On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. BMA 004-10-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fisher and Baxter.
Because defendant's death between his municipal conviction and his appeal to the Law Division did not in this case warrant a dismissal of the appeal or an abatement of the prosecution, we reach the merits of defendant's appeal and reverse because evidence acquired during what the State claims was a field inquiry, but which was, in reality, an unlawful investigatory stop, should have been suppressed.
On February 18, 2006, defendant, who was a probation officer then on suspension, was charged with possession of drug paraphernalia, namely a glass crack pipe, with the intent to use same, N.J.S.A. 2C:36-2.
Prior to trial, defendant moved for the suppression of the crack pipe, which was obtained by Officer Mitchell when he encountered defendant and Lisa Rose in defendant's parked vehicle in a CVS parking lot on the date in question.
The municipal judge first heard the testimony of Officer Mitchell, who stated that, upon seeing defendant's vehicle parked approximately 100 to 150 feet away from all other vehicles in the lot, he decided to find out what the occupants were doing. He drove his marked police vehicle to the area and parked partially behind defendant's vehicle, stepped out, and approached defendant's vehicle.*fn1
In approaching, Officer Mitchell saw on the pavement a small blue ziplock baggie, which appeared to have some drug residue within, and a nearby cotton Q-tip. Believing the baggie to have once contained a controlled dangerous substance (CDS), and knowing that Q-tips are commonly used to clean CDS pipes, the officer picked up the baggie and Q-tip.
Officer Mitchell testified that, as he continued to approach, Rose appeared "startled and nervous" and she "reached down towards" the floor area; at the same time, defendant placed his right hand in his right front coat pocket. The officer ordered both to place their hands on the dashboard. Defendant responded that he was "on the job," and asked for "a break." Defendant reached into his pocket again, saying to Officer Mitchell, "I'll give it to you," and removed a glass pipe, which Officer Mitchell recognized as the type used to smoke crack cocaine. Defendant asserted that the pipe belonged to Rose and explained he was attempting to help Rose with her drug problem.
With both occupants outside the vehicle, Rose reached into her right pocket, which caused Officer Mitchell to grab her and push her against the vehicle. When Rose removed her hand from her pocket, she held two baggies containing white rock, which Officer Mitchell believed was CDS. Defendant and Rose were arrested.
Based upon his finding that the officer was engaged in a field inquiry and that his discovery of the baggie and Q-tip thereafter provided a reasonable articulable suspicion to warrant an investigatory stop, the municipal judge found there was no cause to suppress the other evidence obtained.
After denying defendant's suppression motion, the judge presided over a trial at which Officer Mitchell testified about his encounter with defendant and the evidence he had obtained. A lab report, which concluded that residue on the pipe was crack cocaine, was received in evidence. Defendant testified that the crack pipe belonged to Rose and that he was with her because he was attempting to help her with her addiction. At the trial's conclusion, the municipal judge found defendant guilty of possessing the crack pipe with the intent to use it, N.J.S.A. 2C:36-2. The judge also conducted a hearing that led him to conclude that the conviction touched upon defendant's employment as a probation officer and required forfeiture of his office, N.J.S.A. 2C:51-2(a)(2); in that regard, the judge found that defendant was in the company of a probationer, Lisa Rose, whom he had previously met when acting as a probation officer,*fn2 when he engaged in the offending conduct. The municipal judge imposed a $250 fine, together with court costs and other required penalties and fees; with the exception of the job forfeiture, the municipal judge stayed the sentence pending defendant's appeal to the Law Division.
On April 9, 2007, defendant filed a timely appeal to the Law Division. On July 16, 2007, defendant died. The State's brief asserts without reference to the record that defendant was killed during a gun battle with a Totowa police officer.
The municipal appeal was heard by the Law Division judge on September 14, 2007. Defense counsel argued that defendant's death required the abatement of the prosecution and the vacation of the municipal conviction. Before deciding this issue, the judge heard the balance of counsel's arguments on the merits of the appeal and reserved decision. The judge later issued a written decision in which he found defendant's death did not require a termination of the proceedings or the vacation of the judgment; he also found, in his de novo review of the municipal court proceedings, that there was no merit in defendant's argument that the evidence should have been suppressed and found defendant guilty as charged. The Law Division judge imposed the same fines and penalties, and also concluded, as had the municipal judge, that the forfeiture of defendant's employment as a probation officer was justified pursuant to N.J.S.A. 2C:51-2(a)(2).
Defendant*fn3 appealed, raising the following arguments for our consideration:
I. MR. RIVA'S CONVICTION SHOULD BE VACATED AND THE PROSECUTION SHOULD BE ABATED BECAUSE MR. RIVA DIED WITH A PENDING APPEAL AS OF RIGHT.
II. ALL EVIDENCE OBTAINED SUBSEQUENT TO OFFICER MITCHELL'S PARKING HIS MARKED POLICE VEHICLE BEHIND MR. RIVA'S CAR SHOULD HAVE BEEN SUPPRESSED, AS SUCH EVIDENCE WAS THE PRODUCT OF AN UNLAWFUL SEIZURE.
A. Officer Mitchell Effected A Seizure When He Parked His Marked Police Car Behind Mr. Riva's Vehicle Because A Reasonable Person In Mr. Riva's Position Would Not Have Believed That He Was Free To Leave At That Point.
B. Officer Mitchell Lacked A Sufficient Basis For Detaining Mr. Riva As An Exercise Of The Officer's Community Caretaking Function Because There Was No Indication That The Safety Or Well-Being Of Either Of The Occupants Was In Danger.
C. Officer Mitchell Lacked Sufficient Grounds For Conducting An Investigative Detention Of Mr. Riva Because He Lacked A Reasonable And Articulable Suspicion That Criminal Activity Was Afoot When Mr. Riva Was Initially Detained.
III. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT MR. RIVA VIOLATED N.J.S.A. 2C:36-2 BECAUSE THERE IS INSUFFICIENT EVIDENCE TO ESTABLISH THAT MR. RIVA POSSESSED THE REQUISITE INTENT TO USE THE PARAPHERNALIA TO ENGAGE IN CRIMINAL ACTIVITY.
IV. ASSUMING, ARGUENDO, THAT MR. RIVA VIOLATED N.J.S.A. 2C:36-2, THERE IS AN INSUFFICIENT NEXUS BETWEEN THE OFFENSE AND HIS EMPLOYMENT TO WARRANT ...