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State v. Carter

Decided: August 4, 1989.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
TYRONE CARTER, DENNIS LE-MAR THOMPSON, BARRY EUGENE WILKINS, DARREN KENNETH WHITING, DEFENDANTS-RESPONDENTS



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

O'Brien and Stern. The opinion of the court was delivered by O'Brien, J.A.D.

O'brien

By leave granted the State appeals from an order suppressing six ounces of cocaine and two electronic beepers seized from an automobile occupied by defendants which was stopped for a motor vehicle violation. We reverse.

At approximately 8:00 a.m. on April 3, 1988, Trooper James Steiger (trooper) was on routine patrol on the New Jersey Turnpike traveling southbound in a marked vehicle. He observed a Nissan 200SX tailgating a Honda in the center lane for approximately three-tenths of a mile. As a result, he activated his overhead light and directed the Nissan to pull over to the shoulder.

As the trooper approached the vehicle, he had his hand on his holster so that his weapon would be easily accessible since he was always concerned for his safety when he stopped an automobile. He bent over slightly as he approached the driver's door and observed the passenger in the right front seat, later identified as defendant Dennis Le-Mar Thompson, make a "movement as to reach underneath the front seat -- his shoulders dipped underneath the seat. . . ." The trooper "observed his hand go underneath the seat and then it came back in view." This movement, described as unusual, took approximately two seconds. The gesture alarmed the trooper and aroused his suspicion that the passenger could be concealing a weapon under the seat. Trooper Steiger feared for his safety. When he observed the passenger's hands come back in view empty, he was momentarily relieved because "I could not be hurt if I could see his hands." While closely watching Thompson's hands, the trooper asked the driver, later identified as defendant Darren Kenneth Whiting, for his license and registration.

Whiting produced his license, but said he did not know where the registration was.

By this time Trooper McDonough had arrived to assist with the stop and was standing on the passenger side of the Nissan. Starting with Whiting and then Thompson, followed by defendants Tyrone Carter and Barry Eugene Wilkins, who were seated in the rear of the vehicle, one by one each occupant was directed to get out of the vehicle and step to the rear, where Trooper Steiger conducted individual pat-downs with negative results. Trooper Steiger did this for his safety, principally because of the furtive gesture by Thompson. He was looking for weapons. In addition, because the driver was unable to produce the registration for the vehicle, the trooper suspected it may have been stolen. During the course of this procedure, the trooper inquired where the men were coming from. One replied from Connecticut, but another said from New York. This contradiction further aroused the trooper's suspicion. As the pat-down of each man was completed, he was placed under the supervision of Trooper McDonough. While they were not under arrest, they were also not free to leave.

Trooper Steiger was concerned that the four men could overpower Trooper McDonough and reach the area under the seat. He was also concerned that if he issued a summons for the traffic violation and let the men leave, they would have access to whatever was under the seat. The car was a hatchback with a small interior, such that a person would be able to reach under the front seat from the rear seat.

While Trooper McDonough kept watch, Trooper Steiger entered the vehicle from the passenger side and looked under the front seat where he had seen Thompson reach. About two inches under the seat he found a plastic bag containing a white chunky substance which he suspected was cocaine. It was later confirmed to contain six ounces of cocaine. The four defendants were then arrested, handcuffed, given their Miranda*fn1

rights, and placed in the police car. Trooper Steiger then resumed searching the Nissan. He looked under the other seats and mats and in the glove compartment. In the center console he found two electronic beepers which he seized since, based on his training and experience, he knew it was common practice for people who deal in narcotics to possess such devices. Although he did not locate the registration for the vehicle, the trooper found a purchase agreement during the course of the search, but he was not sure where it was found. The vehicle had been purchased only a few days previously. Whiting was issued a summons for tailgating.

The motion judge accepted the facts to be as testified to by Trooper Steiger. He described ...


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