STATE OF NEW JERSEY v. JEFFEREY A. WHITAKER

NOT FOR PUBLICATION WITHOUT THE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.

JEFFEREY A. WHITAKER,

Defendant-Appellant.

__________________________________

February 11, 2016

Submitted January 20, 2016 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-11-2061.

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

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Ryan M. Galler, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a September 5, 2014 judgment of conviction for first-degree possession of a phencyclidine (PCP) with intent to distribute, contrary to N.J.S.A.2C:35-5a(1) and N.J.S.A.2C:35-5b(6). We affirm.

We discernthe following facts from the record. On May 21, 2013, a Hudson County Sheriff's detective, assigned to the Jersey City Police Department, was on patrol with two other detectives driving an unmarked car. The detective observed a Pontiac with three occupants and noticed that the driver was not wearing a seatbelt. The detective stopped the vehicle for the violation and radioed his location to other units for backup. Upon approaching the vehicle, the detective observed defendant, who was in the backseat, place his hand in his pocket while holding his cell phone with his other hand. Defendant refused to show both hands after multiple police requests.

After defendant refused to comply, the detective attempted to remove defendant from the vehicle. When the detective opened the door, he smelled a strong odor of PCP and noticed defendant's eyes were glassy. The detective also noticed that defendant was unresponsive and "staring into space." As defendant exited the car, he punched the detective in the face. Defendant was eventually subdued, handcuffed and placed under arrest. As a result of a search incident to the arrest, police recovered a jar of PCP and four bags of marijuana soaked in PCP from defendant's pockets.

Defendant was charged with eleven offenses relating to his possession of PCP and assaulting a police officer, the most pertinent of which was first-degree possession of ten grams or more of PCP with the intent to distribute, N.J.S.A.2C:35-5a(1) and N.J.S.A.2C:35-5b(6). Following indictment, defendant moved to suppress evidence that the State planned to introduce at trial, including the jar of PCP and the bags of marijuana. The trial court denied defendant's motion to suppress, as well as defendant's motion to have the judge recuse himself and to release a police officer's personnel file for inspection. Defendant subsequently pled guilty to first-degree possession of ten grams or more of PCP with the intent to distribute. He was sentenced to ten years in prison with three and one-half years of parole ineligibility. This appeal followed.

On appeal defendant argues

BECAUSE POLICE ORDERED DEFENDANT TO STEP OUT OF THE CAR WITHOUT OBJECTIVE FACTS TO SUPPORT A REASONABLE SUSPICION OF DANGER OR A NEED TO SECURE THE SCENE, DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED

We disagree with defendant's assertion that the police did not have reasonable suspicion of danger or the need to secure a crime scene when defendant was asked to step outside the car, and that the State violated his rights guaranteed by the Fourth Amendment of the United States Constitution and Article One, Paragraph Seven of the New Jersey Constitution.

In reviewing a trial court's ruling on a motion to suppress, we "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. Mann, 203 N.J.328, 336 (2010) (citing State v. Elders, 192 N.J.224, 243 (2007)) (internal quotation marks omitted). We decline to disturb a trial court's ruling "simply because [we] 'might have reached a different conclusion were [we] the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side.'" Ibid. (quoting State v. Johnson, 42 N.J.146, 162 (1964)). We only disturb those findings if the trial court's findings are "clearly mistaken." Ibid.

The Fourth Amendment of the United States Constitution and Article One, Paragraph Seven of the New Jersey Constitution protect individuals against unreasonable searches and seizures. U.S. Const., 4th Am.; N.J. Const., Art. 1, 7. To protect against such seizures, police are generally required to obtain a warrant before engaging in searches or seizures. SeeState v. Pineiro, 181 N.J.13, 19 (2004). Unless a search or seizure falls inside "one of the few well-delineated exceptions to the warrant requirement," Mann, supra, 203 N.J.at 340, the search is presumptively invalid. Ibid. (citing Elders, supra, 192 N.J.at 246). We are concerned here with the exception to the warrant requirement which addresses officer safety and reasonableness under the circumstances.

In this case, defendant is not contesting the officer's authority to stop the car because the officer observed the driver of the car operating the vehicle without wearing a seatbelt, which is a minor traffic offense. Instead he is contesting the validity of his removal from the car.

Police conduct a seizure when ordering a person out of a car "because the person's liberty has been restricted." State v. Smith, 134 N.J.599, 609 (citing State v. Davis, 104 N.J.490, 498 (1986)). Police have authority to conduct such roadside seizures if requiring a person to exit the car is reasonable under the circumstances. Ibid. The officer is not required to produce facts that the occupants of the car were "armed and dangerous." Ibid.

In evaluating whether police were justified in asking defendant to step out of the car, we consider three factors that are described in Smith. First, we consider relevant facts that bear on a police officer's safety; second, we consider the degree to which the police officer intruded upon defendant's liberty interests; and finally, we consider whether there are specific, articulable facts that would "warrant heightened caution to justify ordering the occupants to step out of a vehicle for a traffic violation." Smith, supra, 134 N.J.at 614-18.

In this case, the police articulated specific facts that warranted heightened caution. When defendant failed to obey the detective's instructions to show his hands, the detective had a reasonable concern for his own safety because of the possibility that defendant was hiding a weapon in his pants. Next, police made little intrusion on defendant's liberty interest in asking him to step outside of the vehicle. Defendant did so shortly before attacking the police officer, indicating that his freedom of movement was only restrained in the sense that he was asked to exit the vehicle he was occupying. Additionally, defendant was not under arrest at the time police asked him to step outside of the vehicle. Finally, defendant defied the detective's repeated requests to show his hands, giving the officer reason to suspect he may have been hiding a weapon in his pocket. These are specific, articulable facts justifying the detective's need for heightened caution, and accordingly, the removal of defendant from the vehicle. We thus discern no error on the trial court's part, and refuse to disturb its holding.

Affirmed.