STATE OF NEW JERSEY v. TAWIAN BACOME

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TAWIAN BACOME,

Defendant-Appellant.

_________________________________________________

October 17, 2014

Submitted September 23, 2014 Decided

Before Judges Fisher and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-08-1221.

Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After the denial of his suppression motion, defendant pleaded guilty to a drug possession offense and was sentenced to a three-year prison term. In this appeal, defendant argues only that the trial judge erred in denying his motion to suppress evidence seized during a warrantless search of the motor vehicle he was operating. Because the judge did not adequately address the pivotal question of whether the police had a reasonable and articulable basis for directing the other occupant out of the vehicle, we remand for further findings.

I

At the suppression hearing, the State's only witness was Woodbridge Detective Brian Jaremczak. He testified that, at approximately 4:30 p.m., on April 29, 2011, he and his partner, Detective Patrick Harris, observed defendant operating a Ford Bronco; S.R., the owner of the vehicle, was in the front passenger seat. The detective testified he was "very aware" of S.R. and "had just recently heard about" defendant; he believed they were "narcotic users and narcotic dealers" because of the police department's receipt of "information from concerned citizens" about "a lot of traffic coming and going from [defendant's] apartment."

The detectives, driving an unmarked vehicle, followed the Ford Bronco out of Woodbridge and onto Routes 1 and 9 heading toward Newark; they eventually lost the Bronco somewhere on Frelinghuysen Avenue. Suspecting defendant and S.R. "were going to purchase narcotics" and "would be back very shortly," the detectives returned to Woodbridge to await their return.

At approximately 5:30 p.m., while on the border of Woodbridge and Rahway, Detective Jaremczak noticed the Bronco traveling south on Routes 1 and 9. When asked what happened next, the detective testified that "we" observed S.R. "wasn't wearing his seatbelt." They activated their vehicle's emergency lights and directed the Bronco to stop.

Detective Jaremczak approached the passenger side, and his partner approached the driver's side. When asked whether he "notice[d] any movement by either" of the vehicle's passengers, Detective Jaremczak responded that "[his] partner did," and that his partner "saw [defendant] reaching forward . . . like, reaching under his seat." Defense counsel immediately objected because the witness lacked personal knowledge. In response, the judge made no ruling but only asked the witness whether he observed defendant's movement, and Detective Jaremczak responded "no." In answer to the prosecutor's next question, the detective explained he was "focused on" S.R., confirming he did not see defendant's alleged furtive movement. The detective testified that his partner then asked defendant to exit the vehicle and he directed defendant out of the vehicle. They both complied.

The detectives separately questioned the vehicle's passengers, who gave different responses to where they were coming from, which, according to the witness, "further heighten[ed] [their] suspicion as to what occurred." During his questioning of S.R., Detective Jaremczak noticed "a rolled up piece of paper[,] which was in the shape of a straw[,] [a]nd a piece of Chore Boy Brillo" "near the front of the middle console." He testified that, in his experience, "[t]he straw can be used to snort narcotics," and the other item "is used, pretty much, as a filter in a crack pipe to smoke crack." As a result of these observations, Detective Jaremczak requested and obtained S.R.'s consent to search the vehicle. The detective read him the consent form; to him, S.R. did not "appear to be under the influence of any narcotics or drugs" and appeared to understand when he signed the consent form.

In the search of the vehicle that followed, the officers seized the items observed in "plain view," as well as "blunt wrappers," "a used crack pipe inside of a Maverick cigarette pack," "[a] larger piece of Chore Boy copper scrubber," and "[thirteen] vials of crack cocaine in a Newport cigarette pack."

