State v. Nishina

• Decision Date: 04 March 2003
• Citation: 816 A.2d 153,175 N.J. 502
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. James J. NISHINA, Defendant-Appellant.
• Court: New Jersey Supreme Court

816 A.2d 153

175 N.J. 502

STATE of New Jersey, Plaintiff-Respondent, v. James J. NISHINA, Defendant-Appellant.

Supreme Court of New Jersey.

Argued January 7, 2003.

Decided March 4, 2003.

Mark F. Casazza argued the cause for appellant (Rudnick, Addonizio, Pappa & Comer, Hazlet, attorneys).

Mary R. Juliano, Assistant Prosecutor, argued the cause for respondent (John Kaye, Monmouth County Prosecutor, attorney).

Teresa A. Blair, Deputy Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (David Samson, Attorney General, attorney). The opinion of the Court was delivered by VERNIERO, J.

This case implicates defendant's right to be free of unreasonable searches and seizures under the Fourth Amendment of the United States Constitution and the analogous provision under our State Constitution. Specifically, we are called on to examine a pat-down search of defendant's person and a warrantless search of his automobile that yielded, respectively, drug paraphernalia and marijuana. Three lower courts evaluated the actions of the police officer who had conducted those searches, each finding no constitutional violation. We agree and affirm.

I.

These are the relevant facts, adduced largely from a suppression hearing conducted by the municipal court. We defer to the findings of that court as clarified and restated by the Law Division. State v. Locurto, 157 N.J. 463, 472-74, 724 A.2d 234 (1999); State v. Johnson, 42 N.J. 146, 157,199 A.2d 809 (1964).

Defendant's encounter with the police took place at approximately 10:00 p.m. on Sunday, April 25, 1999, in Colts Neck. A municipal police officer, Sergeant David Joline, was on routine patrol in "a relatively isolated area" that included the Conover Road School located on Conover Road. At the time of the encounter, the sergeant had been a police officer for approximately sixteen years. As he approached in his unmarked patrol car, the officer noticed four individuals on school property walking approximately three hundred feet from the school building. Sergeant Joline testified that seeing the individuals was "very unusual" because "no activities [were] going on at the Conover Road [S]chool" and "[n]o one is allowed back in the school property after dark."

A Colts Neck ordinance regulates the use of school grounds. It provides, in pertinent part:

The school grounds within the Township of Colts Neck ... shall be open throughout the year 8:00 a.m. until sunset of each day, except from 8:30 a.m. to 3:30 p.m. on school days.... No person may, in any manner, enter upon, remain on or use the school grounds at times other than those designated herein.

....

The Police Department of the Township of Colts Neck ... in connection with [its] duties imposed by law, shall diligently enforce the provisions of this article, eject from the school grounds any person or persons acting in violation of this article and/or seize and confiscate any property, thing or device ... used in violation of this article.

[Code of the Township of Colts Neck, New Jersey, Article V, §§ 177-37, -39 (1994).]

The officer drove to where the individuals were standing and exited his patrol car "to see what they were doing." The individuals informed him that they were coming back from the playground located behind the school building. That building obstructs the view of the playground from the road. One person, later identified as defendant, told Sergeant Joline that he and his friends "were just driving around and decided to go back [behind the school] because they heard of the playground[.]" Defendant further stated "that they just were hanging out there." At the suppression hearing, the officer described the playground as consisting of "a swing set, you know, stuff for the kids to play on." The record does not indicate defendant's age but presumably, as a licensed driver, he was at least seventeen years old at the time of the encounter. We take judicial notice of the fact that the Conover Road School is a lower elementary school that serves students in kindergarten through the fourth grade.

The officer testified that he had never seen defendant before that evening. Standing "a couple of feet" from the individuals, the officer asked to see defendant's driver's license, registration, and insurance card. He stated that he "wanted to see who owned the car" that defendant had driven to the school to "make sure that the car ... wasn't stolen." The car itself was parked some distance from defendant, across the street from the school on the side of Laurelwood Drive. Sergeant Joline testified that it appeared suspicious to him that defendant's car was parked at that location. As revealed in the record, the school has its own parking lot. Sergeant Joline indicated that he remained with the other three individuals while defendant walked to his car to obtain his car registration and insurance card.

