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State ex rel T.C.

July 22, 2009

STATE OF NEW JERSEY IN THE INTEREST OF T.C.


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1774-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 28, 2009

Before Judges Lihotz and Messano.

T.C. appeals from an adjudication of delinquency for conduct if committed by an adult would constitute the disorderly person's offense of possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(4). Following the denial of his motion to suppress evidence, T.C. entered into a plea agreement with the State. The agreement required T.C. to enter a guilty plea resulting in an adjudication of juvenile delinquency. The court entered a twelve-month deferred disposition, required a drug evaluation and compliance with any treatment deemed necessary, and imposed all mandatory fines and penalties. In a single point on appeal, defendant argues:

THE COURT BELOW ERRONEOUSLY DENIED THE MOTION TO SUPPRESS EVIDENCE AS THE CONDUCT OF THE POLICE VIOLATED THE JUVENILE'S RIGHT TO BE FREE OF ILLEGAL SEARCHES AND SEIZURES. BOTH THE SEIZURE OF T.C. [AND] THE SEARCH OF HIS CLOTHING WERE THE "FRUITS" OF AN ILLEGAL ARREST. THEREFORE, THE ORDER DENYING THE MOTION TO SUPPRESS EVIDENCE MUST BE REVERSED. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. ART. I, PAR. 7.

We affirm.

The facts are taken from testimony presented at the suppression hearing. While off duty on November 19, 2007, Officer George Ruth received a telephone call from a "citizen informant" who reported "suspicious activity" in the parking lot of Katz's convenience store at 208 Bay Avenue. Ruth recalled past dealings with the informant, as he previously provided reliable information disclosing illegal drug activity. The informant told Ruth a group of juveniles were "leaning in and out of the [parked] vehicle, which is . . . indicative of drug transactions." Ruth did not recall receiving information about the make, model or year of the vehicle or the appearance of the juveniles. Ruth's experience as a narcotics officer confirmed the juveniles' conduct was aligned with a possible drug transaction. Ruth contacted the Highlands Police Department to alert them to the reported activity.

A report was prepared by Detective Robert Burton, who was working at police headquarters when Ruth phoned. Burton thought the information warranted further investigation. He alerted Sergeant Rogers, the shift commander, and the two went in separate patrol cars to the parking lot at 208 Bay Avenue. Burton parked his car on Bay Avenue, adjacent to the lot. He observed a vehicle on the right side of the parking lot, away from most of the vehicles, with what appeared to be [] juvenile[s] outside the vehicle, one on the passenger side, one on the driver's side, and there w[ere] occupants inside the vehicle. No one else was in the parking lot . . . at the time.

Both officers exited their vehicles and approached the juveniles. Burton told the juveniles to take their hands out of their pockets, which he explained was a standard safety procedure. Rogers went to the driver's side window while Burton went to the passenger's side window. As he approached the vehicle, Burton stated he did not "believe the individuals were engaged in criminal activity." His intent was to investigate the information relayed by Officer Ruth and at this point, in his mind, the juveniles were "free to leave."

Burton spoke to the occupants of the vehicle. He noticed "blunt guts," which are "the inside of [a] cigar that's commonly hollowed out, and then filled with marijuana," strewn throughout the vehicle. This heightened Burton's suspicion that drug activity was underfoot.

Burton asked one of the two juveniles, J.V., who was standing outside the vehicle, "where was the . . . weed." J.V. raised his hands and said, "I have nothing. You can check." Burton patted down the outside of J.V.'s pockets and felt nothing. Burton then turned to T.C. and began to walk toward him. T.C. "immediately shoved his hand[] into his pockets, in a very aggressive manner." Burton became "concerned for [his] safety, and the safety of Officer Rogers[,]" so he grabbed T.C.'s hand and "told him to take his hand out of his pocket slowly." T.C. became aggressive and physically resisted, telling Burton, "you can't touch me, you can't search me[.]" Burton restrained T.C. by grabbing his hand and taking it slowly out of his pocket, putting his arm behind his back and walking him over to the front of the vehicle. T.C. continued to struggle, and Rogers grabbed T.C.'s other hand, "placed it behind his back, and handcuff[ed] . . . him." Burton acknowledged that at that point, T.C. was under arrest. T.C. was searched prior to being placed in the patrol car. Burton found "a small bag of marijuana" in T.C.'s shirt pocket and "seven small yellow colored pills" in his pant's pocket.

After crediting the officer's testimony, Judge McGann evaluated the evidence and denied T.C.'s motion to suppress. The judge determined the police properly investigated the tip provided by a previously reliable citizen informant. He noted, although the facts were "somewhat general," they were verified by Burton's observations at the scene. Rejecting T.C.'s argument that he was subject to an arrest without probable cause, the court made these findings: the officers' approach was a field inquiry, and the request to the juveniles to show their hands was nothing more than a necessary safety precaution; the totality of the circumstances, including Burton's observation of tobacco covering the floor and seats of the vehicle, provided a reasonable suspicion of drug activity and probable cause for an investigatory stop; ...


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