On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 08-10-0393.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2011 -
Before Judges Cuff and Waugh.
Defendant Aaron Boyd appeals from his conviction, following a guilty plea, for second-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(2), fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a)(1), and driving while his driver's license was suspended, contrary to N.J.S.A. 39:3-40. Boyd argues on appeal that the trial judge should have suppressed the evidence resulting from the motor vehicle stop that led to his arrest and that the judge should also have granted his motion for access to the arresting officer's personnel and disciplinary records to determine whether there had been racial profiling. We affirm the denial of the motion to suppress premised on Boyd's Fourth Amendment claims, but remand for further consideration of the issue of selective enforcement.
We discern the following facts and procedural history from the record on appeal.
On July 18, 2008, shortly after 3:30 a.m., Byram Township Police Officer Daniel DeWald observed Boyd's vehicle traveling westbound on I-80. The vehicle was in the middle lane of three westbound lanes, traveling at a speed between thirty-five and forty miles per hour. The speed limit on that section of I-80 was sixty-five miles per hour. DeWald also observed that the vehicle was failing to maintain its lane. Based upon the slow speed and inability to maintain the lane, DeWald activated his overhead lights to effectuate a traffic stop to investigate a possible driving while intoxicated.
Activation of the overhead lights on DeWald's marked police vehicle started the video recording camera mounted in the vehicle. Consequently, the events that followed were recorded, and the resulting video was played during DeWald's testimony.
After getting Boyd to pull over and stop, which Boyd was slow to do, DeWald approached the vehicle on the passenger side and spoke to Boyd through the open window. According to DeWald, Boyd appeared intoxicated because he was disoriented and had a slow, mumbling speech pattern. Boyd reached into the center console of the vehicle, but DeWald could not see what Boyd was doing there. DeWald went behind the vehicle and around to the driver's side. Because he could still not see what Boyd was doing with his hands in the console, DeWald decided to order him out of the vehicle.
DeWald told Boyd to exit the vehicle, but Boyd did not comply. DeWald tried to open the driver's door, which was locked. DeWald ordered Boyd several times to unlock the door and drop whatever was in his hands. When Boyd finally unlocked the door, he turned back to the console and refused to drop what was in his hands. Because DeWald was concerned about his safety, he opened the door and sprayed Boyd with pepper spray, after which he pulled Boyd out of the vehicle.
Boyd was holding a white bag in his hand as he was pulled out of the vehicle. DeWald described it as a shopping bag. The shopping bag contained approximately 250 small Ziploc bags, each of which contained a white powder that was subsequently determined to be cocaine. DeWald eventually determined that Boyd was not actually intoxicated, but arrested him for drug and driving offenses, including driving without a license.
Following his indictment in October 2008, Boyd moved to suppress the evidence seized at the time of the motor vehicle stop. That application was heard on May 19, 2009. At the beginning of the hearing, Boyd's defense counsel sought to present his client's pro se application for an in camera review of DeWald's personnel records, including complaints about his conduct. The judge initially declined to consider the application, but then heard argument from both sides on the issue. The judge refused to require the production of DeWald's records, but told Boyd that the "issue [could] be raised by [his] lawyer in any cross-examination of any of the State's witnesses."
DeWald was the only witness at the hearing. After hearing his testimony and counsels' argument, the judge denied the motion to suppress, explaining his reasons as follows:
But he initially was on, as we all saw, on the passenger side of this vehicle. And according to the officer, even before he questions this defendant, he observes the demeanor of the defendant as being an individual who he described as not being in full command of his faculties. He was not with it, so to speak. However, what he did observe, of course, was that the hands of the defendant were in this console area. He was not able to make . . . an observation of what it was the defendant was doing with his hands in that console area. He didn't know this defendant, never had any encounter with him prior. And so he goes around the back of the vehicle and to the driver's door, and demands that the [door] be opened.
Now, we're dealing with State v. Smith, it seems to the Court. State v. Smith is cited at 134 N.J. 599, a 1994 New Jersey Supreme Court decision which interprets the United States Supreme Court decision in Pennsylvania v. Mimms at 434 U.S. 106. And it concerns the issue of the operator of a vehicle being ordered out of the vehicle, and mentions the Terry standard that can be employed in concern for the welfare of the officer, and mentions the heightened awareness of danger as being justification for ordering the operator out of the vehicle. Because Officer DeWald did not know what he was confronting in the person of Mr. Boyd. And so he demanded he open the car. As he noted in his testimony, the defendant's body was turned away, but the defendant was looking back, and his hands remained in the console. That's why he wanted him out: For his protection; so he could see what it was that this defendant was doing with his hands. And . . . the struggle ensued, of course.
It's true that the officer was standing in the area of the open door, but he was ordering the defendant out. One can certainly reasonably draw an inference that had Mr. Boyd exited the vehicle he would have been able to do so without the violent confrontation that, in fact, takes place. . . . [A]fter all, that was the command of the police officer: To exit the vehicle.
Because of the safety issues surrounding the defendant being observed with his hands constantly being in that console location, and the officer not knowing what this defendant was doing, he being the only officer initially at the scene of this stop.
And on these grounds, in the Court's judgment, there isn't really any significant issue for the Court to address in terms of the application for the defendant to suppress evidence that was seized from the defendant, himself. That being the baggie and the [Ziploc] bag which apparently came apart in the struggle, as one can observe from the video. And the other bag was, with the forcible actions of the officer against the defendant who was resisting, putting his hands behind his back, became loose. And was laying on the pavement, if you will. So in the Court's judgment . . . there is no violation of constitutional proscriptions against unreasonable searches and seizures. It is a seizure to have the officer have the defendant removed from the vehicle. In this particular case it was warranted because of the safety issue under Terry, the heightened awareness of danger to the officer.
The judge also denied Boyd's application for an in camera review of DeWald's records. He ...