United States District Court, D. New Jersey
May 3, 2005.
UNITED STATES OF AMERICA
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
This matter comes before the Court upon Defendant Rodney Kemp's
("Kemp" or "Defendant") motion to suppress evidence seized by the
Cherry Hill Police Department when he was pulled over for an
alleged broken tail light, and a subsequent search of his person
uncovered a loaded .380 caliber handgun. Kemp alleges that his
tail light was not broken at any time prior to the traffic stop,
and that the warrantless search of his person violated his Fourth
Amendment rights because the police did not have the requisite
probable cause to conduct the search.*fn1 An evidentiary
hearing was held on March 3, 2005 and April 22, 2005, at which
time, Defendant and Cherry Hill Police Department Officer Mark
Buehler ("Buehler") and Sergeant Kevin Wright ("Wright") testified. For the reasons stated below, Kemp's motion
to suppress the handgun is denied.
Defendant was charged in a one-count indictment with being a
felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and (2). On February 7, 2004, at approximately 1:05
a.m., Buehler, a police officer with the Cherry Hill Police
Department for 10 years, was on routine patrol when he observed
Defendant's car traveling east-bound on Park Boulevard in Cherry
Hill Township. See Tr. 3/3/05, at 12-13. According to Buehler,
he was approximately 30-40 yards behind Defendant's car when he
noticed that one of Defendant's tail lights was cracked. Id. at
13. Buehler recognized the cracked tail light to be a violation
of the New Jersey Motor Vehicle Code. Id. at 14. Defendant, on
the other hand, denies that his tail light was cracked or broken.
See Unoff. Tr. 4/22/05, at 28-29. Buehler initiated a traffic
stop and Defendant's car came to a stop without incident at the
Parkview Motel. Tr. 3/03/05, at 15. Buehler testified that in his
10 years with the police department, he had witnessed "multiple
arrests for prostitution, narcotics, and other weapon offenses"
at the Motel. Id. at 15-16. Buehler further testified that he
had heightened awareness by being in such a high-crime area.
Id. at 16.
Sergeant Wright, a police officer with the Cherry Hill Police
Department for 14 years, was also on patrol when he observed
Buehler initiate the traffic stop on Defendant's vehicle. Id.
at 63-64. Wright drove to the scene of the stop. Id. at 64. As
Buehler approached Defendant's car from the driver's side, Wright
came up to the vehicle on the passenger's side. Id. at 65.
Wright testified that he also observed that Defendant's driver's
side tail light was broken. Id.
Upon reaching the car, Buehler and Wright noticed that there
were two women in the back seat of Defendant's car. Id. at 17, 66. Buehler then asked
Defendant for his license, registration and insurance
documentation. Id. at 19. According to Buehler, at this point,
Defendant became extremely anxious and started to fumble between
the front and back seats of the car. Id. Defendant ultimately
gave Buehler his registration and insurance cards, but Buehler
testified that he did not receive Defendant's driver's license.
Id. at 21. Defendant, however, claims that he handed over all
his documentation, including his license. Unoff. Tr. 4/22/05, at
9, 14. Buehler also claims that he had difficulty seeing inside
Defendant's car because trash and paperwork were strewn all over
the floor. Tr. 3/03/05, at 19-20. Buehler further testified that
he was unable to see Defendant's hands because Defendant kept
turning to his side with his hands "between the console where he
was continuing to search for something else." Id. at 20.
Buehler then instructed Defendant to stop moving at least two to
three times. Id. at 21. According to Buehler, he gave Defendant
such instructions because he was trying to secure his own safety
and "making sure [Defendant] wasn't trying to attempt to conceal
something." Id. at 23. Although Defendant initially complied
with Buehler's instructions, he continued to turn back to the
rear seat and appeared to be searching for something. Id. at
21, 67. Wright also testified that while Defendant was seated in
the car, Buehler asked him "repeatedly to stop turning around,"
id. at 67, but that Defendant was "extremely anxious," made "a
lot of movement," and "kept turning around to the back of the
vehicle . . . [and] appeared to be abnormally agitated." Id. at
66. Wright further stated that while seated in his car, Defendant
went toward his pocket at least three times to adjust something.
