STATE OF NEW JERSEY IN THE INTEREST OF K.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3456-08T3

STATE OF NEW JERSEY

IN THE INTEREST

OF K.M., a minor.

___________________

November 12, 2010

Submitted October 25, 2010 - Decided

Before Judges Miniman and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-470-09B.

Yvonne SmithSegars, PublicDefender, attorney for appellant K.M. (Robert Seelenfreund,Assistant DeputyPublic Defender, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent State of New Jersey (Mary R. Juliano, Assistant Prosecutor, of counsel; Meghan M. Clark, Legal Assistant, on the brief).

PER CURIAM

K.M. was charged with possession of less than fifty grams of marijuana. Following the denial of his motion to suppress, he pled guilty and was sentenced to deferred disposition for one year. He now appeals the denial of his motion to suppress.

The facts, based upon the testimony presented at the motion hearing, may be summarized as follows. On August 2, 2008, Officer Adam Mendes, of the Asbury Park Police Department, was on patrol at approximately 9:00 p.m. He was "in a fully marked patrol car," working with "the U.S. Marshal s Street Crime Warrant detail, patrolling high narcotics and high crime areas . . . taking action on . . . violations within those . . . areas." Mendes was a passenger in the patrol car which was driven by Officer Finkelstein. Mendes described the area as one known for "aggravated crimes [and] narcotics arrests," adding that "[w]eapons have been recovered in that area."

While traveling in the 1000 block of Springwood Avenue, the officers "observed [K.M.] riding a bicycle . . . in the street in an unsafe manner with no lights on it." Finkelstein pulled the police vehicle "up next to" K.M. and Mendes "rolled down [his] window," and "advised him to stop." Mendes stated that the purpose in stopping K.M. was "to conduct a field contact to advise him about how he was riding a bike, and to get lights on it in order to be riding it in the proper safe manner."

K.M. complied with Mendes's request to stop the bike. Mendes "noticed that as he stopped the bike, he immediately threw his right hand under the right side of his front pocket, under his shirt. . . . He tucked his hand under his shirt, . . . bending his elbow as if to stick it over his pocket, under his shirt."

This movement by K.M. made Mendes "a little nervous," and he "exited the patrol vehicle." He approached K.M. and asked him "if he had any weapons on him, or if he minded [being] . . . patted . . . down." K.M. volunteered that "he had a screwdriver in his right front pocket." Mendes "went in to retrieve the screwdriver . . . , at which point [he] detected a soft substance in a knotted plastic bag." Mendes "was pretty confident that it was consistent with CDS, marijuana." He asked K.M. "what was in the pocket" and K.M. "admitted . . . that . . . it was weed." Mendes stated that he "would have patted [K.M.] down regardless," and he "only asked the question because [he] wanted to see if [he] was going to get some kind of cooperation."

After K.M. admitted that he possessed "weed," Mendes "retrieved the object," which he described as "a greenish and brown vegetation suspected to be marijuana." He then placed K.M. under arrest for possession of marijuana.

Mendes testified that the screwdriver had been destroyed because K.M. was not charged with possession of the screwdriver so he "didn't keep it as evidence." He acknowledged that he did not issue a summons to K.M. for riding a bicycle at night without a light.

At the conclusion of the testimony, the motion judge rendered a decision from the bench. After reviewing the evidence, the judge found that the "investigatory stop was valid," and that K.M.'s conduct in placing his hand under his shirt gave the officer concern "about weapons." The judge concluded that

taken in conjunction with the fact that this was a high crime area, and that it was after dark, and also that the pat-down was preceded by the juvenile's admission that he had a screwdriver in his pocket, . . . under the totality of circumstances, . . . the frisk here was valid in terms of protection reasonably necessary for protecting the [o]fficer, and . . . he had a reasonable and particularized suspicion that the juvenile was armed and dangerous.

