Opinion
DOCKET NO. A-5113-10T4
07-06-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN LAURORE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 10-06-0864 and 10-06-0869.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief). PER CURIAM
In this appeal, defendant, John Laurore, seeks reversal of the trial court order denying his motion to suppress a handgun seized from his waistband. After the court denied his motion, defendant pled guilty to fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-9(e), and second-degree possession of a weapon by a previously convicted person, N.J.S.A. 2C:39-7b. Defendant was sentenced to a five-year prison term with a mandatory five-year parole ineligibility period for the second-degree certain persons conviction and an eighteen-month prison term for the fourth-degree defaced weapon conviction, to be served concurrently. We affirm.
Three witnesses testified at the suppression hearing: Sergeant John Quick, and Detectives Joshua Alexander and Anthony Abode. The events leading to the seizure occurred during the early morning hours of March 25, 2010, in New Brunswick, where Sergeant Quick and Detective Alexander of the New Brunswick Police Anti-Crime Unit observed a brown Cadillac, driven by defendant, with two other occupants roll through a stop sign and turn left onto George Street. The officers, who were traveling in a unmarked Dodge, turned left behind the Cadillac, which proceeded toward Albany Street and made a left turn onto Albany, despite clearly marked signs prohibiting a left turn. The vehicle stopped approximately one block further on Albany, at its intersection with Easton Avenue, and the rear passenger, whom the officers recognized as drug-dealer Mark Smith, exited the vehicle and walked across the street toward Maritas Cantina, a local bar and restaurant. At that point, the officers activated their emergency lights and siren.
The Cadillac pulled to the side briefly and then proceeded to travel down Albany towards Joyce Kilmer Avenue, and made a left onto French Street. Sergeant Quick called for back-up, advising the dispatcher that the vehicle may not be stopping. Defendant finally came to a stop "under a very dark train bridge, and in an area where, less that [500] feet [away], there had been several shootings [and] large disturbances[.]"
Once the Cadillac came to a stop, the officers got out of their patrol car and approached the vehicle. The two remaining occupants were unknown to the officers. Detective Alexander approached the passenger side and directed his attention to the woman seated there. Sergeant Quick approached the driver's side and observed that defendant already had his credentials, which were in his left hand, out the window. His hand was visibly shaking. Sergeant Quick also observed a bag of "blend," which he explained is a product that may be mixed with tobacco products or marijuana, to disguise the marijuana smell, in the rear of the vehicle and an opened bottle of wine on the passenger side of the vehicle. Sergeant Quick testified that defendant would not make eye contact with him and that the aroma of burnt marijuana emanated from the vehicle.
At that point, he asked defendant to step out of the vehicle, a request with which defendant complied. Sergeant Quick, however, testified defendant exited the vehicle in a strange manner, which "raised [his] suspicions, that it wasn't a normal way for someone to exit a vehicle." The sergeant demonstrated the movement for the court and explained:
[Defendant] steps from the vehicle, takes a step back, closes the door. His hand is very close to his side. With his back towards [the officer], he walks to the rear of the car. His arm is not swinging. The motion of his hands, he's walking as though he didn't want his jacket to open or move.Defendant's strange exit, "coupled with the aroma of the marijuana . . . [and defendant's] inability to face [the officer] while he was talking to [him,]" led the sergeant to suspect defendant may be concealing something, "more of a gun than drugs[,]" on his person.
Sergeant Quick asked defendant to place his hands on the back of the vehicle. Defendant complied. Sergeant Quick intended to perform a pat-down, but as the officer took a step toward him, defendant removed his hands from the trunk and reached toward the right side of his jacket. Detectives Abode and Maimone, who had arrived on the scene as back-up before defendant exited the vehicle and who were positioned behind defendant's vehicle, immediately grabbed defendant. Detective Abode went immediately to the location where defendant was reaching and recovered a nine millimeter handgun with ten rounds of hollow-point ammunition.
The female passenger remained in the vehicle throughout the encounter and was facing forward throughout the entire time. After defendant was arrested, she was searched and released.
In denying the suppression motion, the court credited the testimony of the three officers. The court found:
[A] motor vehicle stop[,] if it's legitimate, [and] the [c]ourt finds that it is based upon the motor vehicle violation[,] gives the [o]fficers a right to ask the occupants for their own safety to step out of the vehicle for [the] purpose of inquiry.
. . . .
[There are] two prior violations which give rise to a legitimate stop and inquiry.
The stepping out of the car for the safety in a high crime area with multiple occupants [is an] appropriately legitimate inquiry. And the gentleman[,] in further movements to his waistband[,] legitimizes the [o]fficers mov[ing] in for self-protection.
On appeal, defendant contends his suppression motion should have been granted because "Sergeant Quick did not have a reasonable articulable suspicion that [he] was armed and dangerous when he ordered him to get out of the car, walk to the back and then to place his hands on the trunk." We disagree.
I.
