On appeal from Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication June 19, 1995.
Before Judges Shebell, Skillman and Kleiner. The opinion of the court was delivered by Skillman, J.A.D.
The opinion of the court was delivered by: Skillman
Defendant was indicted for possession of cocaine, in violation of N.J.S.A. 2C:35-10(a)(1), and second degree possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5(b). The trial court denied defendant's motion to suppress. A jury subsequently found defendant guilty of both charges. The court merged defendant's conviction for possession of cocaine into his conviction for possession with the intent to distribute and sentenced him to an indeterminate term at the Youth Correction Complex. The court also imposed a $2,000 DEDR penalty, a $50 lab fee and a $30 VCCB penalty and suspended defendant's driver's license for eighteen months.
On appeal, defendant makes the following arguments:
I. THE TROOPER LACKED A LEGAL BASIS TO ORDER BOTH OCCUPANTS OUT OF THE VEHICLE AND OBTAIN CONSENT TO SEARCH THE VEHICLE.
II. THE TROOPER LACKED A LEGAL BASIS TO SEARCH THE PERSON OF THE DEFENDANT.
III. THE PAT DOWN OF THE DEFENDANT EXTENDED BEYOND A CHECK FOR WEAPONS AND WAS THEREFORE ILLEGAL.
We conclude that the patdown search of defendant which revealed the cocaine on which his conviction is based violated the Fourth Amendment. Therefore, we reverse.
Defendant was a passenger in a motor vehicle being operated on the New Jersey Turnpike near Newark Airport in the late afternoon on September 3, 1991. A state trooper stopped the driver for failing to use his directional signal and tailgating another vehicle. According to the trooper, the driver appeared nervous, spoke very quickly, stuttered, and failed to make eye contact. Moreover, in response to the trooper's inquiry, the driver said that he was coming from Newark Airport. This response increased the trooper's suspicion because the location of the stop was north of where persons ordinarily would enter the turnpike to travel in a southerly direction. The trooper's suspicions were increased further when the driver and defendant gave conflicting answers as to the identity of the person they had dropped off at the airport. The trooper then obtained the driver's consent to search his vehicle, and around the same time he called the Newark station of the State Police to send a backup trooper to assist him. At this point, the trooper ordered defendant to step out of the car and he conducted a patdown search for weapons. This search revealed a hard object near the ankle of defendant's right pants leg. The trooper retrieved this object, which turned out to be a piece of tinfoil wrapped around cocaine.
In Terry v. Ohio, 392 U.S.1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968), the Court held that a police officer may conduct a reasonable search for weapons upon a person he is investigating "where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Ibid. However, "nothing in Terry can be understood to allow a generalized 'cursory search for weapons.'" Ybarra v. Illinois, 444 U.S.85, 93-94, 100 S. Ct. 338, 343, 62 L. Ed. 2d 238, 247 (1979).
Based on Terry and its progeny, our Supreme Court concluded in State v. Thomas, 110 N.J. 673, 542 A.2d 912 (1988) that a policeman's reasonable suspicion that a person possesses illegal drugs does not by itself provide a basis for a reasonable suspicion that that person is armed and dangerous. Rather, the record must provide "a specific and particularized basis for an objectively reasonable suspicion that defendant was armed and dangerous." Id. at 683.
More recently, the Court has held that "the standard that justifies an order to a passenger to step out of a vehicle does not rise to the Terry standard that must be met for a protective pat-down." State v. Smith, 134 N.J. 599, 618, 637 A.2d 158 (1994). "To justify a pat-down of an occupant once alighted from a vehicle, specific, articulable facts must demonstrate that a 'reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.'" Id. at 619 (quoting Terry v. Ohio, supra, 392 U.S.at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). "A 'hunch' forms an insufficient basis on which to conduct the uncomfortable and often embarrassing invasion of privacy that occurs in a pat-down of a person's body." Ibid. The Court also indicated that the factors a court should consider in determining the reasonableness of a ...