On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-02-00139-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Coburn.
Following the entry of a guilty plea to possession of a controlled dangerous substance and sentence thereon, defendant appeals from the denial of his motion to suppress the cocaine found in his vehicle. He argues:
POINT I THE COURT BELOW ERRED BECAUSE THE STOP OF APPELLANT'S VEHICLE WAS INVALID AND THE EIDENCE OBTAINED IN THE SUBSEQUENT SEARCH SHOULD HAVE BEEN SUPPRESSED.
POINT II IT IS A MATTER OF FIRST IMPRESSION THAT A PENDING CHARGE DOES NOT CONSTITUTE REASONABLE SUSPICION.
POINT III THE COURT BELOW ERRED BECAUSE THE REASONABLE SUSPICION BASIS REQUIRES THAT THE OFFICER REASONABLY "BELIEVE THAT HE IS DEALING WITH AN ARMED AND DANGEROUS INDIVIDUAL."
We reject the contentions and affirm the conviction.
Patrolman Jason Dimick of the Mountain Lakes Police Department testified that he stopped defendant's vehicle because of its "tinted windows" and because it "had an item hanging from his rear view mirror." The driver gave the officer a New Jersey driver's license and Pennsylvania registration. The driver was "extremely nervous" and "sweating profusely." When Officer Dimick called into the dispatcher, he learned that defendant "had recently been arrested in Atlantic City for unlawful possession of a handgun." The officer also noticed defendant "making excessive movements," including under the seat, in the center console and in the glove box, even though he had already given Dimick his driving credentials.
Defendant declined to consent to a search of the vehicle, but after a back-up officer arrived, Dimick conducted a search of the parts of the vehicle where he saw defendant making the movements. Dimick said he did so for his own safety based on the "totality of the circumstances." He emphasized that he believed at the time there was a weapon in the vehicle.
The back-up officer, Patrolman Scott Rousseau, heard the dispatch about the arrest on the "previous weapons charge" while en route to the scene, and upon his arrival before the search occurred, he observed that defendant was "very nervous."
We affirm the denial of the motion to suppress substantially for the reasons expressed by Judge Joseph A. Falcone in his oral opinion of June 6, 2006. Judge Falcone found Officer Dimick to have been a "credible witness," who conducted the search of defendant's car out of concern for his "safety." Based on those findings, we cannot upset the judge's conclusion "that Officer Dimick was justified in his actions." See State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). See also State v. Lund, 119 N.J. 35, 40 (1990).
We add only that while defendant was not under arrest at the time of the search, we are in agreement with Judge Falcone that, under the circumstances, it would have been "irresponsible . . . to have allowed this gentleman to get ...