STATE OF NEW JERSEY v. ROBERT C. LINDSEY

NOT FOR PUBLICATION WITHOUT THE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.

ROBERT C. LINDSEY,

Defendant-Appellant.

__________________________

August 26, 2016

Submitted May 16, 2016 Decided

Before Judges Messano and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-08-2478.

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

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Robert Lindsey appeals from a September 16, 2014 judgment of conviction for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Defendant moved to suppress the firearm that was seized without a warrant. When his motion was denied, defendant entered a guilty plea pursuant to a negotiated agreement and was sentenced to a five-year term of imprisonment, with a one-year parole disqualifier, along with applicable fines and penalties and forfeiture of the weapon.

Defendant raises the following point on appeal

POINT I

THE JUDGE ERRED IN DENYING THE MOTION TO SUPPRESS THE HANDGUN FOUND ON DEFENDANT'S PERSON AS THE OFFICER WAS NOT JUSTIFIED IN ORDERING DEFENDANT TO EXIT THE CAR

Following our review of the record, in light of the facts and applicable law, we affirm because the officer lawfully ordered defendant to exit the car and the motion to suppress was properly denied.

We glean the following facts from the record. Officer Allen Williams testified for the State at the suppression hearing. He had been assigned to the K-9 Unit of the Camden County Metro Police Department for seven months. The Unit was a high visibility proactive unit that responded to shootings, homicides and fights, among other things. Previously, Officer Williams had been a member of the Camden City Police Department for three years. He had been involved in over one thousand motor vehicle stops and had participated in over one hundred arrests, approximately forty percent of which involved firearms. He graduated from the police academy in 2010 and his training included the handling and recognition of firearms as well as investigating motor vehicle violations under Title 39. Previously, Officer Williams had also served as a marine for six years.

Along with his K-9 partner, Achilles, on May 22, 2013, Officer Williams was directed to patrol the 27th Street and River Road area, a quiet residential area with storefronts located along the river. Home invasions had recently occurred in that area as well as a homicide that was still under investigation during his shift. While on patrol, at approximately 2:07 a.m., Officer Williams observed a black Ford Fusion drive past him with "no lights." Officer Williams activated his siren and conducted a motor vehicle stop at the 27th Street bridge.

Officer Williams observed three male occupants inside the Ford Fusion, a driver, a front seat passenger and a rear seat passenger. The front seat passenger was later identified as defendant. Once the Fusion stopped, Achilles began to bark. Officer Williams approached the Fusion on the driver side with caution and asked the driver for his driving credentials. The driver was unable to produce a driver's license and told Officer Williams that his driver's license was suspended. Officer Williams then directed the driver to turn the car off, and he complied. Officer Williams inquired whether either of the two passengers possessed a valid driver's license, to which they responded in the negative.

Officer Williams described the area where he conducted the motor vehicle stop as well lit. The headlights on Officer Williams' patrol car, which was positioned behind the Fusion, provided additional lighting. Officer Williams did, however, use his flashlight to illuminate the interior of the Fusion. Inside the Fusion, Officer Williams observed in the center console area a black ski mask and zip ties. Those items were consistent with items reportedly used in the commission of home invasions in the area.

Officer Williams also observed defendant "acting nervous, kind of blading his body." Officer Williams explained that defendant was "blading his body" by turning his body away from him. Officer Williams also observed defendant's chest rising in a heavy breathing pattern and thought it odd that defendant was wearing a hoodie in May when the weather was warm. Officer Williams also observed defendant place his hands in his hoodie pocket and observed a large bulge in defendant's waistband. Based on his observations as well as his training and experience, Officer Williams believed that defendant was concealing either drugs or a weapon on his person or inside the car. According to Officer Williams, "if you can't see the hands, you know you're dead . . . so I wanted to get him out as quickly as possible and as safe as possible."

By then, a backup unit had arrived and Officer Williams proceeded to remove defendant from the Fusion. Once defendant was out of the car, he attempted to slip away from Officer Williams' control. Officer Williams immediately grabbed defendant and kept him between the car door and the car itself. Once Officer Williams had defendant under control, he conducted a pat-down search and felt the butt of a gun in defendant's waistband area. The gun, which was described as a loaded silver .38-caliber Smith and Wesson, was retrieved from defendant's person. On the floorboard of the Fusion where defendant had been seated, there was another mask and zip-ties. At that point, defendant was placed under arrest and handcuffed. A search incident to defendant's arrest revealed additional zip-ties on his person.

