STATE OF NEW JERSEY v. MARLON EUTSEY, HASSAN CANTY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5370-06T45370-06T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MARLON EUTSEY, HASSAN CANTY,

and VASHAWN EUTSEY,

Defendants-Respondents.

__________________________________

 

Submitted January 9, 2008 - Decided

Before Judges Wefing and R. B. Coleman.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, No. 06-05-0597-I.

Anne Milgram, Attorney General, attorney for

appellant (Robyn B. Mitchell, Deputy Attorney

General, of counsel and on the brief).

No brief was filed on behalf of respondent

Marlon Eutsey.

No brief was filed on behalf of respondent

Hassan Canty.

John W. Hartmann, attorney for respondent

Vashawn Eutsey.

PER CURIAM

The State appeals, pursuant to leave granted, from a trial court order granting the motion to suppress of defendant Vashawn Eutsey. After reviewing the record in light of the contentions advanced on appeal, we reverse.

Defendant was arrested shortly after 6:00 p.m. on August 29, 2008, in Trenton. He had been a passenger in the front seat of a black Mercedes Benz automobile driven by his co-defendant Marlon Eutsey. Co-defendant Hassan Canty was a passenger in the rear seat.

Detective Brian Suschke of the Trenton Police Department was on patrol with Lieutenant William Straniero and Chief Al Paglione, both of the Mercer County Prosecutor's Office. All three were working as members of the violent crime interdiction task force. Lieutenant Straniero was driving an unmarked vehicle, and Chief Paglione was in the rear passenger seat. The three men were wearing black tactical police clothing and wore their badges around their necks on chains.

Lieutenant Straniero drove into a housing project identified as Donnelly Homes. There was testimony that there were a number of residential buildings in this project and a number of streets and parking areas. Detective Schuske testified that Donnelly Homes was a high-crime area in which he had made numerous arrests. He also testified that his safety had been threatened in the past when making such arrests and that on many occasions objects such as beer bottles and soup cans had been thrown from the roof tops at arresting officers.

As Lieutenant Straniero was driving toward the exit of Donnelly Homes, after finishing their survey of the area, his vehicle was passed by a black Mercedes Benz four-door sedan driving into Donnelly Homes. Both he and Detective Schuske simultaneously noticed that the driver of that car was not wearing his seatbelt. Based on the designation of the Donnelly Homes as a zero tolerance area, Lieutenant Straniero made a U-turn, intending to give the driver a motor vehicle summons. N.J.S.A. 39:3-76.2f.

Lieutenant Straniero testified that by the time they reached the car, it had pulled into a parking spot. He activated his lights and flashers. Defendant opened his front passenger door, got out of the car and started to leave. Detective Schuske simultaneously got out of the unmarked vehicle and ordered defendant to stop. Defendant did not and began to run away. Detective Schuske and Chief Paglione pursued him, leaving Lieutenant Straniero at the scene with the other two men. The two men were unable to keep up with defendant, who climbed over a fence. They radioed their pursuit and another officer who was nearby took up the chase. That officer saw defendant discard something. Defendant was eventually apprehended; the officer returned to where he had seen defendant toss an object and retrieved a clear plastic bag containing a quantity of powdered cocaine.

When Detective Schuske and Chief Paglione gave up their pursuit of defendant, they returned to the car that had been their initial object. Lieutenant Straniero was standing at the rear driver's side. He had instructed the two remaining men to keep their hands visible but had waited for the others to return before approaching the car more closely. Detective Schuske came up behind Lieutenant Straniero, and the two moved forward. When the lieutenant came up to the driver's side, he looked into the vehicle and saw the handle of a handgun protruding from under the driver's seat.

All three men were charged with possession of the weapon. Defendant was also charged with possession of cocaine, possession of cocaine with intent to distribute, possession of cocaine with intent to distribute within one thousand feet of school property and possession of cocaine with intent to distribute within five hundred feet of a public facility. Defendants filed a motion to suppress. After hearing the testimony of Lieutenant Straniero and Detective Schuske and the argument of counsel, the trial court denied the motion with regard to the handgun that had been recovered but granted the motion with respect to the cocaine. The State moved for leave to appeal and, as we noted at the outset, we granted that motion.

The trial court, in its oral opinion, expressed the view that defendant, as a passenger in the car, had the right to leave the scene and did not have to respond to the command to remain. In support of this proposition, the trial court cited cases such as State v. Tucker, 136 N.J. 158 (1994), and State v. Irelan, 375 N.J. Super. 100 (App. Div. 2005). Both are distinguishable, however, for in neither case was the court confronted with the question whether the police could stop a passenger from walking away from the scene of a motor vehicle stop. The defendant in Tucker was sitting on a curb when a marked police vehicle drove by; seeing it, he ran. 136 N.J. at 161. The Supreme Court held that his mere flight did not give the police reasonable suspicion that he had committed an offense. 136 N.J. at 173.

The defendant in Irelan was the driver of a vehicle stopped after the police saw it commit several motor vehicle offenses. After talking with the driver briefly, the officer asked him to step out of the car, believing he could be intoxicated. 375 N.J. Super. at 106. After the driver failed several field sobriety tests, he was charged with driving while intoxicated, N.J.S.A. 39:4-50. Ibid. The court noted in the course of its opinion that the passenger in the car had a cell phone and called his girlfriend to make arrangements to be picked up at a nearby location; after completing his call, he walked away to meet her. Id. at 107. There was no attempt to detain the passenger at the scene, and thus the court was never confronted by the question presented by this appeal.

