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State v. Small

April 16, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BENJAMIN F. SMALL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-02-0281.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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