Argued March 24, 2015.
Approved for Publication April 16, 2015.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-08-1221. Remanded October 17, 2014. Submitted September 23, 2014.
Jacqueline E. Turner, Assistant Deputy Public Defender, argued the cause for appellant ( Joseph E. Krakora, Public Defender, attorney; Ms. Turner, on the brief).
Frank Muroski, Deputy Attorney General, argued the cause for respondent ( John J. Hoffman, Acting Attorney General, attorney; Mr. Muroski, of counsel and on the brief).
Before Judges FISHER, NUGENT and ACCURSO. The opinion of the court was delivered by FISHER, P.J.A.D. NUGENT, J.A.D., dissenting.
[440 N.J.Super. 231] FISHER, P.J.A.D.
After the denial of his suppression motion, defendant pleaded guilty to a drug possession offense and was sentenced to a three-year prison term. In this appeal, defendant argues only that the trial judge erred in denying his motion to suppress evidence seized during a warrantless search of the motor vehicle he was operating. We conclude - on the pivotal question - that police lacked a reasonable and articulable basis for ordering defendant's passenger out of the vehicle and reverse the order denying suppression.
[440 N.J.Super. 232] I
At the suppression hearing, the State's only witness was Woodbridge Detective Brian Jaremczak. He testified that, at approximately 4:30 p.m., on April 29, 2011, he and his partner, Detective Patrick Harris, observed defendant operating a Ford Bronco; S.R., the owner of the vehicle, was in the front passenger seat. The detective
testified he was " very aware" of S.R. and " had just recently heard about" defendant; he believed they were " narcotic users and narcotic dealers" because the police department had received " information from concerned citizens" about " a lot of traffic coming and going from [defendant's] apartment."
The detectives, driving an unmarked vehicle, followed defendant's Ford Bronco out of Woodbridge and onto Routes 1 and 9, heading toward Newark; they eventually lost the Bronco on Frelinghuysen Avenue. Suspecting defendant and S.R. " were going to purchase narcotics" and " would be back very shortly," the detectives drove to Woodbridge and awaited the Bronco's return.
At approximately 5:30 p.m., while waiting on the border of Woodbridge and Rahway, Detective Jaremczak observed the Bronco traveling south on Routes 1 and 9. When asked what happened next, the detective testified that " we" observed S.R. " wasn't wearing his seatbelt." They activated their vehicle's emergency lights and directed the Bronco to stop.
Detective Jaremczak approached the passenger side, and his partner approached the driver's side. When asked whether he " notice[d] any movement by either" occupant, Detective Jaremczak responded that " [his] partner did," and that his partner " saw [defendant] reaching forward . . . like, reaching under his seat." Defense counsel immediately objected because the witness lacked personal knowledge. The judge made no ruling but only asked the witness whether he observed defendant's movement, and Detective Jaremczak responded " no." In answer to the prosecutor's [440 N.J.Super. 233] next question, the detective explained he was " focused on" S.R., confirming he did not see defendant's alleged furtive movement. The detective testified his partner asked defendant to exit the vehicle, and he directed S.R. out of the vehicle. Both occupants complied.
The detectives separately questioned the occupants, who gave different responses to where they were coming from, which, according to the witness, " further heighten[ed] [their] suspicion as to what occurred." During his questioning of S.R., Detective Jaremczak noticed " a rolled up piece of paper[,] which was in the shape of a straw[,] [a]nd a piece of Chore Boy Brillo" " near the front of the middle console." He testified that, in his experience, " [t]he straw can be used to snort narcotics," and the other item " is used, pretty much, as a filter in a crack pipe." As a result of these observations, Detective Jaremczak requested and obtained S.R.'s consent to search the vehicle. The detective read him the consent form; to him, S.R. did not " appear to be under the influence of any narcotics or drugs" and appeared to understand the consent form that he signed.
In the search of the vehicle that followed, the officers seized the straw and scrubber observed in " plain view," as well as " blunt wrappers," " a used crack pipe inside of a Maverick cigarette pack," " [a] larger piece of Chore Boy copper scrubber," and " [thirteen] vials of crack cocaine in a Newport cigarette pack."
Although during direct examination the detective testified only that " we" observed S.R. was not wearing a seatbelt, when cross-examined he testified that he observed it, although he could not remember any details and did not issue a summons for that alleged violation. When pressed, Detective Jaremczak acknowledged there were actually two reasons for the motor vehicle stop: (1) S.R. was not wearing a seatbelt, and (2) he " believe[d] that they just went to Newark to purchase narcotics." The detective also agreed the observations of the straw and scrubber were not
made until after S.R. stepped out of the vehicle as commanded:
[440 N.J.Super. 234] Q. Did you see [those items] through the windshield or through the side [window]?
A. Once he got out; the door was opened; and that's when I s[aw] it.
Q. How did he get out?
A. I asked him out.
. . . .
Q. So you ordered him out of the car because you were conducting what kind of investigation?
A. I asked him out of the vehicle. And at that time it became a narcotic investigation.
Q. Isn't it true that it already was a narcotics investigation before [defendant] was ordered out of the car?
A. Yeah. I did believe that they went to Newark to purchase narcotics.
During direct examination, the prosecutor elicited testimony from the detective that the consent form for the search was executed at 5:55 p.m. The defense demonstrated during cross-examination, through use of a video taken from another police vehicle, that the detective was likely in error about the timing of consent.
As can be seen, Detective Jaremczak did not have personal knowledge of part of the circumstances that ostensibly justified the warrantless search. He did not see defendant reach under the seat; Detective Jaremczak testified only that Detective Harris said he observed this. When asked where Detective Harris was the day of the hearing, Detective Jaremczak said Harris was home and not expected to appear at the hearing.
No one else testified.
A week after the hearing, the trial judge rendered an oral decision, in which he found: the observation of S.R. not wearing a seatbelt gave the detectives a lawful reason for stopping the vehicle; defendant's reaching under his seat gave the detectives a reasonable suspicion of criminal activity and authorized their directions that defendant and S.R. exit the vehicle; once S.R. was out of the vehicle, drug paraphernalia was seen in plain view; and [440 N.J.Super. 235] S.R. thereafter freely and voluntarily gave his consent to the vehicle search, resulting in the seizure of thirteen vials of crack cocaine. For these reasons, the judge denied the motion to suppress.
Defendant later pleaded guilty to third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), and was sentenced to a three-year prison term.
In this appeal, defendant argues only that the judge erred in denying his suppression motion because the officers " did not have cause to order [S.R.] from the car." Accordingly, we need not question the legitimacy of the vehicle stop, notwithstanding the officers' overarching desire to conduct a narcotics investigation in the absence of reasonable suspicion to support that undertaking. In addition, there is no dispute about the observations of drug
paraphernalia in plain sight once S.R. was ordered out of the vehicle. And the voluntariness of the consent given for the search that followed has not been questioned. Consequently, this appeal rises and falls on whether S.R. was lawfully ordered out of the vehicle because, without that link in the ...