STATE OF NEW JERSEY v. SULAIMAN A. SLOANE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1934-04T41934-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SULAIMAN A. SLOANE,

Defendant-Appellant.

 

Submitted April 25, 2006 - Decided June 16, 2006

Before Judges Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-01-0008.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Debra A. Owens, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence, defendant Sulaiman A. Sloane entered a plea of guilty to third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1), and was sentenced to a term of three years of imprisonment, to be served concurrently with a sentence he was then serving for violation of parole. The plea agreement, which specifically preserved defendant's right to challenge the denial of the suppression motion, also resulted in the dismissal of three other counts with which defendant had been charged, each a drug-related offense and each based on the evidence seized in the challenged search.

On appeal, defendant contends that the motion judge erred in denying the motion to suppress, that he was deprived of a fair hearing because the judge permitted the introduction of hearsay evidence at the suppression hearing and that his sentence was excessive because the judge failed to adhere to the plea agreement. Because we agree with defendant's assertion that the motion to suppress should have been granted, we reverse the conviction on that ground and we do not, therefore, reach the other issues raised on appeal.

The following facts were developed during the hearing on the motion to suppress. On November 11, 2003, Louis Muzyka, a Carteret police officer with approximately three years' experience, was on a routine patrol in a marked police car. As he was driving on Romanowski Street, he saw a vehicle turn onto the roadway and noticed that it was being driven by a woman named Sherma Moore. Because Muzyka knew Moore and believed that her driver's license was suspended, he first contacted police headquarters. As soon as he verified that Moore's license was in fact suspended, he backed up his police car and activated his overhead lights to effect a stop. At that point, Moore was pulling into a parking space across from an apartment building located at 253 Romanowski Street.

According to Muzyka, after the car was parked, Moore and a passenger "jumped out of the vehicle very quickly. They stepped out . . . . They both came towards me." Muzyka did not know the passenger, but believed that he was a drug dealer named Russell. Concerned for his safety, the officer ordered both of them back into the car, calling the passenger by the name Russell. Both people immediately complied with Muzyka's order. The officer then approached the car on the driver's side and asked Moore to provide him with her driving credentials. When he checked again and found that her license was suspended, he also "ran her in the N.C.I.C." and discovered that there was an active arrest warrant for her from another county. Other patrol cars had arrived on the scene by this time and Muzyka returned to Moore's car, placed her under arrest and put her in the back of one of the patrol cars.

Throughout this time, the passenger, who was subsequently identified as defendant, but who Muzyka believed was Russell, remained in the front seat of the car as he had been told. According to Muzyka, as he was arresting Moore, the passenger asked for the car keys and Moore objected. Because Moore had told him that she did not want the passenger to have the keys, Muzyka asked the passenger if he had a driver's license. The passenger said that he did but that he did not have it with him. Muzyka asked the passenger for his name in order to check whether his license was valid before giving him the keys. The passenger told Muzyka that his name was Anwar Sloane and gave him his birth date and social security number. When the officer checked, he discovered that defendant's license was also suspended.

At that point, according to Muzyka, Officer Simback, who had arrived on the scene and was seated in another patrol car, ran defendant's name in the N.C.I.C. computer and learned that there was an arrest warrant for a Sulaiman Sloane. Simback told Muzyka what he had learned and Muzyka then asked defendant what his first name was. Defendant replied that it was "Sulaiman," but that "he goes by his middle name, Anwar." Muzyka then reconfirmed the information about the pending warrant with Simback and arrested defendant. During a search conducted at police headquarters following the arrest, cocaine was found on defendant's person, leading to the offenses for which defendant was later indicted.