The judge then discussed the seizure of the marijuana; he noted that "the search was preceded by the juvenile admitting that he had some weed. And there is no indication in here that the [o]fficer went beyond the bounds of the acceptable Terry1search . . . . It was in the area of the screwdriver." The judge concluded that "under the plain feel doctrine, . . . it was a valid seizure of the marijuana."

The motion judge subsequently filed an amplification of his decision pursuant to Rule 2:5-1(b), and made credibility findings with respect to Officer Mendes. The judge found that Mendes "answered questions directly . . . . There was no attempt at evasion . . . , nor was there any evidence of intent to deceive." He further found that "[i]t was obvious from the testimony that the officer was able to recall in detail each step of the encounter and the reasons for his actions." Finally, taking Mendes's experience into account, the judge determined that the officer "established how each action of the juvenile warranted a countering action on his part," and concluded, "[b]ased on the foregoing assessment," that "Mendes[] was credible."

On appeal, defendant raises the following contention for our consideration:

THE TRIAL JUDGE'S CONCLUSION THAT THERE WAS REASONABLE SUSPICION THAT K.M. WAS ARMED AND DANGEROUS WAS INCORRECT; THE FRISK WAS THEREFORE UNCONSTITUTIONAL AND THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.

Having reviewed this contention in light of the record and the controlling legal principles, we conclude it is without merit. We affirm substantially for the reasons stated by Judge James J. McGann both in his decision rendered from the bench on November 18, 2008, and in his amplified written decision of August 3, 2009. We add only the following comments.

"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted). However, "a reviewing court owes no deference to the trial court in deciding matters of law." State v. Mann, 203 N.J. 328, 337 (2010).

In Mann, the Supreme Court set forth the principles of law governing claims of "an unconstitutional investigatory stop of defendant[s]" by law enforcement. Ibid. Noting that a so-called Terry stop is an exception to the warrant requirement, the Court concluded that "[s]uch a stop 'is valid if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" Id. at 338 (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)). The "determination of reasonable suspicion is fact-sensitive." Pineiro, supra, 181 N.J. at 22. Therefore, "a careful review of the totality of the circumstances surrounding each case is required." Mann, supra, 203 N.J. at 338.

Applying those principles to this case, we concur with the motion judge that the circumstances met the standards for an investigatory stop, and that the subsequent seizure of the marijuana was valid. As the judge found: (1) "the juvenile was stopped after dark at approximately nine o'clock" in a "high crime area"; (2) "[u]pon telling the juvenile . . . to stop, [Mendes] noted that the juvenile placed his right hand into his pocket under his shirt, and at that point was concerned about weapons"; (3) "the pat-down was preceded by the juvenile's admission that he had a screwdriver in his pocket," thus "admit[ting] that he had something in his . . . pocket that could be used as a weapon"; (4) under the totality of circumstances, "the frisk here was . . . reasonably necessary for protecting the [o]fficer, and . . . he had a reasonable and particularized suspicion that the juvenile was armed and dangerous"; (5) "the search for the seizure of the marijuana was preceded by the frisk and the [dis]covery of the screwdriver"; (6) "at the time he recovered the screwdriver, [Mendes] . . . felt something soft, consistent with marijuana"; (7) "before engaging in the search, he asked the juvenile what it was, and the juvenile said that he had some weed"; (8) "there is no indication . . . here that [Mendes] went beyond the bounds of the acceptable Terry search."

We are satisfied that these circumstances supported the judge's invocation of the "plain feel doctrine," which recognizes that "a police officer may seize non-threatening contraband detected during a Terry pat-down if the officer's search does not exceed Terry's boundaries." State v. Toth, 321 N.J. Super. 609, 614 (App. Div. 1999) (citing Minnesota v. Dickerson, 508 U.S. 366, 373-79, 113 S. Ct. 2130, 2136-39, 124 L. Ed. 2d 334, 344-48 (1993)), certif. denied, 165 N.J. 531 (2000). The retrieval of the screwdriver was justified by K.M.'s admission. The discovery of the marijuana was an inadvertent consequence of that retrieval.

1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).