Id. at 68. Buehler then asked Defendant the identities of the
two women in his back seat. Defendant was unable to answer and
twice looked over his shoulder "as to elicit a response from [the
women]." Id. at 22. According to Buehler, at this point,
Defendant became argumentative and the tone of Defendant's voice
became increasingly loud as Buehler questioned him. Id. at 23-24. Defendant, however, denies that he ever
raised his voice to the police officers. Unoff. Tr. 4/22/05, at
18. Buehler testified that due to Defendant's erratic behavior,
he instructed Defendant to step out of the vehicle; however,
Defendant again became argumentative and started to reach out for
the registration card that Buehler held in his hand. Tr. 3/03/05,
According to Buehler, Defendant reached into his right jacket
pocket as he exited his car. Id. at 24. Defendant, on the other
hand, testified that his hands were merely hanging by his sides
at this point. Unoff. Tr. 4/22/05, at 21, 45. Wright also
testified that as Defendant got out of the car, Defendant "kept
on attempting to adjust something in his jacket pocket," and
"kept on looking down . . . to that area." Tr. 3/03/05, at 67.
Wright then saw a black plastic convenience store bag and "a
definite bulge" in Defendant's pocket. Id. Wright stated that
at this point, his "concern for [his own] safety was extremely
high," id. at 68, because the bulge could have been consistent
with a weapon. Id. at 69. Buehler then instructed Defendant to
remove his hand from his pocket, and although Defendant initially
complied with this order, Defendant proceeded to walk toward
Buehler and attempted to reach into his pocket again. Id. at
25. At this point, Buehler also noticed a black plastic bag
hanging out of Defendant's pocket. Id. Buehler testified that
in his experience, such bags were used for carrying narcotics and
other criminal contraband. Id. As Buehler and Defendant were
standing on the driver's side of Defendant's car, Wright came
around from the back of the vehicle and reached forward from
behind Defendant. Id. at 26, 68. Wright also instructed
Defendant to keep his hands out of his pockets, but Defendant
immediately put his hand back in his pocket and replied that
"there was nothing in [t]here." Id. at 70. Wright then touched
Defendant's front right jacket pocket and Defendant "clinched
down on the pocket with his elbow," id. at 26, and "lower[ed]
his stance in an aggressive manner. . . ." Id. at 71. At that
point, Wright grabbed Defendant's right hand and Buehler reached
forward and grabbed his left hand. Id. at 26. Buehler testified that they
placed Defendant in a compliance hold in order to prevent him
from possibly retrieving a weapon from his jacket pocket. Id.
at 53. The officers testified that even while restrained,
Defendant continued to struggle and kick and even attempted to
reach inside his pocket again. Id. at 27, 71. Defendant,
however, denies that he kicked, pushed, or touched the officers
in any way. Unoff. Tr. 4/22/05, at 18-19. When Wright and Buehler
finally obtained control of Defendant's arms, they brought him to
the rear of his vehicle where another police officer, Officer
Tedesco, arrived on the scene and upon Wright's instruction,
removed the plastic bag from Defendant's right jacket pocket and
took out a loaded.380 caliber handgun. Tr. 3/03/05, at 72-73. At
no time during this incident, however, did Buchler or Wright
inform Defendant that they were going to conduct a pat-down of
his person. Id. at 44.
Defendant's vehicle was then towed to the impound lot where no
inventory was made or photographs taken of Defendant's car. Id.
at 59-60. Indeed, Defendant's counsel acknowledged during the
evidentiary hearing that there are no records detailing the
condition of Defendant's car at the time of his arrest. Unoff.
Tr. 4/22/05, at 2-3.
In the evidentiary hearing, Defendant testified that prior to
picking up the two women in his car and being pulled over for the
traffic stop, he gave a ride to two men in exchange for money.
Id. at 11. Defendant claims that these men left the plastic bag
containing the gun in his car and that he discovered the bag
shortly before he picked up the two women. Id. at 11-12.
However, Defendant contends that he did not look inside the bag
and merely put the bag in his pocket. Id. at 12. In addition,
Defendant claims that he never lifted his hand toward his right
pocket when he exited his car upon Buehler's instructions. Id.
at 46-47. According to Defendant, neither Buehler nor Wright
attempted a pat-down of his clothing, but merely "[threw him] on
the car and just went in [his] pocket." Id. at 17.
