On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 97-10- 1865.
Before Judges Stern, A. A. Rodriguez and Fall.
The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this appeal, we hold that a motorist, stopped by a police agency other than the State Police, cannot rely on the contents of the Attorney General's Interim Report*fn1 to show entitlement to discovery in order to explore the existence of a racial profiling or selective enforcement defense.*fn2
Defendant, Jerish Halsey, also known as Jabril Johnson, along with co-defendants Gregory N. Robinson and Jerry L. Candia, were arrested for possession of cocaine and related charges stemming from a motor vehicle stop on the George Washington Bridge. After an indictment was returned, defendant and Candia moved to suppress evidence of the cocaine, which was seized after a warrantless search.
Judge Elijah Miller heard the following evidence at the hearing on the motion to suppress. On October 4, 1996, at approximately 2:15 p.m., Port Authority Officer Gregory Johnson was driving westbound in a marked police unit on the George Washington Bridge. Port Authority Police Officers Tromlin and Simons were his passengers. While driving on the bridge's upper level, Johnson saw a gold Infiniti with a Connecticut paper dealer's plate "driving in a careless manner." The Infiniti was weaving in its lane, riding the lane markings, and at one point, was tailgating the vehicle in front. Johnson estimated that the Infiniti was traveling approximately two miles over the speed limit. He noticed that the Infiniti's driver was "either black or Puerto Rican."
Officer Johnson stopped the Infiniti after it exited the bridge. Officers Johnson, Tromlin and Simons then exited the patrol vehicle and approached the Infiniti. The driver, Robinson, could not produce a driver's license or registration. He explained that he had recently purchased the vehicle and that the registration sticker was on the window. He admitted that he had no license, insurance, nor any identification. Johnson asked Robinson to exit the vehicle. While standing at the rear of the vehicle, Robinson told Johnson that the Infiniti belonged to his cousin's girlfriend. He and the rear seat passenger, Candia, had driven to Manhattan from Linden to buy rims for the car's tires.
Johnson noticed that Robinson was nervous when he exited the vehicle. He was also swaying while walking and standing, used profanity, acted boisterously, and uttered incomplete thoughts. Johnson suspected that Robinson was under the influence of CDS. He checked Robinson's eyes with a small pen light and noticed that his pupils were dilated and sluggish in reaction to the light.
Defendant was the front seat passenger. Johnson asked defendant to exit the vehicle because he did not want to talk to him in front of Candia, the rear seat passenger. At the front end of the Infiniti, defendant said that the car belonged to his sister, Tammy Halsey. Defendant said that he and Candia were in New York and happened to meet the driver there. Johnson noted that when defendant exited the vehicle, he was swaying, his eyes were watery and bloodshot, he was using profanity and talking fast. Johnson checked his eyes with his flashlight, and observed that his pupils were dilated and sluggish in reaction to the light. Johnson also noted that defendant's clothes were dirty and mussed. Johnson told defendant to stay at the front of the Infiniti, then walked to the side to speak to Candia.
Johnson looked into the car to speak to the rear seat passenger and observed a brown paper bag by his foot. Johnson asked Candia who owned the car and where they were coming from. Candia responded that the three of them were in New York visiting a friend. Johnson observed that Candia was using profanity and his pupils were fixed with no reaction to light.
Officer Tromlin retrieved the brown paper bag. The bag contained crack vials and plastic crack caps for the vials. Johnson arrested the three occupants of the Infiniti.
When asked if the suspects were placed under arrest at this point, Johnson testified:
They were under arrest before. They didn't know it but they were under arrest, but yes, after that, they all denied knowledge or ownership of the bag and its contents and then they were physically handcuffed.
In other words, the suspects were already under arrest for being under the influence of drugs but Johnson had not actually told them this until the brown paper bag was opened. The three men were placed in the back of the police car and driven to headquarters. Officer Tromlin sat in the front seat and Officer Simons drove the Infiniti. As they were driving back, Tromlin tapped Johnson on the leg and whispered to him that Candia was moving around a lot in the back seat. When the officers arrived at headquarters, they took Candia out of the squad car. Johnson pulled out the back seat of the squad car and found a plastic bag with crack cocaine.
In denying defendant's and Candia's motion to suppress, Judge Miller found:
[Officer Johnson] activated his lights, hit his siren, used his PA system, pulled over the vehicle to the right, it pulled over without incident, he made no untoward observations. On cross-examination noted that the driver was either a black male or . . . a Puerto Rican male, he indicated, but he did not stop him because of race, it was not a profile stop, I'll get into that a little bit more, but that seems to be indicated.
I note, parenthetically, Officer Johnson is an African-American and testifying in this context.
Here, Officer Johnson stopped the defendant's vehicle based on a reasonable and articulable suspicion that the motor vehicle violation had occurred. Robinson was driving in an erratic and careless manner, he was weaving in traffic and I so find, on the marking lanes as well as tailgating very close to the vehicle, within 15 feet . . . .
A look at the facts of this case clearly show that the officer's observation gave him a qualified suspicion, if not probable cause, and I so find it was probable cause, that a motor vehicle infraction occurred, ...