The scope of appellate review of a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). 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)(citations and internal quotations omitted). We defer 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." State v. Johnson, 42 N.J. 146, 161 (1964). However, we owe "no deference to the trial court in deciding matters of law." State v. Mann, 203 N.J. 328, 337 (2010). "When a question of law is at stake, the appellate court must apply the law as it understands it." Ibid.
In the present matter, police performed an authorized motor vehicle stop based upon their observation that defendant disregarded a stop sign, N.J.S.A. 39:4-144, and also made an illegal left turn, N.J.S.A. 39:4-124. They then ordered defendant from the vehicle.
Ordering an occupant from a vehicle constitutes a seizure under the Fourth Amendment, as the occupant's liberty is being restricted. State v. Smith, 134 N.J. 599, 609 (1994). However, once a motor vehicle has been lawfully detained for a traffic violation, the police may order the driver out of the vehicle without running afoul of the Fourth Amendment's proscription of unreasonable searches and seizures. Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6, 98 S. Ct. 330, 333 n.6, 54 L. Ed. 2d 331, 337 n.6 (1977); see Smith, supra, 134 N.J. at 611 (concluding that the Mimms test, as applied to drivers, satisfies the New Jersey Constitution).
In the context of a lawful automobile stop, because the intrusion upon the driver occasioned by a request to exit the vehicle is "de minimis," and "hardly rises to the level of a petty indignity," police need not point to specific facts that the driver is "armed and dangerous," or suspect the driver of foul play at the time of the stop in order to make such a request. Mimms, supra, 434 U.S. at 111, 98 S. Ct. at 333, 54 L. Ed. 2d. at 337; Smith, supra, 134 N.J. at 618. As such, once defendant's vehicle was pulled over, Sergeant Quick was permitted to order defendant from the vehicle, even in the absence of a reasonable articulable suspicion that defendant was armed and dangerous.
This rule applies only to drivers, as the Court has declined to extend this "per se rule" to passengers. To order a passenger from a vehicle, "an officer must be able to point to specific and articulable facts that would warrant heightened caution." Smith, supra, 134 N.J. at 618.
The search of an individual ordered from a vehicle is, however, an independent inquiry from the order to step out of the vehicle. Mimms, supra, 434 U.S. at 111, 98 S. Ct. at 334, 54 L. Ed. 2d. at 337; Smith, supra, 134 N.J. at 609. Such a search is "a separate Fourth Amendment event" and must be evaluated under the standard set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 339 (1968). See Mimms, supra, 434 U.S. at 111, 98 S. Ct. at 334, 54 L. Ed. 2d. at 337; Smith, supra, 134 N.J. at 609. In order to provide for the safety of police officers, "the Terry Court approved a carefully limited search of the outer clothing of a suspect to discover weapons that might be used to harm [an] officer." State v. Privott, 203 N.J. 16, 29 (2010). "The officer need not be absolutely certain that the individual is armed[.]" Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909. However, hunches are not enough. Ibid. Rather, "specific, articulable facts must demonstrate that a 'reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.'" Smith, supra, 134 N.J. at 619 (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). Reasonable inferences may be drawn from the facts in light of the officer's experience. Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909.
In the present case, defendant was observed transporting a known drug dealer. Defendant is correct that in situations in which the suspect "is not thought to be involved in violent criminal conduct and the officers have no prior indication that the suspect is armed, more is required to justify a protective search." State v. Thomas, 110 N.J. 673, 680 (1988). In this case, there was more. Defendant was in a high-crime area, he did not stop immediately when signaled to do so, but pulled under the railroad tracks some distance from where the initial encounter occurred. In addition, the officer smelled burnt marijuana coming from defendant's vehicle, police observed "blend" and a bottle of intoxicating liquor in plain view, defendant was nervous and refused to make eye contact and exited the vehicle in a strange manner, appearing to shield the contents of his jacket. Most importantly, defendant removed his hands from the trunk, where he was directed to place them, and reached for his jacket as the officer approached him, creating an exigent situation. See United States v. Coles, 437 F.3d 361, 366 (3d Cir. 2006) ("Examples of exigent circumstances include . . . danger to the lives of officers or others.").
As defendant notes, nervousness is not by itself sufficient to justify a search. Neither is being stopped in a high-crime area. State v. Valentine, 134 N.J. 536, 547 (1994). However, it is a "well-established rule that a suspect's nervousness plays a role in determining whether reasonable suspicion exists," State v. Stovall, 170 N.J. 346, 367 (2002), and "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. Moreover, "a group of innocent circumstances in the aggregate can support a finding of reasonable suspicion." Stovall, supra, 170 N.J. at 368. Thus, when all of the factors with which the officers were confronted are considered, those factors were sufficient to give rise to a reasonable suspicion that defendant was armed and dangerous and the totality of the circumstances therefore justified the warrantless intrusion. State v. Roach, 172 N.J. 19, 27 (2002).
Consequently, we conclude there is substantial credible evidence in the record to support the factual findings of the judge, and those facts, when applied to the controlling legal principles, properly resulted in the denial of defendant's suppression motion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION