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State v. Nishina

March 04, 2003

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES J. NISHINA, DEFENDANT-APPELLANT.



On appeal from the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

VERNIERO, J., writing for a unanimous Court.

The issue before the Court is whether the pat-down search of James Nishina's person and the warrantless search of his automobile that yielded drug paraphernalia and marijuana were constitutionally proper.

At 10:00 p.m. on Sunday April 25, 1999, in Colts Neck, New Jersey, Sergeant Joline, a municipal police officer, was on routine patrol in a relatively isolated area that included the Conover Road School. Sergeant Joline observed four individuals on school grounds walking about three hundred feet from the school building. He considered this very unusual because there were no activities going on at the school at that time and no one is allowed on school property after dark. Specifically, a Colts Neck ordinance provides that schools will be open from 8:00 a.m. to sunset on non-school days and from 8:00 a.m. to 3:30 p.m. on school days, and that no one can enter any school property or use school grounds at times other than those designated. In addition, the ordinance requires that the police diligently enforce this provision.

Sergeant Joline approached the individuals who told him that they were coming back from the playground behind the school building. Nishina told Sergeant Joline that he and his friends had been driving around and decided to go behind the school to the playground to hang out. Conover Road School serves kindergarten through fourth grade students and its playground is age appropriate. At the time, Nishina was at least seventeen years old.

Sergeant Joline testified at a suppression hearing in municipal court. He stated that he was standing a "couple of feet" from the individuals when he asked to see Nishina's drivers' license, registration, and insurance card. He claimed that he wanted to see who owned the car and make sure the car wasn't stolen. Sergeant Joline found it suspicious that Nishina's car was parked across the street from the school, even though the school had a parking lot. Sergeant Joline stayed with the other individuals while Nishina walked to his car to get the registration and insurance card. Although Conover Road School was not in a high crime area, Sergeant Joline stated that the police department was keeping an eye on the schools since the incident at Columbine High School, which had occurred five days earlier.

After receiving Nishina's car registration and insurance card, Sergeant Joline smelled a strong odor of burnt marijuana coming from Nishina's clothes. Based on his training and experience, Sergeant Joline patted-down Nishina, discovering a pen and a pack of rolling papers. Nishina denied having marijuana on his person. Sergeant Joline then proceeded to Nishina's car where he shined his flashlight into the car's window. He saw a clear plastic bag protruding out of the console located on the left of the driver's seat. Based on his training and experience, Sergeant Joline believed the bag contained marijuana. He opened the car door and removed the plastic bag, which contained "green vegetation" suspected to be marijuana.

Nishina was arrested and charged with possession of a controlled dangerous substance; possession of drug paraphernalia with the intent to use; and operating a motor vehicle with a controlled dangerous substance. The municipal court denied Nishina's motion to suppress the evidence seized by Sergeant Joline. Nishina pled guilty to the drug possession and drug paraphernalia charges, both disorderly persons offenses, conditioned on his right to appeal the denial of the suppression motion. Nishina was sentenced to a six-month suspended jail term, fines, and a 180-day drivers'-license suspension.

Nishina appealed to the Superior Court, Law Division. After conducting a de novo review of the municipal court proceeding, the Law Division affirmed the denial of the suppression motion, finding that Sergeant Joline had a reasonable, articulable suspicion to perform an investigatory stop. The court explained that the scope of the detention was related to the justification for the initial stop and that Sergeant Joline's inspection of Nishina's vehicle registration and insurance was the least intrusive and fastest way to verify ownership of the vehicle and to look into the issue of trespassing. Lastly, the court held that the search of Nishina and his car were lawful based on the totality of circumstances and applicable case law.

A majority of the Appellate Division affirmed the decision of the trial court, with one member of the panel dissenting. Nishina appeals to the Supreme Court as of right based on that dissenting opinion.

HELD: Based on the totality of circumstances, the officer had a constitutional basis to stop and continue to question Nishina and to ask him for his drivers' license, registration, and insurance card. In addition, the pat-down search of Nishina's outer clothing is sustainable not as a Terry protective search, but as a search based on probable cause and exigency. Further, the officer's search of Nishina's car was valid under the automobile exception to the warrant requirement.

1. There are two forms of police inquiry, the field inquiry and the investigative detention. The field inquiry is a limited form of inquiry that may be conducted without grounds for suspicion. The investigative detention (also known as an investigatory stop or Terry stop) rises to the level of a detention when an objectively reasonable person would feel that his or her right to move is restricted. An investigatory stop is only valid if an officer has a particularized suspicion based on objective observation that the person stopped has engaged in or is about to engage in criminal wrongdoing. The stop must be based on the officer's assessment of the totality of the circumstances in light of the officer's experience and knowledge. An investigatory stop is highly fact sensitive. (Pp. 7-10)

2. The investigatory stop of Nishina was proper based on the totality of the circumstances. Officer Joline reasonably suspected that Nishina was about to engage in or had engaged in criminal activity. First, the encounter took place late on a Sunday night when the school was closed. As such, Sergeant Joline had a duty to investigate in order to comply with the local ordinance. Second, given the time of night and Nishina's age, his explanation that he and his friends were hanging out at the school playground was questionable. In addition, Nishina's car was parked some distance from him, suggesting a desire not to draw attention to his presence at the playground. Based on the foregoing as a whole, Sergeant Joline was justified in continuing to question Nishina and in asking for his drivers' license, registration, and car insurance. (Pp. 10-12)

3. Sergeant Joline's actions remained objectively reasonable throughout the investigatory stop. The heightened concern over school safety immediately post-Columbine contributed to the reasonableness of the officer's reaction in seeing Nishina and his friends at the school late on a Sunday night. The information he had was sufficient to satisfy the reasonable suspicion requirement; therefore, the brief stop was constitutional. (Pp. 12-14)

4. Under a Terry search, an officer may pat down a person's outer clothing when the officer has reason to believe that he is dealing with an armed and dangerous person, regardless of whether the officer has probable cause to make an arrest. Because Sergeant Joline did not fear for his safety, he was not authorized to conduct a Terry search. However, when an officer has probable cause to believe that a crime has been or is about to be committed, and the officer is faced with exigent circumstances, a warrantless search is valid. Sergeant Joline, relying on his training and experience, had probable cause to believe that Nishina possessed illegal drugs once he detected an odor of marijuana on Nishina's clothing. Further, Sergeant Joline did not have a practical means of obtaining a warrant once faced with the exigent and well-grounded suspicion that Nishina possessed marijuana; therefore, the search of Nishina's car was also valid. (Pp. 14-20)

Judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, LaVECCHIA, ZAZZALI and ALBIN join in JUSTICE VERNIERO'S opinion.

The opinion of the court was delivered by: ...


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