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State ex rel K.M.

November 12, 2010

STATE OF NEW JERSEY IN THE INTEREST OF K.M., A MINOR.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-470-09B.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 25, 2010

Before Judges Miniman and LeWinn.

K.M. was charged with possession of less than fifty grams of marijuana. Following the denial of his motion to suppress, he pled guilty and was sentenced to deferred disposition for one year. He now appeals the denial of his motion to suppress.

The facts, based upon the testimony presented at the motion hearing, may be summarized as follows. On August 2, 2008, Officer Adam Mendes, of the Asbury Park Police Department, was on patrol at approximately 9:00 p.m. He was "in a fully marked patrol car," working with "the U.S. Marshal's Street Crime Warrant detail, patrolling high narcotics and high crime areas... taking action on... violations within those... areas." Mendes was a passenger in the patrol car which was driven by Officer Finkelstein. Mendes described the area as one known for "aggravated crimes [and] narcotics arrests," adding that "[w]eapons have been recovered in that area."

While traveling in the 1000 block of Springwood Avenue, the officers "observed [K.M.] riding a bicycle... in the street in an unsafe manner with no lights on it." Finkelstein pulled the police vehicle "up next to" K.M. and Mendes "rolled down [his] window," and "advised him to stop." Mendes stated that the purpose in stopping K.M. was "to conduct a field contact to advise him about how he was riding a bike, and to get lights on it in order to be riding it in the proper safe manner."

K.M. complied with Mendes's request to stop the bike. Mendes "noticed that as he stopped the bike, he immediately threw his right hand under the right side of his front pocket, under his shirt.... He tucked his hand under his shirt,... bending his elbow as if to stick it over his pocket, under his shirt."

This movement by K.M. made Mendes "a little nervous," and he "exited the patrol vehicle." He approached K.M. and asked him "if he had any weapons on him, or if he minded [being]... patted... down." K.M. volunteered that "he had a screwdriver in his right front pocket." Mendes "went in to retrieve the screwdriver..., at which point [he] detected a soft substance in a knotted plastic bag." Mendes "was pretty confident that it was consistent with CDS, marijuana." He asked K.M. "what was in the pocket" and K.M. "admitted... that... it was weed." Mendes stated that he "would have patted [K.M.] down regardless," and he "only asked the question because [he] wanted to see if [he] was going to get some kind of cooperation."

After K.M. admitted that he possessed "weed," Mendes "retrieved the object," which he described as "a greenish and brown vegetation suspected to be marijuana." He then placed K.M. under arrest for possession of marijuana.

Mendes testified that the screwdriver had been destroyed because K.M. was not charged with possession of the screwdriver so he "didn't keep it as evidence." He acknowledged that he did not issue a summons to K.M. for riding a bicycle at night without a light.

At the conclusion of the testimony, the motion judge rendered a decision from the bench. After reviewing the evidence, the judge found that the "investigatory stop was valid," and that K.M.'s conduct in placing his hand under his shirt gave the officer concern "about weapons." The judge concluded that taken in conjunction with the fact that this was a high crime area, and that it was after dark, and also that the pat-down was preceded by the juvenile's admission that he had a screwdriver in his pocket,... under the totality of circumstances,... the frisk here was valid in terms of protection reasonably necessary for protecting the [o]fficer, and... he had a reasonable and particularized suspicion that the juvenile was armed and dangerous.

The judge then discussed the seizure of the marijuana; he noted that "the search was preceded by the juvenile admitting that he had some weed. And there is no indication in here that the [o]fficer went beyond the bounds of the acceptable Terry*fn1 search.... It was in the area of the screwdriver." The judge concluded ...


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