STATE OF NEW JERSEY v. CURTIS MILLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1587-04T41587-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CURTIS MILLER,

Defendant-Appellant.

______________________________

 

Submitted May 30, 2006 - Decided July 31, 2006

Before Judges Holston, Jr., and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 03-12-01369.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jeffrey R. Jablonski, Designated Counsel, of counsel and on the brief).

Michael M. Rubbinaccio, Morris County Prosecutor, attorney for respondent (Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Curtis Miller, and co-defendant, Jessica Albright, were indicted for third-degree possession of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-10a(1) (Count One); second-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(2) (Count Two); second-degree conspiracy to possess cocaine with intent to distribute, contrary to N.J.S.A. 2C:5-2, 2C:35-5a(1), and 2C:35-5b(2) (Count Three); third-degree possession of heroin, contrary to N.J.S.A. 2C:35-10a(1) (Count Four); third-degree possession of heroin with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (Count Five); and third-degree conspiracy to possess heroin with intent to distribute, contrary to N.J.S.A. 2C:5-2, 2C:35-5a(1) and 2C:35-5b(3) (Count Six). Defendant filed a joint motion with co-defendant to suppress evidence; and after the denial of the motion, defendant entered a plea to the charge of possession of cocaine with intent to distribute. Judge Ahto sentenced defendant on November 12, 2004, to a four-year term of imprisonment and a suspension of his driving privileges for a period of six months. All other appropriate assessments and fees were imposed. As part of the terms of a negotiated plea agreement, the remaining counts of the indictment were dismissed. The only issue presented on appeal is a challenge to the denial of defendant's motion to suppress. We affirm.

Testifying at the suppression hearing for the State were Jonathan Edmunds and Thomas Van Houten, patrolmen of the Roxbury Township Police Department, defendant, and Thomas Lacek, defendant's seatbelt expert. Patrolman Edmunds testified as follows. On April 20, 2004, at 12:30 p.m., Edmunds was operating his marked patrol vehicle in the center lane on Route 80 westbound. Traffic was limited, and the weather was clear and sunny. In the middle lane, directly in front of Edmunds's vehicle, was a Chevrolet Cavalier automobile operated by Albright, in which defendant was a passenger in the right front seat. From this vantage point, Edmunds observed the metal portion of the seatbelt latch plates, for both the driver and passenger, visible along the top portion of the seatbelt posts. Formulating the belief that neither defendant nor co-defendant were wearing seatbelts, Edmunds made a stop of the vehicle.

Edmunds approached the passenger side of the vehicle, and spoke to both occupants requesting their credentials for the purpose of issuing motor vehicle summonses for failure to wear seatbelts in violation of N.J.S.A. 39:3-76.2f-a. During this conversation, Albright admitted that her driver's license may have been suspended for "a D.W.I. in Pennsylvania." Edmunds described defendant and Albright's hand movements as "slow," and their speech as "slow and slurred." However, Edmunds did not detect any odor of alcoholic beverages at the time.

Edmunds instructed Albright to exit the motor vehicle for the purpose of performing field-sobriety tests. While Edmunds was speaking with Albright outside of the vehicle, Patrolman Van Houten arrived at the scene. As Edmunds continued his investigation of Albright, Van Houten approached the driver's side of the motor vehicle, and spoke to defendant. Van Houten also described defendant's speech as slow and slurred, and when defendant removed his sunglasses, the officer observed that defendant's pupils were constricted. After making these observations, Van Houten "advised Patrolman Edmunds that I believed that he [defendant] may be under the influence of [CDS]." Edmunds requested defendant to exit the motor vehicle to talk to him. It was at this point that defendant's cooperation with the investigation ceased. After defendant refused to comply with the officer's request, Edmunds opened the front door, and "told him to get out of the car." Defendant exited the vehicle, and became argumentative, folding his arms and leaning up against the car. Because "of the drastic change in his behavior and demeanor, [Edmunds] conducted a pat-down search because [he] did [not] really trust the guy, you know, he changed so drastically from being calm and collect[ed] to being somewhat aggressive."

