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State v. Nelson Otero

Decided: December 24, 1990.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
NELSON OTERO, DEFENDANT-RESPONDENT



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

Shebell, Havey and Skillman. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

The State of New Jersey appeals, on leave, from the Law Division's grant of a motion to suppress evidence seized from defendant, Nelson Otero, following a pat-down search for weapons. We reverse the order of suppression.

A police officer of the Township of Denville, on December 30, 1988, was dispatched at approximately 1:00 a.m. to investigate a car parked in front of a house on Ridgewood Parkway. The dispatcher indicated that a neighbor reported that the car was suspicious because the owners of the home were away.

The officer responded and discovered a Nissan automobile, with Florida license plates, parked in front of the house. The car was empty, and no one was seen in the surrounding area, although the car hood was warm. Suspicious that a burglary

might be in progress, the officer approached the house but did not find any sign of entry. He waited for approximately ten minutes before leaving the scene to resume general patrol. After about five minutes, he received a call from the dispatcher reporting that the same neighbor observed the occupants of the Nissan return to the vehicle via Mosswood Trail before driving in the direction of nearby Route 46. Mosswood Trail is a residential road which runs directly behind a row of commercial buildings, including a sporting goods store which defendant was later accused of burglarizing. After calling for back-up, the officer discovered the vehicle proceeding eastbound on Route 46 and followed it.

After a short distance, the car entered a parking lot in a small commercial area and stopped with its lights off. The officer positioned his vehicle to the right rear of the Nissan, projected his spotlight on the car, and approached to inquire about the situation. Another officer arrived as a back-up. The first officer approached the driver's side of the vehicle and discovered two occupants. The defendant was in the front passenger seat, and the back-up officer positioned himself on that side of the car. The driver rolled down his window, and the first officer ordered the occupants to place their hands on the dashboard. They did not comply and, according to that officer, the driver "became very defensive and started talking about his rights and was not cooperating with my request."

The two officers, unable to see the hands of the occupants, drew their guns. After drawing his weapon, the first officer took hold of the driver's clothing, opened the door, and removed him from the car. Keeping hold of the driver's clothing, that officer directed him to the back of the vehicle and performed a pat-down search for weapons. The officer felt a hard object in the suspect's pocket which turned out to be a knife. After removing the knife, the driver was handcuffed and placed in the patrol car. A pat-down of defendant's person, conducted in a similar manner, revealed a four-inch knife in defendant's pocket. Both occupants were arrested for possession of a weapon.

The motion judge suppressed the knife that the officer seized from defendant after finding that the search which uncovered that evidence was not reasonable. Although the judge found that the officer had a right to approach the defendant and to make an inquiry, he concluded that "[t]here is conjecture or suspicion, there is nothing at all to articulate, nothing that has been articulated by this officer to show that he had a reasonable belief that anyone was armed with anything." The State urges that there existed sufficient articulable facts upon which the officer reasonably based his suspicion that defendant was armed. We agree.

The United States Supreme Court, in the seminal case of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), held that certain limited investigatory stops, searches, and resulting seizures are constitutional under the fourth amendment, even in the absence of probable cause. The Court recognized that police action in the nature of a "stop and frisk" falls within the purview of the fourth amendment which protects individuals from unreasonable searches and seizures. Id. at 16, 88 S. Ct. at 1877, 20 L. Ed. 2d at 903. In upholding the reasonableness of the officer's conduct in Terry, the Court highlighted the necessity "'first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,' for there is 'no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails'." Id. at 20-21, 88 S. Ct. at 1879, 20 L. Ed. 2d at 905 (quoting Camara v. Municipal Court, 387 U.S. 523, 534-35, 536-37, 87 S. Ct. 1727, 1733-34, 1734-35, 18 L. Ed. 2d 930, 938-40 (1967)). The Court then established the ...


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