STATE OF NEW JERSEY v. STATE OF NEW JERSEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0254-06T10254-06T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERSHON CLARK,

Defendant-Appellant.

____________________________________

 

Argued May 22, 2007 - Decided June 14, 2007

Before Judges Skillman, Holston, Jr. and Grall.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-04-0957.

Edward C. Bertucio, Jr. argued the cause for appellant (Hobbie, Corrigan, Bertucio & Tashjy, attorneys; Norman M. Hobbie, of counsel; Mr. Bertucio, of counsel and on the brief).

Patricia B. Quelch, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Ms. Quelch, of counsel and on the brief).

PER CURIAM

Defendant was indicted for possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1); possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5b(3); resisting arrest, in violation of N.J.S.A. 2C:29-2a; and obstruction of justice, in violation of N.J.S.A. 2C:29-1. Defendant filed a motion to suppress evidence, which was denied. Defendant was tried before a jury, which found him guilty of possession of cocaine and obstruction of justice. The jury failed to reach a verdict on the charge of possession of cocaine with the intent to distribute and acquitted defendant of resisting arrest. At sentencing, the State dismissed the possession with intent to distribute charge. The trial court sentenced defendant to a five-year term of imprisonment for possession of cocaine and a concurrent eighteen-month term for obstruction of justice.

On appeal, defendant presents the following arguments:

I. THE TRIAL COURT IMPROPERLY DENIED APPELLANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE AND THE APPELLATE DIVISION SHOULD REVERSE THE TRIAL COURT'S DECISION AND SUPPRESS THE PHYSICAL EVIDENCE AND DISMISS THE INDICTMENT.

II. THE COURT SHOULD HAVE DISMISSED THE POSSESSION WITH INTENT TO DISTRIBUTE AND RESISTING ARREST COUNTS AT THE CLOSE OF THE STATE'S CASE AS THE SUBSEQUENT VERDICTS OF THE JURY ON THOSE COUNTS DEMONSTRATE THAT A COMPROMISE WAS REACHED WHERE OTHERWISE DEFENDANT MAY HAVE BEEN ACQUITTED OF OBSTRUCTION OF JUSTICE. ALTERNATIVELY, APPELLANT'S POST VERDICT MOTIONS SHOULD HAVE BEEN GRANTED AS TO THE CHARGE OF OBSTRUCTION OF JUSTICE.

III. THE SENTENCE IN THIS MATTER WAS EXCESSIVE AND APPELLANT SHOULD HAVE BEEN SENTENCED TO EITHER PROBATION WITH DRUG TREATMENT OR TO A PRISON TERM NO LONGER THAN A FLAT FOUR-YEAR TERM.

We reverse the order denying defendant's motion to suppress and his conviction for possession of cocaine, which was based solely on evidence obtained in an unlawful search of his person. We affirm defendant's conviction and sentence for obstruction of justice.

I

The following evidence was presented at the hearing on the motion to suppress. In the early afternoon of January 21, 2005, Detective Sergeant Hunt of the Neptune Township Police Department was participating with a Narcotics Strike Force in executing arrest warrants. While searching for one of the subjects of those arrest warrants, Hunt observed defendant, whom he had arrested on several prior occasions, walk from his house across the street to a parked car. After defendant got into the driver's seat of the car, Hunt made eye contact with him. Defendant then ducked between the two bucket seats of the car out of Hunt's sight. When Hunt made this observation, he was aware that defendant had an extensive criminal record and that his driver's license was suspended.

Hunt drove past the parked car, notified another officer that he had seen defendant hiding from him in a parked car, circled around at an intersection, and activated the flashing lights on his police car. Hunt stopped his car behind the parked car, got out and approached the driver's side of the parked car. Defendant sat back up in the driver's seat and rolled down the window. Hunt asked defendant why he had been hiding from him, and defendant replied that he had not been hiding. Defendant also said that he was not driving the car, and Hunt acknowledged he saw the car keys on the passenger seat when defendant spoke to him. At this point, defendant appeared "very nervous" to Hunt. Hunt asked defendant to produce driving credentials, which he did.

At this point, back-up officers appeared on the scene. Hunt then ordered defendant to get out of the car and to put his hands on the roof. After defendant complied with this direction, the officers began a pat down search of defendant for weapons. Defendant pulled away and resisted the pat down. The officers then handcuffed defendant and completed the pat down, which revealed rock cocaine in the area of his crotch.

Based on this evidence, the trial court denied defendant's motion to suppress evidence of the rock cocaine discovered in the pat down search. The court concluded that Officer Hunt had a reasonable suspicion that defendant's motor vehicle license was suspended and that he intended to drive the car when he got behind the wheel and then attempted to hide from Detective Hunt's view. The court further concluded that this reasonable suspicion justified Detective Hunt's directive to defendant to get out of the car. In addition, the court concluded that the pat down search of defendant was justified because the officers had a reasonable suspicion defendant was armed and dangerous. The court based this conclusion on the fact that defendant had a prior arrest for possession of a firearm and that he appeared extremely nervous when Detective Hunt asked him for driving credentials.

