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State v. Lipski

Decided: January 22, 1990.


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

Pressler, Long and Landau.

Per Curiam

Following denial of his motion to suppress evidence seized from his person in a warrantless search, defendant pleaded guilty to a charge of possession of less than 50 grams of marijuana in violation of N.J.S.A. 2C:35-10(a)(4). He now appeals from the order denying his suppression motion pursuant to R. 3:5-7(d). We reverse and vacate the conviction.

The sole witness testifying at the hearing on the suppression motion was the state trooper who made the arrest. According to his testimony, he and his partner were on routine patrol on I-295 shortly after 2:00 a.m. on December 14, 1987, when they saw an apparently abandoned vehicle on the side of the road. They approached the vehicle, looked in, and saw defendant "laying in the back of the van with two beer bottles in the center console." The trooper described defendant as "unconscious," but he was able to arouse him after banging several times on the side of the van. Defendant then crawled into the driver's seat, produced his credentials as requested, and explained that he had pulled over to rest as he was tired and was not sure he could make it home. Smelling the odor of alcohol on defendant's breath, the trooper asked him to exit the vehicle. Defendant did so, and "at that time a pat down was conducted for my safety and Trooper Nixon's safety and a hard object was felt in his left jacket pocket." The object turned out to be a tightly rolled plastic bag containing a small amount of marijuana. Defendant identified the package as his "pot"; he was arrested, handcuffed, given Miranda warnings, and transported to police headquarters where a breathalyzer test resulted in a reading of .01 percent blood alcohol. No balance or coordination tests were administered at the scene.

In explaining the reason for the pat-down, the trooper candidly asserted on cross-examination that he made no judgment from defendant's "demeanor and his attitude" which led him to believe defendant was either armed or dangerous. Rather, he said, "[w]e are trained to act on every stop the same way, handle

a stop the same way with same caution on every stop." He further testified that his general instructions required that "any time I am going to demonstrate balance tests to that individual, yes, conduct a pat down for my safety."

We are satisfied that there is some degree of ambiguity in the officer's explanation. That is, it is not entirely clear whether he intended to testify that a pat-down is routinely conducted on every stop when the occupant is ordered to exit the vehicle or is routinely conducted as a precautionary measure only before demonstrating balance tests at the scene to an occupant suspected of driving under the influence of drugs or alcohol. In any event, the officer's conduct here was consistent with either interpretation. We are moreover satisfied that a routine pat-down in either circumstance would be constitutionally objectionable on the facts here present.

The issue before us is whether it is consistent with the Fourth Amendment, when there are no facts or circumstances supporting an objective or even a subjective concern by the officer for his safety, for a police officer, after ordering a driver he suspects of intoxication to exit his vehicle, to then pat him down. We conclude that constitutional principles as articulated by the United States Supreme Court interdict a routine pat-down absent the officer's belief that the suspect may be armed or dangerous. Thus, in Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977), the Supreme Court found constitutionally permissible the frisking of an occupant of a vehicle who was ordered to exit the car because the officer then observed a bulge in the occupant's pocket and believed it to be a revolver. The Court first confirmed the right of an officer making a traffic stop to order the occupants of the vehicle to exit it, explaining that:

We think it too plain for argument that the State's proffered justification -- the safety of the officer -- is both legitimate and weighty. "Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties." Terry v. Ohio, supra, [392 U.S. 1] at 23, 20 L. Ed. 2d 889, 88 S. Ct. 1868, 44 Ohio Ops. 2d 383. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person

seated in an automobile. "According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings -- A Tactical Evaluation. 54 J.Crim. LC & PS 93 (1963). --" Adams v. Williams, 407 U.S. 143, 148 n 3, 32 L. Ed. 2d 612, 92 S. Ct. 1921 [1924 n. 3] (1972). We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, 414 U.S. 218, 234, 38 L. Ed. 2d 427, 94 S. Ct. 467 [476], 66 Ohio Ops. 2d 202 (1973). Indeed, it appears "that a significant percentage of murders of police officers occurs when the officers are making traffic stops." Id., at 234 n 5, 38 L. Ed. 2d 427, 94 S. Ct. 467 [476 n. 5], 66 Ohio Ops. 2d 202.

The hazard of accidental injury from passing traffic to an officer standing on the driver's side of the vehicle may also be appreciable in some situations. Rather than conversing while standing exposed to moving traffic, the officer prudently may prefer to ask the driver of the vehicle to step out of the car and off onto the shoulder of the road where the inquiry may be pursued with ...

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