State v. Carter

• Decision Date: 04 August 1989
• Citation: 235 N.J.Super. 232,561 A.2d 1196
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Tyrone CARTER, Dennis Le-Mar Thompson, Barry Eugene Wilkins, Darren Kenneth Whiting, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 232

235 N.J.Super. 232

561 A.2d 1196

STATE of New Jersey, Plaintiff-Appellant, v. Tyrone CARTER, Dennis Le-Mar Thompson, Barry Eugene Wilkins Darren Kenneth Whiting, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued May 23, 1989.

Decided Aug. 4, 1989.

Susan W. Sciacca, Sp. Deputy Atty. Gen., Acting Asst. Prosecutor, for plaintiff-appellant (John G. Holl, Asst. Atty. Gen. In Charge, Acting Bergen County Prosecutor, attorney; Susan W. Sciacca, of counsel and on the letter brief).

Susan Herman, Asst. Deputy Public Defender, for defendants-respondents Tyrone Carter, Dennis Le-Mar Thompson and Barry Eugene Wilkins (Alfred A. Slocum, Public Defender of New Jersey, attorney; Susan Herman, of counsel and on the letter brief).

Jerome M. Levine, Baltimore, Md., of Maryland Bar, admitted pro hac vice in the Law Div., for defendant-respondent Darren Kenneth Whiting, relied on the brief and argument of Susan Herman, Asst. Deputy Public Defender.

Before Judges O'BRIEN and STERN.

The opinion of the court was delivered by

O'BRIEN, J.A.D.

By leave granted the State appeals from an order suppressing six ounces of cocaine and two electronic beepers seized from an automobile occupied by defendants which was stopped for a motor vehicle violation. We reverse.

At approximately 8:00 a.m. on April 3, 1988, Trooper James Steiger (trooper) was on routine patrol on the New Jersey Turnpike traveling southbound in a marked vehicle. He observed a Nissan 200SX tailgating a Honda in the center lane for approximately three-tenths of a mile. As a result, he activated his overhead light and directed the Nissan to pull over to the shoulder.

As the trooper approached the vehicle, he had his hand on his holster so that his weapon would be easily accessible since he was always concerned for his safety when he stopped an automobile. He bent over slightly as he approached the driver's door and observed the passenger in the right front seat, later identified as defendant Dennis Le-Mar Thompson, make a "movement as to reach underneath the front seat--his shoulders dipped underneath the seat...." The trooper "observed his hand go underneath the seat and then it came back in view." This movement, described as unusual, took approximately two seconds. The gesture alarmed the trooper and aroused his suspicion that the passenger could be concealing a weapon under the seat. Trooper Steiger feared for his safety. When he observed the passenger's hands come back in view empty, he was momentarily relieved because "I could not be hurt if I could see his hands." While closely watching Thompson's hands, the trooper asked the driver, later identified as defendant Darren Kenneth Whiting, for his license and registration. Whiting produced his license, but said he did not know where the registration was.

By this time Trooper McDonough had arrived to assist with the stop and was standing on the passenger side of the Nissan. Starting with Whiting and then Thompson, followed by defendants Tyrone Carter and Barry Eugene Wilkins, who were seated in the rear of the vehicle, one by one each occupant was directed to get out of the vehicle and step to the rear, where Trooper Steiger conducted individual pat-downs with negative results. Trooper Steiger did this for his safety, principally because of the furtive gesture by Thompson. He was looking for weapons. In addition, because the driver was unable to produce the registration for the vehicle, the trooper suspected it may have been stolen. During the course of this procedure, the trooper inquired where the men were coming from. One replied from Connecticut, but another said from New York. This contradiction further aroused the trooper's suspicion. As the pat-down of each man was completed, he was placed under the supervision of Trooper McDonough. While they were not under arrest, they were also not free to leave.

Trooper Steiger was concerned that the four men could overpower Trooper McDonough and reach the area under the seat. He was also concerned that if he issued a summons for the traffic violation and let the men leave, they would have access to whatever was under the seat. The car was a hatchback with a small interior, such that a person would be able to reach under the front seat from the rear seat.

