year during the first three years of his probation. A Violent Crime Compensation Board penalty of $25 was also imposed.

Defendant has acknowledged committing the offense. What is at issue here is whether the search that disclosed the contraband was in violation of the Fourth Amendment, the parallel provisions of the New Jersey Constitution (1947), Art. I, Par. 7, and the cases interpreting them.

On January 17, 1982, in the mid-afternoon, a Camden City police officer, accompanied by another officer, was driving his police van to the police station at the end of his shift. He was experienced in drug matters, having received training in narcotics and having made more than 50 drug-related arrests. As he approached a bar in an area of high illegal drug activity, he saw a car parked in the bar's parking lot. The only unusual thing about the car was that it was parked diagonally across more than one parking space. Defendant was standing outside of the driver's side of the car, another person was standing outside of the passenger's side, and there was a third person in the front passenger seat of the car. The officer also testified that this pattern of three individuals, two outside of a car, and one inside, fits the profile of a drug transaction. As the officer drove the van into the driveway of the parking lot, defendant apparently saw the van, appeared to say something, then got into the car and began to drive the car from the lot. The officer immediately sounded his siren and followed defendant out of the driveway. Defendant stopped within 50 or 100 feet of the driveway. Although the officer only saw the back of defendant's head, it "seemed like he turned around, looked in the mirror or glanced over his shoulder towards the back of the car." The officer went immediately to the driver's side of the car and asked defendant to get out. Defendant did as he was told, and the officer patted down defendant to determine whether defendant possessed a weapon, discovering a hard object which he later determined was a set of ten keys. But as the

keys were pulled out of defendant's pocket, two small packages fell to the ground, one containing a white powdered substance which the officer believed to be heroin. Defendant was then placed under arrest.

Although a complete search of the car revealed some narcotics paraphernalia, the suppression motion was limited to the result of the pat-down of defendant's person. If nothing had been revealed, presumably the search would have gone no further. On cross-examination, the officer testified that he saw no items pass between the three people at the car and, in fact, he could not see what the other two were doing since the car was between the officer and these individuals. In response to questions posed by the trial judge, the officer further stated that defendant was a Caucasian and the other two individuals were Hispanic.

Defendant has raised four points with several sub-points on this appeal.

POINT I. PATROLMAN BUMM'S VEHICLE STOP WAS NOT SUPPORTED BY REASONABLE SUSPICION, AS REQUIRED BY TERRY V. OHIO AND ITS PROGENY.

SUBPOINT A: THE PULLOVER OF THE VEHICLE WAS A FOURTH AMENDMENT SEIZURE.

SUBPOINT B: THE FACTS OBSERVED BY PATROLMAN BUMM PRIOR TO THE VEHICLE STOP WERE INSUFFICIENT TO CONSTITUTE 'REASONABLE SUSPICION' ...


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