February 11, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NATHAN N. SHAW, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 04-08-1862 and 05-04-00886.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2008
Before Judges Sabatino and Simonelli.
On August 18, 2004, a grand jury indicted defendant Nathan Shaw for fourth-degree hindering apprehension, N.J.S.A. 2C:29-3b (count one); third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (count two); second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(3) (count three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count four) (the first indictment). Defendant was also charged with three disorderly person offenses.
On April 13, 2005, a grand jury indicted defendant for third-degree possession of CDS (cocaine), N.J.S.A. 2C:35-10a(1) (the second indictment). Defendant was also charged with a disorderly person offense.
Judge Neafsey denied defendant's motion to suppress evidence relating to the first indictment. Defendant then entered a negotiated guilty plea to count three of the first indictment and to count one of the second indictment. The State agreed to dismiss all remaining charges and to waive its right to seek an extended-term sentence. The State also agreed to recommend an eight-year term of imprisonment with a forty-five month period of parole ineligibility on count three of the first indictment pursuant to the Brimage*fn1 guidelines, and to a concurrent five-year term of imprisonment on count one of the second indictment.
Judge Neafsey sentenced defendant to a seven-year, six-month term of imprisonment with a forty-five month period of parole ineligibility on count three of the first indictment and to a concurrent four-year term of imprisonment on count one of the second indictment. The judge also imposed the appropriate assessments, penalties and fees and suspended defendant's driver's license for six months.
On appeal, defendant contends that the judge's factual findings on the motion to suppress were clearly mistaken because a police videotape of the stop contradicted a police officer's testimony about facts, which led the officer to infer that defendant was armed and dangerous. We reject this contention and affirm.
The following facts are summarized from the record. On March 23, 2004, police officer Paul Seidle of the Neptune Township Police Department, who had extensive experience in narcotics investigations, was on duty, in uniform and in a marked patrol vehicle working the 11 p.m. to 7 a.m. shift. He had received information regarding drug activity in the area of the Shore Lanes Bowling Alley, the Centerfold Go-Go-Bar, and the Crystal Inn Motel, an area well-known for narcotics activity.
At approximately 12:30 p.m., Seidle entered the bar's parking lot and circled it, looking for narcotics activity. When the officer looked over to the inn, he noticed an individual, later identified as defendant, peering at him from behind the far left corner of the building. As Seidle continued toward the inn, defendant leaned out further, maintaining eye contact with the officer and following his travel through the parking lot. Seidle observed defendant get into a car and drive away with a passenger in the front seat. The officer followed defendant and observed a flat right front tire on defendant's car. A check of the car's registration revealed that it was owned by Matthew C. Colvin.
Seidle continued following defendant and observed him make a left turn without signaling. Seidle activated his lights, which automatically activated video and recording equipment inside the patrol car.*fn2 Defendant pulled over and stopped. As Seidle approached defendant's car, he saw cigar tobacco on the driver's side floor, indicating marijuana use, and smelled burnt marijuana.
Seidle also saw a white mask and latex glove in the back seat. This was "a big concern" for the officer because home invasion robberies were common in the area, the items he saw were "typical  tools used by people who commit robberies," and the items indicated that defendant "may be a robber, may be someone who is engaged in criminal activity that involves robberies[.]" The officer also observed that defendant and the passenger were wearing clothing typically worn by individuals who commit robberies in order to conceal their identities and to hide weapons. At this point, Seidle suspected that defendant might have a weapon.
Seidle then asked defendant for his credentials. Defendant responded that he did not have his driver's license in his possession.*fn3 Defendant gave Seidle a false name, Dion Shaw, and a false birth date. Having already checked the car's registration, Seidle knew that defendant was not the owner. Also, defendant used stall words, indicating deception, and he refused to identify the passenger.
Concerned for his safety, Seidle instructed defendant to step out and move to the back of the car. Defendant's left hand cannot be seen on the videotape at the exact moment he exited the car. However, Seidle, who could see defendant's left hand, testified that the hand was momentarily in a closed position and pulled partially up into defendant's jacket sleeve. This, along with Seidle's other observations, led him to conclude that defendant could be concealing a weapon.
To ensure his safety, Seidle began patting defendant down.
Upon touching defendant's left wrist, the officer felt a tight ball. Based on his training and experience, Seidle knew that the ball contained cocaine. A backup officer then arrived, and Seidle advised defendant that he was under arrest. When the officers attempted to arrest defendant, he ran, leaving his jacket behind. The officers chased defendant. During the chase, the passenger left the scene and was never identified.
Defendant was apprehended. A search of his jacket revealed cocaine. A search of the car revealed marijuana, a mask and a latex glove. A search of defendant at police headquarters revealed a small electronic scale, typically used to weigh narcotics, with cocaine residue on it.
Defendant testified that he ran because he thought he had outstanding warrants, he feared being arrested, and he had cocaine in a "stash pocket" inside his jacket. Defendant claimed that the videotape of the stop contradicted what Seidle said about defendant's left hand.
Judge Neafsey found that defendant's version of the stop did not "have the ring of truth." The judge also found Seidle's testimony credible and believable. The judge concluded that Seidle lawfully stopped defendant after observing traffic violations. The judge also found that because Seidle was concerned for his safety and suspected that defendant was armed, the officer acted reasonably in ordering defendant out of the car and in patting defendant down. The judge further concluded that under the totality of circumstances, the "plain feel" doctrine applied because immediately upon feeling the tight ball on defendant's left wrist, Seidle knew it was cocaine.
Our review of a trial judge's findings is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We give great deference to the trial judge's factual findings and will not "engage in an independent assessment of the evidence as if [we] were the court of first instance." Id. at 471. We also give deference to the trial judge's credibility determinations. Id. at 474; Johnson, supra, 42 N.J. at 161. In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting Locurto, supra, 157 N.J. at 474); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990). We will reverse only if we are convinced that the trial judge's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting Johnson, supra, 42 N.J. at 162.) "In those circumstances solely [we] 'appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162). With these standards in mind, we review defendant's contention.
Defendant does not contest the stop. Rather, he challenges the warrantless searches, contending that because the videotape contradicted Seidle's testimony about his left hand, the officer did not have the necessary basis to conduct a weapons search. We disagree.
Once a police officer has made a legal investigatory stop, that officer may, for purposes of his or her protection, search the suspect for weapons. State v. Thomas, 110 N.J. 673, 679 (1988) (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed. 2d 889, 909 (1968)). The reasonableness of the search is measured by an objective standard:
The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. . . And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inference which he is entitled to draw from the facts in light of his experience.
[W]hen an officer makes a stop based on circumstances that do not objectively cause him to believe that a suspect is armed and dangerous, some event must occur between the stop and the weapons search which leads to the objective belief that the suspect is armed and dangerous. [State v. Garland, 270 N.J. Super. 31, 41-42 (App. Div.) (quoting Terry, supra, 392 U.S. at 27), certif. denied, 136 N.J. 296 (1994)]
See also State v. Arthur, 149 N.J. 1, 8 (1997).
Based upon our careful review of the record we conclude that the judge's factual findings are amply supported by credible evidence. After viewing the videotape and finding Seidle's testimony credible and believable, the judge discerned no reason to doubt what the officer said about his split-second observation of defendant's left hand. Also, we are satisfied that even before Seidle observed defendant's left hand, he reasonably believed, based on his experience and the totality of circumstances, that defendant was armed and that his safety may be in danger.