State v. Casimono

• Decision Date: 25 July 1991
• Citation: 593 A.2d 827,250 N.J.Super. 173
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Roberto CASIMONO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 173

250 N.J.Super. 173

593 A.2d 827

STATE of New Jersey, Plaintiff-Respondent, v. Roberto CASIMONO, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted March 20, 1991.

Decided July 25, 1991.

Wilfredo Caraballo, Public Defender, attorney for defendant-appellant (Philip L. Maier, Designated Counsel, of counsel and on the brief).

W. Michael Murphy, Jr., Morris County Prosecutor, attorney for plaintiff-respondent (Joseph Connor, Jr., Asst. Prosecutor, on the brief).

Before Judges SHEBELL, HAVEY and SKILLMAN.

The opinion of the court was delivered by

SKILLMAN, J.A.D.

Defendant was indicted and jointly tried along with codefendants Bienvenido Guerrero and Nelson Trimino for conspiracy to possess cocaine with the intent to distribute, in violation of N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-10a(1), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1); possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1); possession of cocaine in a quantity of five ounces or more, with at least 3.5 grams of the pure free base drug, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1); aggravated assault upon a law enforcement officer while acting in the performance of his duties, in violation of N.J.S.A. 2C:12-1b(5)(a); hindering apprehension by destroying or concealing evidence, in violation of N.J.S.A. 2C:29-3b(1); resisting arrest, in violation of N.J.S.A. 2C:29-2a; and attempting to tamper with physical evidence, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:28-6(1). A jury acquitted defendant of aggravated assault but convicted him of the remaining charges. The court merged defendant's convictions for conspiracy and possession of cocaine into his conviction for possession with the intent to distribute and sentenced him for this offense to an eighteen year term of imprisonment, with six years of parole ineligibility. In addition, the court imposed a consecutive one year term of imprisonment for resisting arrest. Finally, the court imposed a five year term of imprisonment for hindering apprehension, which was made concurrent with defendant's sentences for possession with the intent to distribute and resisting arrest. Defendant's conviction for attempting to tamper with physical evidence was merged into his conviction for hindering apprehension.

On appeal, defendant makes the following arguments:

I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS.

II. IMPROPER QUESTIONS BY THE STATE AND IMPROPER COMMENTS DURING THE STATE'S SUMMATION REQUIRES THAT THE DEFENDANT'S CONVICTIONS BE REVERSED.

III. THE SENTENCE IMPOSED BY THE TRIAL COURT IS IMPROPER AND THE MATTER SHOULD BE REMANDED FOR RESENTENCING.

We conclude that the pat down searches of defendant and codefendant Guerrero violated their rights under the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. However, we further conclude that the evidence upon which defendant's convictions were based was not tainted by the illegality of those searches. We also conclude that defendant's other arguments are clearly without merit and do not require discussion. R. 2:11-3(e)(2). Accordingly, we affirm defendant's convictions.

I

The only evidence presented on defendant's motion to suppress was the testimony of one of the arresting officers, State Trooper Neil DeAngelis. Thus, the relevant facts are essentially undisputed.

Defendant was a front seat passenger in an automobile being operated by codefendant Bienvenido Guerrero on Route 80 around midnight on January 31, 1988. After observing Guerrero change lanes several times without signaling, DeAngelis and another State Trooper, Anthony DeMaio, directed Guerrero to pull the car over to the shoulder of the road. As the car was pulling over, DeAngelis observed defendant bend over out of view. The trooper characterized this movement as "furtive." After the car stopped, Guerrero got out and DeAngelis directed defendant also to get out of the car.

