STATE OF NEW JERSEY v. NATHANIEL S. HERNANDEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5156-05T45156-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NATHANIEL S. HERNANDEZ,

Defendant-Appellant.

_______________________________________________________________

 

Submitted July 17, 2007 - Decided August 6, 2007

Before Judges R. B. Coleman and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-10-02166.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Nathaniel S. Hernandez was charged under Atlantic County Indictment No. 04-10-2166-C with the following crimes: third degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5b (count one); fourth degree possession of a prohibited weapon, a switchblade, N.J.S.A. 2C:39-3e (count two); third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count three); fourth degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7 (count four); and second degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7 (count five).

Following the denial of his motion to suppress evidence on January 18, 2004, defendant entered a guilty plea that same day. In accordance with the terms of the plea agreement, defendant pled guilty to second degree certain persons not to possess a weapon (count five) in exchange for a five-year term of imprisonment with a five-year period of parole ineligibility. All other charges against defendant were dismissed and the court accepted defendant's guilty plea.

On appeal, defendant raises the following argument:

POINT I: AS OFFICER BEATTIE DID NOT HAVE THE REQUISITE REASONABLE SUSPICION THAT DEFENDANT WAS ARMED AND DANGEROUS, THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS EVIDENCE. ALTERNATIVELY, THE OFFICER EXCEEDED THE SCOPE OF A PERMISSIBLE PAT-DOWN OF DEFENDANT.

After careful consideration of the defendant's argument in light of the facts and of the applicable law, we affirm.

On the evening of September 24, 2004, at approximately 8:00 p.m., Officer William Beattie of the Atlantic City Police Department was on patrol in a marked police vehicle on the 400 block of Harrisburg Avenue. Beattie observed a group of three men holding beer cans and talking with two women standing in front of an apartment building. As Beattie drove by, one of the men attempted to hide his beer can inside his coat. Seeing this, Beattie, who was in uniform, stopped his vehicle and approached the men.

As he approached, Beattie saw that the cans were open, in violation of a city ordinance. He then asked the man who had been attempting to hide the can for his identification. While the man was retrieving his identification, one of the other men, subsequently identified as defendant, began walking away backwards toward the apartments. Defendant repeatedly said "I'm going to go in the apartment and get my ID." Beattie, who had not asked for defendant's ID, directed defendant to stop. Despite this, defendant continued to back away from the officer. Beattie then approached defendant and commanded in a louder and more authoritative voice for defendant to stop and stated that he did not want his ID. Defendant finally stopped, and as he did so, Beattie noticed a large bulge beneath defendant's shirt near the waistband, which Beattie believed to be a weapon. When Beattie asked defendant if he had any weapons on him, defendant failed to respond.

Consequently, Beattie slowly lifted the front of defendant's shirt with two fingers, revealing the bulge to be a cellular telephone clipped to defendant's waistband. However, still suspecting that defendant was armed, Beattie reached around towards defendant's back. Doing so, Beattie rested his hand directly on a handgun at defendant's back waistband. Due to his training and experience, Beattie immediately recognized the object under his hand to be a handgun. Beattie secured the weapon, placed defendant under arrest and radioed for additional units. Defendant was then placed under arrest. During a search incident to the arrest, Beattie discovered one narcotic pill and a stiletto knife in defendant's pockets.

At the suppression hearing, Beattie testified that he conducted the pat down to dispel a suspicion that defendant was armed. He based this suspicion on the fact that defendant: (a) continued to walk away backwards, because most people would turn around; (b) failed to respond to whether or not he was carrying a weapon; and (c) had a bulge at his waistband, which Beattie believed to be a weapon.

Defendant correctly argues that warrantless searches are prima facie unreasonable unless the search falls within an exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854, 858 (1973); State v. Alston, 88 N.J. 211, 230 (1981). One such exception is the investigatory stop and protective frisk or "Terry stop". Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Davis, 104 N.J. 490 (1986). An officer is permitted to conduct a pat-down of an individual's outer clothing if the officer has "reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909; State v. Nishina, 175 N.J. 502, 514-15 (2003).

The officer must have a "'specific and particularized basis for an objectively reasonable suspicion'" that the suspect is armed and dangerous. State v. Roach, 172 N.J. 19, 27 (2002) (quoting State v. Thomas, 110 N.J. 673, 683 (1988)). In determining whether an officer had such a suspicion, the court must look to all of the facts and circumstances of the case. State v. Valentine, 134 N.J. 536, 546 (1994).

Here, in upholding the search, the court first found that Beattie was a credible witness. Next, the court determined that Beattie was obligated to stop once he observed a potential violation of a city ordinance, whether it be public consumption of alcohol or an open container violation. The court also noted that Beattie initially interacted with another individual, but that he then "observe[d] what to a reasonably experienced street officer is activity of concern." This activity included defendant's announcement that he was going to retrieve identification as he backed away, despite the officer's commands to the contrary. Additionally, Beattie then noticed a suspicious bulge near defendant's waistband and defendant failed to respond when asked if he was carrying a weapon. The court found these factors sufficient to support the pat down of defendant's clothing. We agree and find that the court's assessment of the circumstances and resultant conclusions are supported by sufficient credible evidence and should be affirmed. State v. Locurto, 157 N.J. 463, 471 (1999).

Defendant also argues that, even if a Terry frisk was justified, Beattie exceeded the permissible scope of such a search. A police officer is permitted to take necessary measures to determine whether a person is, in fact, in possession of a weapon, and to neutralize the threat of physical harm. Roach, supra, 172 N.J. at 27. "Specifically, the officer may conduct 'a carefully limited search of the outer clothing . . . in an attempt to discover weapons which might be used to assault him.'" Ibid. (quoting Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1885, 20 L. Ed. 2d at 911). The scope of such a pat down must be limited to an intrusion reasonably designed to discover weapons that might be used to assault the officer. Ibid.

Defendant contends that because Beattie lifted up defendant's shirt and then went underneath defendant's coat into defendant's waistband, he exceeded the permissible scope of a Terry frisk. We disagree.

Initially, Beattie testified that he was unable to recall whether he lifted the jacket or not, but assuming he did, there is no indication in the record that he observed the handgun or any of the illegal items seized. The judge found that, as Beattie was investigating the bulge in front, he "simultaneously" reached around and felt what he knew to be a gun, at which point he seized the gun and took defendant into custody.

Beattie's testimony regarding his search of the front of defendant's waistband showed that he conducted a carefully limited pat down that was designed to discover weapons that might be used against him. Despite defendant's assertions to the contrary, this case is clearly distinguishable from Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). In Sibron, an officer observed the defendant speaking with a series of known narcotic addicts several times over an eight-hour period, but saw nothing pass between them. Id. at 45, 88 S. Ct. at 1893-94, 20 L. Ed. 2d at 924-25. The officer approached the defendant and stated "You know what I am looking for." Ibid. The defendant then reached his hand into his pocket and, simultaneously, the officer thrust his hands into the same pocket, finding glassine envelopes of heroine. Ibid. The Court found that the officer was after evidence of narcotics and that the search was not limited in scope to justify the protection of the officer by disarming a potentially dangerous man. Id. at 65, 88 S. Ct. at 1904, 20 L. Ed. 2d at 936.

Here, we have an officer who observed defendant in the circumstances outlined above and with a suspicious bulge at his waist. In investigating the strange bulge, the officer began at the front of defendant's waistband and simply continued around to the back as part of his investigation into whether defendant was armed. We are satisfied that Beattie did not exceed the scope of a permissible Terry frisk.

Affirmed.

 

(continued)

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A-5156-05T4

August 6, 2007