State v. Kuhn

• Decision Date: 21 October 1986
• Citation: 213 N.J.Super. 275,517 A.2d 162
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Roy E. KUHN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 275

213 N.J.Super. 275

517 A.2d 162

STATE of New Jersey, Plaintiff-Respondent, v. Roy E. KUHN, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Sept. 24, 1986.

Decided Oct. 21, 1986.

William H. Tobolsky, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney; William H. Tobolsky, Designated Counsel, on the brief).

Barbara A. Forte, Asst. Prosecutor Camden County, for plaintiff-respondent (Samuel Asbell, Prosecutor Camden County, attorney; Barbara A. Forte, of counsel, and on letter brief).

Before Judges FURMAN and DREIER.

The opinion of the court was delivered by

DREIER, J.A.D.

Defendant has appealed from his conviction for possession of a controlled dangerous substance (heroin), N.J.S.A. 24:21-20a, on a guilty plea entered after the denial of a suppression motion. He was sentenced to four years probation with credit for jail time previously served. The sentence was conditioned upon drug rehabilitation and monitoring, as well as 200 hours of noncompensatory community service per year during the first three years of his probation. A Violent Crime Compensation Board penalty of $25 was also imposed.

Defendant has acknowledged committing the offense. What is at issue here is whether the search that disclosed the contraband was in violation of the Fourth Amendment, the parallel provisions of the New Jersey Constitution (1947), Art. I, Par. 7, and the cases interpreting them.

On January 17, 1982, in the mid-afternoon, a Camden City police officer, accompanied by another officer, was driving his police van to the police station at the end of his shift. He was experienced in drug matters, having received training in narcotics and having made more than 50 drug-related arrests. As he approached a bar in an area of high illegal drug activity, he saw a car parked in the bar's parking lot. The only unusual thing about the car was that it was parked diagonally across more than one parking space. Defendant was standing outside of the driver's side of the car, another person was standing outside of the passenger's side, and there was a third person in the front passenger seat of the car. The officer also testified that this pattern of three individuals, two outside of a car, and one inside, fits the profile of a drug transaction. As the officer drove the van into the driveway of the parking lot, defendant apparently saw the van, appeared to say something, then got into the car and began to drive the car from the lot. The officer immediately sounded his siren and followed defendant out of the driveway. Defendant stopped within 50 or 100 feet of the driveway. Although the officer only saw the back of defendant's head, it "seemed like he turned around, looked in the mirror or glanced over his shoulder towards the back of the car." The officer went immediately to the driver's side of the car and asked defendant to get out. Defendant did as he was told, and the officer patted down defendant to determine whether defendant possessed a weapon, discovering a hard object which he later determined was a set of ten keys. But as the keys were pulled out of defendant's pocket, two small packages fell to the ground, one containing a white powdered substance which the officer believed to be heroin. Defendant was then placed under arrest.

Although a complete search of the car revealed some narcotics paraphernalia, the suppression motion was limited to the result of the pat-down of defendant's person. If nothing had been revealed, presumably the search would have gone no further. On cross-examination, the officer testified that he saw no items pass between the three people at the car and, in fact, he could not see what the other two were doing since the car was between the officer and these individuals. In response to questions posed by the trial judge, the officer further stated that defendant was a Caucasian and the other two individuals were Hispanic.

Defendant has raised four points with several sub-points on this appeal.

POINT I. PATROLMAN BUMM'S VEHICLE STOP WAS NOT SUPPORTED BY REASONABLE SUSPICION, AS REQUIRED BY TERRY V. OHIO AND ITS PROGENY.

SUBPOINT A: THE PULLOVER OF THE VEHICLE WAS A FOURTH AMENDMENT SEIZURE.

SUBPOINT B: THE FACTS OBSERVED BY PATROLMAN BUMM PRIOR TO THE VEHICLE STOP WERE INSUFFICIENT TO CONSTITUTE 'REASONABLE SUSPICION' AS REQUIRED BY THE FOURTH AMENDMENT.

SUBPOINT C: THE FACTS OBSERVED BY PATROLMAN BUMM PRIOR TO THE VEHICLE STOP WERE INSUFFICIENT TO CONSTITUTE PROBABLE CAUSE TO ARREST UNDER FOURTH AMENDMENT STANDARDS.

