June 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHARD ANDREW CALTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 04-03-0661.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 10, 2008
Before Judges Stern and Coburn.
Following the denial of his motion to suppress evidence, defendant pled guilty to possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10a(1), and pursuant to a negotiated disposition, and was sentenced to two years probation conditioned upon 180 days in the Monmouth County Correctional Institution and the payment of fines and penalties in installments. On this appeal defendant challenges the denial of his motion to suppress, see R. 3:5-7(d), and asserts that he was improperly patted down on two separate occasions; that the discovery of a crack pipe on his person was illegal resulting in an unlawful arrest, and that discovery of cocaine "during the search incident to the arrest" was also illegal.
Patrolman Timothy Macom of the Township of Ocean Police Department testified on the motion that he was on patrol on Route 18 in a marked vehicle at about 12:50 a.m. on October 16, 2003, when he had his dispatcher "run a license plate at random" and was advised "that the vehicle was warranted for a[n] armed robbery and there was a subject in there by the name of Gregory Salazar" who was wanted for "armed robbery" in Neptune Township. Macom stopped the vehicle and asked the driver for his credentials. The driver identified himself as Gregory Salazar. Macom thereafter removed Salazar from the car and "handcuffed him." Salazar was then placed in the back of Macom's patrol car.*fn1
Officer Gregory Schenck of the Ocean Township Police Department testified that he was on patrol at about 12:50 a.m. on October 6, 2003 when he responded to the scene. He was advised that "the driver and the vehicle were wanted for an armed robbery," and that Macom "was arresting the driver who was wanted for the armed robbery." Schenck was also advised that "Neptune would be coming to take the vehicle" and Schenck "asked the passengers out of the vehicle." A female was in the front seat, and defendant was in the rear seat. Schenck asked them "to exit the vehicle" at which time "they were patted down for weapons." Nothing was felt at that time.
According to Schenck:
Once we learned the vehicle was going to be taken, we advised [the passengers] that they could not stay on the state highway, and a ride was offered to take them wherever they needed to go, within reason. Whether it be up to a gas station or to, you know, home, within a reasonable distance.
Pedestrians were not allowed on Route 18, and Schenck "offered them a ride" because the Salazar vehicle was being "impounded." The passengers accepted the offer but "prior to allowing them to sit behind [Schenck] in a patrol car, department policy [required him] to pat them down for weapons." Thus, defendant was patted down for a second time, and Schenck felt a "bulge which [he] knew to be a crack pipe in his right sock." As a result, Schenck arrested defendant and thereafter conducted a "search incident to arrest," and found "an amount of crack cocaine" in defendant's left sock.
With respect to the second, and more complete "patdown," Schenck testified that he "implied" that the defendant did not have to get into the car and accept the ride. When the judge asked if Schenck considered the "patdown" to be a "consent search," Schenck answered that "this was a community caretaking, just so that I don't ─ you know, to get him off the road, so he doesn't get run over and so that when I'm putting him in the back of my car, you know, he doesn't have something hiding on him that's going to injure me or anybody else in any way." According to Schenck, had defendant indicated that he had a cell phone and desired to call someone to pick him up within a reasonable amount of time, Schenck would have "accommodated him." He felt no cell phone during the patdown. A cell phone was listed among defendant's property when an inventory was conducted at headquarters.
Judge Anthony J. Mellaci denied the motion to suppress. The judge noted, among other things, that pedestrians were "prohibited on Route 18" and Schenck "could not leave the passengers there." The judge found that Schenck "offered to defendant and the other passenger a ride and each accepted" and that Schenck "patted them down prior to placing them down in the rear of the patrol car." The judge also found that, after a glass pipe was detected in defendant's right sock, he was placed under arrest and the crack cocaine was discovered in a search incident to the arrest. In making his determination, the judge found "that both officers were highly credible and truthful in their testimony." The judge also concluded that Officer Schenck acted reasonably in doing a cursory patdown of both passengers at the side of the road [after] an arrest on an execution of a warrant for a driver of the automobile in an alleged robbery." According to the judge, it was "reasonable for the officer for his own safety to do a cursory patdown when asking the passengers to exit the vehicle,"*fn2 and stand "at the side of the road so he was satisfied that they couldn't reach into a pocket or a waistband for a weapon."
Finally, the judge concluded that Schenck acted pursuant to his "community caretaking function," unconnected to a criminal investigation, and was objectively reasonable in conducting another or second "patdown" before placing defendant in the patrol car. The judge found: the officer's decision in this instance to offer defendant a ride because the defendant was prohibited from walking on Route 18, and defendant's decision to accept the offer and the officer's subsequent patdown frisk of the defendant before placing him in the patrol car cannot be deemed unreasonable and not done as a pretext for a criminal investigation.
It is the opinion of this Court that the officer, with knowledge of the law prohibiting pedestrians from walking on Route 18 and offering defendant a ride, acted out of concern for defendant's safety and well-being regarding the possible dangerous consequences of remaining [on] Route 18 at 12:30 a.m. in the morning with no mode of alternative transportation.
The judge added that because the second patdown of defendant "revealed a glass crack pipe hidden in his right sock [there was] probable cause to arrest for violating [N.J.S.A. 2C:36-2]" and for the search "incident to that lawful arrest." According to the judge:
Here defendant was arrested after a crack pipe was found in his sock. As a result, probable cause existed to arrest defendant for possession of drug paraphernalia. Immediately after the arrest, Officer Schenck searched defendant and found a piece of crack in his left sock. Thus the officer's search and seizure of crack from defendant's person was valid because it occurred immediately after the lawful arrest.*fn3
We affirm the denial of defendant's motion to suppress substantially for the reasons expressed in Judge Mellaci's oral opinion of September 7, 2006. See State v. Diloreto, 180 N.J. 264, 275-77 (2004); see also, e.g., State v. Elders, 192 N.J. 224, 246-51 (2007) (reasonable and articulable suspicion needed to ask for consent to search disabled car, as community caretaking evolved to an investigatory detention); State v. Lombardi, 727 A.2d 670, 674-76 (R.I. 1999) (officers acted reasonably in conducting a patdown of passenger prior to placing him in a police vehicle for a ride after arresting driver); People v. Tobin, 219 Cal. App. 3d 634 (Cal. App. 1st Dist. 1990) (passenger in impounded vehicle not permitted to walk on highway, lawfully patted down prior to being transported in police vehicle to point of safety); People v. Hannaford, 167 Mich. App. 147 (Mich. Ct. App. 1988) ("patdown" reasonable before transporting passengers in car where driver was arrested for drunk driving).
The defendant states that this is not a "true community caretaking situation" because he could have called "a friend or a taxi to pick him up" and Officer Schenck had indicated that he "would have permitted a friend or a taxi to drive defendant home from the highway." However, there is no testimony that the officer was told defendant did, in fact, have a cell phone to make a call or presented any alternative which would have been "reasonable" at that time of the day on Route 18. Stated differently, there is no basis for concluding that the officer acted unreasonably given what was known to Officer Schenck, and we cannot hold that he was not justifiably performing a "community caretaking" function at the time of the second patdown.
Accordingly, the judgment is affirmed.