STATE OF NEW JERSEY v. CHINKUME I. CANNON

NOT FOR PUBLICATION WITHOUT THE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.

CHINKUME I. CANNON, a/k/a

JOE CLARK,

Defendant-Appellant.

__________________________________________

June 26, 2015

Before Judges Koblitz and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-12-02845.

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

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Chinkume I. Cannon appeals from his May 28, 2013 conviction for second-degree distribution of a controlled dangerous substance (CDS) within 500 feet of a public housing facility, public park or public building, N.J.S.A. 2C:35-7.1, and third-degree distribution of CDS within 1000 feet of a school, N.J.S.A. 2C:35-7, for which he was sentenced to four years in prison with a twenty-four month parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Prior to defendant's guilty plea, Judge Max A. Baker denied defendant's motion to suppress the CDS found on his person. Defendant argues on appeal that the police lacked reasonable suspicion to conduct a search of him and that as a result the evidence seized during that search must be suppressed. We disagree and affirm.

We derive the following facts from the record developed at the suppression hearing. On May 22, 2012, Atlantic City Police Officer Frank Paredes was on patrol as part of his duties in the Department's Tactical Unit. The focus of the unit was on high crime areas, and that day the officer was patrolling the Stanley Holmes housing village where arrests are made on a daily basis for drug and weapons offenses. As he was on patrol, a car passed him and the officer noted the driver was not wearing a seat belt. The officer activated his lights and sirens with the intention to have the car pull over. As the officer approached the car on foot he noticed the passenger (defendant) put both of his hands over his head. Defendant then moved his left hand toward his pocket or side and brought it back to his head. When the officer got to the car he asked defendant not to make those hand movements again. Nevertheless, as the officer was waiting for the driver to produce his identifying documents, he saw defendant move his left hand down to his left leg, tapping around the pocket area four or five times.

Despite asking defendant several times to stop his movements, he did not. The officer stated he then felt concerned for his safety as he believed defendant could be reaching for a weapon. He asked defendant to get out of the car and did a pat-down check for weapons. The officer felt two bulges in defendant's left pocket which he presumed to be illegal substances based on his experience and training and defendant was placed under arrest. The bulges were revealed to be two bricks of heroin.1

At the hearing, defendant presented the driver of the car his cousin as a witness who denied seeing defendant make any movements with his hands.

In his oral ruling in this matter, Judge Baker found the officer to be credible. He found the traffic stop made by Officer Paredes to have been lawful as it was based "on a reasonable and articulable suspicion that an offense, even a minor traffic offense, has been or is being committed." The court found it to be "reasonable and appropriate for a police officer to have a heightened awareness as he approaches a car that he just stopped in a high crime area and notices . . . the passenger . . . making furtive movements." The court found that defendant continued to disobey the instruction he was given to keep his hands over his head and in view; and in so doing created a further heightened state of concern for the officer's own safety. The judge did not find the driver of the vehicle to be credible.

Defendant presents the following issue on appeal

THE COURT ERRONEOUSLY DENIED CANNON'S MOTION TO SUPPRESS BECAUSE THE POLICE LACKED REASONABLE SUSPICION TO ORDER CANNON TO GET OUT OF THE CAR OR TO CONDUCT A PAT-DOWN SEARCH

When considering a trial court's ruling on a motion to suppress evidence, "[w]e conduct [our] review with substantial deference to the trial court's factual findings, which we must uphold . . . so long as those findings are supported by sufficient credible evidence in the record." State v. Hinton, 216 N.J. 211, 228 (2013) (citation and internal quotation marks omitted). "Those findings warrant particular deference when they are substantially influenced by the trial judge's opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." State v. Rockford, 213 N.J. 424, 440 (2013) (citation and internal quotation marks omitted).

"We review the record on a motion to suppress to determine whether the findings are supported by credible evidence and the legal conclusions are valid." State v. Smith, 374 N.J. Super 425, 430 (App. Div. 2005)(citing State v. Alvarez, 238 N.J. 560, 564 (App. Div. 1990)).

The United States and New Jersey Constitutions guarantee an individual's right to be free from "unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, 7. A warrantless search is "'presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement.'" State v. Wilson, 178 N.J. 7, 12 (2003) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)).

"A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense . . . has been or is being committed." State v. Carty, 170 N.J. 632, 639-40 (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 663 (1979)), modified by 174 N.J. 351 (2002). In this case Officer Paredes personally observed that the driver of defendant's vehicle was not wearing a seatbelt. It was, therefore, proper to stop the vehicle for this traffic offense. Whether the officer was justified in asking defendant to step out of the vehicle and thereafter conduct a pat-down search is addressed in State v. Smith, 134 N.J. 599 (1994).

"'[A]n 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.'" State v. Bacome, 440 N.J. Super. 228, 237 (App. Div. 2015)(quoting Smith, supra, 134 N.J. at 618). The Smith court stated

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.

[Smith, supra, 134 N.J. at 618.]

In considering these principles, we find the officer did articulate specific reasons as to why defendant's gestures caused him more concern in these circumstance than from a routine traffic stop. Officer Paredes described this location as a high-crime area with daily arrests for drug possession and weapons offenses. He found it unusual that defendant had his hands placed on top of his head before he even approached the car. Defendant moved his left hand toward his left pocket area and back to his head several times. Despite the officer's instruction to him to stop the movements, defendant continued making them. All of these circumstances heightened the officer's concern for his safety as it was unknown what defendant may have been concealing in his pocket.

We find that Officer Paredes described sufficient circumstances that would allow and require an objectively reasonable officer to investigate further by asking defendant to exit the car and doing a pat-down search.

In the present matter we are satisfied that the trial court's findings of fact are supported by sufficient credible evidence in the record, and the matter was correctly decided. We therefore affirm the order denying defendant's suppression motion.

Affirmed.

1 Each brick of heroin contained 49-50 individual bags of the drug.