State in Interest of D.S., In re

• Decision Date: 02 April 1973
• Citation: 125 N.J.Super. 278,310 A.2d 506
• Parties: In re STATE of New Jersey In the Interest of D.S., Juvenile-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 278

125 N.J.Super. 278

310 A.2d 506

In re STATE of New Jersey In the Interest of D.S., Juvenile-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Feb. 5, 1973.

Decided April 2, 1973.

David R. Arrajj, Asst. Deputy Public Defender, for appellant (Stanley C. Van Ness, Public Defender, atty., William E. Norris, Asst. Deputy Public Defender of counsel).

Kenneth Ply, Asst. Pros., for State of New Jersey (Joseph P. Lordi, Essex Co. Pros. Atty.).

Before Judges CARTON, MINTZ and BOTTER.

PER CURIAM.

Defendant, a juvenile 16 years of age, was adjudicated a delinquent by reason of his possession of three glassine envelopes containing heroin in violation of N.J.S.A. 24:18--4.

On appeal he contends that the trial court erred in denying his motion to suppress. The only witness for the State on that motion was Patrolman Moretti of the Newark Police Department. He testified that on October 4, 1970, about 10 P.M., he and his partner Patrolman Romanella were on routine patrol duty in an unmarked radio car, but in uniform, in the vicinity of South Orange Avenue and 19th Street, proceeding northerly on 19th Street. As they entered the intersection he observed two colored males standing on the northwest corner of the intersection. They were juveniles, and 'all of a sudden' one colored male, having a youthful appearance, exited from the bar situate on the corner. He approached the other two males standing on the corner. The officer further testified that he and his fellow officer assumed that there might have been some connection with the tavern since it was in an area 'high on narcotics' they proceeded towards them to see 'if anything was being transacted.' The tavern in question was one of three bars in the area known to sell narcotics. The three males were talking for a few seconds 'and as we approched them they split up.' The police vehicle came to a stop. The officers called all three over to them and asked 'what they were doing in the area, and what the man was doing inside that particular bar,' and 'they said nothing.' Moretti then testified that they asked for some identification since they intended to run a record check on them. The three males were then asked to step to the back of radio car where the officers proceeded 'to pat them down,' so as to protect themselves from physical harm from weapons they might have. As a result of this pat down Moretti felt a 'bulge' in one of the juvenile's rear pocket. He was asked to remove it so that it might be inspected to determine if it contained a weapon. Defendant complied and pulled out a small brown piece of paper, inside of which the officer found wrapped three glassine envelopes and a package of cigarette paper, all of which was secured by a rubber band. After the package was found defendant was placed under arrest. The other two males were released. Upon analysis the substance in the glassine envelopes was found to be heroin.

The investigatory stop of defendant was clearly justifiable. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. York, 116 N.J.Super. 440, 282 A.2d 759 (App.Div.1971). We recognize that the factual circumstances here presented may not be as compelling as those presented in the cited cases. However, none of those cases concerned the investigatory detention of a juvenile in the company of one and possibly two other juveniles at the relatively late hour of 10 P.M. in a high crime narcotics area standing near a tavern known to dispense narcotics and the trio 'splitting up' as the officers approached them. These singular facts sufficiently justified the investigatory detention of defendant. When a police officer stops a person on the street for summary inquiry, the incidental temporary detention is not to be viewed as a formal arrest requiring probable cause, State v. Dilley, 49 N.J. 460, 467, 231 A.2d 353 (1967).

Moreover, such facts coupled with the refusal of the youngsters to respond to the police officer's inquiry, justified the pat down search of defendant for a concealed weapon. State v. Dilley, Supra. As was so aptly observed in State v. Dennis, 113 N.J.Super. 292, 297, 273 A.2d 612, 615 (App.Div.1971), certif. den. 58 N.J. 337, 277 A.2d 394 (1971), 'The Constitution does not require an officer to wager his physical safety against the odds that a suspected assailant is actually unarmed.' We believe that under all the stated circumstances, the police officers had a reasonable basis to believe that defendant and his companions may have been armed. Weapons in high crime areas re readily available, and considering the pertinent facts the police officer had the right to make a self-protective frisk. In this respect, the instant case is distinguishable from Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), where the frisk was conducted not for a weapon but obviously in search of narcotics.

Defendant argues that the small size of the package seized from defendant renders the search violative of the Fourth Amendment by virtue of its unreasonable scope. The entire package containing the three decks of heroin and the cigarette paper was about two inches long, one and one-half inches wide, and one-third of an inch thick. However, as observed in State v. Campbell, 53 N.J. 230, 238, 250 A.2d 1 (1969), the seized object might well have contained a weapon such as a thin knife or blade.

Finally, we are mindful that the use or sale of illegal drugs has reached alarming proportions, and is carried on furtively and in as many conceivable ways as human ingenuity can devise in order to escape detection and criminal consequences. In this frame work the total circumstances are to be assessed, and the entire transaction viewed in a common sense, realistic fashion. State v. Williams, 117 N.J.Super. 372, 285 A.2d 23 (App.Div.1971) , affirmed o.b. 59 N.J. 535, 284 A.2d 172 (1971). Considering the totality of the circumstances, the motion to suppress was properly denied.

Affirmed.

BOTTER, J.S.C. (dissenting).

Defendant, age 16, and another black youngster were standing on a street corner outside a tavern in a well lighted area. A third individual of 'youthful appearance' came out of the tavern and joined them. Two officers in an unmarked police car decided to 'check (them) out and to see if anything had happened or if anything was being transacted.' The officers had heard nothing and had seen nothing pass among the three. As one officer testified, they were 'just standing there talking for a few seconds and as we approached them they split up.' There was no testimony that the individuals began to run or were even aware of the officers' presence. They came over to the police car at the officers' request.

The police officers asked what they were doing in the area, 'and they said nothing.' Identification was requested, but the officer who testified could not recall if all three had produced identification. When patted down, a packet containing cigarette paper and three thin glassine envelopes of heroin was found in defendant's rear pocket. Defendant was arrested and the others were released.

In my opinion the conduct of defendant and his companions gave no suggestion whatever that they were engaging in crime or were about to do so. The facts here do not warrant an 'investigatory stop' and frisk. Furthermore, there was absolutely no indication that the three were 'armed and dangerous.' All you have are two black teenagers talking on a street corner at 10 P.M. in early October, joined by a third male who has exited from a tavern. Notwithstanding that the three taverns located in the area were known for narcotics traffic, there is less reason here to suspect defendant of criminal conduct than in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), and yet in Sibron the United States Supreme Court suppressed evidence as unconstitutionally seized.

In Sibron, over an eight-hour period, defendant had conversed with nine or more persons who were known narcotics addicts. Nothing was overheard and nothing was seen to pass between Sibron and the others. The court held that:

The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual's personal security. 392 U.S. at 62, 88 S.Ct. at 1902.

The court further said:

The police officer is not entitled to seize and search every person whom he sees on the street or...