On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-08-1769.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard, Graves and Lihotz.
In this case, we resolve a question left open in State v. Dangerfield, 171 N.J. 446, 463-64 (2002), concerning the permissible scope of a search incident to an arrest for the petty disorderly persons offense of defiant trespass. We conclude that where an individual is to be taken into custody pursuant to a valid arrest, there are no limitations on the scope of a search of the arrestee's person.
Defendant, Eddie Daniels, Jr., appeals from his conviction and sentence stemming from a negotiated plea of guilty to third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), following a denial of his motion to suppress evidence. R. 3:5-7(d). As part of his plea agreement, the State agreed, at the time of sentencing, to dismiss a complaint charging the petty disorderly persons offense of defiant trespass, N.J.S.A. 2C:18-3b. On March 10, 2006, defendant was sentenced to two years probation, ordered to seek full-time employment once he was medically cleared to do so, and to participate in substance abuse evaluation, testing, and counseling. Appropriate penalties and assessments were also imposed.
As permitted, defendant's guilty plea preserved his right to appeal the denial of his motion to suppress. R. 3:5-7. Thus, the sole argument on appeal is:
BECAUSE THE POLICE HAD NO LEGITIMATE BASIS FOR ARRESTING DEFENDANT NOR ANY REASON FOR THE RESULTING PAT-DOWN SEARCH OF HIS PERSON, AND THE SEARCH OF DEFENDANT WAS ILLEGAL, AND HENCE THE DENIAL OF THE MOTION TO SUPPRESS MUST BE REVERSED.
On May 15, 2005, Officers Bard and Coleman of the Long Branch Police Department were on patrol and assigned to the Community Response Unit (CRU). The CRU concentrates on narcotics and "quality of life" issues in the community. The officers were in plain clothes and driving in an unmarked police vehicle as they patrolled the Grand Court and Garfield Court Federal Housing Projects. Both projects have placards identifying the nature of the housing project and informing individuals that there is no trespassing. As a result of routinely patrolling these locations for over five years, the two officers knew almost everyone who lived in the projects, their families, and the people who visited the residents.
At approximately 4:00 p.m., Bard and Coleman saw defendant ride his bicycle out of the Garfield Court project and pass them as they were going in the opposite direction. Not recognizing defendant, the officers turned their unmarked car around and followed him for approximately a quarter of a mile, at which point they pulled abreast of him. Without activating any lights or siren, the officers rolled the window down, and asked defendant if he would stop so that they could talk. Defendant stopped and the officers exited their vehicle.
With the defendant still sitting on his bicycle, the officers requested and received his identification, which consisted solely of a piece of paper from the Saint Barnabas Healthcare Center that identified him as Eddie Daniels, of 71 Fourth Avenue, Long Branch. The officers then questioned defendant.
In response to a question regarding his purpose in the area, defendant replied that he was visiting his cousin. When asked the name of his cousin, defendant responded "Rance," but was unable to provide his cousin's last name, the apartment number of his cousin's purported residence, nor the location of the apartment in question. Defendant then asked for a lawyer. Officer Bard testified that he asked these questions in order "to ascertain if he ever lived in Garfield Court, or had a family member there, or was just visiting legitimately there for any purposes." In doing so, the officers were following police department procedures instituted to determine if an individual is legitimately on the posted Federal Housing Project property. Bard noted that defendant was nervous during the encounter, failing to make eye contact with the officers.
Defendant was placed under arrest for trespassing based upon his inability to answer the officer's questions about his purpose in the area. In accordance with police department procedures, and out of concern for their own safety, one of the officers "patted down" defendant prior to transporting him to police headquarters. During the pat down, the officer felt what he believed to be a knife in defendant's front pocket. The officer reached into the pocket to retrieve the object, which turned out to be a lighter, but, as he pulled it out, he observed a translucent orange baggie, which the officer reasonably believed was crack cocaine. The record does not explain how the baggie was exposed to view.
A central issue before the motion court was the nature of the search - whether it was a search incident to arrest or a Terry*fn1 pat down for the safety of the arresting officers. Bard testified that he patted down defendant primarily for his safety. When asked to explain, the officer responded:
The first part was that he was verbally evasive. When we were asking him the questions where he was coming from, he was unable to go and articulate clearly to me or explain where he was coming from. When continuing [to ...