STATE OF NEW JERSEY v. ERIC POTTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2683-04T42683-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent

v.

ERIC POTTER,

Defendant-Appellant.

_________________________________________________

 

Submitted October 18, 2005 - Decided

Before Judges Skillman and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

03-10-2050.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Susan Brody,

Assistant Deputy Public Defender, of

counsel and on the brief).

Peter C. Harvey, Attorney General,

attorney for respondent (Maura K.

Tully, Deputy Attorney General, of

counsel).

PER CURIAM

Defendant Eric Potter appeals from his conviction by a jury on a charge of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1), challenging the constitutionality of the pat-down search that led to the discovery of the drug in his pocket, as well as testimony by a police witness at trial and other matters.

On appeal, defendant, through counsel, raises the following issues for our consideration:

POINT I

BECAUSE THE POLICE HAD NO VALID REASON TO PAT DEFENDANT DOWN FOR WEAPONS, THE RESULTING SEARCH WAS UNLAWFUL AND THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.

POINT II

THE IMPROPER ADMISSION OF IRRELEVANT AND PREJUDICIAL TESTIMONY FROM THE LEAD DETECTIVE REQUIRES REVERSAL OF DEFENDANT'S CONVICTION. (Not Raised Below.)

Defendant presents the following additional arguments in a pro se brief:

I.

THE COURT FAILED TO CONVEY THE APPLICABLE PRINCIPLES OF LAW AND THE STATE FAILED TO ENTER TESTIMONY THAT THE SUBSTANCE WITH WHICH APPELLANT WAS CHARGED WAS HEROIN.

II.

THE SEARCH OF DEFENDANT'S PERSON AND TESTIMONY RELATING TO THE INCIDENT SUBSTANTIATES ITS ILLEGALITY.

III.

THE COURT'S INSTRUCTION FOLLOWING THE JURY'S QUESTION RELATING TO AN EXHIBIT PREJUDICED THE DEFENDANT AND WAS ERRONEOUS DENYING A FAIR TRIAL. (Not raised below.)

I.

At the suppression hearing, the State's police witness, Detective Pangaro, testified that on January 31, 2003, a sergeant, two detectives, an investigator, and several uniformed officers had entered the Asbury Park home of Donna Hammary pursuant to a warrant issued in furtherance of an investigation of the use of counterfeit checks to purchase building and heating supplies. Ms. Hammary's brother, Darryl, who was also under investigation, accompanied the police. Ms. Hammary, who Pangaro described as cooperative, led the sergeant, the detectives and the investigator into a kitchen or dining area where defendant and a small child eating cereal were seated at a table. The detective stated that defendant, who was wearing a bulky winter coat and had a cell phone in hand, "stood up very abruptly. Which I thought was totally inappropriate for the situation, because Ms. Hammary was very nice, being very cooperative, and Mr. Potter jumped up when we said we're the police, we have a search warrant for the house." At the time, Pangaro testified, he did not know if Potter or Hammary had anything to do with the crimes under investigation.

After the prosecutor attempted to suggest that defendant looked startled, and an objection to the question containing that suggestion was sustained, the detective continued:

When he got up abruptly like that we were across the room from him. It surprised me because at this point everyone had been cordial, had been very relaxed. Potter jumped up[.] I was immediately concerned for his reason for being there, why he would react that way.

My immediate concern was for myself, the other officers and the people in the house.

Detective Pangaro ordered defendant to sit down, which he did. When asked to describe defendant's demeanor, Pangaro stated that "[h]e appeared very nervous to me," especially in contrast to Hammary, and he reiterated his safety concerns.

Pangaro stated that he and Detective Faller went around the table until they could get closer to defendant, and at that point, Pangaro told Potter to stand up, at which time he "began to pat him down for weapons." Pangaro then testified: "I began to pat him down and he immediately reached to his right front pants pocket, very abruptly and quickly, to the point I had to grab his hand." Defendant stated that the police did not have a search warrant for him. Pangaro testified that he responded that he was checking defendant for weapons.

When Pangaro patted down the pocket that defendant was reaching for, he felt a hard object, several inches long, that he thought "could have been a pocketknife." Pangaro reached into the pocket and "out of the pocket came a lighter and what I believed to be a bag of heroin." Pangaro stated that he had seen switch-blade knives disguised as lighters in Ocean Township.

Neither Ms. Hammary nor the child was searched. According to Pangaro, because Hammary answered the door dressed only in a pair of boxer shorts and a t-shirt, he could clearly see that she did not have any weapons on her. Pangaro did not perceive the child to be a threat.

On cross-examination, Pangaro admitted that he was not surprised to find defendant in the house, stating "we encounter people in homes all the time." Further, Pangaro testified that he did not find it particularly unusual that defendant was wearing a heavy coat, stating "he could have just came in." Thus, he did not deem defendant's clothing as "something that's suspicious." Pangaro additionally confirmed that when told to sit down, defendant had done so, and at that point had not "put[] his hands in his pockets or anything like that."

When then questioned about his conclusion that defendant looked "nervous," the following exchange took place:

Q And you say he looks nervous?

A That's correct.

Q But you have no idea what kind of relationship is going on between him and Ms. Hammary, right?

A No.

Q She's there, in what sounds like night clothes.

A I don't, maybe that's what she wears around the house, I don't know. I couldn't characterize it that way, I don't know.

Q You didn't know if you had interrupted something maybe between them, either, right?

A No[] idea.

Q And do you know if Ms. Hammary is a married woman?

A I don't know that.

Q So, why he might be nervous about having been in this house and people showing up in this house, with this woman in perhaps her bed clothes, that doesn't seem out of the ordinary either, would it?