A. Controlling Fourth Amendment principles
The Fourth Amendment of the United States Constitution mandates
that searches and seizures of an individual, the individual's
home, papers, or effects be conducted pursuant to a warrant.
See U.S. Const. Am. IV; see also Terry v. Ohio, 392 U.S. 1,
20 (1968); Katz v. United States, 389 U.S. 347 (1967). Under
the Fourth Amendment, a traffic stop is lawful where a police
officer observes a violation of state traffic regulations. See
United States v. Moorefield, 111 F.3d 10, 12 (3d Cir. 1997)
(citing Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)). The
constitutional reasonableness of a traffic stop does not depend
on actual motivations of the individual police officers involved.
See Whren v. United States, 517 U.S. 806, 813 (1996). In
addition, under Terry, a police officer may conduct a
reasonable search for weapons for his own protection without
violating the Fourth Amendment's prohibition against unreasonable
searches and seizures "where he has reason to believe that he is
dealing with an armed and dangerous individual." Terry,
392 U.S. at 27. However, a brief investigative stop is a "seizure"
subject to Fourth Amendment protection and a search conducted in
connection with such "seizure," including a pat-down for weapons,
can occur only where the officer is "able to point to specific
and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion."
Id. at 21. The test is "whether a reasonably prudent [person]
in the circumstances would be warranted in the belief that his
safety or that of others was in danger." Id. at 27 (citations
omitted). This determination of reasonableness, under the
totality of circumstances, may include an assessment of a
detainee's "location, a history of crime in the area, [a detainee's] nervous behavior and evasiveness, and [the police
officer's] `commonsense judgments and inferences about human
behavior.'" Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir.
2003) (quoting Illinois v. Wardlow, 528 U.S. 119, 124-25
(2000)). The rationale of Terry has been extended to traffic
stops in order to "minimize the dangers police officers routinely
face . . ." in such situations. United States v. Kithcart,
218 F.3d 213, 219 (3d Cir. 2000). Furthermore, the Third Circuit has
held that under Maryland v. Wilson, 519 U.S. 408 (1997), the
police can conduct a limited weapons pat-down of a passenger of a
lawfully stopped car so long as Terry's constitutional
requirements are met. See Moorefield, 111 F.3d at 13-14. In
such situation, the police officer "need not be absolutely
certain the individual is armed," so long as the officer's
concern is objectively reasonable. Id. at 14. Moreover, under
Mimms, a police officer can order the driver out of a lawfully
stopped car. See Mimms, 434 U.S. at 111. However, after an
initial investigatory stop and questioning regarding suspicious
behavior, "any further detention or search must be based on
consent or probable cause." United States v. Brignoni-Ponce,
422 U.S. 873, 882 (1975).
B. Tail light issue
The parties here present conflicting testimony as to whether
Defendant's tail light was broken or cracked at the time of the
traffic stop. Without photographs or other objective evidence
showing the condition of Defendant's car, the Court finds that
the tail light issue is one of credibility, and on this point,
the Court finds that the police officers were credible in their
testimony. Buehler testified that he was 30 to 40 yards away from
Defendant's vehicle when he noticed the cracked tail light.
Wright also testified that he saw the cracked tail light as he
walked up the passenger's side of Defendant's car. Defendant's
testimony, on the other hand, is not entirely clear about the
condition of the tail light. For instance, Defendant testified
that in response to the officer's statement to him that a hairline crack
in his tail light allowed "a little bit of white [light] through
the red . . .", Defendant replied that "the lights weren't broken
to [him]. . . ." Unoff. Tr. 4/22/05, at 29. Defendant merely
stated that "[t]he lights w[ere] on." Id. These statements by
Defendant are not definitive as to whether the tail light was
cracked or broken. Defendant could have meant there was nothing
wrong with his tail light because the tail light's cover was not
completely broken and the light itself was functioning.
