January 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALBERTO GARCIA A/K/A EDWIN GARCIA A/K/A ALBERTO GARCIA AGUIRRE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Schroeder approached the passenger side of the van, he noticed that defendant was still in the same slouched-down position.
Schroeder asked defendant and co-defendant Jessie Ramirez where they were coming from. Ramirez responded they "were cruising around and on their way back home." Schroeder asked the two men if they had been in New York that evening. Ramirez responded, "No." Ramirez added, "they were lost and they were just looking to get home." Schroeder then asked the men a second time if they had been in New York. Ramirez again responded, "No." Although Schroeder addressed both men, only Ramirez responded to his questions. During Schroeder's conversation with Ramirez, defendant remained "laid back sideways, not sitting up[.]"
Because of the conflicting information Schroeder received from Perez and Ramirez about New York, a "red light went on" for him. Schroeder asked Ramirez to step out of the van. Ramirez complied. Wanting to ensure his own safety, and the safety of other officers at the scene, Schroeder patted down Ramirez for weapons, but did not find any. Schroeder instructed Ramirez to step to the rear of the police car and stay with the back-up officer.
Schroeder then turned his attention to defendant, who remained slouched over and bent to the left. Due to defendant's seated position, Schroeder could not see his entire body. Schroeder asked defendant to straighten up and step out of the van. Although defendant complied, he "never sat straight up," "kept his body in a laid back motion," and "was like sliding out in a bent over position."
After defendant exited the van, he stood at "an angle [at] which [Schroeder] could not view the left side of [defendant's] body." For safety purposes, Schroeder decided to pat-down defendant. Given defendant's movement, Schroeder was "absolutely" concerned that defendant may be hiding weapons. Schroeder explained, "[e]ither weapons or he was hiding something either on him or in the vehicle. . . . [T]hat's how suspicious I took that movement to be."
Before starting the pat-down, Schroeder asked defendant to face him. Defendant did not comply. Schroeder began to pat down the right side of defendant's body, "which was visible to [Schroeder], for weapons." Schroeder again directed defendant to face him. Defendant finally complied. Schroeder immediately saw a large, abnormal bulge, about the size of a softball, protruding from below the waistband of defendant's pants and above his groin area. Based upon defendant's suspicious movements, Schroeder suspected the bulge was either a controlled dangerous substance (CDS) or a weapon. Schroeder then patted the area of the bulge with the back of his hand. Based on his training and experience, and given the totality of the circumstances, Schroeder concluded the bulge was a CDS.
Immediately after Schroeder patted the bulge, he and defendant "locked eyes" and the officer directed defendant to "take it out." Defendant did not comply. Instead, defendant "moved again, right shoulder in towards [sic] the vehicle, almost as if he was going" to re-enter the van. Schroeder did not know what defendant was doing, but Schroeder "was getting ready to defend [himself]."
Defendant began re-entering the van. At that point, Schroeder could not see both of defendant's hands, and he "definitely felt [defendant] was trying to hide something or take something out." Schroeder did not know exactly what defendant was doing and could not see him completely.
Defendant refused to comply with Schroeder's commands. Because the officer "wanted to stop whatever [defendant] was doing" and "to control the scene," he grabbed defendant and tried to pull him out of the van. Schroeder observed defendant throw a small brown paper bag across the interior of the van, which hit the inside of the windshield on the driver's side. Defendant then "immediately pushed back out of the van, pushing [Schroeder] out of the way" and started running away from the van. As defendant ran, about thirty pieces of paper, or business cards, "came flying off" him. When defendant stopped to pick up the papers, back-up officers grabbed him, and after a brief struggle, placed him under arrest and handcuffed him. Schroeder retrieved the brown paper bag defendant had thrown inside the van. The bag contained ten bundles of heroin.
As a result of the stop, Schroeder issued motor vehicle summonses to Perez for failure to maintain lamps, and failure to keep to the right.
Defendant filed a motion to suppress evidence. Judge Austin denied the motion, finding the stop was proper because Schroeder had a reasonable articulable suspicion that Perez committed a motor vehicle violation. The judge also found that Schroeder stopped the vehicle and based upon the totality of the circumstances -- one, where this is coming from a northeast corridor location; one where he got inconsistent statements from both the driver and the passengers as to where this vehicle had been gave him a heightened suspicion.
Accordingly, with the -- the testimony that I place great weight on that the rear seat passenger was slumped over, he was concerned whether or not there was a weapon. He was concerned for his own safety. In asking each -- to come out for a pat-down search he did it methodically as properly trained.
In patting down this defendant, he felt a hard object. He did not know what it was. He made eye contact and said take it out. I -- under the famous Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968)] case, he certainly has the right to protect his own safety if there is a limited search for weapons.
Accordingly, finding him to be credible, albeit partially inconsistent with the testimony of the driver, I find that this was a valid stop. Had there been no testimony, had there been no testimony of inconsistent statements, had there been no testimony of his concern of the passenger slumped over in the rear seat, I would be shocked to see a policeman stop someone for a traffic violation and ask the passengers to come out.
But that's not what happened here. . . . This was a traffic stop where there were cumulative facts that warrant the safety of the officer to be called into question. He had an obligation to himself and any other officers to make sure there were no weapons.
So, he called each of the passengers from the van and in doing so found contraband. . . . I find he was looking to see if there were weapons to protect his own safety.
Our review of a trial judge's findings is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We give great deference to the trial judge's factual findings and will not "engage in an independent assessment of the evidence as if [we] were the court of first instance." Id. at 471. We also give deference to the trial judge's credibility determinations. Id. at 474; Johnson, supra, 42 N.J. at 161. In "reviewing a motion to suppress," we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (citations omitted). We will reverse only if we are convinced the trial judge's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting Johnson, supra, 42 N.J. at 162). "In those circumstances solely should [we] 'appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162). With these standards in mind, we address defendant's contentions.
Defendant concedes the stop of the van was proper. He contends, however, because Schroeder did not have a reasonable articulable suspicion of criminal activity, ordering him out of the van and patting him down constituted an unreasonable search and seizure. We disagree.
Our Supreme Court has held:
To support an order to a passenger to alight from a vehicle stopped for a traffic violation, therefore, the officer need not point to specific facts that the occupants are "armed and dangerous." Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more efficient manner by ordering the passenger to alight from the car.
In contrast, to justify a pat-down of an occupant once alighted from a vehicle, specific, articulable facts must demonstrate that a "reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." (citation omitted).
[T]he officer must be able to articulate specific reasons why the person's gestures or other circumstances caused the officer to expect more danger from this traffic stop than from other routine traffic stops. [State v. Smith, 134 N.J. 599, 618-19 (1994) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed. 2d 889, 909 (1968)).]
Here, our review of the record supports the judge's determination that Schroeder properly ordered defendant out of the van, and properly patted him down for weapons. The totality of the circumstances, including the inconsistent statements of Perez and Ramirez about where they had been, and defendant's highly unusual and suspicious movements inside the van, created a heightened awareness of danger that warranted Schroeder's securing of the scene by ordering defendant to step out of the van. Once defendant was outside the van, the manner in which he exited the van and stood outside the van, and Schroeder's observations of a "bulge" protruding from defendant's pants warranted the officer's belief that defendant may have possessed a weapon, thus placing his safety, and that of the other officers on the scene, in danger.
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