Although, during direct examination, the detective testified only that "we" observed S.R. was not wearing a seatbelt, when cross-examined he testified that he observed it, although he could not remember any details and did not issue a summons for that alleged violation. When pressed, Detective Jaremczak acknowledged there were actually two reasons for the motor vehicle stop (1) S.R. was not wearing a seatbelt, and (2) he "believe[d] that they just went to Newark to purchase narcotics." The detective also agreed the observations of the straw and copper scrubber were not made until after S.R. stepped out of the vehicle as commanded

Q. Did you see [those items] through the windshield or through the side?

A. Once he got out; the door was opened; and that's when I s[aw] it.

Q. How did he get out?

A. I asked him out.

. . . .

Q. So you ordered him out of the car because you were conducting what kind of investigation?

A. I asked him out of the vehicle. And at that time it became a narcotic investi-gation.

Q. Isn't it true that it already was a narcotics investigation before [defendant] was ordered out of the car?

A. Yeah. I did believe that they went to Newark to purchase narcotics.

During direct examination, the prosecutor elicited testimony from the detective that the consent form for the search was executed at 5:55 p.m. The defense demonstrated during cross-examination, through use of a video taken from another police vehicle that the detective may have been in error as to the timing of consent.

As can be seen, Detective Jaremczak did not have personal knowledge of part of the circumstances that ostensibly justified a continuation of the warrantless search. He did not see defendant reach under the seat; Detective Jaremczak testified that only Detective Harris said that he observed this. When asked where Detective Harris was the day of the hearing, Detective Jaremczak said he was home and not expected to appear at the hearing.

No one else testified.

II

A week after the hearing, the trial judge rendered an oral decision, in which he found: the observation of S.R. not wearing a seatbelt gave the detectives a lawful reason for stopping the vehicle; defendant's reaching under his seat gave the detectives a reasonable suspicion of criminal activity and authorized the ordering of defendant and S.R. out of the vehicle; once S.R. was out of the vehicle, drug paraphernalia was seen in plain view; and S.R. thereafter freely and voluntarily gave his consent to the vehicle search, resulting in the seizure of thirteen vials of crack cocaine. For these reasons, the judge denied the motion to suppress.

Defendant later pleaded guilty to third-degree CDS possession, N.J.S.A. 2C:35-10(a)(1), and was sentenced to a three-year prison term.

III

In this appeal, defendant argues only that the judge erred in denying his suppression motion because the officers "did not have cause to order the passenger from the car." Accordingly, we need not question the legitimacy of the vehicle stop,1 notwithstanding the officers' overarching desire to conduct a narcotics investigation despite the absence of a reasonable suspicion to support the undertaking.2 In addition, there is no dispute about the observations of drug paraphernalia in plain sight once the occupants were ordered out of the vehicle. And the voluntariness of the consent given for the search that followed has not been questioned. Consequently, this appeal rises and falls on whether S.R. was lawfully ordered out of the vehicle because, without that link in the chain of events, the evidence thereafter seized would have to be excluded.3

A

We initially observe that an officer's command that a driver exit a vehicle constitutes a seizure, State v. Smith, 134 N.J. 599, 609 (1994), but a seizure that has been declared constitutionally permissible, Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331, 337 (1977); Smith, supra, 134 N.J. at 611, based on the policy determination that police officer safety should prevail over the minimal intrusion on the driver's privacy interest, Mimms, supra, 434 U.S. at 110-11, 98 S. Ct. at 333, 54 L. Ed. 2d at 336-37; Smith, supra, 134 N.J. at 610-11.4

In declaring its new federal constitutional principle, the Mimms Court was not clear whether it applied to all occupants of a vehicle. In cases that followed, the Court did not appear to confine the rule to drivers.5 In 1997, the Court finally swept away any doubt about Mimms's reach, and held, as a matter of federal constitutional law, that "danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car" and concluded despite the passenger's "stronger" "personal liberty interest" than the driver's in that instance the intrusion remains "minimal"; consequently, the Court held that "an officer making a traffic stop may order passengers to get out of the car pending completion of the stop." Maryland v. Wilson, 519 U.S. 408, 413-15, 117 S. Ct. 882, 886, 137 L. Ed. 2d 41, 47-48 (1997) (emphasis added). Insofar as defendant relies on federal constitutional principles, there is no merit to the argument that the command that R.S. exit the vehicle was constitutionally prohibited.

