On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FJ-12-2697-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2009
Before Judges Axelrad and Sapp-Peterson.
Following the denial of his motion to suppress evidence, defendant pled guilty to unlawful possession of marijuana, N.J.S.A. 2C:35-10(a)(4). N.Z.P. entered a plea of guilty to the marijuana charge, preserving his right to appeal the denial of his suppression motion. Although defense counsel asked for "a deferred disposition" in lieu of imposition of final disposition, the court sentenced N.Z.P. to a one-year term of probation with random urine screenings, a six-month deferment of driving privileges, and mandatory fines.
The record before the court disclosed that on March 14, 2008, East Brunswick Police Officers Marino and Zielinski were patrolling in an unmarked vehicle. They observed two males, later determined to be N.Z.P. and Brian Theer, cross the street and enter into a vehicle operated by Michael Hatala. Theer sat in the front seat while N.Z.P. sat in the rear. Officer Marino testified that while not directly observing any hand-to-hand transaction, based upon the movement of the individuals in the vehicle and his training and experience, he believed that the individuals were engaged in a hand-to-hand transaction. He further explained that after one minute, Theer and N.Z.P. exited the vehicle and began walking in the direction from which they had come. He and Officer Zielinski then approached the three individuals and identified themselves.
Officer Zielinski spoke to Mr. Hatala, who was still seated in the vehicle, while Officer Marino spoke to N.Z.P. and Theer. According to Officer Marino, when he initially confronted N.Z.P. and Theer, "they appeared nervous. Both people I was talking to appeared real nervous. They were fidgeting around with their clothing. When I was talking to them[,] they were like avoiding eye contact, not looking at me. Looking all around." He further explained:
[W]hen I initially started talking to them, [N.Z.P.] reached to put his hands in his pockets and I asked him not to. And then he stopped initially but then he kept fidgeting around with his pocket, one particular pocket. And he kept reaching up like he was going to put his hand in his pocket again.
. . . . . . . [O]nce he continued to keep fidgeting with his pocket[,] I could see there was a bulge in it. I patted him down. And I felt a hard rigid object in the pants pocket.
When Officer Marino reached into N.Z.P.'s pocket to retrieve the hard object he felt during the pat-down, he recovered a disposable Bic lighter, but at the same time felt two small plastic bags which contained suspected marijuana.
After hearing arguments on N.Z.P.'s motion to suppress, Judge Jane Cantor denied the motion. She reasoned:
[T]he [o]fficer clearly had the right for a stop and question as he would anyone else walking on the street. It was more than a whim that he would stop these two young boys on the street. He saw this interaction which he said reminded him[,] based on his experience[,] of [a] drug transaction.
And so he and his co-[o]fficer decided to turn around and stop the two juveniles and talk to them on the street. I know he said that they weren't free to leave. But that was ...