STATE OF NEW JERSEY v. FELIX VEGA

This case can also be found at 198 N.J. 474, 968 A.2d 1189.
(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0103-07T40103-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

FELIX VEGA,

Defendant-Appellant.

__________________________________

 

Submitted: November 19, 2008 - Decided:

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-06-0465.

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

Anne Milgram, Attorney General, attorney for respondent (Maura K. Tully, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following denial of his motion to suppress, defendant Felix Vega pled guilty to third degree possession of a controlled dangerous substance (CDS) (cocaine) with intent to distribute, N.J.S.A. 2C:35-5a(1), (Count Two); second degree possession of CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1, (Count Three); three counts of third degree aggravated assault against a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a), (Counts Four, Five and Six); one count of third degree resisting arrest, N.J.S.A. 2C:29-2a(3), (Count Seven); and one count of third degree possession of cocaine, N.J.S.A. 2C:35-10a(1), (Count Eight). At sentencing, Judge Edward Coleman imposed a mandatory extended term of nine years imprisonment with a four-year period of parole ineligibility on Count Two. On Count Three, the judge imposed a concurrent nine-year term of imprisonment. The judge merged Count Seven with Count Six and imposed concurrent five-year terms of imprisonment on Counts Four, Five, Six, and Eight. This sentence is concurrent to a sentence imposed in Middlesex County. The judge also imposed the appropriate fines, penalties and assessments.

On appeal, defendant raises the following points, all of which are associated with the stop and search:

THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS.

A. The Police Officers Lacked Probable Cause To Stop The Automobile In Which The Defendant Was A Passenger.

B. The Police Officers Lacked Probable Cause To Arrest The Defendant On The Sole Basis Of A Minor Traffic Violation And Therefore The Arrest And Subsequent Search Were Illegal.

C. The Police Officers Lacked Reasonable Suspicion To "Stop and Frisk" The Defendant And Thus The Arrest And Subsequent Search Were Illegal.

We affirm.

On March 25, 2006, defendant and Donald Taylor were driving in Taylor's silver Acura in Franklin Township. Taylor arranged to give defendant a ride in exchange for gas money and two cigarettes dipped in PCP.

As Taylor was driving on Millstone Road in Franklin Township, he was observed by Sergeant Darrin Russo and Officers Mark Reiner and Ordel Taylor of the Franklin Township Police Department. The officers were dressed in plain clothes and operated an unmarked car, which was stopped at a stop sign at an intersection with Millstone Road.

The officers testified the Acura passed them at a high rate of speed, well over the posted 25 m.p.h. speed limit. The officers observed that the windows were tinted, but the passenger's window was down, and the driver's window was partially open. The officers saw that neither the driver nor defendant were wearing a seatbelt.

Sergeant Russo immediately made a right hand turn to follow the Acura and activated the police emergency lights as Officer Reiner called in the Acura's license plate number. Taylor turned into the parking lot of a strip mall at Route 27 and Millstone Road and parked. Russo parked the police vehicle behind the Acura and Officers Taylor and Reiner got out and approached the vehicle. The strip mall was located in an area with a lot of foot traffic and was known as a high crime area with narcotics activity.

Officer Taylor approached the driver and Officer Reiner approached defendant, the front seat passenger. Both officers wore plain clothes with their badges hanging from chains around their necks. Officer Taylor asked Taylor for his driver's license, registration and proof of insurance. Taylor gave his license to the officer. As he was doing so, Officer Reiner requested defendant produce some identification because defendant was not wearing his seatbelt in violation of the Motor Vehicle Code.

Defendant would not make eye contact with Officer Reiner, and made no verbal response to his request. Instead, he put his left hand into his left front pants pocket and appeared to be grasping something. He took his left hand out of his pocket, and put his right hand into his right front pants pocket. Then, defendant took his right hand out and put his left hand into the left pocket again, still with no verbal response or eye contact with the officer.