B

Not long before the Court decided Maryland v. Wilson, our Supreme Court considered the application of paragraph 7 of Article I of the New Jersey Constitution to police seizure of a driver or occupant from a vehicle stopped for a traffic violation. The Court concluded in Smith that "as applied to drivers," Mimms's per se rule passes state constitutional muster. 134 N.J. at 610-11 (emphasis added). Unlike the per se rule that the Court ultimately adopted in Maryland v. Wilson, however, our Supreme Court "decline[d] to extend [Mimms's] per se rule to passengers," and determined that "an officer must be able to point to specific and articulable facts that would warrant heightened caution to justify ordering the occupants to step out of a vehicle detained for a traffic violation." Smith, supra, 134 N.J. at 618. The Court described the scope of this principle in the following way

To support an order to a passenger to alight from a vehicle stopped for a traffic violation, . . . the officer need not point to specific facts that the occupants are "armed and dangerous." Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car.

[Ibid.]

Although not relevant to this appeal, the Smith Court further noted that to justify a pat-down in this circumstance,6 the prosecution must satisfy the more stringent requirements of Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968). See Smith, supra, 134 N.J. at 619.

The Smith Court also observed that, in one respect, "the Terry standard and the standard for ordering a passenger out of a car are the same," rejecting "the proposition that such an intrusion will be justified solely because of an officer's 'hunch.'" Ibid. Instead, "the officer must be able to articulate specific reasons why the person's gestures or other circumstances caused the officer to expect more danger from this traffic stop than from other routine traffic stops." Ibid.

C

In considering these principles and the matter at hand, the record reveals that much of what motivated this stop and investigation was the detectives' belief that defendant and S.R. were narcotics users or sellers. The record, however, contains nothing but rumor and innuendo to support that assertion. Detective Jaremczak testified that this supposition of illegal narcotic activity was based on the department's receipt of citizen complaints about the number of people entering and leaving defendant's residence and by the fact that defendant and S.R. traveled to and from Newark. Obviously, these two circumstances do not suggest anything other than a mere "hunch" that defendant and S.R. may have been engaged in buying, using or selling illegal narcotics. The fact that S.R. was alleged not to have been wearing his seatbelt when the vehicle was seen by the detectives returning to Woodbridge does not add anything to the question of whether either defendant or S.R. "caused the officer to expect more danger from this traffic stop than from other routine traffic stops." Smith, supra, 134 N.J. at 619. S.R.'s failure to wear a seatbelt generated a danger only to himself.

This leaves the assertion that, after the vehicle came to a stop, defendant was seen by Detective Harris "reaching forward . . . reaching under his seat." This event was not seen by Detective Jaremczak, the only witness called by the State to testify at the suppression hearing. Defendant objected to this hearsay testimony, but the judge never adequately responded. Although Detective Harris's absence and the lack of evidence based on personal knowledge on this critical point are troubling, it is understood that the State may offer, at a suppression hearing, evidence that would constitute inadmissible hearsay if offered at trial. See e.g., State v. Wright, 431 N.J. Super. 558, 565 n.3 (App. Div. 2013), certif. granted on other grounds, 217 N.J. 283 (2014); N.J.R.E. 101(a)(2)(E).7 The weight such testimony should be given, however, is a matter left to the trial judge as factfinder, with the prosecution running the risk that the factfinder may draw an inference adverse to the prosecution's interests when a key fact is supported only by hearsay.8

Here, notwithstanding the presentation of this key fact through hearsay testimony, the judge made no finding regarding whether there was "some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner." Smith, supra, 134 N.J. at 618. We quote the entirety of the judge's decision on this pivotal question

While effectuating the stop the detective says he witness[ed] [defendant] reach under the driver's seat. He they don't say they don't call movements nowadays. Because they know that's not good language. But, basically, that's what he's saying. Seen some movements under the driver seat.

