April 16, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BENJAMIN F. SMALL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-02-0281.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 18, 2007
Before Judges Wefing, Parker and C.S. Fisher.
After denial of his suppression motion, defendant pled guilty to third degree conspiracy to possess a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2. He was sentenced to a two-year probationary term. We reverse the trial court's denial of the suppression motion and remand for further proceedings.
These charges arose out of an incident on October 16, 2002 when defendant, a fifty-five-year-old African-American man, and his two African-American passengers were driving on Route 138 in Wall Township at the posted speed limit. Officer Scott Fifield, who was driving a marked police car, encountered defendant's vehicle at about 6:25 p.m. and followed it for about a mile to a fork in the road where it merged into Route 35. When defendant stayed in the left lane, Fifield activated his lights and pulled defendant over for failing to keep right. Fifield testified that when he stopped defendant's vehicle, he saw the back seat passenger (later identified as Sanders DeLeon) talking to the front seat passenger (later identified as Kevin Banks) and Banks's "shoulders go forward as if he was [sic] putting something on the ground."
Defendant produced a legal driver's license, registration and insurance card, but Fifield noticed "some paperwork" between Banks's legs "and one of the things [he] could see was a court summons." Fifield asked for the summons and, after reading it, learned that it was issued to DeLeon and required him to appear in court four days earlier. When Fifield asked Banks if he knew DeLeon, Banks said, "DeLeon was a co-worker" who "lives in his building" and he had the summons because he had picked up DeLeon's mail to deliver to him. Banks denied that DeLeon was in the car. DeLeon, meanwhile, remained in the back seat with his eyes closed and, according to Fifield, was pretending to sleep. Fifield asked for each passenger's identification. Banks claimed that he had no identification with him but told Fifield his name and that he was born on August 27, 1954. DeLeon acknowledged that he was Sandy DeLeon but Fifield could not remember whether he produced identification.
At that point, Fifield decided to remove DeLeon from the car because "it was possible that he may have a warrant for his arrest." Fifield called for assistance and when Officer Jason Lamb arrived, Fifield removed DeLeon from the car and frisked him. He found no weapons or contraband. Fifield then ordered Banks out of the car and frisked him, again finding no weapons or contraband. He did, however, find Banks's wallet, which contained his driver's license indicating that Banks's date of birth was August 27, 1955, rather than 1954, as Banks had previously stated.
Finally, Fifield told defendant to get out of the car, frisked him and discovered a small plastic BB in defendant's pocket. Although Fifield considered the BB significant enough to establish a reasonable and articulable suspicion to request defendant's consent to search the vehicle for a weapon, he failed to preserve it or log it into evidence. Fifield asked defendant if there was "anything illegal" in the car and defendant said, "No." Fifield then asked for defendant's consent to search the car and defendant gave it. After Fifield obtained defendant's consent, Lamb advised him that there were two warrants outstanding for Banks's arrest.
During the suppression hearing, when Fifield was asked whether he had any "articulable suspicion of any other crime that could have been committed except the possession of [a suspected] gun," Fifield said, "A crime[,] no, but at that point Mr. Banks was attempting to hide the identity of [DeLeon]."
Fifield searched the car and opened the arm rest because he believed it was large enough to hold a weapon. When he opened the arm rest, he found a Newport cigarette box that rattled "like it had something in the bottom of it." Although Fifield acknowledged the cigarette box was not large enough to hold "some sort of gun," he opened it and found four rocks of crack cocaine. No weapons were found in the vehicle.
After hearing the testimony, the trial court found that Fifield had a reasonable and articulable suspicion to stop defendant's vehicle for failing to keep right, and that the stop was not a pretext for racial profiling, as defendants argued.
The court found further that Fifield "was justified in asking the occupants of the vehicle to step out so that he could . . . conduct a further investigation which subsequently demonstrated that one of the occupants did in fact have two outstanding warrants for arrest." The court determined that probable cause was not required for the pat-down searches of the vehicle's occupants and that the pat-downs were warranted because the officer believed "that his safety or that of the others was in danger."
With a passing reference to State v. Carty, 170 N.J. 632 (2002), the trial court stated that it was convinced the BB satisfied the reasonable and articulable suspicion requirement for Fifield to request the consent to search. Without articulating the facts upon which it based its determination, the court then found "that the defendant's consent [to search] was voluntary. The search of the vehicle and the seizure of the cigarette box was lawful." The court added, "[h]owever, even if the search of the car was not justified under consent, it was also justified under a search incident to arrest theory."
