STATE OF NEW JERSEY v. DARNELL SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1379-07T41379-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARNELL SMITH,

Defendant-Appellant.

______________________________________________

 

Submitted August 26, 2008 - Decided

Before Judges Lisa and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-05-1042.

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

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Betsy Phillips, Chief Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

A grand jury indicted defendant Darnell Smith for third degree possession of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-10a(1) (count one), and third degree manufacturing, distributing, or dispensing a CDS, contrary to N.J.S.A. 2C:35-5a(1) (count two). After the denial of his motion to suppress physical evidence, defendant pled guilty to count two in exchange for the State's agreement to recommend a five-year term of imprisonment with an eighteen-month period of parole ineligibility, concurrent with any parole or Intensive Supervision Program (ISP) violation.

On July 13, 2007, defendant was sentenced in accordance with the plea agreement. The sentencing judge also imposed the appropriate fines, assessments, fees and penalties, and suspended defendant's driver's license for six months.

On appeal, defendant raises the following contentions:

POINT I:

AS SERGEANT ANDERSON 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, ANDERSON EXCEEDED THE SCOPE OF A PERMISSIBLE PAT-DOWN OF DEFENDANT. BOTH OF THESE ACTIONS VIOLATED DEFENDANT'S FOURTH AMENDMENT RIGHTS.

The Officer Did Not Have A Reasonable Basis To Believe That Defendant Was Armed And Dangerous.

Sergeant Anderson Exceeded The Scope of A Valid Terry Pat-Down.

We reject these contentions and affirm.

The following facts are summarized from the record. The area of New York and Pacific Avenues in Atlantic City is a known high crime area where daily assaults occur, many involving guns and knives. On March 31, 2006, at approximately 5:45 a.m., Officer Wayne Steuber of the Atlantic City Police Department (ACPD) was on patrol when he received a radio transmission to respond to a fight in the area of New York and Pacific Avenues. Steuber and his partner arrived at the scene and observed a male chasing another male, later identified as defendant, with a belt. Steuber stopped the male with the belt and questioned him. The individual told Steuber that the male he was chasing had pulled a knife on him. From approximately half a block away, Steuber observed defendant run east on Pacific Avenue and then enter a taxi cab. He radioed other patrol units in the area to alert them that a black male possibly armed with a knife had entered a taxi cab at New York and Pacific Avenues.

Sergeant Gregory Anderson and other officers, all in uniform, responded to the area. Anderson observed defendant enter a taxi cab. After the cab traveled approximately fifty feet, Anderson stopped it. Concerned for his safety and that of the other officers at the scene, Anderson drew his weapon as he approached the cab. Defendant was in the back seat of the cab, and Anderson ordered him to exit the cab with his hands visible.

After defendant exited the cab, Anderson conducted a protective Terry pat-down search to ascertain if he was armed with any weapons. Defendant was facing away from Anderson during the pat-down, but Anderson was able to reach around and feel defendant's pockets and waistband. Anderson testified he was looking for a weapon, specifically the knife indicated in the radio transmission, not CDS. Although defendant did not resist the pat-down, based on his experience, Anderson believed defendant's behavior indicated he might flee or fight. Anderson testified that defendant was not being completely cooperative, he was being "a little difficult[,]" and something about him was "off[.]"

Defendant was wearing loose fitting jeans. Anderson reached into defendant's right front pocket and felt something he believed could have been a weapon. The object was hard and about four or five inches long. Anderson was concerned "because of the consistency[]" of the object. He testified that in his experience, he had seized items of the same size and texture that turned out were knives. Anderson then attempted to ascertain what the object was, so he pulled the pocket open to visually identify the object. Since defendant's pants were loose fitting, when Anderson looked in, he was able to see an ink pen and a clear plastic bag containing white powder and a rock substance, which, based on his training and experience, Anderson believed was cocaine, along with "a plastic bag in clear view when [he] opened up the pocket." Anderson removed the bag from defendant's pocket, proceeded to search defendant's other pockets, and seized two similar bags containing the same white substance from defendant's rear pockets.

Steuber was present when Anderson ordered defendant out of the cab and conducted the pat-down search. He corroborated Anderson's version of what had occurred.

The motion judge found Anderson's testimony credible and unrebutted. The judge stated:

Now, there can be no question in my mind, but that the officer was obliged to conduct to stop the defendant, based on the report that was given, and conduct an investigation. So, he was perfectly lawful in stopping the motor vehicle and having the defendant alight from the motor vehicle, at that point, given his, what I think is the pursuit of an obligation on his part to conduct an investigation.

Was it unreasonable for him, given the knowledge he possessed or the information he possessed, if not knowledge, to, for his own safety, pat-down the defendant's prior to asking the appropriate questions, such as where are you going, where where you why are you why are you running from this man? Must he do all that before conducting the pat-down; which in my view, would require that he do that, placing himself in jeopardy? My view is that he was reasonable in conducting the pat-down before putting himself or allowing himself to be possibly in harm's way and so he could conduct his investigation, feeling relatively safe, given the information he had, that had been provided to him. I don't think there's any question in my mind that that there was an articulable, reasonable suspicion to suspect that Mr. Smith was armed and that the pat-down was entirely appropriate.

Having done that and feeling the object he did now, look. If I feel Mr. Wiech's pocket and feel a long, hard object in it, you know, I'm thinking it's a pen. But if I'm responding to a at 5:45 in the morning, somebody running from another person on the street and that person reports that he has a knife, I am not going to make any assumptions as to it's more likely this and that or the other. And I think the police officer was entirely reasonable in being concerned.

