State v. Dennis

• Decision Date: 03 February 1971
• Citation: 113 N.J.Super. 292,273 A.2d 612
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Warren E. DENNIS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 292

113 N.J.Super. 292

273 A.2d 612

STATE of New Jersey, Plaintiff-Respondent, v. Warren E. DENNIS, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Nov. 23, 1970.

Decided Feb. 3, 1971.

Edward Weisslitz, Asst. Deputy Public Defender, for appellant (Stanley C. Van Ness, Public Defender, attorney).

George N. Pappas, Asst. Prosecutor, for respondent (Denis A. Cipriano, Asst. Prosecutor, on the brief; Joseph P. Lordi, Essex County Prosecutor, attorney).

Before Judges CONFORD, KOLOVSKY and CARTON.

The opinion of the court was delivered by

CARTON, J.A.D.

Defendant appeals from a conviction for possession of heroin. The principal ground he urges for reversal is that the 22 glassine envelopes of heroin seized from his person should have been suppressed as the product of an illegal search.

Officer Daniano testified on the motion to suppress that he and Officer Fitzsimmons went to the Tichenor Street area of Newark on July 12, 1969 to locate one Arlene Cruz, sought as a material witness in connection with a homicide. (At the trial Officer Fitzsimmons added that she had also been identified as a suspect in that killing.) The officers took Miss Cruz to headquarters between 9:00 and 9:30 that evening. An hour later they returned to the same area on the lookout for another suspect in the same killing. Fitzsimmons testified that the trial that he guided the patrol car slowly along the street as Daniano made a visual search for the murder suspect. As the car came near to the defendant, Dennis walked toward it, saying in a tone described by Daniano as 'boisterous': 'What did you do with my girlfriend?' The officers knew defendant to be Miss Cruz's boyfriend.

Daniano described what transpired as Dennis approached the car:

He put his hand in his pocket, and I had jumped out of the car and took his hand out of his pocket. Fearing that he might have a weapon, I took his hand out and searched him and I got the 22 decks of hereoin.

The search referred to in the testimony was an examination of the pocket into which defendant had thrust his hand.

On cross-examination Daniano averred that defendant's hand was in his right pocket. When he pulled Dennis' hand out of the pocket, it 'came out empty.' The heroin was found when Daniano put his hand in that same pocket. Daniano testified further:

Q * * * I asked you if you patted him down. A. Yes, yes.

Q Now officer, in your search, you were searching for a weapon, correct? A That's correct, yes.

Q You thought he had a gun, is that correct? A. Yes.

Q Did you put your hand in that right-hand pocket? A. Yes, I did.

Q Did you put your hand in there first, or did you pat him down first? A To be honest with you, I don't remember what I did. I did it, you know, very fast.

Defendant's version was that he and his girlfriend, Miss Cruz, had been standing outside a bar. The police drove up, summoned her to the patrol car and took her to headquarters for questioning because she had been with 'this girl that got killed.' Returning about an hour later, the police informed him that Miss Cruz had not given a statement and enlisted his help in obtaining one from her. He went to heardquarters but was unable to persuade Miss Cruz to give a statement. Dennis claimed that he was then taken to the bull pen and informed that the police had found 22 decks (of heroin) on him. He insisted that he had not been searched until after he was placed in the bull pen and that he possessed no narcotics at that time.

The court denied the motion to suppress, finding the factual situation as depicted by Daniano.

At the trial Daniano gave virtually the same testimony as he had given at the hearing on the motion. As to the sequence of events, he stated he first removed defendant's hand from the pocket. Thrusting his own hand into the same pocket, he found the glassine envelopes. He then conducted a pat-down search. He could not remember whether he grabbed defendant's hand from the side or from behind, since his actions were spontaneous.

Officer Fitzsimmons substantially corroborated Daniano's account. He testified that defendant was 'hollering to us, 'Where is my girlfriend, what did you do with my girlfriend? " Fitzsimmons believed that the man had a weapon in his right pants' pocket. His observation of Dennis' conduct at that point prompted him to warn Daniano, 'Be careful. He has his hand in his pocket.'

The trial court impliedly found that Daniano acted out of fear for his personal safety in making the search which resulted in the discovery of the heroin, and that the search and seizure were legally unobjectionable. We agree.

The question before us is whether the trial court was justified in determining that Officer Daniano acted with reasonable prudence and, if so justified, whether the steps the officer took to neutralize the threat of physical harm were reasonable. More precisely, the question is whether the circumstances confronting this officer were of such an emergent and menacing nature as to justify a reasonable belief on his part that it was necessary for his safety to seize the object thought to be a gun without preliminarily frisking Dennis.

In examining the factual situation, we must bear in mind that a police officer is not required to be a constitutional lawyer. In assessing the quality of his behavior or reaction, 'the common and specialized experience and work-a-day knowledge of policemen must be taken into account' and the entire transaction reviewed 'in a commonsense and realistic fashion.' State v. Contursi, 44 N.J. 422, 431, 209 A.2d 829, 834 (1965).

The officers were in the process of investigating a homicide which they believed to be murder. Earlier that evening, in that same area, they had picked up defendant's girlfriend and had taken her to headquarters for interrogation. As defendant said, 'Miss Cruz had been with the girl that was killed.' The police had just returned from questioning her. Not only was defendant's girlfriend a possible witness to the killing, but also her name had been mentioned to the police as a suspect. The policemen were in the process of seeking out another suspect in the same crime.

The hour was late--the area one of high crime intensity. Dennis' inquiry as to the whereabouts of his girlfriend bristled with hostility. Considered against this backdrop, defendant's confrontation with the two officers, his less than patient approach toward the patrol car, and the movement of his hand to his pocket could reasonably have been interpreted to evidence an intent to inflict immediate bodily harm. The situation was pregnant with the probability of danger. Common sense compelled the officers to act for their own safety.

One of the well-established exceptions to the general requirement of a search warrant is when the attendant circumstances are exigent or emergent. See Warden v. Hayden, 387 U.S. 294, 298--300, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Chapman v. United States, 365 U.S. 610, 615, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); McDonald v. United States, 335 U.S. 451, 454--455, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Johnson v. United States, 333 U.S. 10, 14--15, 68 S.Ct. 367, 92 L.Ed. 436 (1948). We believe that rule clearly applicable here.

The Constitution does not require an officer to wager his physical safety against the odds that a suspected assailant is actually unarmed. The United States Supreme Court has adverted to the standard of conduct to which the police must adhere in the face of apparent danger. In establishing guidelines, the court took cognizance of the violence which may be directed against a police officer in the performance of his duties and the need for law enforcement personnel to guard against it.

* * * Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded.

Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.

In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer 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, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. (Terry v. Ohio, 392 U.S. 1, 23--24, 88...