In this appeal, defendant argues:
THE STATE FAILED TO PROVE THE EXISTENCE OF REASONABLE AND ARTICULABLE SUSPICION OF CRIMINAL WRONGDOING TO JUSTIFY THE ALLEGED CONSENSUAL SEARCH OF THE DEFENDANT'S CAR
THE SCOPE OF THE ALLEGED CONSENT SEARCH EXCEEDED THE LIMITED CONSENT GIVEN TO THE POLICE BY THE DEFENDANT TO SEARCH FOR WEAPONS
THE SEARCH OF THE DEFENDANT'S CAR WAS NOT INCIDENT TO A LAWFUL ARREST
THE MOTOR VEHICLE STOP WAS A PRETEXT USED TO SEARCH A CAR OCCUPIED BY THREE AFRICAN-AMERICAN MALES (partially raised)
FAILURE TO PRESERVE THE PLASTIC BB VIOLATED THE DEFENDANT'S DUE PROCESS RIGHTS AND WARRANTED DISMISSAL OF THIS CASE (not raised below)
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL
Defendant first argues that the consent to search was not valid because the State failed to demonstrate that the officer requesting the consent had a reasonable and articulable suspicion that the search would yield evidence of criminal activity.
[C]onsent searches following a lawful stop of a motor vehicle should not be deemed valid . . . unless there is reasonable and articulable suspicion to believe that an errant motorist or passenger has engaged in, or is about to engage in, criminal activity . . . . A suspicionless consent search shall be deemed unconstitutional whether it preceded or followed completion of the lawful traffic stop. The requirement of reasonable and articulable suspicion is derived from our State Constitution and serves to validate the continued detention associated with the search. It also serves the prophylactic purpose of preventing the police from turning a routine traffic stop into a fishing expedition for criminal activity unrelated to the stop. [Carty, supra, 170 N.J. at 647.]
Reasonable suspicion is determined from the totality of the circumstances. State v. Stovall, 170 N.J. 346, 356 (2002). Where the police have conducted a motor vehicle stop, they "may question the occupants, even on a subject unrelated to the purpose of the stop, without violating the Fourth Amendment, so long as such questioning does not extend the duration of the stop." State v. Hickman, 335 N.J. Super. 623, 636 (App. Div. 2000). "[T]he reasonableness of the detention is not limited to investigating the circumstances of the traffic stop." State v. Dickey, 152 N.J. 468, 479 (1998).
"If, during the course of the stop or as a result of" an officer's reasonable inquiries, "the circumstances 'give rise to suspicions unrelated to the traffic offense, an officer may broaden the inquiry and satisfy those suspicions.'" Ibid. (quoting United States v. Johnson, 58 F.3d 356, 357-58 (8th Cir.), cert. denied, 516 U.S. 936, 116 S.Ct. (8th Cir.), 348, 133 L.Ed. 2d 245 (1995)). Nevertheless, in the absence of any evidence of criminal wrongdoing, once a law enforcement officer is satisfied that the operator of a vehicle stopped for a traffic violation has a valid license and that the vehicle is not stolen, the officer may not detain the occupants of the vehicle for further questioning in anticipation of requesting a consent to search. Such detention cannot be deemed reasonably related in scope to the circumstances which justified the stop in the first place. [State v. Pegeese, 351 N.J. Super. 25, 31 (App. Div. 2002).]
In Carty, the defendant was a passenger in a car driven by his brother. 170 N.J. at 635. The car was stopped for traveling 74 m.p.h. in a 55 m.p.h. zone. Ibid. Although the driver could not produce a license or registration, a computer look-up disclosed that he had a valid license and that the vehicle was rented, not stolen. Id. at 636. Nevertheless, the trooper requested consent to search the car because the driver and passenger appeared nervous. Id. at 647-48. After the driver signed a consent form, the trooper asked and the driver agreed to a pat-down "for the trooper's safety prior to searching the vehicle." Id. at 636. The trooper then asked the defendant to get out of the car and patted him down as well. Id. at 636-37. In frisking the defendant, the trooper found cocaine. Id. at 637. The defendant moved to suppress and the trial court denied the motion. Ibid.
The Supreme Court affirmed our reversal of the trial court's denial of the suppression motion, holding that "consent searches following a lawful stop of a motor vehicle should not be deemed valid . . . unless there is reasonable and articulable suspicion to believe that an errant motorist or passenger has engaged in, or is about to engage in, criminal activity." Id. at 647. The Court found that the trooper lacked the requisite reasonable and articulable suspicion, even though the driver did not produce a valid license and registration and the driver and passenger appeared nervous. Id. at 647-48.
In State v. Yanovsky, 340 N.J. Super. 1 (App. Div. 2001), the defendants were clocked "on stationary radar traveling seventy-five m.p.h. in a sixty-five m.p.h. zone westbound on Interstate 78 in Hunterdon County." Id. at 4. When two state troopers pulled the defendants over, the driver of the vehicle "produced a valid driver's license" but did not have a registration or insurance card for the vehicle. Ibid. The trooper had determined before speaking to the defendants that the vehicle was not stolen. Ibid. The defendant explained that he had borrowed the SUV from a friend who worked for a car dealer to take a three-day trip to New York. Ibid. The trooper, however, did not notice any luggage in the SUV. Ibid. When questioned about the lack of luggage, the defendant opened the hatchback and showed the trooper a carry-on bag and a plastic bag with articles of clothing. Id. at 4-5. Nevertheless, the trooper persisted in questioning the defendants until he was satisfied that there were sufficient, "unspecified inconsistencies in their responses" to request the driver's consent to search the vehicle. Id. at 5. Defendant consented and the trooper discovered a manila envelope inside the carry-on bag containing approximately one thousand Ecstasy tablets. The defendants were indicted for possession of a controlled dangerous substance (CDS) and moved to suppress. The trial judge granted the motion to suppress, "finding that the police did not possess a reasonable articulable suspicion that the search would yield evidence of criminal activity." Id. at 5. We affirmed, relying on Carty. Id. at 6, 11.
In Pegeese, the defendant was a passenger in a vehicle stopped at 1:40 a.m. on Interstate 80. 351 N.J. Super. at 27. The driver produced a valid registration but informed the trooper that his driver's license was suspended. Id. at 28. The registration was in the name of a third party who was not present in the vehicle. Ibid. The trooper had the driver exit the car and questioned him "concerning their recent whereabouts." Ibid. The trooper then had "a brief conversation" with the defendant who was still in the front passenger seat. Ibid. Based upon their "conflicting" stories and the driver's suspended license, the trooper requested the driver's consent to search the vehicle. Ibid. After the driver signed a consent form, eight ounces of cocaine and 350 decks of heroin were recovered from the door vent on the passenger side. Ibid. We remanded for reconsideration of the Carty issues. Id. at 32.
In Dickey, the Court focused on the duration of a motor vehicle stop when consent to search the vehicle is denied. 152 N.J. at 472. There, the Court based its analysis on the "two-part test designed to measure the reasonableness of an investigative stop against the intrusion on the detainee's right to be secure from unreasonable searches" articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968); Dickey, supra, 152 N.J. at 476. The two-part Terry test is relevant to our analysis of " whether the officer's action was justified at its inception, and  whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Ibid. (quoting Terry, supra, 392 U.S. at 20, 88 S.Ct. at 1879, 20 L.Ed. 2d at 905).
In a Carty consent to search, the officer's reasonable and articulable suspicion must be measured from the point at which the consent was requested. 170 N.J. at 635. Thus, the inquiry focuses on what did the officer know and when did he know it. Here, when Fifield asked for defendant's consent to search the vehicle, he knew that (1) defendant had produced a valid driver's license, registration and insurance card; (2) a summons had been issued to DeLeon to appear four days earlier but no warrants were outstanding against him; (3) the names of Banks and DeLeon; (4) Banks's driver's license, obtained when he was frisked, indicated his date of birth was one year later than the date Banks gave earlier; (5) none of the occupants were found to have weapons or contraband in the pat-down searches; and (6) a small plastic BB was found in defendant's pocket. Fifield testified that his sole reason for requesting the consent to search was the BB, which led him to believe there may have been a weapon in the car.*fn1
We need not determine whether the BB found in defendant's pocket was sufficient to request a consent to search the vehicle because even if Fifield had a reasonable and articulable suspicion to believe that a weapon may have been in the car, his opening the cigarette box exceeded the scope of the consent search and his intent in requesting the consent. Indeed, Fifield acknowledged that he "wasn't looking for a weapon inside the cigarette box when [he] opened it."
"[T]he validity of a consensual search is limited by the scope of the consent given." State v. Leslie, 338 N.J. Super. 269, 275 (App. Div. 2001). See also State v. Younger, 305 N.J. Super. 250, 256 (App. Div. 1997) (holding that a warrantless search of a small change purse exceeded a consent to search for weapons and was not validated by a domestic violence restraining order authorizing a search for weapons pursuant to N.J.S.A. 2C:25-21d).
We hold, therefore, that defendant's motion to suppress should have been granted on the ground that even if Fifield had a reasonable and articulable suspicion that there was a weapon in the car, the search of the cigarette box exceeded the scope of the consent. Younger, supra, 305 N.J. Super. at 256.
Although our reversal of the trial court's denial of defendant's suppression motion is dispositive of this appeal, we add the following comment with respect to Point Three in which defendant argues that the search of the vehicle was not incident to his arrest. We agree.
Stated simply, neither defendant nor the occupants were under arrest when Fifield requested consent to search the car. Fifield did not know there were outstanding warrants for Banks's arrest until after defendant consented to the search and there was no evidence of criminal activity at that point -- possession of a single BB is not a criminal offense. See State v. Eckel, 185 N.J. 523, 524 (2006); State v. Dunlap, 185 N.J. 543, 548-49 (2006); State v. Lark, 319 N.J. Super. 618, 627 (App. Div. 1999), aff'd, 163 N.J. 294 (2000). Consequently, the search cannot be considered incident to arrest as alternatively held by the trial court.
We have carefully considered defendant's remaining arguments in light of the applicable law and we are satisfied that they lack sufficient merit to warrant consideration in a written opinion. R. 2:11-3(e)(2).
Reversed and remanded for proceedings consistent with this opinion.