August 30, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JOSHUA C. CARTER, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 27, 2013
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 10-04-0371.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Kenneth Burden, Deputy Attorney General, of counsel and on the brief).
Before Judges Harris and Fasciale.
Defendant Joshua C. Carter appeals from the November 18, 2011 judgment of conviction, which reflects Carter's guilty plea to second degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). We affirm.
On appeal, Carter raises the following arguments for our consideration:
POINT I: THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1. PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE LENGTHY AND INTRUSIVE POLICE DETENTION.
A. THE STATE FAILED TO PROVE THAT THE OFFICER HAD REASONABLE SUSPICION TO DETAIN THE REAR SEAT PASSENGER DURING THE ISSUANCE OF A PARKING TICKET TO THE DRIVER.
B. THE STATE FAILED TO PROVE THAT THE INTRUSION ON THE PRIVACY AND LIBERTY INTERESTS OF THE REAR SEAT PASSENGER WAS WITHIN THE PERMISSIBLE SCOPE OF A DETENTION TO ISSUE THE DRIVER A PARKING TICKET.
POINT II: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE OFFICER'S RELIANCE ON RACIAL AND CLASS STEREOTYPES. (Partially Raised Below.)
We reject Point II as wholly lacking in merit and beyond any reasonable inferences gleaned from the record. R. 2:11-3(e)(2). As for the arguments contained in Point I, we affirm substantially for the oral reasons expressed by Judge Michael J. Haas on January 21, 2011, following the presentation of evidence in connection with Carter's motion to suppress. We add only the following brief comments.
The offense arises from an encounter between Carter, who was a rear seat passenger in a parked motor vehicle being operated by a person identified as Miss Harris, and two Burlington Township police officers on November 23, 2009. On that date, around 9:00 p.m., Police Officer Michael Casella observed Harris's automobile parked illegally in a fire zone at a liquor store. Casella approached the vehicle, spoke with both Harris and Carter, and returned to his police vehicle to check credentials. At that time, based upon inconsistent responses;photographic identification that, in Officer Casella's opinion, did not match Carter; Carter's nervous demeanor; and Carter not wearing a seatbelt, Officer Casella immediately felt unsafe and called for a backup officer.
While Officer Casella was in his police vehicle, he observed Carter continually turning around to look at him, and eventually waved at Officer Casella to come back to the car. When Officer Casella returned, he opened the car door to talk with Carter because the window was inoperable. Officer Casella testified, "Mr. Carter, he was anxious to leave; he wanted out of the car; he wanted to leave the whole situation completely; which, again heightened my suspicion." When he asked Carter for his address, Carter gave an ambiguous response, which Officer Casella considered evasive. Officer Casella then asked Carter to alight from the motor vehicle.
Following a pat-down during which Carter was defiant and uncooperative, backup Police Officer Broadway was "on the outside of the car approaching the passenger's side." Officer Casella noted that Carter "was concerned with where [Officer Broadway] was and continued to look at him. He also continued to look around the parking lot and look towards Sunset Road." At that point, Officer Broadway "made an observation through the rear window and alerted [Officer Casella] to a gun. Before he could even say gun, [Officer Casella] saw Mr. Carter turn around looking at Officer Broadway. When Officer Broadway got closer to the window, Mr. Carter took off running across Sunset Road." In short order, the gun was recovered, and Carter was apprehended and charged with possession of the weapon.
Judge Haas denied Carter's motion to suppress. He found the sole witness, Officer Casella, to be credible, with his testimony "corroborated in large part" by the contemporaneous videorecording of the events that were captured by a police mobile vision recorder inside Casella's vehicle. Judge Haas concluded:
So considering the totality of everything that happened, the time of night, the evasive answers, the evasiveness that continued, the nervousness, it made the officer, I feel, reasonably concerned for his safety which gave him the cause to have Mr. Carter get out of the vehicle. Once Mr. Carter got out of the vehicle, the gun could be seen.
We note that Carter's appeal is relatively narrow. He neither challenges the propriety of the motor vehicle investigation nor the plain view seizure of the weapon. Instead, he focuses on the length of the detention (approximately fourteen minutes) and the request to exit the automobile. We fully agree with Judge Haas that none of Carter's constitutional rights were violated by the police on the night of November 23, 2009.
Our scope of review of the motion judge's factual findings and credibility determinations in a suppression hearing is limited. We must uphold the factual findings if they are "'supported by sufficient credible evidence in the record.'" State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We "should give deference to those findings of the [motion] judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964) (citation omitted). Our review of a judge's legal conclusions, however, is plenary. Handy, supra, 206 N.J. at 45.
To remove a passenger from a car, the police "need not point to specific facts that the occupants are 'armed and dangerous.' Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger . . . ." State v. Mai, 202 N.J. 12, 22 (2010) (quoting State v. Smith, 134 N.J. 599, 618 (1994)). Such grounds for heightened caution need not rise to the level of a reasonable suspicion that the occupants are engaged in criminal activity. Smith, supra, 134 N.J. at 618.
Judge Haas found that Officer Casella observed unrelenting suspicious activity by Carter after the stop. We discern no basis to disturb this factual finding. Based on the totality of the observations following the stop Officer Casella had a reasonable articulable suspicion to open the passenger door and ask Carter to exit the motor vehicle Indeed since Carter wanted to leave there was nothing unreasonable about the police officer's conduct then and in the subsequent pat down which immediately preceded the plain view of the gun underneath the front seat See Mai supra 202 N.J. at 25.