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State v. Bergen


January 15, 2009


On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 07-10-1046.

Per curiam.


Submitted December 17, 2008

Before Judges Parrillo and Messano.

By our leave granted, the State of New Jersey appeals from the motion judge's order granting defendant's motion to suppress evidence. The State contends that the judge erred in concluding that there was no "reasonable, articulable suspicion" for police to stop defendant's car. We agree and therefore reverse.

Investigator David Burns of the Glassboro police department was the State's only witness at the evidentiary hearing. Burns testified that on July 13, 2007, he and fellow investigator Mike Powell were in the municipal firehouse conducting a surveillance of the Number One Kitchen Chinese restaurant directly across the street. Burns was there in response to "complaints from citizens and... the firemen... about the numerous drug activity [observed] in front of and to the side of" the restaurant. At approximately 4:00 p.m., Burns observed a number of people "hanging, loitering in the area."

Burns saw a green Maxima pull into the parking lot next to the restaurant and saw the driver, later identified as defendant, and another passenger exit the vehicle. The passenger approached a male standing in the lot and "made a hand-to-hand transaction with" him. Defendant and his passenger then returned to the vehicle and drove off. Burns testified that based upon his twenty years experience as a police officer he believed the activity indicated "drug trafficking."

Burns and Powell left the firehouse in their unmarked car and trailed the suspect Maxima because they "wanted to... get the vehicle stopped for investigative purposes[.]" Burns radioed for a "marked unit" to stop the Maxima, Sergeant Hagen responded and "pulled the car over" with Burns right behind.

Hagen approached defendant from the driver's side, and Burns approached from the passenger side. From that vantage point, Burns saw defendant "reach[] into his console to remove... his registration and insurance card." Burns saw "a small, Ziploc plastic bag containing red CDS bags... used for... packaging CDS" in the console.

Burns testified that the "individuals [in the car] then started identifying themselves with their names." One of the occupants "had an outstanding warrant on him," and was "removed from the vehicle[.]" Defendant "was asked to step out of the vehicle and walk to the rear of [] Hagen's vehicle." Burns spoke to defendant about "what [he] observed at Number One Kitchen and what [he] observed in the center console of [defendant's] car." Defendant claimed to be just "hanging out" at the restaurant and denied any knowledge of the bags in the console.

Defendant "remained standing behind [] Hagen's vehicle" while Burns returned to defendant's car to talk to one of the rear-seat passengers who was the individual Burns had witnessed making the hand-to-hand exchange at the restaurant parking lot. Burns was able to keep defendant in his sight, however, and he "observed [defendant] kicking something underneath the patrol car." Burns "moved [defendant] off the roadway and [] Hagen moved his car." Underneath, Burns found fourteen sealed, red plastic bags of suspect crack cocaine.

Defendant argued that the police lacked any reasonable, articulable suspicion to stop his car for further investigation, noting in particular that the restaurant was not in a "high drug-trafficking area" and that Burns could not identify what was exchanged in the parking lot. The State argued otherwise. The motion judge observed that because the "subject of the transaction back in the parking lot was not recovered," the police did not know if "it was drugs." She further noted that there was "no indication" of any person's involvement with "transactions in the past." In short, she found no reasonable, articulable suspicion "to stop [defendant] and do further investigation," and so she suppressed the evidence.

"[E]ncounters with the police in which a person's freedom of movement is restricted, such as an arrest or an investigatory stop or detention, must satisfy acceptable constitutional standards." State v. Elders, 192 N.J. 224, 246 (2007). Unlike an arrest, which requires the State to demonstrate probable cause, State v. Stovall, 170 N.J. 346, 356 (2002), an investigative stop requires something less. "'A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed.'" State v. Amelio, ___ N.J. ___, ___ (2008)(slip op. at 4-5)(quoting State v. Carty, 170 N.J. 632, 639-640, modified by 174 N.J. 351 (2002)); See also State v. Rodriguez, 172 N.J. 117, 126 (2002). Whether the State has demonstrated a valid investigatory stop requires the judge to consider the totality of the circumstances surrounding the encounter. Elders, supra, 192 N.J. at 247; State v. Pineiro, 181 N.J. 13, 27 (2004); See also State v. Nishina, 175 N.J. 502, 511 (2003)(noting the test is whether "the officer maintains an objectively reasonable belief that the collective circumstances are consistent with criminal conduct").

We have no doubt that Burns' testimony established that he held an objectively reasonable, articulable suspicion of criminal activity being conducted by at least one of the passengers in defendant's car, thus justifying the stopping of the vehicle. In conducting the surveillance, police were responding to complaints from citizens and firemen regarding narcotic activities observed at the restaurant and the adjacent parking lot. Burns observed a passenger exit defendant's car with defendant and conduct a hand-to-hand transaction. Based upon his twenty years of experience, Burns was of the opinion that he had just witnessed a drug transaction. See State v. Arthur, 149 N.J. 1, 10 (1997)(reasonable, articulable suspicion justifying stop of defendant's vehicle was demonstrated when defendant drove into high-trafficking drug area, another entered his car and left shortly thereafter carrying a paper bag, defendant drove off, and person carrying bag acted furtively). Therefore, we conclude that the initial stop of defendant's vehicle was proper. However, we must "now turn to the consequences of that stop." State v. Birkenmeier, 185 N.J. 552, 562 (2006).

"[I]f, during the course of the stop or as a result of the reasonable inquiries initiated by the officer, the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden the inquiry and satisfy those suspicions." State v. Dickey, 152 N.J. 468, 479-80 (1998)(internal quotation omitted). "[T]he police may question the occupants, even on a subject unrelated to the purpose of the stop... so long as such questioning does not extend the duration of the stop." State v. Hickman, 335 N.J. Super. 623, 636 (App. Div. 2000). The officers may order a driver out of his vehicle if he is lawfully detained. State v. Smith, 134 N.J. 599, 609 (1994). "During this broadened inquiry, the questioning may be accusatory and designed to elicit incriminating responses... however, the officers must pursue a means of investigation that is'likely to confirm or dispel their suspicions quickly.'"

State v. Baum, 393 N.J. Super. 275, 287 (App. Div.)(quoting Dickey, supra, 152 N.J. at 476), certif. dismissed, 192 N.J. 473 (2007).

In this case, when defendant was asked to produce his license and registration, Burns was able to see plastic bags like those used in packaging narcotics for sale in the console of the car. As the people in the car began to identify themselves, Burns determined that one of the passengers had an active warrant for his arrest. Defendant was asked to step out of his car and was questioned as he stood near the rear of Hagan's police cruiser. Burns questioned defendant about the plastic bags in his car's console and the observations he made while defendant was in the parking lot adjacent to the restaurant. There is nothing in the record to suggest that defendant's detention outside his car was for an excessive period of time or that Burns otherwise engaged in anything but minimally intrusive questioning. See Baum, supra, 393 N.J. Super. at 288. While defendant was outside the car, Burns observed him kick the drugs under Hagan's patrol car. The officer was certainly permitted to seize what defendant had chosen to discard. State v. Carroll, 386 N.J. Super. 143, 160 (App. Div. 2006).



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