SUBPOINT D: SINCE NEITHER PROBABLE CAUSE NOR REASONABLE SUSPICION WERE PRESENT TO JUSTIFY THE SEIZURE, ITS FRUITS, THE SEIZED NARCOTICS, MUST BE SUPPRESSED.

POINT II: ACCEPTING, ARGUENDO, THAT THE VEHICLE STOP WAS JUSTIFIED BY REASONABLE SUSPICION, THE SEARCH OF MR. KUHN'S CLOTHING AND PERSON WAS UNLAWFUL UNDER THE FOURTH AMENDMENT.

SUBPOINT A: A FRISK OF A DETAINEE IS NOT AUTOMATICALLY WARRANTED IN EVERY TERRY STOP: ADDITIONAL ARTICULABLE FACTS MUST CREATE A REASONABLE PARTICULARIZED SUSPICION THAT THE PERSON TO BE SEARCHED POSES A REALISTIC AND IMMEDIATE DANGER TO THE POLICEMAN AT THE SCENE.

SUBPOINT B: A FRISK OF MR. KUHN WAS NOT WARRANTED BECAUSE NO FACTS IN THE RECORD SUPPORT A REASONABLE SUSPICION THAT HE POSED ANY DANGER TO PATROLMAN BUMM AND HIS PARTNER.

SUBPOINT C: WHEN A FRISK IS WARRANTED, IT MUST BE LIMITED IN SCOPE TO A WEAPONS SEARCH TO PROTECT THE OFFICER AND MAY NOT BE A SEARCH FOR CONTRABAND.

SUBPOINT D: PATROLMAN BUMM'S SEARCH OF THE CLOTHING AND PERSON OF MR. KUHN EXCEEDED THE SCOPE OF A FRISK.

SUBPOINT E: SINCE THE SEARCH IS NOT JUSTIFIED UNDER THE FOURTH AMENDMENT, ITS FRUITS MUST BE SUPPRESSED.

POINT III. THE SEARCH AND SEIZURE PROTECTION UNDER N.J. CONSTITUTION OF 1948, ARTICLE I, PARAGRAPH 7 IS AT LEAST AS GREAT AS THE PROTECTIONS OF THE FEDERAL CONSTITUTION. ACCORDINGLY, THE EVIDENCE MUST BE SUPPRESSED UNDER THE INDEPENDENT PROTECTIONS OF THE NEW JERSEY CONSTITUTION.

POINT IV. THE BURDEN OF PROOF (BY A PREPONDERANCE) FALLS ON THE STATE TO PROVE ALL ELEMENTS JUSTIFYING AN EXCEPTION TO THE REQUIREMENT OF A WARRANT.

We need not treat more than defendant's initial point, since it requires reversal.

The parties basically agree as to the law to be applied. The State contends that there was sufficient cause for the vehicle to be stopped, resulting in the pat down search and discovery of the drugs. Defendant contends to the contrary. The State in its brief also "does not dispute that this stop was a seizure," and we, therefore, do not treat this issue. In Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1977), the United States Supreme Court held:

... except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is likewise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.

See also State v. Kirk, 202 N.J.Super. 28, 493 A.2d 1271 (App.Div.1985). A stop is illegal unless the State can "point to specific and articulable facts which, taken together with rational inferences of these facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). Less than reasonable cause for arrest may warrant a stop, request for information and a pat down search. As noted in Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616-17 (1972):

In Terry this Court recognized that 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.' Id., [392 U.S.] at 22, 88 S.Ct. at 1880. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry, recognizes that it may be the essence of good police work to adopt an intermediate response. See Id., at 23, 88 S.Ct., at 1881. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time.

See also State v. Alexander, 191 N.J.Super. 573, 576-577, 468 A.2d 713 (App.Div.1983).

To determine whether there was a basis for this search, we must consider what was not shown, for in all of the following circumstances courts have found a sufficiently articulated basis to stop a citizen and inquire further. There was no traffic violation, Pennsylvania v. Mimms, 434 U.S. 106, 110-11, 98 S.Ct. 330, 333, 54...