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State v. Powell

Decided: June 12, 1991.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
DENNIS WAYNE POWELL, DEFENDANT-RESPONDENT



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

Coleman, Dreier and Landau. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.

Coleman

[250 NJSuper Page 2] This is an appeal by the State from an order suppressing evidence seized from the person of the defendant. We now reverse.

The following facts were adduced during the suppression hearing: On September 24, 1988, at about 12:10 a.m., Officer Raymond Brown was on routine patrol on South Munn Avenue, East Orange, when he observed a car driven by defendant. His attention was drawn to the car because he could hear loud music as he followed one car length behind defendant's vehicle. Officer Brown stopped the car to issue a summons to the driver for violating East Orange's noise pollution ordinance. While Officer Brown was outside the vehicle he noticed a large bulge in defendant's pants and asked defendant if it was a weapon. Defendant gave an evasive answer. A front seat passenger fled as a backup unit arrived. Defendant was directed to exit the vehicle and Officer Brown searched defendant's pants and found a plastic bag containing cocaine.

Defendant was charged with third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1) (Count One); and third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5b(3) (Count Two).

After reviewing East Orange's noise pollution ordinance, the trial court ruled that the ordinance was void-for-vagueness and therefore held the fruits of any search subsequent to the stop tainted. The judge held that because Officer Brown discovered the contraband during a search after a stop to enforce an unconstitutional ordinance, the evidence seized subsequent to the stop should be suppressed. Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979).*fn1

At the time of defendant's arrest, the controlling ordinance read in relevant part:

ยง 184-1. Unnecessary Noise Unlawful.

It shall be unlawful for any person to make, continue, suffer, permit, allow or cause to be made or continued, upon any premises or in any vehicle owned, occupied or controlled by him or upon any public street, thoroughfare or parking lot, or in any public park, playground, gathering place or means of public transportation, any excessiveness, unnecessary or unusually loud noise which either annoys, injures, disturbs or endangers the comfort, health, repose, peace or safety of others within the City or which are so harsh, prolonged or unusual in their use, time and place as to annoy, disturb or endanger the comfort, health, repose, peace or safety of others in the City. Loud, disturbing, injurious, unnecessary and unlawful noises in violation of this section include but are not limited to the following enumerated acts:

A. The playing or permitting the playing of any radio, tape recorder, phonograph, portable television set, amplified or unamplified musical instrument or other electronic sound-producing device by any person while inside any theater, retail store, bank, public building, public modes of transportation, indoor or outdoor public sports area, or other outdoor public area, without the use of earphones in such a manner or with such volume as to unreasonably annoy or disturb the quiet, comfort or peace of the public.

No earphones or use of other personal listening device shall be used or permitted while crossing the street or temporarily on a roadway, but the electronic device shall not be in such a manner or volume as to unreasonably annoy or disturb the quiet, comfort, peace or repose of persons in public places at any time.*fn2

The trial court reasoned that because no officer or defendant would be able to tell whether music was being played within the permissible range, the ordinance was facially impermissibly vague. The State argues, and we agree, that the ordinance in question ...


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