The troopers conducted pat down searches of both Guerrero and defendant. Guerrero resisted the pat down search by DeMaio, first refusing to take his hand out of his right front pocket and then throwing something from his pocket over the guardrail located along the shoulder of the roadway. DeAngelis went to the aid of DeMaio, at which point defendant returned to the car, where he retrieved a large brown paper bag which he threw over the guardrail. DeAngelis returned to defendant and attempted to subdue him while DeMaio continued in his efforts to subdue Guerrero. As the two troopers were rolling on the ground with defendant and Guerrero, a third occupant of the car, codefendant Nelson Trimino, got out of the back seat, jumped into the front seat and drove away. Both troopers shot at the fleeing vehicle. They then handcuffed Guerrero and defendant and pursued Trimino, who abandoned the vehicle, which had its back tires shot out, approximately a half mile away. Trimino was apprehended later that day and a search of the area below the guardrail revealed a dollar bill containing cocaine residue and a brown paper bag containing 700 grams of cocaine.

The trial court found that Guerrero's sudden change of lanes without signaling provided a reasonable basis for the trooper stopping the car and that defendant's furtive movements provided a reasonable basis for the pat down search for weapons subsequent to the stop. Consequently, the court denied defendant's motion to suppress.

We agree with the trial court's conclusion that the troopers had an articulable and reasonable suspicion that Guerrero had committed several motor vehicle violations and therefore were justified in stopping the vehicle in which defendant was riding. See Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1979); State v. Murphy, 238 N.J.Super. 546, 554, 570 A.2d 451 (App.Div.1990). However the State failed to show that a reasonably prudent person in the trooper's position "would be warranted in the belief that his safety or that of others was in danger." Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909 (1968). Therefore, the State did not establish any basis for conducting a protective search for weapons of Guerrero and defendant.

In Terry the Court held that "a police officer may in appropriate circumstances ... approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest," 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 907, and conduct a reasonable search for weapons if he is "justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others." 392 U.S. at 24, 88 S.Ct. at 1881, 20 L.Ed.2d at 908. The Court said:

The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. [392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909 (citations omitted) ].

More recent decisions of the Supreme Court have repeated that the prerequisite to a Terry search for weapons is a reasonable belief that the suspect is armed. See, e.g., Adams v. Williams, 407 U.S. 143, 147-48, 92 S.Ct. 1921, 1923-24, 32 L.Ed.2d 612, 618 (1972) (Terry search justified where informant told police officer that an individual seated in a nearby vehicle was carrying narcotics and possessed a handgun, and the suspect failed to comply with the police officer's direction that he open the door of his car); Pennsylvania v. Mimms, 434 U.S. 106, 112, 98 S.Ct. 330, 334, 54 L.Ed.2d 331, 337-38 (1977) (Terry search justified where police observed a bulge in the jacket of traffic offender which they reasonably feared might be a weapon); Michigan v. Long, 463 U.S. 1032, 1051, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201, 1221 (1983) (Terry search of drunk driver justified after police observed large hunting knife on floorboard of driver's side of car).

Similarly, in State v. Thomas, 110 N.J. 673, 542 A.2d 912 (1988), the leading New Jersey case dealing with protective searches for weapons incident to investigatory stops, the Court emphasized that "whether there is good cause for an officer to make a protective search incident to an investigatory stop is a question separate from whether it was permissible to stop the suspect in the first place." Id. at 678-79, 542 A.2d 912. The Court also noted that "[n]othing in Terry can be understood to allow a generalized 'cursory search for weapons' or, indeed, any search whatever for anything but weapons." Id. at 679, 542 A.2d 912 (quoting Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S.Ct. 338, 343, 62 L.Ed.2d 238, 247 (1979)). To justify a protective search, there must be "an objectively reasonable suspicion that a suspect is armed and dangerous." State v. Thomas, supra, 110 N.J. at 679, 542 A.2d 912.

Our courts have applied these principles in the context of routine stops for motor vehicle offenses in a number of recent cases. In State v. Lund, 119 N.J. 35, 573 A.2d 1376 (1990), a trooper observed a driver commit several motor vehicle violations. The trooper signalled the car to stop and as the driver was pulling over, the trooper observed a front seat passenger turn around and reach toward the rear seat. When the trooper approached the car, he observed a windbreaker in the area of the rear seat towards which the passenger had reached. In addition, the driver appeared to be extremely nervous. As a result, the officer ordered both the driver and passenger out of the car...