State v. Kennedy

• Decision Date: 09 June 1975
• Citation: 134 N.J.Super. 454,341 A.2d 685
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Justin KENNEDY, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 454

134 N.J.Super. 454

341 A.2d 685

STATE of New Jersey, Plaintiff-Respondent, v. Justin KENNEDY, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Feb. 18, 1975.

Decided June 9, 1975.

Rollin S. Neal, Hackensack, for defendant-appellant (Bloom, Biener & Neal, Hackensack, attorneys).

Solomon Rosengarten, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).

Before Judges COLLESTER, LORA and HANDLER.

The opinion of the court was delivered by

COLLESTER, P.J.A.D.

Defendant was convicted by the trial judge sitting without a jury of possession of a firearm without a permit (N.J.S.A. 2A:151--41) and was sentenced to pay a fine of $300.

The sole ground of appeal is that the trial judge erred in denying defendant's motion to suppress evidence seized by a state trooper without a warrant.

At the hearing on the motion to suppress State Trooper Piatras testified as follows. On April 11, 1973, at approximately 11:40 a.m., while stationed on U.S. Highway 40 near the Delaware Memorial Bridge, he observed an automobile with a Washington, D.C. registration being operated in an easterly direction at 70 m.p.h. in a 50 m.p.h. zone. The trooper turned on the red lights of his patrol car and took up pursuit. He observed defendant, who was driving the car in the passing lane, 'lean down to his right as if he was doing something on the floor by his right side.' The driver continued to lean down as he turned the car from the passing lane into the slow-bound lane where he drove some distance before he pulled onto the shoulder of the road and stopped. When the trooper stopped his car behind the other vehicle and alighted, defendant came back up into an upright position 'in a very fast manner.'

Trooper Piatras testified that at this point he believed there was something wrong in the way defendant had leaned down; that based on his experience as a police officer people do not lean down as defendant did unless they have something to hide. As the trooper walked towards the car he observed through the rear window that there was a passenger seated beside the driver. He approached the driver's side of the vehicle and asked for defendant's driver's license and motor vehicle registration. Before taking the documents from a wallet which was on his lap defendant reached over and quickly opened and closed the glove compartment. The officer then noticed a bulge under the floor mat near the driver's right foot. Trooper Piatras said he believed that the bulge was a gun; he was suspicious because of the manner in which defendant had opened and closed the glove compartment, and he believed that his safety was in danger.

Piatras next walked to the passenger side of the car and asked the passenger, MacDaniels, an army sergeant, to open the glove compartment. MacDaniels complied and the trooper saw inside a torn paper bag containing a box bearing the numerals 22. Piatras suspected it was a box of bullets. He asked the passenger what was in the box, whereupon MacDaniels took the bag out of the glove compartment and opened it. The trooper saw that the box contained .22-caliber shells.

The trooper thereupon directed both men to remove themselves from the vehicle and they complied. He next asked where the gun was and defendant said it was under the floor mat on his side of the car. He placed defendant under arrest, searched both men, and then secured the gun which he found was loaded with two .22-caliber shells. On cross-examination the officer denied that he had drawn his own revolver at any time.

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