A I can't answer what would be ordinary or not. He was nervous and -

Q You don't know what he was nervous about.

A Specifically, no I don't. I believed he was nervous about the police presence in the house.

Q But that's conjecture on your part, right?

A That would be my belief.

Pangaro testified additionally in response to defense counsel's questions that the search warrant, which the officers did not have in their possession when they entered the house, authorized only a search for "checks, blank checks, things to make checks, the computer to be printed on, that type of thing."

Pangaro said that he had "no idea" what defendant's "involvement was or was not in the case," and he had no specific suspicion of any involvement.

The motion judge credited the testimony of Pangaro, finding it more credible than that of defendant and Hammary, who had given a different version of the events. However, he interpreted Pangaro's testimony as establishing that defendant, appearing nervous, reached suddenly for his pocket before the pat-down commenced. He therefore found the detective's search to fall within the protective search exception to the Fourth Amendment under standards set in State v. Thomas, 110 N.J. 673 (1988). Defendant's motion to suppress the evidence that was seized in that search was denied.

Our previous discussion discloses that the motion judge did not correctly recall Pangaro's testimony, which established that the pat-down already had commenced when defendant reached for his pocket. We thus view the Fourth Amendment issue raised on appeal in that light.

Our analysis begins with the United States Supreme Court's decision in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), in which the Court permitted a protective search following an investigatory stop by a police officer

where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

* * *

And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

[Id. at 27, 88 S. Ct. at 1883, 20 L. Ed 2d at 909.]

The Court's standard of objective reasonableness was later followed in Ybarra v. Illinois, 44 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979), a case in which a search of defendant in the course of a wholesale pat-down of bar patrons was invalidated as violating the Fourth Amendment. There, the Court emphasized the narrowness of the Terry exception to the requirement of probable cause, stating:

The Terry case created an exception to the requirement of probable cause, an exception whose "narrow scope" this Court "has been careful to maintain." Under that doctrine a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. . . . The "narrow scope" of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked . . . .

[Id. at 93-94, 100 S. Ct. at 343, 62 L. Ed. 2d at 247 (footnote omitted).]

Although the requirement of an objectively reasonable suspicion can be satisfied by the circumstances leading to an investigatory stop if a crime of violence is suspected, if a tip suggests weapons possession, if the suspect has been known to possess weapons in the past, or if he is suspected of being involved in a particularly serious drug offense, see Thomas, supra, 110 N.J. at 680-82, "in situations where the suspect is not thought to be involved in violent criminal conduct and the officers have no prior indication that the suspect is armed, more is required to justify a protective search." Id. at 680.

In the present case, none of the criteria recognized in Thomas were satisfied at the time that the pat-down of defendant was commenced. He was not suspected of a violent crime, and such was not the subject of the police's investigation. At their time of entry, the police had no information that would have led them to believe that defendant was armed or otherwise dangerous. He was in fact unknown to the officers on the scene. Although defendant had a significant criminal record, that fact was not then recognized. Nor was drug-related activity or other criminal conduct of a type that would lead to a suspicion of weapons possession observed or suspected. As we stated, the police were authorized to search only for counterfeit checks and counterfeiting equipment such as computers in connection with an investigation of non-violent criminal activity.

Defendant, according to Pangaro, made a sudden and furtive movement to his pocket, thereby increasing Pangaro's concern for his own safety and that of his fellow officers. However, we find it significant that the pat-down had commenced when the furtive movement was made, and it occurred in response to that pat-down, not as its prelude. When the pat-down began, any suspicion of weapons possession could only have been premised upon the observation by Pangaro that defendant stood up abruptly when the police entered the room and thereafter appeared to be nervous. At no point prior to the pat-down did defendant engage in any conduct of a threatening nature or fail to comply with police commands.

We find in these circumstances that evidence that defendant stood in the presence of police and then exhibited nervousness does not provide a legally sufficient basis for the search of his clothing. State v. Dangerfield, 171 N.J. 446, 464 (2002) (flight on bicycle upon seeing police will not support a Terry frisk); cf. State v. Carty, 170 N.J. 632, 648 ("[U]nder the New Jersey Constitution, the appearance of nervousness is not sufficient grounds for the reasonable and articulable suspicion necessary to extend the scope of a detention beyond the reason for the original stop."), mod. on other gr. 174 N.J. 351 (2002); State v. Costa, 327 N.J. Super. 22, 32 (App. Div. 1999) ("A Terry stop must be supported by more than just an awkward reaction to police presence."). As the Court noted in an auto search context in State v. Lund, 119 N.J. 35, 48 (1990), "'[t]hat defendant appeared nervous while the police searched the car proves little more than that the presence of police officers tends to make most people somewhat apprehensive.'" (quoting State v. Palacio, 111 N.J. 543, 545 (1988) (Stein, J., dissenting)); see also State v. Rice, 251 N.J. Super. 136, 139 (App. Div. 1991) ("We suggest that the presence of three policemen at their threshold would excite many innocent occupants of a residence.")

Indeed, when Pangaro was asked on cross-examination what he thought was the source of defendant's nervousness, he responded that he "believed he was nervous about the police presence in the house." At no point in his testimony did Pangaro point to any articulable facts that would have led a reasonably prudent person to believe that his safety or that of his fellow officers was at risk. His suspicion was instead unparticularized, inchoate and subjective in nature.

We thus find that the search of defendant conducted in this case violated the Fourth Amendment, and the fruits of that search, consisting of the heroin that provided the foundation for defendant's possession conviction, should not have been admitted into evidence.

In light of our determination of this issue, we do not need to address the remaining arguments advanced in this appeal.

 
Reversed.

(continued)

(continued)

2

A-2683-04T4

December 16, 2005