In a totality of the circumstances analysis does the officer have a reasonable and articula[ble] suspicion to believe that criminal activity is afoot? All right. So he removes the defendants [sic] from the vehicle to speak with them.

[Emphasis added.]

The judge did not thereafter address this question again, but instead turned to what he found the officers saw in plain sight once the occupants were removed from the vehicle, and then to the events that followed the plain-view observations.

D

After careful examination of the record, we conclude that the judge's findings do not adequately address the permissibility of ordering S.R. from the vehicle.

First, even if we liberally interpret the judge's comments to suggest that the "movement[] under the driver seat" was found to be "some fact" that would "create . . . a heightened awareness of danger," the judge did not explain how the driver's movement suggested the passenger posed a danger.9 This alleged circumstance may have been a reason for ordering defendant out of the vehicle, but the judge did not explain why defendant's movement suggested S.R. posed a danger.

Second, the "fact" that triggered the order that the passenger exit the vehicle must be considered in light of "the totality of the circumstances." Smith, supra, 134 N.J. at 618. The mere fact that the vehicle's occupants were traveling south from Newark, or the fact that defendant received many visitors to his residence, did not suggest a danger was posed when the vehicle was stopped due to a seatbelt violation. Certainly, not every driver departing Newark may be assumed to be a drug user or drug dealer. Nor, even were this so, would it suggest the occupants posed a risk for the officers. The judge should discuss further whether and if so how these circumstances supported the removal of the passenger from the vehicle.

Third, the judge considered only whether defendant's movement under the driver's seat provided a reasonable and articulable suspicion "that criminal activity is afoot" (emphasis added). That is not the right question. The "fact or facts" to which the officer alludes must "create . . . a heightened awareness of danger." Smith, supra, 134 N.J. at 618 (emphasis added). No matter how broadly we may interpret the judge's comments, we cannot locate in his opinion a finding that defendant's alleged movement would have suggested "a heightened awareness of danger." We are not splitting hairs in focusing so closely on the judge's precise words; it is all we have to consider. An officer's limited right to order a passenger out of a vehicle arises from the policy determinations made by the Courts in Mimms and Smith that officer safety not the investigation of criminal activity overrides the minor intrusion into the passenger's privacy right.

And fourth, the judge's posing of this incorrect question of whether the officer had "a reasonable and articul[able] suspicion to believe that criminal activity is afoot," followed by his answer "All right" does not sufficiently convey to us the substance of the judge's findings. Even if that was the correct question, it is not clear whether "All right" was intended as the means of expressing a finding that the officers did have a reasonable and articulable suspicion of "criminal activity [being] afoot."

Although we are required to defer to a trial judge's factual findings on a motion to suppress, State v. Elders, 192 N.J. 224, 254 (2007), the factfinding on the critical issue that this appeal poses does not command our deference. The judge clearly posed the wrong question and then gave no clear answer.

IV

For these reasons, we remand to the trial judge for further findings. The judge is directed to reconsider his prior ruling in light of the existing record and this opinion, and file his amended findings, within thirty days.

Remanded. We retain jurisdiction.

1See Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); State v. Locurto, 157 N.J. 463, 470 (1999); State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 1994).

2See State v. Kennedy, 247 N.J. Super. 21, 28 (App. Div. 1991) (holding that "courts will not inquire into the motivation of a police officer whose stop of an automobile is based upon a traffic violation committed in his presence").

3We reject the State's contention, based on State v. Robinson, 200 N.J. 1, 18-19 (2009), that we should not consider this argument because defendant failed to pose this precise question in the trial court. Robinson involved a pretrial application as to which the defendant was saddled with the burden of proof. Here, the opposite is true; defendant moved for the suppression of evidence, and it was the State's burden to prove the admissibility of the fruit of its warrantless search. We see no harm to the administration of justice or an inappropriate tilt of the playing field of the type that prompted the Court's ruling in Robinson. See id. at 19. Indeed, in adhering to and quoting from an article written by a federal appellate judge, the Robinson Court expressed concern that permitting "late-blooming issues . . . would be an incentive for game-playing by counsel." Ibid. We detect no game-playing here. In any event, because the State was not prejudiced by defendant's refinement of his argument about this warrantless search the State having rested at the hearing before the significance of the evidence was argued we will consider on its merits the slightly different argument defendant has posed in this appeal.

