STATE OF NEW JERSEY v. ROBERT CLARK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0816-07T40816-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT CLARK,

Defendant-Appellant.

_________________________________

 

Submitted October 7, 2008 - Decided

Before Judges Wefing and Yannotti.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, No. 06-09-2954.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Alyssa Aiello, Assistant Deputy

Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for

respondent (Carol M. Henderson, Assistant

Attorney General, of counsel and on the

brief).

PER CURIAM

Defendant was indicted for unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and receiving stolen property, N.J.S.A. 2C:20-7. Following the trial court's denial of his motion to suppress, defendant entered a negotiated plea of guilty to one count of unlawful possession of a weapon, and the trial court sentenced defendant to serve two years on probation. Defendant has appealed from the trial court's order denying his motion to suppress. After reviewing the record in light of the contentions advanced on appeal, we remand for further proceedings.

On the evening of March 17, 2006, Police Officers Alan Knight and Todd Bowman were on routine patrol in the City of Newark when they came upon a vehicle that was double-parked on Hayes Street near its intersection with Fourteenth Street. The officers pulled over, and Officer Knight pulled out his ticket book, planning to issue a summons. The officers then noticed that the vehicle had commercial license plates. The officers knew that taxicabs had commercial license plates and decided to approach and inquire why it was double-parked. Officer Bowman went to the driver's side and asked the driver for his credentials while Officer Knight stood at the rear on the passenger side. The driver turned on the car's interior lights and the two officers noted that the passenger in the rear seat "started moving and squirming and stuffing an object into the rear of his pants . . . ."

Officer Bowman told the passenger, later identified as defendant, to stop moving around and ordered both men to step out of the car. The police then patted defendant down and uncovered a loaded handgun in his waistband. Defendant was placed under arrest.

Defendant makes the following contention on appeal:

POINT ONE THE TRIAL JUDGE ERRED IN DENYING CLARK'S MOTION TO SUPPRESS THE GUN BECAUSE OFFICER KNIGHT DID NOT HAVE REASONABLE SUSPICION TO BELIEVE THAT CLARK WAS ARMED WITH A WEAPON AT THE TIME OF THE PAT-DOWN SEARCH

At the suppression hearing, after hearing Officer Knight testify as to the circumstances under which this handgun was recovered, the attorneys argued the question of the validity of the pat-down.

Defendant made two arguments in support of his contention that the weapon should be suppressed. He asserted that it was the product of an illegal stop and also the product of an illegal pat-down. Newark had, sometime before this incident, instituted a policy of checking all taxicabs in an apparent effort to protect the safety of taxicab drivers. The program called for police officers to pull over a cab, inspect the credentials of the driver and "make sure . . . a person in the back seat is also okay." This program had been challenged in another proceeding and a different Superior Court judge had ruled the program unconstitutional. State v. White, 359 N.J. Super. 16 (Law Div. 2002).

Most of the argument in connection with this defendant's motion focused on the impact of that ruling. Defendant's attorney contended that the traffic stop was illegal because it was done pursuant to the taxicab check program that had been held unconstitutional. He also argued, however, that the pat-down search was illegal because the circumstances surrounding it did not create a reasonable suspicion that defendant was armed and dangerous.

The trial court placed its ruling with respect to defendant's motion on the record at a later point. It rejected defendant's contention that the stop was illegal, finding that the fact that the vehicle was double-parked provided a valid independent basis to approach the cab. It did not, however, in its oral opinion, address the contention that Officer Knight had no basis to conduct a pat-down because the circumstances did not create a reasonable suspicion that defendant was armed and dangerous.

 
The parties have argued before us the respective merits of that contention. We decline to address that contention in the first instance, however, since the trial court did not rule on it. We thus remand this matter to the trial court for further proceedings. We do not retain jurisdiction.

(continued)

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A-0816-07T4

October 23, 2008