On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 99-04-379.
Before Judges Skillman, Conley and Wecker.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2000
This appeal involves the scope of questions a police officer may ask an occupant of a car that is stopped for a motor vehicle violation.
Defendant was indicted for possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1). Defendant moved to suppress the evidence against him, and after an evidentiary hearing, the trial court granted the motion. We subsequently granted the State's motion for leave to appeal the suppression order, and now reverse.
Shortly after midnight on January 7, 1999, defendant was a passenger in a car being operated by an unlicensed driver in the Borough of Westfield in Gloucester County. When a West Deptford police officer informed Officer Richard Thomas of the Westfield Police Department that the driver's license was revoked, Thomas stopped the car and asked the driver for his credentials. The driver handed Thomas a driver's license, but a computer check confirmed that the license was revoked. In addition, the driver was unable to produce any registration or other evidence of ownership of the car. At this point, Officer Thomas asked defendant and another passenger whether they had driver's licenses, and they both said no. According to Thomas, when defendant responded to this question, he appeared to be extremely nervous, as evidenced by his "[r]efus[al] to make eye contact," and "shifting his weight from one side to the other." The officer told defendant he looked "really nervous," and asked, "have you got something on you that you should surrender right now? Any contraband, weapons, anything like that[?]" Defendant responded, "yes, I have something in my shoe[,]" and removed a small bag of rock cocaine from his right shoe. Thomas testified that only a few minutes elapsed between the time he stopped the car and defendant revealed the cocaine.
In granting defendant's motion to suppress evidence of the cocaine he had produced from his shoe, the trial court stated:
I see this as . . . a compulsory question requiring and demanding a compulsory answer[.] . . . You have contraband on you, you shouldn't have, which basically says give it to me.
Under a Fourth Amendment standard, . . . [w]here is the reasonable articulable suspicion under those circumstances?
On the other hand, if we're looking at it on a Fifth Amendment basis, clearly this is a coercive question in a . . . coercive environment in which the officer is basically compelling and demanding information in which this defendant knew he had no reason to believe that he was free to get out of that car and walk away. . . . .
. . . [T]wo things are clear to me in this situation. No person under these circumstances would have believed . . . that he or she was free to leave.
. . . [T]he other flip side of that, . . . I don't find that there was a reasonable, articulable suspicion that an officer should have had just because of a nervous condition that the defendant . . . had contraband on him. . . . .
. . . [F]ield inquiry means being more gentle. I have some things I'd like to ask you and you don't have to answer these questions, ...