On certification to the Superior Court, Appellate Division.
For reversal and remandment and affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. The opinion of the Court was delivered by Garibaldi, J.
This appeal addresses the admissibility of evidence seized in the pat-down search of a passenger in a lawfully stopped automobile. The critical questions concern the reasonableness of a State Trooper's ordering a passenger out of a car, and his subsequent pat-down of that passenger. We find that both the trooper's order to the passenger to step out of the car and his pat-down of that passenger were reasonable, and hence permissible under the Fourth Amendment of the Federal Constitution and article I, paragraph 7 of the New Jersey Constitution.
At 2:29 a.m. on January 17, 1990, New Jersey State Trooper Richard Gacina and his partner, Trooper DiSilva, performed a "speedometer pace" of a car travelling on the New Jersey Turnpike. Trooper Gacina determined that the car was travelling at 68 m.p.h. There were three people in the car later identified as defendant Brian L. Smith, the driver; defendant Geraldine Muhammad, who was in the right front passenger seat; and an unidentified juvenile who was sitting in the right rear passenger seat.
Trooper Gacina activated his overhead lights to signal the car to pull over. The driver responded in an "average" amount of time to the signal to pull over, taking roughly thirty to forty-five seconds to stop the car.
As the car was coming to a complete stop, Gacina noticed movement in the car. Trooper Gacina testified that while the car was pulling over, he saw a passenger in the right rear seat lean all the way forward to Muhammad, the passenger in the right front
seat, who then turned around and faced the rear seat passenger. Gacina could not see the passengers' hands and thus could not see if the passengers had passed anything between them. After the car had stopped, the driver turned to his right and, with his right arm, reached over the front seat toward the passenger in the rear.
Gacina testified that based on his four years of experience as a trooper, he expects some movement after signalling a vehicle to pull over. For example, drivers often will move to retrieve their credentials. Gacina testified, however, that "it is not too often that I see the passenger or passengers make movements such as [occurred in this case]." The trooper testified that the movements, which he described as "commotion within the vehicle," put him in fear for his own and his partner's safety. He advised his partner to proceed with caution, and decided that once the car had pulled over, he would have all the auto occupants step out of the vehicle so that he could frisk them. He did not radio for backup.
After the auto and the troopers had pulled to the side of the turnpike, Trooper Gacina and his partner approached the auto, Gacina along the driver's side and DiSilva along the passenger's. Trooper Gacina did not draw his gun but had his hand placed over his holster and weapon. On reaching the Cadillac, Gacina told the driver, defendant Smith, that he had been speeding and that he, the trooper, intended to frisk all the people in the car.
Gacina did not ask Smith for his driver's license or registration because he did not want to "have everybody looking around in the glove box, over the visor, et cetera." Instead, Gacina "wanted to secure that scene in the best way," which would be to perform protective pat-downs "immediately."
Gacina first conducted a pat-down of the driver, but felt nothing suspicious. Trooper DiSilva then walked Smith to the front of the car. While his partner watched Smith at the front of the car, Trooper Gacina approached the passenger side of the car and asked Muhammad to step out of the car. Gacina informed Muhammad that he intended to frisk her. Trooper Gacina testified that as Muhammad got out of the car, she turned and gave the
driver, Smith, a prolonged stare. That stare made Gacina extremely nervous and apprehensive. After Muhammad had alighted from the car, Trooper Gacina took her to the rear of the car.
Although it was 2:29 in the morning, Gacina testified that the lighting conditions were "very good." The headlights and high beams were on as well as a spotlight, and the Turnpike was very well illuminated. With the benefit of the good lighting, Gacina noticed, underneath Muhammad's open jacket, a very large bulge protruding from under her shirt. The bulge was located on Muhammad's "left front, in her chest area, by her lapel of her shirt." Gacina described the size of the bulge as equal to the size of an "average man's clinched fist." Finding Gacina's testimony somewhat unclear as to the sequence of events, the trial court asked him to relate "the sequence of events, from the moment you came around to the passenger side of the vehicle." Gacina responded that "it would be that I asked her to step out, saw the protrusion or the bulge, and then I told her that I would be patting her down."
When Gacina made the gesture to begin to pat Muhammad down, she "became very nervous," started to cry, and Muhammad blurted out, "It's not mine, they made me put it in there." Gacina told her to relax and continued with the pat-down. He felt the bulge, finding it "very hard." Gacina testified that he was then "positive that it was a handgun." At one point, Gacina demonstrated how the bulge might have resembled a pistol if the barrel of the gun were under the arm and only the handle were exposed. When Gacina removed the object from underneath the woman's shirt, he discovered that it was a clear plastic bag containing "several large, hard, yellow-white chunks, almost like blocks," that were later positively identified as crack cocaine.
Gacina then placed both Muhammad and Smith under arrest. A subsequent search of the juvenile who had been sitting in the backseat uncovered a stainless steel portable gram scale hidden in the juvenile's pants. The police found a glass smoking pipe in an ashtray.
Smith and Muhammad were charged with possession of a controlled dangerous substance and possession with intent to distribute. Defendants both moved to suppress the crack cocaine found on Muhammad's person and the additional evidence found incident to the arrests. At the suppression hearing, only Trooper Gacina testified. After a joint hearing the trial court denied both defendants' motions to suppress.
The trial court found that the facts known to the officer prior to the pat-down were sufficient to justify a protective pat-down under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The court reasoned:
The driver was searched; nothing was found on him. Whether or not a patdown search of the driver was justified or not by the Trooper is irrelevant. At this point, when Miss Muhammad was searched, that is the point when we all have to focus on what facts had been developed up to that point, that would allow an inference by an objective Trooper that his safety or that of others was in danger.
The observation of the bulge, the crying of the defendant and statement together with the movement -- whether they are furtive or blatant, which was somewhat difficult to pin down -- all together, it warrants a belief on the part of an objective person that his safety or that of others may be in danger.
Muhammad and Smith both then pleaded guilty to possession with intent to distribute, and were sentenced to ten years.
Muhammad and Smith separately appealed the trial court's denial of their motions to suppress. The Appellate Division, in an unpublished per curiam opinion, reversed Smith's conviction, holding that the evidence should have been suppressed. In a separate unpublished opinion, another panel of the Appellate Division affirmed the denial of the suppression order and upheld Muhammad's conviction.
In Smith's appeal, the Appellate Division found the pat-down of Muhammad to be unjustified. Although the court recognized an officer's authority to order a driver out of a vehicle that has been stopped for a traffic violation, the court found "no similar justification for routinely ordering a passenger out of an ...