After the trial court decided this motion, and while the State's appeal was pending, the New Jersey Supreme Court issued its opinion in State v. Sloane, 193 N.J. 423 (2008). A member of the Carteret police department on routine patrol saw a car being driven by Sherma Moore; the officer had reason to believe that Moore's driver's license was suspended. Id. at 426. After verifying that in fact it was suspended, the officer put on his overhead lights, and the car pulled into a parking spot. Ibid. Sloane was a passenger in that vehicle. Both Moore and Sloane got out of car and approached the police vehicle; the officer ordered both to get back into the car and both did so. Ibid. He asked Moore for her driving credentials; after again confirming that her license was suspended, he did a check through the NCIC database and learned of an outstanding warrant for her arrest. Ibid. Based upon that, he placed Moore under arrest.

At that point, Sloane asked for the keys to the car, which was registered in his uncle's name. Ibid. Moore, however, had told the officer that she did not want Sloane to have the keys. The officer asked for identifying information from Sloane to verify that he was a licensed driver and learned that he, too, had had his license suspended. Id. at 426-27. An NCIC check was performed that disclosed he also had outstanding warrants and a parole violation. Id. at 427. Sloane was arrested. A routine search at police headquarters turned up crack cocaine which Sloane had hidden in his shoe. Ibid.

Sloane filed a motion to suppress, which the trial court denied. Ibid. This court reversed, and the Supreme Court granted the State's petition for certification. Id. at 428. The Court reversed the decision of this court and reinstated that of the trial court. Id. at 439.

In the course of the decision, Chief Justice Rabner discussed whether a passenger in a car that is the subject of a motor vehicle stop is seized for purposes of constitutional analysis. Id. at 429-32. In reaching the conclusion that the passenger is, indeed, seized, he relied upon the opinion of the United States Supreme Court in Brendlin v. California, ___ U.S. ___, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007). Brendlin was a passenger in a car stopped for a motor vehicle violation; the police recognized him as being wanted for a parole violation, and he was placed under arrest. Id. at ___, 127 S. Ct. at 2404, 168 L. Ed. 2d at 136-37. A subsequent search led to the discovery of methamphetamine. Id. at ___, 127 S. Ct. at 2404, 168 L. Ed. 2d at 137. Brendlin's motion to suppress was denied, a result the California Supreme Court affirmed, on the basis that Brendlin, as a passenger, was not "seized" as a consequence of the motor vehicle stop. Id. at ___, 127 S. Ct. at 2404-05, 168 L. Ed. 2d at 137. The question of "seizure" was critical because the state conceded that the motor vehicle stop itself was invalid. Ibid. Only if Brendlin was seized would he have standing to challenge that stop. A unanimous Supreme Court, through Justice Souter, held that he was seized. Id. at ___, 127 S. Ct. at 2410, 168 L. Ed. 2d at 143-44. In reaching its conclusion, the Court noted,

[A]ny reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission.

A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on "privacy and personal security" does not normally (and did not here) distinguish between passenger and driver. An officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place.

[Id. at ___, 127 S. Ct. at 2406-07, 168 L. Ed. 2d at 139-40.]

Chief Justice Rabner relied upon these observations in reaching the conclusion that the defendant Sloane was "seized" when the car in which he was a passenger was stopped and, in consequence, was not free to leave. Sloane, 193 N.J. at 431.

The conclusion that Sloane was not free to leave the scene of the motor vehicle stop impels, in our judgment, the conclusion that defendant Eutsey was similarly not free to walk away in complete disregard of the officer's command to stop. In Sloane, the Chief Justice noted the safety concerns attendant to a motor vehicle stop. Id. at 434. Those same safety concerns are clearly supported by this record and are in no way lessened by the fact that the vehicle in question had pulled into a parking spot.

Our conclusion in this regard is further supported by the decision of the Court of Appeals for the Third Circuit in U.S. v. Bonner, 363 F.3d 213 (3d Cir. 2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 868, 160 L. Ed. 2d 783 (2005). The police in that case stopped a vehicle that was being driven at night with one headlight out and an expired inspection sticker. Id. at 215. As an officer approached the car, the front seat passenger got out and ran, giving no heed to the shouted commands to stop. Ibid. He was eventually apprehended and found to be in possession of a quantity of crack cocaine. Ibid. The Court of Appeals reversed the District Court, which had granted the defendant's motion to suppress. The Court of Appeals held that in connection with a legitimate motor vehicle stop, "a police officer has the authority and duty to control the vehicle and its occupants, at least for a brief period of time." Id. at 217 (footnote omitted). The court continued that "[f]light from a non-consensual, legitimate traffic stop (in which the officers are authorized to exert superintendence and control over the occupants of the car) gives rise to reasonable suspicion." Id. at 218.

Similarly, the police here had the authority to control this vehicle and all its occupants for a brief period of time while they attended to the observed motor vehicle violation.

The order under review is reversed, and the matter is remanded to the trial court for further proceedings. We do not retain jurisdiction.

 

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A-5370-06T4

April 8, 2008