Furthermore, although Defendant argues that there is no evidence
to corroborate the officers' testimony since no inventory was
made or photographs taken of Defendant's car, once the Court
finds the officers' testimony credible, it does not require
independent corroborative evidence to support its credibility
determination. Thus, the Court finds that the Government has
satisfied its burden of proving by a preponderance of the
evidence that the traffic stop was proper. See United States
v. Matlock, 415 U.S. 164, 177 (1974).
C. Fourth Amendment analysis
Defendant argues that the police officers' actions of reaching
into his pocket and removing the plastic bag without first
frisking the outer surface of his clothes did not constitute a
Terry pat-down, but instead was a full-blown search of his
person conducted without probable cause and in the absence of
exigent circumstances. This Court, while mindful of the
Constitutional prohibition against unreasonable searches and
seizures, must determine whether the totality of circumstances
surrounding the traffic stop justified the particular intrusion
upon Defendant's right to personal security. After reviewing the
parties' papers and hearing the testimony of the police officers
and Defendant at the evidentiary hearing, the Court finds that
the search of Defendant was reasonable under the Fourth Amendment
and that the handgun seized pursuant to the search may properly be introduced into
When conducting a Terry traffic stop, an officer who
reasonably believes that a detainee is armed and could gain
immediate control of a weapon may search for the weapon and
separate the detainee from any weapon found. See Terry,
392 U.S. at 24-26. An officer need not be certain that an individual
is armed; the pertinent issue is whether a reasonably prudent
person in the circumstances would be warranted in the belief that
his safety or that of others was in danger. See id. at 27. Such
search normally involves a pat-down or a frisk prior to reaching
into a detainee's pocket. Here, a Terry pat-down did not occur
because the police officers did not engage in an actual frisk of
Defendant's outer clothing prior to reaching in Defendant's
pocket and removing the plastic bag. However, both officers
actually saw a bulge in the pocket and a plastic bag hanging out
of it. See Tr. 3/03/05, at 25, 67. Buehler testified that in
his experience, such bags were used for carrying narcotics and
other criminal contraband. Id. at 25. Wright stated that he
thought the lump in Defendant's pocket was consistent with the
shape of a weapon. Id. at 69. In addition, both officers
testified that Defendant's actions made them concerned about
their own safety. Id. at 23, 68-69. These observations,
combined with the high-crime area in which the traffic stop
occurred and Defendant's suspicious behavior, including (i) his
furtive hand movements while inside the car, (ii) his repeated
attempts to reach inside his pocket even after being instructed several times not to do so, (iii) his statement
that there was nothing in his pocket despite the fact that both
officers saw a black bag hanging out of it, and (iv) his
"clinching down" on that pocket when Wright reached forward to
it, constituted the "specific and articulable facts which, taken
together with rational inferences from those facts" reasonably
warranted the search. In other words, not only was it reasonable
for the officers to conduct a Terry pat-down, but there was
also probable cause to search Defendant's pocket because the
circumstances were sufficient to warrant a man of reasonable
prudence in the belief that contraband or other evidence of a
crime would be found on Defendant's person.
Probable cause exists where there are "objective facts that
could justify the issuance of a warrant by a magistrate," United
States v. Ross, 456 U.S. 798, 807 (1982), i.e. facts that
suggest there is a "fair probability that contraband or evidence
of a crime will be found in a particular place." Illinois v.
Gates, 462 U.S. 213, 238 (1983). Furthermore, "probable cause,"
as the Supreme Court has stated, is a "common sense, nontechnical
conception? that deal[s] with the factual and practical
considerations of everyday life on which reasonable and prudent
men, not legal technicians, act." Ornelas v. United States,
517 U.S. 690, 695 (1996) (internal quotations and citations omitted).
This Court is mindful of the dangerous situations in which the
police and citizens confront each other on the street. Here,
given Defendant's furtive and erratic behavior and his continued
noncompliance with the officers' orders to keep his hands out of
a pocket that contained a suspicious bag, the officers had
probable cause to believe that either Defendant was armed and
dangerous and attempting to reach a concealed weapon, or
possessed some sort of contraband in his pocket. III. CONCLUSION
For the foregoing reasons, Kemp's motion to suppress the
evidence obtained as a result of the search conducted of his
person during a traffic stop on February 7, 2004 is denied.