Officer Williams then drew his service revolver on the remaining two occupants of the Fusion and ordered them to remain in the car and place their hands on the roof of the car while Officer Williams awaited the arrival of additional back-up officers. Once additional back-up officers arrived, Officer Williams instructed the officers to remove the rear seat passenger first because "he was fidgeting around in the back." As the officers opened the car door, another handgun was visible in the waistband of the rear seat passenger, who was immediately removed from the car and secured. In addition to the handgun, which was also loaded, a search incident to his arrest resulted in the seizure of another mask and zip-ties from the rear seat passenger. A search of the driver revealed additional zip-ties. The driver, who had unrelated warrants, was issued motor vehicle summonses for driving with a suspended license and driving with his headlamps out.

Defendant testified on his own behalf. Defendant testified that when the Fusion was pulled over by Officer Williams, the front and rear lights were on. In addition, defendant authenticated several photographs which were moved into evidence. The photographs depicted defendant seated in the front passenger seat of the Fusion, purportedly wearing the same hoodie worn at the time in question and concealing a toy gun in his waistband that simulated the Smith and Wesson that was the subject of the suppression motion. The toy gun as well as the Smith and Wesson were moved into evidence.

The measurements of the respective guns were placed on the record by the court without objection. The Smith and Wesson had a two-inch barrel and measured six inches in length, four-and-a-half inches in height and one-and-three-eighths inches in width. The toy gun had a barrel of an inch-and-a-half, a length of five-and-a-quarter inches, a height of three-and-one-eighth inches, and a width of one inch. The Smith and Wesson, which weighed considerably more than the toy gun, was a metal handgun with wood grips while the toy gun was comprised of hollow plastic.

The uncle of the rear seat passenger and registered owner of the Fusion testified for the defense.1 He testified that he had loaned his car to his nephew, and, at the time in question, the Fusion was equipped with operational daytime running lights that came on automatically. However, he could not testify conclusively whether the running lights could be turned off manually.

The trial court found Officer Williams "to be a credible witness" based on his appearance and demeanor, the manner in which he testified, his ability to observe and relate facts and the reasonableness of his testimony. Likewise, the court found the uncle of the rear seat passenger to be a credible witness. The court further determined that, to the extent that defendant did not testify about any facts surrounding the police encounter, his testimony was also credible. However, given the difference in size and weight between the seized gun and the toy gun, the court rejected "the toy gun demonstration" to establish "that the officer could not have seen a bulge from the real gun in the pocket" and determined that "the real gun would leave . . . or would create some manner of a bulge that could be visible to someone a few feet away."

In denying defendant's motion to suppress, the court concluded that the motor vehicle stop was lawful given "the officer's credible determination that the car was operating with lights out." Further, the court determined that, "based on the totality of the circumstances," Officer Williams' testimony established "objectively reasonable facts" that created "a heightened awareness of danger" to justify removing defendant from the vehicle. The court also found that conducting a pat-down of defendant was legally permissible because Officer Williams had a "reasonable suspicion" that defendant was armed and presented a danger.

The facts relied upon by the court to establish a heightened awareness of danger and reasonable suspicion that defendant was armed consisted of the recent homicide and home invasions in the area; the observation of the mask and zip-ties in plain view in the console area of the car, which items were consistent with instrumentalities used in connection with the home invasions; the nervous behavior of defendant consisting of heavy breathing and "blading" or moving his body away from the officer; the fact that defendant was wearing a hoodie in May when the weather was relatively warm; the observation of defendant's hands in the front pocket of his hoodie; the observation of a bulge in defendant's waist area which the officer suspected was a weapon; and the fact that defendant attempted to slip away from Officer Williams when he ordered him out of the vehicle. The court also credited Officer Williams' training and experience in evaluating the totality of the circumstances.

When considering the 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) (quoting State v. Handy, 206 N.J. 39, 44 (2011)). See also State v. Elders, 192 N.J. 224, 243 (2007). "When . . . we consider a ruling that applies legal principles to the factual findings of the trial court, we defer to those findings but review de novo the application of those principles to the factual findings." Hinton, supra, 216 N.J. at 228 (citing State v. Harris, 181 N.J. 391, 416 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005)).

It is a well-established constitutional principle that a police stop of a moving vehicle constitutes a seizure of the vehicle's occupants, and, therefore, falls within the purview of the Fourth Amendment and Article 1, Paragraph 7, of the New Jersey Constitution. Brendlin v. California, 551 U.S. 249, 255-56, 127 S. Ct. 2400, 2406, 168 L. Ed. 2d 132, 138-39 (2007); Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89, 95 (1996); Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979); State v. Baum, 199 N.J. 407, 423 (2009); State v. Sloane, 193 N.J. 423, 430 (2008); State v. Dickey, 152 N.J. 468, 475 (1998).

