On appeal from Superior Court of New Jersey, Law Division, Mercer County, No. 06-05-0597-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2008
Before Judges Wefing and R. B. Coleman.
The State appeals, pursuant to leave granted, from a trial court order granting the motion to suppress of defendant Vashawn Eutsey. After reviewing the record in light of the contentions advanced on appeal, we reverse.
Defendant was arrested shortly after 6:00 p.m. on August 29, 2008, in Trenton. He had been a passenger in the front seat of a black Mercedes Benz automobile driven by his co-defendant Marlon Eutsey. Co-defendant Hassan Canty was a passenger in the rear seat.
Detective Brian Suschke of the Trenton Police Department was on patrol with Lieutenant William Straniero and Chief Al Paglione, both of the Mercer County Prosecutor's Office. All three were working as members of the violent crime interdiction task force. Lieutenant Straniero was driving an unmarked vehicle, and Chief Paglione was in the rear passenger seat. The three men were wearing black tactical police clothing and wore their badges around their necks on chains.
Lieutenant Straniero drove into a housing project identified as Donnelly Homes. There was testimony that there were a number of residential buildings in this project and a number of streets and parking areas. Detective Schuske testified that Donnelly Homes was a high-crime area in which he had made numerous arrests. He also testified that his safety had been threatened in the past when making such arrests and that on many occasions objects such as beer bottles and soup cans had been thrown from the roof tops at arresting officers.
As Lieutenant Straniero was driving toward the exit of Donnelly Homes, after finishing their survey of the area, his vehicle was passed by a black Mercedes Benz four-door sedan driving into Donnelly Homes. Both he and Detective Schuske simultaneously noticed that the driver of that car was not wearing his seatbelt. Based on the designation of the Donnelly Homes as a zero tolerance area, Lieutenant Straniero made a U-turn, intending to give the driver a motor vehicle summons.
Lieutenant Straniero testified that by the time they reached the car, it had pulled into a parking spot. He activated his lights and flashers. Defendant opened his front passenger door, got out of the car and started to leave. Detective Schuske simultaneously got out of the unmarked vehicle and ordered defendant to stop. Defendant did not and began to run away. Detective Schuske and Chief Paglione pursued him, leaving Lieutenant Straniero at the scene with the other two men. The two men were unable to keep up with defendant, who climbed over a fence. They radioed their pursuit and another officer who was nearby took up the chase. That officer saw defendant discard something. Defendant was eventually apprehended; the officer returned to where he had seen defendant toss an object and retrieved a clear plastic bag containing a quantity of powdered cocaine.
When Detective Schuske and Chief Paglione gave up their pursuit of defendant, they returned to the car that had been their initial object. Lieutenant Straniero was standing at the rear driver's side. He had instructed the two remaining men to keep their hands visible but had waited for the others to return before approaching the car more closely. Detective Schuske came up behind Lieutenant Straniero, and the two moved forward. When the lieutenant came up to the driver's side, he looked into the vehicle and saw the handle of a handgun protruding from under the driver's seat.
All three men were charged with possession of the weapon. Defendant was also charged with possession of cocaine, possession of cocaine with intent to distribute, possession of cocaine with intent to distribute within one thousand feet of school property and possession of cocaine with intent to distribute within five hundred feet of a public facility. Defendants filed a motion to suppress. After hearing the testimony of Lieutenant Straniero and Detective Schuske and the argument of counsel, the trial court denied the motion with regard to the handgun that had been recovered but granted the motion with respect to the cocaine. The State moved for leave to appeal and, as we noted at the outset, we granted that motion.
The trial court, in its oral opinion, expressed the view that defendant, as a passenger in the car, had the right to leave the scene and did not have to respond to the command to remain. In support of this proposition, the trial court cited cases such as State v. Tucker, 136 N.J. 158 (1994), and State v. Irelan, 375 N.J. Super. 100 (App. Div. 2005). Both are distinguishable, however, for in neither case was the court confronted with the question whether the police could stop a passenger from walking away from the scene of a motor vehicle stop. The defendant in Tucker was sitting on a curb when a marked police vehicle drove by; seeing it, ...