And and he didn't necessarily he didn't, in fact, just reach in and draw it out, he pulled open the pocket and looked in. And at that time, saw that it was a pen, and but at that time also saw a clear plastic bag with white powder. Plain view doctrine in my view; and, therefore, entirely lawful search and seizure.

Defendant first contends that the motion judge erred in finding that Anderson had a reasonable suspicion that he was armed when the officer conducted the pat-down. Alternatively, he contends that Anderson exceeded the scope of a permissible pat-down.

In reviewing the denial of a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990). We "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We should not change the lower court's findings simply because we "might have reached a different conclusion were [we] the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side[.]" Johnson, supra, 42 N.J. at 162. Rather, we should only modify a trial court's findings if they are so clearly mistaken and "so plainly unwarranted that the interests of justice demand intervention and correction[.]" Ibid. In that instance, "[we] should appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Ibid. With these standards in mind, we review defendant's contention.

Our Supreme Court has described the validity of investigatory stops as follows:

An investigatory stop is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.

[State v. Nishina, 175 N.J. 502, 511 (2003) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).]

If the defendant is detained and frisked thereafter, a justifiable suspicion must support both the stop and the frisk. State v. Garland, 270 N.J. Super. 31, 43 (App. Div.), certif. denied, 136 N.J. 296 (1994).

The protective search (or Terry frisk/pat-down) exception to the warrant requirement permits an officer, who thinks a suspect is armed and dangerous, "'to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.'" State v. Roach, 172 N.J. 19, 27 (2002) (quoting Terry, supra, 392 U.S. at 23, 26-27, 88 S. Ct. at 1881-83, 20 L. Ed. 2d at 909). "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). However, the officer must limit the scope of his search "'to an intrusion reasonably designed to discover' weapons" that could potentially be used to harm him. Ibid. (quoting Terry, supra, 392 U.S. at 29, 88 S. Ct. at 1884, 20 L. Ed. 2d at 910-11). Thus, an officer may conduct a protective search when, based on the totality of the circumstances, he possesses "a 'specific and particularized basis for an objectively reasonable suspicion that defendant was armed and dangerous.'" Ibid. (quoting State v. Thomas, 110 N.J. 673, 683 (1988)); State v. Valentine, 134 N.J. 536, 546 (1994).

"Although a stop in a high-crime area does not by itself justify a Terry frisk, . . . the location of the investigatory stop can reasonably elevate a police officer's suspicion that a suspect is armed." Valentine, supra, 134 N.J. at 547 (citations omitted). The same is true of the lateness of the hour at which the police officer encounters the suspect. Ibid. (citing State v. Lund, 119 N.J. 35, 48 (1990)). Additionally, "[a]n important factor to consider is whether the officer used the least intrusive investigative techniques reasonably available to verify or dispel his suspicion in the shortest period of time reasonably possible." Davis, supra, 104 N.J. at 504.

Based upon our careful review of the record, we are satisfied the motion judge's credibility and factual findings are amply supported by the record. We agree that, based on the totality of circumstances, Anderson had a particularized basis for an objectively reasonable suspicion that defendant had engaged in criminal activity, that defendant was armed and dangerous, and that his safety and that of his fellow officers was in jeopardy.

We reject defendant's contention that Anderson exceeded the scope of a permissible Terry frisk by opening his front pocket and removing the plastic bag. Anderson's testimony, found credible by the motion judge, clearly indicated his intent was not to search defendant for drugs, but to search for weapons. During the pat-down, Anderson felt an object which, based on his experience, he reasonably suspected was a weapon. Because Anderson could not identify from the pat-down alone whether the object was a weapon, he necessarily had to enter defendant's pocket to make this determination and to ensure his safety and that of his fellow officers. See Roach, supra, 172 N.J. at 28 ("courts have upheld seizures of unidentifiable objects on a suspect's person where a lawful pat-down is either inconclusive or impossible. The reasoning . . . is that the officer's safety is paramount and that the officer is justified in taking further steps if necessary to protect his safety.")

We also conclude that the motion judge correctly found that, pursuant to the plain view doctrine, Anderson properly seized the plastic bag found in defendant's pocket. As stated by our Supreme Court in State v. Johnson, 171 N.J. 192, 206-07 (2002):

The plain view doctrine requires the police officer to lawfully be in the viewing area. [Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S. Ct. 2022, 2037-39, 29 L. Ed. 2d 564 582-84]; [State v. Bruzzese, 94 N.J. 210, 236 (1983)]. The officer must discover the evidence "inadvertently," "meaning that he did not know in advance where evidence was located nor intend beforehand to seize it." [Bruzzese, supra, 94 N.J. at 236 (citing Coolidge, supra, 403 U.S. at 470, 91 S. Ct. at 2040, 29 L. Ed. 2d at 585)]. The third element required by [Coolidge] is that it had to be "immediately apparent" to the officer that items in plain view were evidence of a crime, contraband, or otherwise subject to seizure. Ibid.

Officer Anderson was "lawfully in the viewing area" because he had a reasonable suspicion that defendant was involved in a fight, and thus properly stopped him to investigate. The officer also had a reasonable suspicion that his safety and that of his fellow officers was in jeopardy. Thus, his actions were justified.

Further, there were no prior objective indications that defendant possessed cocaine. Based on Anderson's training and experience, upon seeing the bag it was "immediately apparent" to him that the bag contained cocaine. Thus, Anderson had probable cause to seize the bag, continue searching defendant for more contraband, and seize any cocaine he found.

Affirmed.

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

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A-1379-07T4

September 8, 2008