4See also State v. Mai, 202 N.J. 12, 22-23 (2010) (finding no difference in whether an officer orders an occupant out of a vehicle or opens the vehicle door to accomplish the same object).

5Mimms had referred to the right of police to order a driver out of a vehicle rightfully detained. 434 U.S. at 111, 98 S. Ct. at 333, 54 L. Ed. 2d at 337. But questions as to Mimms's scope later arose from Michigan v. Long, 463 U.S. 1032, 1047-48, 103 S. Ct. 3469, 3480, 77 L. Ed. 2d 1201, 1218-19 (1983) (emphasis added), where the Court restated the rule as authorizing police to "order persons out of an automobile during a stop for a traffic violation." And in a concurring opinion in Rakas v. Illinois, 439 U.S. 128, 155 n.4, 99 S. Ct. 421, 436 n.4, 58 L. Ed. 2d 387, 409 n.4 (1978) (emphasis added), Justice Powell mentioned that Mimms determined "that passengers in automobiles have no Fourth Amendment right not to be ordered from their vehicle, once a proper stop is made."

6If there was a pat-down here, it produced no evidence that defendant sought to have suppressed.

7The Supreme Court of the United States has rejected the notion that due process is denied by such a rule, reasoning that "the interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself." United States v. Raddatz, 447 U.S. 667, 679, 100 S. Ct. 2406, 2414, 65 L. Ed. 2d 424, 435 (1980). This is not always true; in fact, the matter at hand presents one of those many instances where the denial of a motion to suppress leaves the accused defenseless and inexorably leads to a guilty plea or easy conviction. See United States v. Wade, 388 U.S. 218, 235, 87 S. Ct. 1926, 1937, 18 L. Ed. 2d 1149, 1162 (1967) (recognizing that "[t]he trial which might determine the accused's fate may well not be that in the courtroom but that at the pretrial confrontation"); United States v. Green, 670 F.2d 1148, 1154 (D.C. Cir. 1981) (finding a suppression hearing to be "a critical stage of the prosecution which affects substantial rights of an accused person . . . [that] may often determine the eventual outcome of conviction or acquittal"); Olney v. United States, 433 F.2d 161, 163 (9th Cir. 1970) (observing that a suppression hearing may be a critical stage of a prosecution "particularly in narcotics cases, where the crucial issue may well be the admissibility of narcotics allegedly found in the possession of the defendant"). Indeed, we are not so quick to assume the Confrontation Clause may not be violated when the admission of damning evidence turns on inadmissible hearsay frustrating or precluding the accused's right to cross-examine the absent declarant because the prosecution decided to present certain critical facts through a witness who only received the information from another, whom the State decided not to call. See, e.g., Green, supra, 670 F.2d at 1154. Nevertheless, the understanding routinely followed by our courts that hearsay may be admitted at a suppression hearing without apparent offense to the Confrontation Clause has not been challenged here, so we consider the point no further.

8There was no showing that Detective Harris was unavailable; to the contrary, Detective Jaremczak testified Detective Harris was home at the time of the hearing. The judge drew no adverse inference.

9For example, in such an instance, the prosecution should be expected to present evidence of a reasonable and articulable suspicion that a weapon was under the driver's seat and the passenger was capable of reaching it while remaining seated in the vehicle. Here, there was no testimony that the Bronco's console did not constitute an obstacle to the passenger reaching under the driver's seat, or that the officer on the passenger's side of the vehicle was not capable of keeping watch over the passenger or prevent him from reaching under the driver's seat, without unnecessarily intruding on the passenger's privacy by removing him from the vehicle.