Defendant was wearing baggy, military-style trousers with numerous pockets "that would be easy to conceal something [in] because they are large[,] baggy[-]type pants with lots of pockets on the sides." Edmunds frisked defendant, and detected a small square object with "a rubber band or something similar to that inside that package" in one of defendant's pockets. When asked what the object was, defendant said "a pack of gum." Based on his training and experience, Edmunds was aware that "heroin is commonly packaged in glassine bags, and they [are] call[ed] a deck[,] which is ten, and then they put a rubber band around it signifying that there [are] ten packages." Based on his observations of defendant's and Albright's physical manifestations, Edmunds thought to himself that the object was heroin, and "went and got the object out" of defendant's pocket. Defendant was arrested, and advised of his Miranda rights. Albright was arrested following her statement to Edmunds that "she did some heroin." After being advised that she could refuse a consent search of her motor vehicle, Albright signed a consent form permitting the police officers to make a search of the vehicle. Upon Albright consenting to the search, defendant advised Edmunds "there was a package of cocaine inside his jacket." Edmunds then went to defendant's maroon jacket on the rear seat, recovered it, looked inside the jacket, and found "a package of cocaine."

Defendant testified that just prior to being pulled over, both he and Albright had their seatbelts on. Defendant undid his seatbelt when Edmunds left their vehicle to return to his patrol car to radio for assistance, and Albright removed her seatbelt when she was first asked to exit the vehicle by Edmunds. Concerning the position of the seatbelt buckle while the vehicle was being operated, defendant stated that there was a "little button on top next to the D[-]ring" that prevents them from going into the position that Edmunds had stated he observed. Defendant admitted that he commenced arguing with Edmunds after Edmunds told him that he was high on drugs, and instructed him to exit the vehicle. He conceded that during the pat-down search, heroin was found in his pants' pocket.

Thomas Lacek is a licensed mechanical engineer employed by Robson Lapina, Inc., a specialty technical consulting firm whose practice is limited to investigation and analysis of accidents. Determining the witness qualified as a mechanical engineer, the trial judge "permitted him to testify [concerning] the seat[]belt." Lacek testified that defendant brought the Chevrolet Cavalier automobile to him to examine around June 18 to June 20, 2004. After verifying that the vehicle was the same vehicle written up in the police report by comparing the vehicle identification number and license plate, Lacek examined the seatbelts, and confirmed that they were the original manufacturer's equipment installed in the vehicle in 1994 when the car was manufactured. Lacek stated that the buttons on the seatbelts prevented them from being pulled through the D-ring that is mounted on the floor. Because of the button, the latch plate can only be raised within one foot from the bottom of the passenger's or driver's side windows. Lacek opined that Edmunds could not have observed the latch plates in the position that he described, and that presumably what he saw was the D-rings, not the latch plates.

After resolving the issues of credibility in favor of the State and against defendant, "not so much as [defendant is] attempting to deceive me, but he does [not] remember certain things, and I [am] mindful of the fact that both officers indicated that he -- they felt that the defendant was under the influence," the judge denied the motion to suppress. In doing so, the judge determined that: 1) Officer Edmunds had a reasonable articulable suspicion that both defendant and co-defendant were in violation of New Jersey's Seatbelt Statute, justifying the motor vehicle stop; 2) because both officers had formulated an opinion that defendant was under the influence based on their observations of defendant's physical manifestations, Edmunds was justified in requesting defendant to exit the motor vehicle; 3) upon observing a dramatic change in the demeanor of defendant from that of being somewhat cooperative to being argumentative, Edmunds was justified in conducting a pat-down search of defendant; and 4) based on the officer's training, experience, and his knowledge of how heroin is packaged, the officer was authorized to seize the heroin found in defendant's pocket.

On appeal, defendant argues:

POINT I.

THE COURT'S CONCLUSION THAT THE SEAT[]BELT ASSEMBLY WAS TAMPERED WITH WAS AGAINST THE WEIGHT OF THE EVIDENCE AND IMPERMISSIBLY REVERSED THE STATE'S BURDEN OF PROOF.

POINT II.

OFFICER EDMUNDS'[S] SEARCH OF [DEFENDANT] EXCEEDED THE PERMISSIBLE SCOPE OF A TERRY PROTECTIVE SEARCH[,] AND CANNOT BE JUSTIFIED UNDER THE "PLAIN FEEL" DOCTRINE.

Defendant argues that for the State "to justify the motor vehicle stop and subsequent search," it "must prove that Officer Edmunds observed the seatbelt latch plates at the passenger's and driver's shoulders when the officer tailed the vehicle." Defendant contends that his expert's testimony "contradicts this conclusion since the expert testified that this condition was mechanically impossible. Defendant asserts that the trial judge improperly "concluded that someone had tampered with the seatbelt mechanism or had replaced it thereby "shift[ing] the burden of proof from the State to prove the validity of the stop to [d]efendant to show that the stop was unjustified." We disagree.

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect individuals against unreasonable search and seizures. State v. Johnson, 171 N.J. 192, 205 (2002). "[O]ur constitutional jurisprudence expresses a preference that [police officers] secure warrants issued by neutral and detached magistrates before executing a search . . . ." State v. Frankel, 179 N.J. 586, 597-98, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004). A warrantless search is presumed to be unlawful unless it falls within one of the recognized exceptions to the warrant requirement. State v. DiLoreto, 180 N.J. 264, 275-77 (2004). "Those exceptions are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary." Frankel, supra, 179 N.J. at 598.

An investigative stop may be made on less than probable cause. State v. Williams, 317 N.J. Super. 149, 155 (App. Div. 1998), certif. denied, 157 N.J. 647 (1999). "'An officer does not need a warrant to make [an investigatory] stop 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.'" State v. Birkenmeier, 185 N.J. 552, 561-62 (2006) (quoting State v. Rodriguez, 172 N.J. 117, 126-27 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906)). Accordingly, "it has been held that law enforcement officials may stop motor vehicles where they have a reasonable[,] articulable suspicion that a motor vehicle violation has occurred." State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990).

An appellate court's scope of review of a trial court's determination is limited. We are obligated to "review the record in the light of the contention, but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Factual findings of the trial judge are generally given deference, especially when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.; accord State v. Locurto, 157 N.J. 463, 470-71 (1999). When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Johnson, supra, 42 N.J. at 162. "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.

After applying these principles to the facts as adduced at the suppression hearing and giving due deference to the trial judge's determination on the issue of credibility, we are satisfied Judge Ahto correctly concluded that Patrolman Edmunds had an articulable and reasonable suspicion that a motor vehicle violation had occurred, justifying the investigatory stop. Murphy, supra, 238 N.J. Super. at 553-54. Operating or riding in a motor vehicle unsecured by seatbelts is contrary to New Jersey motor vehicle law. N.J.S.A. 39:3-76.2f-a. Edmunds, whose testimony the judge found credible, testified that he observed the latch plates of the seatbelts near the shoulders of both the driver and passenger when he was directly behind their vehicle, leading him to believe that neither occupant was properly secured by a seatbelt. This observation justified the motor vehicle stop. Murphy, supra, 238 N.J. Super. at 553-54. Defendant argues that such conclusion could only have been reached by the judge impermissibly inferring that someone had tampered with the seatbelts between the date of the offense and the date the seatbelts were inspected by defendant's mechanical engineer. Defendant contends his expert's testimony was un-contradicted that it was mechanically impossible for the seatbelt latches to be in the position testified to by Edmunds, because they could not "rise any farther than one foot below the bottom of the window in the doors." We disagree that for the motor vehicle stop to have been justified the officer's observations had to be factually correct.

