On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Union County.
Furman, Dreier and Shebell. The opinion of the court was delivered by Dreier, J.A.D.
[216 NJSuper Page 282] The State appeals by leave granted from an order suppressing the evidence of the contents of a pouch found in the possession of the juvenile, A.R. The juvenile was charged with delinquency on the basis of two counts charging offenses which would constitute possession of a controlled dangerous substance and one count charging an offense which would constitute
possession of drug paraphernalia if brought against an adult.
The trial judge by a comprehensive decision and order dated August 18, 1986 suppressed the evidence, consisting of .147 grams of cocaine in a glass vial with a small silver spoon attached and .102 grams of marijuana in the form of a hand rolled cigarette. The police discovered these items in a small leather pouch found in the juvenile's right front coat pocket during the course of a pat-down on the street.
We accept the 26-paragraph factual findings of the trial judge. The facts demonstrate that police stopped three youths on the street in the vicinity of a school after receiving a tip from a reliable informant that four named juveniles would be involved in narcotic activity in that vicinity. Three of the four named juveniles, known to the arresting officers, were observed walking to the school. They stopped walking only after a second call from the officers, one of whom saw one of the other juveniles, D.K., move something from one pocket to another. Upon examination, the item removed was determined to be a box containing a partially smoked marijuana cigarette, whereupon D.K. was arrested. One of the officers then patted-down the other juveniles. A pat-down disclosed neither weapons nor drugs on the second of the trio and he was permitted to leave.
A.R. continued to stand with his hands in his pockets and was instructed to remove his hands so that the officer could conduct the pat-down. Initially A.R. would only remove his left hand. Over A.R.'s verbal protest, the officer removed A.R.'s right hand from his pocket and conducted the pat-down, discovering a square object which was removed by the officer. The object was then observed to be a soft black leather case with a snap, three inches by four to five inches, normally used to carry film. As a result of his background and training in narcotic law enforcement, the detective recognized the pouch as similar to cases frequently used to hold narcotics. The officer then
opened the pouch and determined it to contain cocaine and marijuana which were the subject of the motion to suppress. The officer had arrested A.R. three years before for the possession of a B.B. gun, and he justified the pat-down search as one to protect his own safety.
In granting juvenile's motion to suppress the evidence seized in the search, the trial judge made an intensive and cogent analysis of New Jersey and Federal authority as established in State v. Bruzzese, 94 N.J. 210 (1983), cert. den. 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984); State v. Esteves, 93 N.J. 498 (1983); State v. Alexander, 191 N.J. Super. 573 (App.Div.1983); and State v. DeLorenzo, 166 N.J. Super. 483 (App.Div.1979), interpreting, among other cases, United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983), Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977); and Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). She concluded that although the pouch could properly have been removed from the juvenile's pocket, it should not have been opened without a warrant. We agree with the trial judge's analysis up to her final conclusion. In fact, her analysis as to the propriety of the stop and frisk and the removal of the pouch parallels that of our Supreme Court in State v. Davis, 104 N.J. 490 (1986), decided three months after her opinion.
The circumstances of the stop, specifically, the informant's tip, the possession of CDS by a companion and A.R.'s attempt to avoid the pat-down, and the pouch being of a type known by police to be used by youths to hold drugs and drug paraphernalia, taken together certainly provided sufficient grounds for police briefly to detain A.R. and the pouch found on him to investigate suspected criminal activity. United States v. Sharpe, 470 U.S. 675, 686-87, 105 S. Ct. 1568, 1576, 84 L. Ed. 2d 605, 616 (1985); United States v. Place, supra, 462 U.S. at 706, 103 S. Ct. at 2644, 77 L. Ed. 2d at 120; State v.
Alexander, supra, 191 N.J. Super. at 576-577. But these circumstances and facts observed by the detective were also sufficient to find probable cause, i.e., to warrant a reasonable belief that a crime had been or was being committed. State v. Doyle, 42 N.J. 334, 346 (1964). Probable cause requires less evidence than is necessary for a conviction; it is a "common-sense practical standard," State v. Novembrino, 105 N.J. 95, 120 (1987), a concept that justifies quick action by police to protect society. State v. Dilley, 49 N.J. 460, 464 (1967). Since neither we nor the trial judge had any doubt of the constitutionality of the stop and pat-down (see State v. Davis, supra, 104 N.J. at 505-507) and the seizure of the container, (see United States v. Place, supra, 462 U.S. at 706-707, 103 S. Ct. at 2644-45, 77 L. Ed. 2d at 120-121), we must determine only whether the opening of the container violated the juvenile's Fourth Amendment rights under the doctrines established by Arkansas v. Sanders, supra, Illinois v. Lafayette, 462 U.S. 640, 103 S. Ct. 2605, 77 L. Ed. 2d 65 (1983), and United State v. Chadwick, supra. These cases have been most recently discussed by the United States ...