On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-02162.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 27, 2008
Before Judges A. A. Rodríguez and C. L. Miniman.
After defendant Marco J. Maldonado's motion to suppress evidence was denied, he pleaded guilty, pursuant to an agreement with the State, to third-degree possession of CDS (Ecstasy or Xtazy) with intent to distribute in a school zone, N.J.S.A. 2C:35-5. The State agreed to dismiss related charges and to recommend the following sentence: a four-year term with an eighteen-month parole disqualifier to be served concurrently with a term imposed on a violation of parole. Consistent with the agreement, Judge John C. Kennedy imposed concurrent terms aggregating four years with an eighteen-month parole disqualifier. Pursuant to Rule 3:5-7(d), defendant appeals contending:
THE TRIAL JUDGE ERRED IN DENYING MALDONADO'S MOTION TO SUPPRESS EVIDENCE WHERE OFFICERS STOPPED MALDONADO WITHOUT REASONABLE, PARTICULARIZED SUSPICION TO BELIEVE THAT MALDONADO HAD JUST COMMITTED OR WAS ABOUT TO COMMIT CRIME.
These are the proofs produced by the State at a hearing on the motion to suppress, at which the sole witness was Newark Police Sergeant Austin Jackson. He testified that on the evening of December 7, 2005, he, along with Sergeant Constantino and Detectives Burgos and Soto, were on undercover patrol in an unmarked car in the area of 4th Avenue and 9th Street. According to Jackson, this is a residential area known for drug activity. The officers' objective for being in this area was to interdict illicit drug transactions.
Jackson spotted the original target of the investigation, a man identified only as Canero, standing on 9th Street. Canero aroused the officers' suspicion. Canero walked about 100 yards up to a Cadillac that was double parked. Canero got in the passenger side of the Cadillac. When Jackson saw Canero enter defendant's car, he had a "suspicion" that Canero was about to buy drugs. This was based on his knowledge that "this is a high narcotic drug trafficking area, number one" and the fact that Canero walked a long distance to get to the Cadillac.
The officers drove up and parked in front of the Cadillac "in a manner which would definitely have alerted the driver of - of police presence." Jackson got out of the police car and approached the driver's side of the Cadillac. The window was tinted, making it difficult for Jackson to see inside. Jackson instructed the driver, who was later identified as defendant, to roll down the window. Defendant complied.
As the window opened, Jackson saw one of defendant's hands "coming from his buttock area." According to Jackson, "[A]t that point I-I assumed because there was nothing in his hand as far as identification or-or wallet to produce DMV documents, I believe that he had-he had put something under his behind." Jackson ordered defendant out of the vehicle. Defendant did not comply. Defendant was ordered to keep his hands on the steering wheel. Jackson and another officer removed defendant from the vehicle. Then the officers saw a handgun and a plastic bag containing Ecstasy pills in front of the driver's seat. Defendant was arrested.
Based on this testimony the judge made the following findings: Jackson was an experienced narcotics officer, having been involved in numerous arrests and vehicle stops involving narcotics; the Cadillac had tinted windows and was double parked; upon defendant rolling down the window, Jackson saw some suspicious activity by defendant inside the Cadillac; defendant failed to comply with the request to exit the Cadillac and was forcibly removed; Jackson saw a handgun in a plastic bag on the front driver's seat. The subsequent search was incident to a lawful arrest.
We conclude that the stop passes constitutional muster. Jackson was initially presented with sufficient evidence of motor vehicle violations, i.e., the Cadillac had tinted windows, contrary to N.J.S.A. 39:3-74; N.J.A.C. 13:20-33.8. See State v. Cohen, 347 N.J. Super. 375, 380 (App Div. 2002) (holding that a reasonable suspicion, even if later found to be untrue, that car windows are tinted in violation of N.J.S.A. 39:3-74, N.J.S.A. 39:3-74 and the standards set forth in N.J.A.C. 13:20-33.8, is reasonable articulable suspicion on which to base a motor vehicle stop). In addition, it was patently obvious that the Cadillac was double-parked. These motor vehicle violations justified Jackson approaching the driver's side of the Cadillac and asking for credentials. State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990). Then, Jackson saw activity by defendant inside the Cadillac that would provide a basis for believing that defendant had secreted contraband or a weapon. This was a further justification for asking the driver, defendant, to then exit the Cadillac. State v. Arthur, 149 N.J. 1, 16 (1997). Finally, defendant's refusal to step out of the Cadillac warranted his forceful removal. This led, in turn, to Jackson's observation of contraband. Leopardi v. Twp. of Maple Shade, 363 N.J. Super. 313, 330-31 (App. Div. 2008)
This case is distinguishable from State v. Kuhn, 213 N.J. Super. 275 (App. Div. 1986), on which defendant relies because defendant was the driver, not a passenger, of the motor vehicle. Here, there were motor vehicle ...