Defendant's testimony at the suppression hearing was largely consistent with Muzyka's, differing in only four respects. First, defendant denied that he jumped out of the car quickly and "came at" the officer. Instead, he testified that the car belonged to his uncle, who resided in the apartment building across from where Moore had parked. He said that when Moore went to speak with the officer, he got out of the car and started to walk across the street, intending to go to his uncle's apartment. According to defendant, he was ten feet away from Muzyka, heading away from him, when the officer ordered him to get back into the car. Second, defendant testified that as soon as the officer called to him, using the other man's name, he told the officer that he was not "Russell." Third, defendant testified that Moore suggested that he take the keys to his uncle and that Muzyka then asked him if he could do so. Finally, defendant testified that Muzyka asked him if he had a license and that he told the officer that it was suspended before Muzyka asked him for his name.

Based on this testimony, the motion judge concluded that the initial stop of the vehicle was valid and that the direction to defendant to return to the vehicle was permissible in light of the officer's concern for his own safety. He further concluded that the inquiry into the identity of the passenger and the further inquiry into whether he had a valid driver's license was permitted in light of the fact that the officer was being asked to turn over the keys to the vehicle to the passenger. The judge finally concluded that, once the officers learned about the outstanding arrest warrant, the evidence was discovered during a permitted search incident to the arrest.

Although we defer, as we must, to the motion judge's determination that the officer's testimony was more credible than was defendant's, see State v. Locurto, 157 N.J. 463, 472 (1999), and although we find no error in the judge's analysis of the officer's caretaking function as it related to the inquiry into defendant's status as a licensed driver to whom the keys could be given, we disagree with his ultimate decision to deny the suppression motion. Simply put, defendant was not arrested because he had no valid driver's license, rather he was arrested because Officer Simback decided to check defendant's name in the N.C.I.C. computer as well. The record provides no basis on which to conclude that the officers had any reasonable or articulable suspicion which permitted them to perform an inquiry beyond that which was needed to determine whether defendant had a valid license. Because it was only their further, impermissible inquiry that revealed to Officer Simback information about the outstanding warrant, and because only that added information led to defendant's arrest and to the discovery of the drugs during the search of his person, the search cannot be sustained.

We need only restate the well-settled principles governing our inquiry. The temporary detention of individuals by police during a motor vehicle stop constitutes a "seizure of persons" within the meaning of the Fourth Amendment to the Constitution. Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89, 95 (1996); see State v. Dickey, 152 N.J. 468, 475-76 (1998). As a general matter, passengers in a vehicle being detained ordinarily are subject to the same temporary detention in light of the fact that they usually have no means of leaving the scene, but must remain with the vehicle. Maryland v. Wilson, 519 U.S. 408, 413-14, 117 S. Ct. 882, 886, 137 L. Ed. 2d 41, 47 (1997). Here, crediting the testimony of the officer, as soon as the car was parked, defendant immediately "jumped" out and "came towards" him. At the time, the officer believed that Moore was driving while suspended and he believed that defendant was a drug dealer named Russell. Under the circumstances, we discern no error in the judge's conclusion that the officer was entitled to order defendant back into the vehicle as a precaution for his own safety. We see nothing in that brief detention that was impermissible. State v. Hickman, 335 N.J. Super. 623, 636 (App. Div. 2000).

Nor was there anything impermissible in officer Muzyka's decision to verify whether or not defendant had a valid driver's license prior to handing him the keys to the vehicle. See State v. Pegeese, 351 N.J. Super. 25, 31-32 (App. Div. 2002) (detention of passenger pending license check is permitted); cf. Hornberger v. Amer. Broadcasting Cos., 351 N.J. Super. 577, 613-14 (App. Div. 2002)(concluding that police may not ask passengers for identification without sufficient basis). Whether Moore objected to defendant being given the keys or suggested it, the officer was entitled, in the name of community caretaking, to ensure that he was not turning the keys over to someone who was not authorized to drive. In fact, at the time that the discussion about giving the keys to defendant took place, the officer still apparently believed that defendant was a criminal named Russell. That belief, we conclude, adequately supported his decision to inquire into defendant's status as a licensed or an unlicensed driver. See Dickey, supra, 152 N.J. at 474.

