STATE OF NEW JERSEY v. KEVIN JOHNSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2675-05T42675-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN JOHNSON, a/k/a TYMIAR BAKER,

Defendant-Appellant.

___________________________________

 

Submitted October 23, 2006 - Decided November 3, 2006

Before Judges Lintner and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

05-05-1219.

Yvonne Smith Segars, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Adrienne B. Reim, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of a motion to suppress cocaine seized in a warrantless search of an automobile. After the motion to suppress was denied, defendant entered a retraxit plea of guilty to the third-count charge of third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, in accordance with a plea agreement, which preserved his right to appeal the denial of his suppression motion. Defendant was sentenced to three years imprisonment with a nine-month period of parole ineligibility. Appropriate fines and penalties were assessed. We affirm the order denying defendant's motion to suppress.

On the night of January 20, 2005, at approximately 11:45, Newark Police Officer Frost and his partner, Officer Sanchez, who were assigned to the Safe City Task Force, were patrolling the West District of the city, an area known for high narcotics, violence, and stolen car activities. Frost saw a 1 993 Delta 88 Oldsmobile parked at 611 South 19th Street near the northwest corner of the intersection of South 19th Street and 17th Avenue. The occupant, later identified as defendant, was sitting in the driver's seat with the engine idling. It was a very cold night. The vehicle displayed temporary tags and defendant was not wearing a seat belt.

Knowing the area as one with a reputation for stolen cars and observing that the individual behind the wheel was not wearing a seat belt, Frost approached the car to check the temporary tags. As he approached, Frost saw defendant reach down between his legs. Being in an area Frost described as "a violent area," he and his partner immediately ordered defendant to put his hands up. Defendant complied. Frost requested defendant's license, however, defendant responded that he had none and that he was "heating up the vehicle." Defendant was then requested to "[s]tep out of the vehicle." Shining their flashlights into the car, the officers saw a clear plastic bag on the floor mat on the driver's side in the area where defendant had reached. Sanchez retrieved the bag and placed defendant under arrest. Defendant did not testify.

The judge accepted Frost's testimony and found that the officers were authorized to approach the vehicle under the general caretaking function. He also determined that the officers had a reasonable articulable suspicion of a traffic violation because the car was running and the defendant was not wearing a seat belt. The judge found that the officers were warranted in asking defendant to exit the vehicle and in shining their flashlights into the car after learning that defendant had no license. He concluded that the officers were "lawfully in the viewing area" when they shined their flashlights at the car and saw the drugs in plain view.

Defendant raises the following point on appeal:

THE DEFENDANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO BE FREE FROM AN UNREASONABLE SEARCH AND SEIZURE WHEN THE POLICE APPROACHED HIM AND DEMANDED HE EXIT THE VEHICLE HE WAS OCCUPYING. U.S. CONST. AMENDS. IV, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 7, 9 AND 10.

Defendant first claims that Frost gave conflicting testimony by not initially mentioning defendant reaching down between his legs. In reviewing the trial court's decision, we give appropriate deference to the trial judge's findings of fact and determinations of credibility. State v. Locurto, 157 N.J. 463, 470-71 (1999). We are satisfied from our review of the record that Frost did not give conflicting testimony and there is sufficient credible evidence present in the record to uphold the judge's factual findings regarding the sequence of events. See State v. Johnson, 42 N.J. 146, 162 (1964). Defendant's contention to the contrary is without merit and does not warrant further discussion. R. 2:11-3(e)(2).

We address defendant's contentions concerning the propriety of the warrantless search. The applicable principles are well settled. Both the Fourth Amendment of the United States Constitution and Article I, paragraph 7, of the New Jersey Constitution protect citizens "against unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I 7. Reasonableness is the touchstone of the Fourth Amendment. State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 194 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Investigatory stops of automobiles are justified by an automobile occupant's reduced expectation of privacy. United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S. Ct. 3074, 3084-85, 49 L. Ed. 2d 1116, 1130 (1976). Generally, a police officer may stop a motor vehicle where there is a reasonable or articulable suspicion that a motor vehicle violation has occurred. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); State v. Carter, 235 N.J. Super. 232, 238 (App. Div. 1989); State v. Nugent, 125 N.J. Super. 528, 534 (App. Div. 1973); State v. Griffin, 84 N.J. Super. 508, 516-17 (App. Div. 1964). "Reasonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest." State v. Stovall, 170 N.J. 346, 356 (2002) (citations omitted). "Facts that might seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate," as long as there is "objectively reasonable belief that the collective circumstances are consistent with criminal conduct." State v. Nishina, 175 N.J. 502, 511 (2003) (citations omitted). "The time of day and physical location at which a police-citizen encounter takes place are relevant to the analysis." Id. at 512 (citing State v. Fuqua, 303 N.J. Super. 40, 42 (App. Div. 1997)).

The "community caretaking function" may also be implicated where something abnormal is observed concerning the operation of a motor vehicle. State v. Martinez, 260 N.J. Super. 75, 78 (App. Div. 1992). In Martinez, a motorist was observed traveling at less than ten miles per hour in a twenty-five mile per hour zone at 2:00 a.m. Id. at 77-78. We observed in Martinez that

[s]uch abnormal conduct suggests a number of objectively reasonable concerns: (a) something might be wrong with the car; (b) something might be wrong with its driver; (c) a traffic safety hazard is presented to drivers approaching from the rear when an abnormally slow moving vehicle is operated at night on a roadway without flashers; (d) there is some risk that the residential neighborhood is being "cased" for targets of opportunity.

[Id. at 78.]

We also recognized that the first three concerns triggered the "community caretaking function," while the fourth "implicate[d] the 'common-law right to inquire' based upon a founded suspicion that criminal activity might be afoot." Ibid.

With these principles in mind, we turn to defendant's arguments. Defendant argues that sitting in an idling vehicle in the driver's seat, without a seat belt, does not support a reasonable articulable suspicion of a traffic violation under N.J.S.A. 39:3-76.2f(a) because there was no movement of the vehicle and thus no intent to operate the vehicle. He asserts that the officers were without legal authority to approach defendant because he was not violating the law and they had no reason to order defendant to exit the vehicle. We disagree.

N.J.S.A. 39:3-76.2f(a) requires drivers "of a passenger automobile operated on a street or highway in this State" to wear seat belts. "[T]he focus of the 'operation' inquiry revolves primarily around the defendant's intent to operate the vehicle." State v. Morris, 262 N.J. Super. 413, 418 (App. Div. 1993) (citing State v. Tischio, 107 N.J. 504, 513 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988)). Here, the community caretaking function was implicated when the officers saw defendant sitting in the driver's seat of an idling vehicle late in the evening. As they approached, their observations that defendant was not wearing his seat belt while behind the wheel of an idling vehicle located on the street were sufficient to create an articulable suspicion that defendant intended to operate the vehicle, in violation of N.J.S.A. 39:3-76.2f(a), and to warrant further investigation. Moreover, the temporary plates, the time of day, and the high crime area location all contributed to create a reasonable suspicion necessary to justify an investigatory stop.

An officer is permitted to routinely request a driver to step out of a car after being stopped for a traffic violation. State v. Smith, 134 N.J. 599, 610 (1994) (citing with approval the holding in Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331, 337 (1977), as consistent with the protection afforded by our Constitution with regard to drivers). Once defendant advised the officers that he did not have a license, they were justified in ordering him to exit the vehicle. Moreover, the officers were lawfully in the viewing area when they shined their flashlights into the vehicle. "[A] police officer lawfully in the viewing area" is not expected to "close his eyes to suspicious evidence in plain view." Bruzzese, supra, 94 N.J. at 237. "[T]he use of a flashlight does not transform an otherwise reasonable observation into an unreasonable search within the meaning of the Fourth Amendment." State v. Gibson, 318 N.J. Super. 1, 11 (1999) (citing United States v. Dunn, 480 U.S. 294, 304, 107 S. Ct. 1134, 1141, 94 L. Ed. 2d 326, 337 (1987)). Thus, under these circumstances, the officers' discovery and seizure of the evidence, without a warrant, did not offend the constitutional safeguards. Coolidge v. New Hampshire, 403 U.S. 443, 465, 92 S. Ct. 2022, 2037-38, 29 L. Ed. 2d 564, 582 (1971); accord State v. Perry, 124 N.J. 128, 148 (1991).

 
Affirmed.

(continued)

(continued)

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A-2675-05T4

November 3, 2006