Argued January 29, 2002 –
LONG, J., writing for a unanimous Court.
The issue raised in this appeal is whether the officers' warrantless seizure of the contents of the bulge in Derek Roach's pants during an investigatory stop exceeded the scope of a valid protective search.
On May 24, 1998, at 12:26 a.m., Officer David Fisher of the Hillsborough Police, traveling in a marked unit, spotted a silver-colored Volkswagen on Route 206 with a headlight that was extremely dim and not properly directed. After observing the car pull into a gas station, Officer Fisher also noticed that the vehicle had a rejected inspection sticker for the month of April, but could not tell if that sticker was overdue.
Officer Fisher followed the car when it left the gas station and then attempted to stop it by activating his lights. In spite of his signals to stop, the car traveled approximately one-quarter of a mile before coming to rest in the parking lot of a residential apartment complex. As soon as the vehicle came to a stop, the driver immediately exited and began to walk away. The officer exited his vehicle quickly and ordered the driver back into the car. The driver complied.
Once the driver was back in the car, Officer Fisher approached and requested his driver's license, vehicle registration, and proof of insurance. The driver produced a registration and proof of insurance, but said he did not have his license with him. The officer noticed something in the wallet that looked like a license, and asked to see it. The document was a boat operator's license identifying the driver as Derek Roach. The registration, however, indicated that the car belonged to a woman with another last name, who Roach claimed was his mother.
While the officer was examining the credentials, Roach was extremely nervous and fidgety. The officer also detected a strong odor of alcohol on Roach's breath. Officer Fisher asked Roach to recite the alphabet, which he failed to do on three separate occasions. Additionally, the officer testified that, while he was speaking to Roach, the vehicle rolled backwards on two occasions because Roach failed to put the emergency brake on.
Officer Fisher returned to his patrol car to check the driver's license and registration and to radio Officer Gonzalez, the DWI enforcement officer on duty. While Fisher was in the patrol car, Roach attempted a second time to get out of the vehicle. Officer Fisher ordered him back inside, and Roach complied.
Upon the arrival of Officer Gonzalez, Officer Fisher learned that Roach's driver's license was suspended. After Officer Fisher conveyed everything he knew to Officer Gonzalez, Officer Gonzalez approached the driver's side of the vehicle and began to speak to Roach. Officer Gonzalez smelled alcohol, and asked Roach if he had been drinking. Roach replied that he had had a couple of beers. Officer Gonzalez then noticed what appeared to be a fresh bloodstain on Roach's shirt that apparently resulted from a nosebleed. Officer Gonzalez asked Roach if he needed medical assistance, which Roach declined. When Roach lifted his right arm to look at the bloodstain, Officer Gonzalez noticed a bulge in the groin area of his pants. Officer Gonzalez described the bulge as being about the size of a baseball and stated that he could see part of a plastic bag protruding from Roach's pants.
When Officer Gonzalez asked Roach what the bulge was, Roach immediately reached for it with his right arm. Officer Gonzalez grabbed Roach's hand and yelled at him to lift his hands into the air. Roach instead reached for the bulge with his other hand. Officer Gonzalez grabbed Roach's other hand and, while holding both of Roach's hands with his own hands, he called for Officer Fisher.
Officer Gonzalez testified that he was concerned that the bulge was a gun, because Roach was adamant about reaching for it. Gonzalez explained that that was why he was reaching inside the car, something he would not normally do. On cross-examination, Officer Gonzalez acknowledged that in his five years on the force, he had never found somebody to be carrying a gun in a plastic bag. He also acknowledged that he had made no mention in his report of the fact that he might have been concerned that Roach was carrying a gun or other weapon.
Officer Fisher, who had been standing on the passenger side of the car, looked over when he heard Officer Gonzalez yelling and observed Roach attempting to reach down towards his groin area. Officer Fisher also saw Gonzalez grab Roach's hands to prevent him from reaching his waist. Officer Fisher ran to the driver's side, and saw both the bulge and the piece of plastic sticking out of Roach's waist area. Officer Fisher testified that he patted Roach's waistband with his palm, and felt a bulge. He then proceeded to pull the piece of plastic out. It turned out to be a plastic bag containing glassine vials of what later proved to be cocaine. The plastic bag also contained folds of heroin and a bag of cocaine.
The officers opened the car door, ordered Roach out of the car, handcuffed and searched him and placed him in the rear of the patrol car. The officers searched the car and found a brown paper bag under the front seat containing approximately 150 empty glassine vials and a bag of multi-colored rubber bands. Roach was taken to the Somerset County Jail where a corrections officer searched him and found a glassine vial in his shirt pocket containing what later proved to be cocaine.
On those facts, the trial court denied Roach's motion to suppress. The court held that the frisk was lawful because an objective belief existed that Roach could be armed and dangerous based on his conduct: "Police are not required to stand there at the side of the car like a couple of mannequins waiting for this guy to pull out whatever it is that is in his pants . . . . That would be dangerous."
The Appellate Division, denominating the case as an extremely close call, reversed on the ground that the State failed to sustain its burden of showing that the warrantless search fit within an exception to the warrant requirement. Although agreeing that the stop and pat-down were legitimate, the court went on to hold that Officer Fisher exceed permissible bounds when ...