Officer Reiner found defendant's behavior odd, as usually people in a traffic stop would "make some type of statement" regarding the location of their driver's license, or their seatbelt use, or something of that nature. Officer Reiner's concern was heightened as defendant's hand went back into his left front pocket because Officer Taylor, from his vantage point on the other side of the car, stated that defendant was stuffing something into his pocket. Officer Reiner immediately ordered defendant to show his hands.

Defendant did not comply with Officer Reiner's commands, and did not take his left hand out of his pocket. Instead, defendant moved his right hand toward his left pocket. Officer Reiner reached through the open window to grab defendant's hands to try to control them. Defendant struggled with Officer Reiner and was able to get a glass bottle out of his left pocket. Officer Reiner smelled the odor of PCP, which he recognized from an earlier law enforcement experience involving the liquid form of that drug.

Officer Reiner told defendant to stop resisting and that he was under arrest. Sergeant Russo, who had approached the car in response to Officer Reiner's directions to defendant to show his hands, attempted to aid Officer Reiner in controlling defendant through the open car window. Officer Taylor was also attempting to aid Officer Reiner by leaning into the car through the driver's window. In the struggle with defendant, both Officer Reiner and Sergeant Russo were hit with the liquid from the bottle in defendant's hand. Sergeant Russo opened the rear passenger door and grabbed defendant from behind, holding him against his seat in a choke hold.

The officers called for assistance from other officers, and defendant continued to struggle. The officers told defendant to stop struggling and resisting, but defendant continued to do so, striking at the officers who were attempting to arrest him. The officers struck defendant several times in an attempt to control him, but defendant did not cease his efforts to resist arrest. Officer Taylor removed the driver from the vehicle and handcuffed him on the ground, and then entered the car in an attempt to control defendant.

Finally, with the help of another officer who arrived on the scene, defendant was removed from the vehicle and handcuffed. As defendant was being removed from the vehicle, a clear plastic bag fell from his left front pocket and landed on the floorboard of the vehicle. This plastic bag contained several smaller individual bags of what appeared to be cocaine, and also a smaller bag of marijuana. The bag was seized by police. The whole process, from the time Officer Taylor first stated that defendant had something in his pocket until defendant was handcuffed, took about a minute.

The driver denied operating his car in excess of the posted speed limit. Both defendant and the driver conceded that they were not wearing seatbelts. Although Judge Coleman did not resolve the factual dispute about speed, it was unnecessary. Failure to wear a seatbelt is a primary offense. N.J.S.A. 39:3-76.2f. Thus, the officers could stop Taylor's vehicle as soon as they observed that neither the driver nor defendant were wearing seatbelts as required by law. In other words, the officers had an articulable and reasonable suspicion to stop the Taylor vehicle. State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997).

In his oral opinion, Judge Coleman credited the testimony of Officers Taylor, Russo and Reiner. We are bound to accept Judge Coleman's findings of fact and defer to his credibility findings, when such findings are supported by sufficient evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). Here, defendant has failed to identify any reason to depart from these findings. Each are well supported by substantial credible evidence in the record.

We also discern no legal error. Judge Coleman emphasized that he must consider the reasonableness of the search and seizure based on the totality of the circumstances. He noted that the situation escalated rapidly and found that the police acted reasonably at all times. We agree.

The vehicle was legally stopped due to the seatbelt violation. Smith, supra, 306 N.J. Super. at 380. In order to issue the appropriate summons, the officers appropriately asked for identification. When defendant failed to respond to the request and simultaneously started stuffing an object in his pocket, the officer justifiably asked defendant to show his hands. State v. Otero, 245 N.J. Super. 83, 92 (App. Div. 1990). When defendant refused to show his hands and continued to stuff something into his pocket, the officer had a reasonable suspicion he was armed and a sufficient justification to frisk or pat down defendant outside of the car. Id. at 92-93. Defendant was arrested only when he refused to get out of the car and actively resisted his removal from the car.

 
In short, we agree with Judge Coleman that the police acted appropriately throughout this encounter. Therefore, the judge properly denied defendant's motion to suppress the seized evidence.

Affirmed.

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A-0103-07T4

December 10, 2008