Notwithstanding the foregoing, once defendant gave his name, along with his correct birth date and social security number, and once the officer learned that defendant's license was suspended, the justification for defendant's detention ended. Nothing had heightened the officer's suspicions about defendant and nothing operated so as to permit an expansion of the inquiry into anything more intrusive. See State v. Chapman, 332 N.J. Super. 452, 465 (App. Div. 2000)(inconsistent answers given by three occupants as to their recent whereabouts justified expanded inquiry consisting of more intrusive questions). At that point, the officer had no reason to believe that the vehicle was stolen, and in fact it was not. The officer could have secured the car, intending to alert the rightful owner thereafter so that he could retrieve the keys or the officer could have sent one of the other officers who had arrived by that time to the owner's apartment across the street to turn the keys over to the owner. Either course of action would have adequately discharged his duty to ensure that the vehicle not be driven by anyone not authorized to do so. Neither course of action required any further interaction with defendant who, at that point in time, had done nothing to arouse any suspicion. Indeed, in the absence of some reasonable articulable suspicion, further detention and further investigation of defendant, under the circumstances, was impermissible. See State v. Carty, 170 N.J. 632, 647, modified by, 174 N.J. 351 (2002).

It is significant to our analysis that defendant was a passenger in the vehicle only and had not even committed a traffic offense. See State v. Cargill, 312 N.J. Super. 13, 17 (App. Div.)(safety concerns based on passenger's behavior during routine traffic stop provided support for protective pat down search), certif. denied, 156 N.J. 408 (1998); State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)(direction to passenger to remain in vehicle with hands in view permitted; passenger's disobedience to order heightened suspicion as to passenger's involvement in crime). Moreover, it is significant to us that defendant complied with the direction that he return to the vehicle, that he answered the officer's legitimate inquiries truthfully and that he gave the officer no reason to suspect that he was or that he had been engaged in any criminal activity. In that context, once the officer concluded that he should not give the keys to defendant, he had no further basis on which to detain him. See State v. Arthur, 149 N.J. 1, 15 (1997)(observation that supports investigatory stop does not automatically justify subsequent search). To reach any other conclusion, we think, would be to authorize the sort of "fishing expedition" our Supreme Court has cautioned us to be vigilant to protect against when considering routine traffic stops. See Carty, supra, 170 N.J. at 647.

It is also significant to our analysis that the search of the N.C.I.C. records that uncovered the outstanding warrant for defendant's arrest was undertaken by an officer who had not been involved in the initial vehicle stop, had not been advised that Muzyka thought that defendant was a drug dealer named Russell, had not been a party to the inquiries about defendant's identity and was sitting in a different patrol car that had arrived while the investigation was in progress. The record reveals no reason why that officer decided to conduct a search of the N.C.I.C. records and certainly does not suggest that he had any reasonable or articulable suspicion that defendant was engaged in any wrongdoing as would justify that inquiry.

Because we conclude that the motion to suppress the evidence found on defendant's person following his arrest should have been granted, we reverse. We conclude that his guilty plea, based on the denial of the suppression motion, as well as his conviction, must therefore be vacated and we remand for further proceedings consistent with this opinion. We decline to consider the additional arguments that defendant has advanced on appeal.

Reversed and remanded.

 

Permission to appeal the denial of a motion to suppress evidence following a guilty plea is also provided for in R. 3:5-7(d). See State v. Greeley, 178 N.J. 38, 50-51 (2003).

The motion to suppress was first considered and denied on April 29, 2004, without an evidentiary hearing, based on the use of a transcript of grand jury testimony of the arresting officer alone. Following defendant's motion, and for reasons set forth on the record on May 20, 2004, the judge agreed to vacate that order and convene the evidentiary hearing which forms the basis for our consideration of the issues on appeal.

(continued)

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12

A-1934-04T4

June 16, 2006