While Trooper McDonough kept watch, Trooper Steiger entered the vehicle from the passenger side and looked under the front seat where he had seen Thompson reach. About two inches under the seat he found a plastic bag containing a white chunky substance which he suspected was cocaine. It was later confirmed to contain six ounces of cocaine. The four defendants were then arrested, handcuffed, given their Miranda ¹ rights, and placed in the police car. Trooper Steiger then resumed searching the Nissan. He looked under the other seats and mats and in the glove compartment. In the center console he found two electronic beepers which he seized since, based on his training and experience, he knew it was common practice for people who deal in narcotics to possess such devices. Although he did not locate the registration for the vehicle, the trooper found a purchase agreement during the course of the search, but he was not sure where it was found. The vehicle had been purchased only a few days previously. Whiting was issued a summons for tailgating.

The motion judge accepted the facts to be as testified to by Trooper Steiger. He described his testimony as follows:

THE COURT: Right now I believe everything this officer said. He's one of the most credible witnesses I've ever seen. And he withstood an exceptionally blistering cross by Mr. Gernert. There is no factual testimony to rebut anything the officer said.

I'm construing not the facts. I accept the facts as he testified to them. There's nothing to contradict them. I'm construing the law.

Defendants were indicted for possession of cocaine with intent to distribute in a quantity of five ounces or more containing at least 3.5 grams of the pure free-base drug ( N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1)), and with possession of cocaine ( N.J.S.A. 2C:35-10a(1)). Wilkins and Whiting moved to suppress the evidence seized, as a result of which a hearing was held on January 4 and 5, 1989, on behalf of all defendants. The only witness at the hearing was Trooper Steiger, whose testimony, as noted, the trial judge found totally credible. However, by application of the law as the trial judge conceived it to be, he granted defendants' motion and suppressed the cocaine as the product of an illegal search. The electronic beepers were suppressed as the fruit of the poisonous tree.

While the judge accepted "the factual recitation of the events here as they came uncontradicted from the mouth of the exceptionally credible state trooper," he found the trooper's fear would not be reasonable as a ground to search the passenger compartment of the vehicle. With respect to the State's alternative contention that the search was proper as a search for evidence of ownership of the vehicle, the motion judge said:

Now, I find two fatal flaws with this argument on the part of the state.

The first is that this officer was not searching for evidence of ownership. He was clear and candid beyond a dispute that the purpose of his search was evidence of contraband and not evidence of ownership.

If the purpose of his search was evidence of ownership, he was likely to have looked in the first instance in the areas in this automobile where a reasonable person could be expected to store evidence of ownership, and those areas would be the glove box and the console.

On this appeal, defendants do not dispute the motion judge's finding that the trooper had reasonable grounds to stop the vehicle, Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), and consequently had a right to request that the driver alight from the car. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). ² The essence of the motion judge's decision, after recognizing the lawfulness of the stop, the request for the occupants to alight from the vehicle, and the pat-down search pursuant to Terry, ³ is that the trooper's continued fear was not a reasonable ground to search the passenger compartment of the vehicle where the trooper had observed Thompson apparently place something. The judge concluded You have four occupants who have satisfied this trooper that they possess neither weapons or contraband standing some distance from the front of the vehicle under the guard of an armed State Trooper. If this Trooper Steiger were truly in fear, why would he turn his back to these four occupants and why would he leave them alone with Trooper McDonough?

I do not find that there was sufficient fear here to ground a further search.

Moreover, it is inconceivable to me that something under the front seat of that car could harm either of the troopers absent some Star Wars-like device which could have gone off under there, either of its own power or from some remote control device; that if that, these defendants had been patted down and that satisfied the trooper that there was nothing on their persons that was worth searching no further.

Although the motion judge then suggested that the search by the trooper may have been for contraband rather than for a weapon, he had earlier found the testimony of the trooper "exceptionally credible." He had said he believed everything the officer said, and that he was "one of the most credible witnesses I've ever seen," and concluded then, "I accept the facts as he testified to them."

In reaching his decision to suppress the cocaine and electronic beepers, the motion judge made no reference to Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), which dealt specifically with a factual pattern similar to that presented in this case. There, the Court extended the area of a protective Terry search from the...