To justify a temporary detention of a suspect, commonly referred to as a Terry stop, a police officer must have "a particularized and objective basis for suspecting the particular person stopped of criminal activity." State v. Thomas, 110 N.J. 673, 678 (1988) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)). Even where a Terry stop is justified, "whether there is good cause for an officer to make a protective search incident to an investigatory stop is a question separate from whether it was permissible to stop the suspect in the first place." Id. at 678-79. An officer may conduct a pat down search for weapons only if "he has reason to believe that he is dealing with an armed and dangerous individual[.]" Id. at 679 (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968)).

The reasonableness of such a search is "measured by an objective standard. More than an officer's generalized statements and subjective impressions are required." Ibid. The determination whether a pat down search for weapons is justified "depends on all the facts and circumstances of the case." State v. Valentine, 134 N.J. 536, 546 (1994). The nature of the crime a person subject to a Terry stop is suspected of committing, the time of day when the stop is made, the circumstances of the stop, including the number of police officers present on the scene, the suspect's criminal history, including in particular any history of weapons offenses, and any observations of the officers making the stop that may reasonably lead them to believe defendant may be armed, are all relevant factors in determining whether it is reasonable to conduct a pat down search for weapons. See id. at 546-51; State v. Lund, 119 N.J. 35, 45-48 (1990); Thomas, supra, 110 N.J. at 679-82; State v. Casimono, 250 N.J. Super. 173, 178-82 (App. Div. 1991), certif. denied, 127 N.J. 558, cert. denied, 504 U.S. 924, 112 S. Ct. 1978, 118 L. Ed. 2d 577 (1992); see generally 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment 9.6(a) at 625-32 (4th ed. 2004).

We assume, without deciding, that Detective Hunt's knowledge that defendant's motor vehicle license was suspended and that defendant had been arrested on several occasions for driving without a license and his observation of defendant getting behind the driver's wheel of the parked car and then ducking from view upon making eye contact with Hunt, provided Hunt with the reasonable suspicion of defendant's intent to drive the car required to justify a Terry stop. However, we conclude that Detective Hunt did not have an objectively reasonable basis for believing that defendant was armed and dangerous and that his safety or that of others was in danger. Therefore, the trial court erred in denying defendant's motion to suppress the evidence of drug possession obtained as a result of the pat down search.

Initially, it must be emphasized that the suspected offense upon which the stop was based was only a motor vehicle offense, not a violent crime or other serious offense where it would be likely that the perpetrator would be armed. Moreover, the State does not contend that Detective Hunt's observations after the initial stop of defendant for the motor vehicle offense gave rise to a reasonable suspicion that he was engaged in some other more serious criminal activity. It is also significant that the stop occurred on the street in early afternoon and that two other officers arrived on the scene before Detective Hunt ordered defendant to get out of the car and subjected him to a pat down search. The only circumstances Detective Hunt pointed to as support for his belief that defendant might be armed and dangerous were his criminal history, which included an arrest for possession of an automatic weapon, and his nervousness. However, Hunt was aware that this arrest had been based on the discovery of a weapon in the basement of a house, not on defendant's person. Furthermore, Hunt did not indicate defendant had been armed at the time of any of his prior arrests, including the several prior occasions when Hunt had arrested him. Absent other evidence of dangerousness, a motorist's nervousness when confronted by a police officer does not provide an adequate foundation for a pat down search for weapons. Lund, supra, 119 N.J. at 47-48. Consequently, under the totality of the circumstances, Detective Hunt did not have an objectively reasonable basis for concluding that defendant was armed and dangerous at the time of his stop on suspicion of driving or intending to drive while on the suspended list.

II

Defendant's argument that the State failed to present sufficient evidence of the possession with intent to distribute cocaine and resisting arrest charges to warrant their submission to the jury and that this overcharging requires reversal of his convictions for possession of cocaine and obstruction of justice is clearly without merit. R. 2:11-3(e)(2).

The testimony of Detective Graves, the State's expert regarding drug distribution, was clearly sufficient to warrant submission of the possession with intent to distribute charge to the jury. In any event, the reversal of the denial of defendant's motion to suppress requires reversal of his conviction for possession of cocaine because this conviction was based solely on the evidence obtained in the pat down search.

The testimony of Detectives Hunt and Bonanno regarding defendant's resistance not only to the pat down search but also to his arrest after the discovery of the rock cocaine provided an adequate evidential foundation for the jury to have found him guilty of resisting arrest. Moreover, the conclusion that the pat down search was unlawful does not require the reversal of defendant's conviction for obstruction of justice for forcibly resisting that search. See State v. Crawley, 187 N.J. 440, 452-61, cert. denied, ___ U.S. ___, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006); see also Casimono, supra, 250 N.J. Super. at 183-85.

III

Defendant's argument that his sentence was excessive, as applied to the eighteen-month sentence for obstruction of justice, which is the only sentence that survives our reversal of his conviction for possession of cocaine, is clearly without merit. R. 2:11-3(e)(2). We only note that defendant had nine prior convictions for indictable offenses before his conviction for this offense.

IV

 
Accordingly, the denial of defendant's motion to suppress and his conviction for possession of cocaine are reversed. Defendant's conviction and sentence for obstruction of justice are affirmed.

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A-0254-06T1

June 14, 2007