The officer acknowledged that the Conover Road School was not located in a high crime area and that he had received no calls about any nearby crimes or stolen vehicles. He explained, however, that the police department was "keeping ... [its] eye on the schools" because "that's when all the problems were happening at the schools with ... bomb threats and all of that." As the State indicated before this Court, defendant's encounter with the sergeant had occurred five days after the widely reported incident at Columbine High School in Colorado, in which two student gunmen killed thirteen individuals and wounded several others before taking their own lives. That incident had prompted several perceived "copycat" crimes throughout the country, including one in Elizabeth, New Jersey. There, authorities charged a fourteen-year-old student with making terroristic threats after he allegedly had threatened to blow up his school. Amy Sinatra, Copycats Threaten Schools, ABCNEWS.com, at http://abcnews.go.com/ sections/us/DailyNews/littleton_threats990428.html (Apr. 29, 1999).

After receiving defendant's car registration and insurance information, Sergeant Joline "smelled a real strong odor of burnt marijuana coming out from [defendant's] clothes." The officer stated that, based on his police training, he had "no doubt in [his] mind" that he had smelled marijuana. After smelling that substance, the sergeant patted down defendant, discovering a pen and a pack of rolling papers. According to his testimony, the officer believed that the rolling papers were drug paraphernalia used for marijuana cigarettes. He then asked defendant if he had any marijuana on his person, to which defendant responded no.

Sergeant Joline then walked to defendant's car and shined his flashlight through the vehicle's window. He saw a clear plastic bag protruding out of the console located to the left of the driver's seat. The sergeant stated that, again based on his training and experience, he believed that the plastic bag contained marijuana, although he acknowledged that he could not see the bag's contents from outside the car. After opening the car door and removing the bag, the officer saw that it contained "green vegetation" that he suspected was marijuana. For completeness, we note also that another officer joined the sergeant at some juncture but the record does not indicate precisely when that had occurred. (Because the parties do not discuss or address that other officer's conduct, our analysis will focus solely on Sergeant Joline.)

Sergeant Joline arrested defendant and transported him to the police station. Defendant was charged with possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-10a(4); possession of drug paraphernalia with the intent to use, in violation of N.J.S.A. 2C:36-2; and operating a motor vehicle with a controlled dangerous substance, in violation of N.J.S.A. 39:4-49.1. Defendant moved to suppress the evidence seized by the officer. The municipal court denied that motion. Defendant pled guilty to the drug possession and drug paraphernalia charges, both disorderly person offenses, conditioned on his right to appeal the denial of his suppression motion. The municipal court sentenced defendant to a sixmonth suspended jail term, directed him to pay a $350 fine for each offense, and suspended his driver's license for 180 days. Defendant appealed to the Superior Court, Law Division. After conducting a de novo review of the municipal court proceeding, the Law Division clarified certain factual ambiguities and restated the record by highlighting the pertinent facts noted above. It also found that defendant had not carried any packages, exchanged any objects with the other individuals, or threatened the officer's safety.

The Law Division affirmed the denial of defendant's motion, finding that Sergeant Joline had a reasonable, articulable suspicion to perform an investigatory stop. The court agreed with the State "that the subjects walking on school property at that time of night, 10 or 10:30, may appear not only suspicious but also [in] violation of trespass, warranting investigation." The court further explained that the scope of the detention was related to the justification for the initial stop and that the officer's inspection of defendant's vehicle registration and insurance was the "least intrusive and quickest method to verify ownership of the vehicles and to look into the issue of trespassing." Lastly, the court held that the search of defendant's person and his vehicle were lawful based on the totality of the circumstances and applicable case law.

Defendant appealed to the Appellate Division. In an unreported opinion, the Appellate Division affirmed, with one member of the panel dissenting. Defendant appealed to this Court as of right. R. 2:2-1(a)(2).

II.

The first question is whether Sergeant Joline had a constitutional basis to stop and question defendant prior to searching his person and his car. We begin our analysis by reviewing two forms of police encounters, the...