On appeal from Superior Court, Law Division, Camden County.
Shebell, Long and Landau. The opinion of the court was delivered by Landau, J.A.D.
On leave granted, the State of New Jersey appeals from an interlocutory order which granted the motion of defendant Aston Dale to suppress evidence consisting of a .38 calibre semi-automatic handgun discovered during a warrantless pat-down search of his person. We previously remanded the matter for additional findings by the motion Judge respecting specifics of the search, and for reconsideration of the motion upon application of the law to those findings.
The findings of the motion Judge, now somewhat more fleshed out, make clear that he credited the testimony of Detective White and did not accept defendant Dale's version of the circumstances preceding the pat-down. We discern from the transcripts of the two hearings that the Judge believed Dale was a passenger in a
1983 Ford pick-up truck driven by Clifford Innis; that two police officers in an unmarked Camden police car observed that the truck was being operated recklessly in a no-passing zone, forcing vehicles off the road and even mounting the sidewalk; that when the officers approached the truck and identified themselves at a traffic light where it had stopped, the driver said, "F . . . the police" and sped away, knocking the officer who was on the passenger side onto the hood and then to the ground; that this engendered a vehicular chase by the two officers and a total of seven police cars, several of which succeeded in blocking the road; that when the pick-up was forced to stop, one of the officers (a detective) asked Dale to exit the car, then patted him down; that Dale was not recognized as a known criminal; and that he did not make any statements, movements or gestures which appeared to present a risk that he was armed and potentially dangerous. The Judge stated: "[c]ompanionship alone or mere presence does not indicate any criminality on the part of Mr. Dale."
Based upon these findings, the Judge concluded from the totality of circumstances that Dale presented no threat, and that "Detective White specifically did not have a reasonable objective basis for doing a pat-down search of Mr. Dale." Accordingly, evidence of Dale's semi-automatic weapon, discovered during the pat-down, was suppressed.
We reverse. Initially, we recognize that the State bears the burden to justify warrantless searches under a recognized exception to the warrant requirement. State v. Sims, 75 N.J. 337, 352, 382 A.2d 638 (1978). The question presented on appeal is whether the State's burden has been met under the totality of circumstances in this case, which were far removed from those present in an ordinary stop for a traffic violation. Here, upon their initial approach and identification to talk to the driver about the previously observed motor vehicle offenses, police were met not only with profanity, but with a vehicular assault upon one officer, followed by immediate flight of the pick-up truck and its
occupants. Apprehension followed a multi-car police pursuit through city streets.
Police officers, we believe, may, indeed intelligently should, objectively suspect that such an assault and precipitate flight is motivated by more than a desire to avoid a traffic citation. The "mere presence" of a single passenger in that setting is not inherently benign, but is open to no less suspicion as to the occasion for the assault and flight than is the conduct of the driver. While it is possible that Dale may have been unable voluntarily to leave the truck, it is no less possible from the standpoint of a reasonable, objective officer that the extraordinary conduct was to protect one or both occupants from police apprehension for criminal acts known to the occupants.
Moreover, Dale was together with Innis during the initial reckless operation observed by the police. He did not avail himself of the apparent opportunity afforded by the traffic light and approach of the police to disassociate himself from that prior conduct. He then shared occupancy of the truck during the flight and chase, halted only when the road was blocked.
While it is true that "mere presence" at the scene of a crime does not in itself conclusively prove guilt, it is a circumstance to be considered with the other evidence in ...