Ordering a person out of a car constitutes a seizure because the person's liberty has been restricted. See State v. Davis, 104 N.J. 490, 498 (1986) (citing Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889, 903 (1968)). Whether such a seizure is constitutional depends on the reasonableness of the order, and a pat-down of the person ordered from the car is a separate event that is subject to constitutional scrutiny and must be evaluated under the Terry standard. State v. Smith, 134 N.J. 599, 609 (1994).

Although the per se rule under Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977), permits an officer to order the driver out of a vehicle incident to a lawful stop for a traffic violation, our Supreme Court declined to extend that per se rule to passengers. Smith, supra, 134 N.J. at 618. Instead, our Court determined that "an officer must be able to point to specific and articulable facts that would warrant heightened caution to justify ordering the [passengers] to step out of a vehicle detained for a traffic violation." Ibid.; see also State v. Mai, 202 N.J. 12, 21 (2010) (reaffirming Smith and refusing to hold that an officer making a traffic stop may routinely order passengers out of the stopped car pending completion of the stop).

Therefore, 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 passengers are "armed and dangerous." Smith, supra, 134 N.J. at 618. 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. Our Court adopted this lesser standard "because of the need to protect police officers and because of the minimal intrusion the requirement to exit the car imposes on the passenger." Ibid.; cf. State v. Alston, 279 N.J. Super. 39, 45-46 (App. Div. 1995) (holding that police could ask passenger to exit car after traffic stop when they learned that defendant had been driving while his driving privileges were revoked).

In contrast, to justify a pat-down of a passenger once alighted from a vehicle, specific, articulable facts must demonstrate that a "reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Smith, supra, 134 N.J. at 619 (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L.Ed. 2d at 909).

A hunch forms an insufficient basis on which to conduct the uncomfortable and often embarrassing invasion of privacy that occurs in a pat-down of a person's body. . . .

Rather, 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.]

Defendant argues that although Officer Williams was justified in conducting a motor vehicle stop,2 he was not justified in ordering defendant out of the car or conducting a pat-down of defendant. Rather, defendant argues that Officer Williams acted on "a series of hunches that he had unreasonably formed based on his observation of a ski mask, some zip ties, and [defendant's] alleged nervousness." We disagree.

In some cases, as here, "the facts that permit the officer to order the passenger to alight, with nothing more, may justify both the order to get out of the vehicle and the pat-down." Id. at 620 (citing State v. Lund, 119 N.J. 35, 45-46 (1990). The focus, however, is on the point at which the search occurred to determine whether the officer objectively realized that his safety and the safety of others were in danger. Ibid.; see State v. Thomas, 110 N.J. 673, 677 (1988) (holding that test is whether "record contains sufficient evidence of objective criteria to support the search of defendant"); State v. Bruzzese, 94 N.J. 210, 219 (1983) (determining constitutionality of seizure by "objectively reasonable" standard), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).

Here, while his K-9 partner was barking, Officer Williams conducted a motor vehicle stop at approximately 2:00 a.m. in an area where a homicide and home invasions had recently occurred. During the stop, Officer Williams observed a mask and zip-ties in the console area of the car, items which were consistent with instrumentalities used in connection with the home invasions; defendant's nervous behavior consisting of heavy breathing and "blading" or moving away from the officer; defendant wearing a hoodie in May when the weather was relatively warm; and a bulge in the front pocket of the hoodie where defendant placed his hands.

These facts, when considered in the totality of the circumstances, were sufficient to order defendant to exit the vehicle and support a reasonable, articulable suspicion that defendant was armed and dangerous. Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906. Indeed, a bulge alone has been held sufficient to validate a protective pat-down. See Mimms, supra, 434 U.S. at 111-12, 98 S. Ct. at 334, 54 L. Ed. 2d at 337-38; State v. Wanczyk, 201 N.J. Super. 258, 264 (1985) ("[o]nce defendant stepped out of the car and the police observed the bulge in the left sleeve of defendant's jacket, the officers unquestionably had the right to conduct a frisk of the defendant under the principles pronounced in Terry v. Ohio,supra.").

Affirmed.

1 The suppression motion was filed jointly by defendant and his co-defendant, the rear seat passenger.

2 We note that, at the joint suppression hearing, the rear seat passenger challenged the police justification for the motor vehicle stop by producing his uncle to testify that the Fusion was equipped with operational daytime running lights that turned on automatically, thereby inferring that the vehicle's lights were on when the Fusion passed Officer Williams. Given the court's finding that Officer Williams' testimony was credible, that argument has apparently been abandoned.