STATE OF NEW JERSEY v. LEE G. PERSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4569-04T44569-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEE G. PERSON,

Defendant-Appellant.

____________________________________

 

Submitted March 8, 2006 - Decided July 27, 2006

Before Judges Wecker and Graves

On appeal from the Superior Court of New

Jersey, Law Division, Burlington County,

03-10-1350-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Robert Seelenfreund,

Assistant Deputy Public Defender, of counsel

and on the brief).

Zulima V. Farber, Attorney General, attorney

for respondent (Daniel I. Bornstein, Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Lee G. Person, appeals from an order denying his motion to suppress evidence. After his motion was denied, defendant entered a conditional plea of guilty to third-degree possession of a controlled dangerous substance, cocaine. N.J.S.A. 2C:35-10a(1). He was sentenced, in accordance with his plea agreement, to a three-year probationary term, with 364 days in the Burlington County Jail, suspended, pending successful completion of probation.

On appeal, defendant argues:

POINT I

THE MOTION TO SUPPRESS WAS IMPROPERLY DENIED (U.S. CONST., AMEND. IV; N.J. CONST., ART. I, PARA. 12)

We have thoroughly reviewed the record in light of defendant's contentions and find insufficient merit in his argument to warrant extended discussion. See R. 2:11-3(e)(2). We add only these brief comments, based on the transcript of defendant's motion to suppress.

A local Burlington Township police officer observed defendant drive out of the parking area of a local bar after midnight on a July night. The officer heard defendant's car radio playing very loudly from a distance of about 200 feet, a violation of a local noise ordinance. The officer made a U-turn in order to follow the vehicle and issue a summons.

When the officer activated his overhead lights, defendant pulled into a local hospital emergency room parking area and came to a stop. The officer stopped behind him. Defendant attempted to get out of his car, but he had parked too close to another vehicle and was having difficulty opening his door far enough to get out. The officer told him to remain inside, and asked for his credentials. At the same time, the officer observed defendant repeatedly moving his hand around his "groin area." Defendant was able to produce a registration and insurance card, but although he gave his name, he did not produce a drivers' license. Defendant's name was not the name on the registration, and defendant did not know whose car it was. He claimed to have borrowed the car from a friend, but did not know the friend's name.

Defendant was told to get out of the car, and after being observed once again clutching at his groin area, he was patted down by the officer in a valid Terry "frisk." See Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The officer felt no hard object, and was satisfied that defendant had no weapon. He did feel something soft under defendant's clothing. At that point, the officer decided to detain defendant pending confirmation of his identification and a determination that the car he was driving was not stolen. The officer held onto defendant's clothing as he endeavored to move him into the locked back seat of the patrol car. As the officer reached inside the open front window of his patrol car to unlock the rear door, defendant slipped out of his grasp and ran away.

The officer radioed for back-up, describing defendant and the wooded area next to the hospital where he had run. Another officer quickly found defendant hiding inside a dumpster at the far side of the small wooded area. Neither a weapon nor contraband was found on his person. But the officer who originally detained defendant searched the wooded area through which defendant had run off and found a baggie containing material that was later confirmed to be packets of crack cocaine.

We agree with the Law Division judge who heard defendant's motion that the officer had a reasonable basis for stopping defendant to issue a summons for the violation of a municipal ordinance, for asking for his credentials, and for briefly detaining him in light of his failure to produce a license and failure to identify the owner of the vehicle. Defendant's movements, appearing to hide or protect something hidden inside his pants, justified a Terry patdown. Most significantly, when defendant ran off after being told he was to remain in the patrol car, the officers were justified in apprehending him for further investigation. Running from a police officer and abandoning the car he had been driving created reasonable suspicion that defendant was engaged in unlawful activity.

We affirm the order denying defendant's motion to suppress substantially for the reasons set forth by Judge Marvin E. Schlosser in an oral decision placed on the record on April 2, 2004.

 

(continued)

(continued)

5

A-4569-04T4

July 27, 2006