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State v. Smith

February 22, 2008


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-11-3854.

Per curiam.


Submitted December 19, 2007

Before Judges Lisa and Lihotz.

The State appeals, by leave granted, from an order suppressing evidence. The order was based solely on the judge's determination that the stop by the police of the automobile defendant was driving was unlawful because the police did not have the basis to form a reasonable and articulable suspicion that criminal activity was afoot. As a result, the judge suppressed physical evidence seized from the automobile and from defendant's person and, under the fruit of the poisonous tree doctrine, other physical evidence and the statements and anticipated trial testimony of the co-defendant. The State argues that the judge misapplied the reasonable suspicion standard and that the automobile stop was lawful.*fn1 We agree and reverse.

The parties agreed to a written stipulation of facts. Therefore, no testimony was taken in connection with the suppression motion, and the trial judge engaged in no factfinding. As a result, we are reviewing the same written stipulation of facts and owe no deference to any factfinding by the trial court. Thus, our review is de novo, and we owe no deference to the trial court's legal conclusions or interpretation of the legal consequences flowing from established facts. State v. Harris, 181 N.J. 391, 415 (2004); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

These are the facts relevant to the automobile stop. On March 4, 2006, at about 1:45 p.m., Officer Matthew DiVito of the Evesham Township Police Department was on routine patrol in a marked patrol car. He observed a car, occupied by two men, enter a shopping center parking lot. The driver was later identified as defendant, and the front seat passenger as the co-defendant, Robert Reid. Defendant parked the car in a side lot, away from the main strip of stores. DiVito noticed that the driver was not wearing a shirt or jacket, despite the temperature being in the high thirties or low forties. That circumstance piqued his interest, and he suspected that defendant may have parked in the side lot to avoid being observed by employees in the stores facing the front. DiVito also observed a large pile of items in the backseat of the car. He parked his patrol car in the parking lot and maintained visual contact.

Defendant got out of the car, put on a blue shirt, removed a black jacket from the back seat, pulled up the hood of the shirt, and put on the jacket. Reid got out of the car and removed a yellow plastic bag. The two men walked along the side of the shopping center and approached the main strip of stores. After walking past several stores, they entered Tunes CDs, a store that buys and sells used CDs. DiVito was aware that the Evesham Police Department had recovered stolen property from Tunes CDs on previous occasions.

Several minutes after entering the store, Reid left and walked back to the car. He made eye contact with DiVito, exhibited nervousness, and quickly looked away. He opened the trunk of the car and looked around without removing any items. He then opened the driver's side door and stood in the doorway without entering the car. He put on a brown jacket and returned to the store.

Reid then left the store and again returned to the vehicle. He made eye contact with DiVito a number of times, but each time quickly looked away. Reid removed the brown jacket and placed it in the car. He then returned to the store wearing a different long-sleeved black shirt.

A few minutes later, defendant left the store and returned to the car, where he sat in the driver's seat. Reid then left the store carrying "a large amount of unknown items in his hands." Defendant opened the passenger door for Reid, who got in. The two then drove out of the parking lot.

DiVito stopped the car as it left the parking lot. He also called in the information to central dispatch, as a result of which other officers responded to the scene. Defendant provided DiVito with a driver's license that had expired about four years earlier. DiVito was familiar with defendant because he had prior arrests for drug violations and because of burglary and theft investigations. DiVito questioned defendant and Reid regarding a number of topics, and they gave conflicting information. DiVito observed in plain view a pill bottle on the floor of the driver's side. It contained a variety of prescription pills, and the label reflected that the prescription was for a female. Defendant and Reid disclaimed knowledge of the identity of that female. The car was registered to Reid, who told DiVito he had just met defendant within the last couple of days, but could not remember where he met him.

DiVito learned that there were two outstanding warrants against defendant. For that reason, and because of the presence of the pills, he arrested both men. He then observed what appeared to be other items of contraband in the vehicle, which he seized. Further, with the purported consent of Reid, he searched the trunk and removed other items.

While this was transpiring, one of the other responding officers went into Tunes CDs and seized the CDs that defendant and ...

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