"[O]ur courts have rejected a good faith objection to the Fourth Amendment exclusionary rule." State v. Puzio, 379 N.J. Super. 378, 383 (App. Div. 2005) (citing State v. Novembrino, 105 N.J. 95, 157-58 (1987)). Accordingly, "where an officer mistakenly believes that driving conduct constitutes a violation of the law, but in actuality it does not, no objectively reasonable basis exists upon which to justify a vehicle stop." Ibid. However, "where the officer correctly understands the statute[,] but arguably misinterprets the facts concerning whether a vehicle, or operator, has violated the statute[,] . . . [we] have approved the motor vehicle stop because it is only necessary that the officer had a reasonable articulable suspicion of a violation." Id. at 381. "In such circumstances, it is not necessary or relevant that the facts testified to by the officer actually support a finding of guilt beyond a reasonable doubt of a statutory violation." Ibid. We are satisfied that Patrolman Edmunds correctly understood the law, even though as testified to by defendant's expert Edmunds may have mistaken the seatbelt D-ring, located near the shoulders of the two occupants, for the latch plates.

Defendant argues next that Edmunds's pat-down search was not justified, and in the alternative, even if the officer was justified in conducting the pat-down search that "he should not have manipulated the suspected object purported to be contraband when it was obvious that the object was not a weapon." We conclude that the argument is without merit.

One exception to the requirement that police obtain a warrant issued upon probable cause before conducting a search of an individual "is an investigatory stop based on Terry." State v. Citarella, 154 N.J. 272, 278 (1998). The protection granted with respect to investigatory stops and pat-down searches for weapons incident to such stops under the New Jersey Constitution is the same as under the Fourth Amendment. State v. Valentine, 134 N.J. 536, 543 (1994). Under Terry, "[a] police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002).

Once stopped, the "officer may conduct a reasonable search for weapons if he [or she] is 'justified in believing that the individual whose suspicious behavior he [or she] is investigating at close range is armed and presently dangerous to the officer or to others.'" State v. Richards, 351 N.J. Super. 289, 299 (App. Div. 2002) (quoting Terry, supra, 392 U.S. at 24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 908). "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety[,] or that of others[,] was in danger." Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909. "The protective search 'must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.'" State v. Jackson, 276 N.J. Super. 623, 629 (App. Div. 1994) (quoting Terry, supra, 392 U.S. at 29, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911). Accordingly, if a police officer conducts a pat-down search of an individual and determines an object in the clothing of the individual that the officer does not recognize as a weapon, nor identify as contraband, any nonthreatening contraband seized may not be used against the individual in a criminal prosecution. Jackson, supra, 276 N.J. Super. at 630. However:

"[i]f a police officer lawfully pats down a suspect's outer clothing[,] and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical consideration that adhere in the plain view context."

[Jackson, supra, 276 N.J. Super. at 630-31 (emphasis omitted) (quoting Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 2137, 124 L. Ed. 2d 344, 346 (1993).]

We conclude that the pat-down search of defendant was justified, and the seizure of the heroin lawful. Both police officers opined that they believed defendant was under the influence of CDS because of his slow and slurred speech, slow hand movements, and the observation of constriction of his eye pupils after he removed his sunglasses. Once he was requested to exit the vehicle for the purpose of the police continuing their investigation into his mannerisms, defendant became argumentative, leaning against the car with his arms folded, and refusing to cooperate further with the police. Under these facts, Edmunds justifiably conducted a pat-down search. In conducting the search, Edmunds detected a small object in defendant's pant's pockets which defendant stated was a pack of gum. Because the object did not conform in shape to a pack of gum and based upon Edmunds's prior police training and experience in narcotics, Edmunds believed that the object conformed in size and shape to a deck of heroin wrapped in a rubber band. Unlike Jackson, because Edmunds immediately determined that the item was contraband, the seizure thereof was lawful.

Affirmed.

 

Officer Edmunds described the latch plate as the metal portion of the seatbelt that slides into the buckle activating the locking mechanism to hold the seatbelt in place.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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

(continued)

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A-1587-04T4

July 31, 2006