On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-08-1689.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2007
Before Judges Cuff and Simonelli.
After the denial of his motion to suppress, defendant Alberto Garcia entered a negotiated guilty plea to second degree possession of a controlled dangerous substance, with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and (2). In accordance with the plea agreement, Judge Roma sentenced defendant to a four-year term of imprisonment with a two-year period of parole ineligibility, to run concurrently with a sentence defendant was serving in New York. The judge also imposed the appropriate penalties, assessment, and fee, and suspended defendant's driver's license for eighteen months.
On this appeal, defendant raises the following argument:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE POLICE LACKED THE REASONABLE ARTICULABLE SUSPICION OF CRIMINALITY REQUIRED TO ORDER DEFENDANT OUT OF THE VAN AND PAT HIM DOWN.
On March 3, 2000, at 9:54 p.m., Sergeant James Schroeder of the Ridgefield Police Department was on patrol in a marked police car when he observed a 1994 Chevrolet Lumina minivan, with its left rear light out, traveling southbound on Broad Avenue. The van had livery plates. Schroeder followed the van for about a mile, and observed the driver remain in the left lane of the two-lane roadway, even though there was no traffic in the right lane. Based upon these observations, Schroeder decided to stop the vehicle. He activated his overhead lights to signal the driver to pull over. The driver complied and pulled into a parking lot. Schroeder positioned his police car behind the van, and once the van stopped, called police headquarters and advised them of the stop.
Although the side and back windows of the van were darkened, the lights of Schroeder's police car illuminated the inside of the vehicle. Schroeder noticed three, and possibly four or five people in the van. Schroeder also observed that a rear seat passenger, later identified as defendant, who was sitting upright on the right side of the rear seat, "start[ed] slouching down to the left where [Schroeder] could no longer see his shoulders, moved around slightly, but enough to rouse [Schroeder's] suspicions. . . ." Defendant's movements after the stop were "highly unusual" and "too drastic for [Schroeder] not to notice." Defendant moved "a lot," "a tremendous amount," and Schroeder found this to be suspicious. After shifting, defendant remained slouched down and bent to the left.
Because of defendant's suspicious behavior, Schroeder called for backup. Instead of approaching the van, Schroeder used his loudspeaker and directed the driver to step out and walk back to the police car. The driver, later identified as Wilmares Perez, complied and gave her driving credentials to Schroeder.
Schroeder asked Perez where she was coming from. She responded she was coming from Elizabeth where she had picked up two passengers and taken them to New York, they stayed in New York for a short period of time, and were on their way back to Elizabeth. During the entire time Schroeder was talking to Perez, defendant remained slouched down and bent to the left. Schroeder instructed Perez to stand at the rear of his police car with a back-up officer who had responded to the scene. As ...