State v. Smith

• Decision Date: 08 December 1997
• Citation: 703 A.2d 954,306 N.J.Super. 370
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Brian K. SMITH, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. James N. THOMPSON, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 370

306 N.J.Super. 370

703 A.2d 954

STATE of New Jersey, Plaintiff-Respondent, v. Brian K. SMITH, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Respondent, v. James N. THOMPSON, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Sept. 8, 1997.

Decided Dec. 8, 1997.

Vincent W. Basile, Hackensack, for defendant-appellant Brian Smith (Flood & Basile, attorneys; Mr. Basile, on the brief).

Brian J. Neary, Hackensack, for defendant-appellant James Thompson (Law Offices of Brian J. Neary, attorneys; Mr. Neary, of counsel and on the brief; Yung-MI Lee, on the brief).

Christine M. D'Elia, Trenton, for plaintiff-respondent (Peter Verniero, Attorney General, attorney; Ms. D'Elia, of counsel and on the brief).

Before Judges HAVEY, NEWMAN and COLLESTER.

The opinion of the court was delivered by

COLLESTER, J.S.C. (temporarily assigned).

In these appeals, consolidated for purposes of this opinion, defendants urge the following arguments on appeal:

I. The trial court erred in denying the motion for discovery under State v. Kennedy.

II. The trial court erred in denying the defendants' motion to suppress physical evidence and statements.

III. The trial court should have enforced the original plea offer.

IV. The plea allocution provided insufficient notice as to the consequences of their pleas.

At 9:15 in the evening of January 14, 1994 Brian Smith and James Thompson, passenger and driver, were stopped on Interstate 95 for alleged motor vehicle violations by New Jersey State Trooper Brian Long, a seven and one half year veteran of the New Jersey State Police. A search of their motor vehicle resulted in their arrest and subsequent indictment for first degree possession of five ounces or more of cocaine with the intent to distribute and third degree possession of cocaine.

Pursuant to a plea agreement both men entered pleas of guilty to the first degree charge with a sentence recommendation by the prosecutor of ten years incarceration with three and one-third years of parole ineligibility. The prosecutor conditioned his joint plea offer on criminal histories disclosing no prior indictable convictions for either defendant, and the offer was withdrawn as to both defendants when it was discovered that Thompson had a prior Pennsylvania conviction for possession of marijuana with the intent to distribute.

Defendants moved to suppress evidence of the search and alleged post-arrest statements. They also contended that the motor vehicle stop was selective enforcement based on race and out of state residence, and they sought discovery of numerous documents from the New Jersey State Police to support the claim. The motion court denied both the discovery request and the motion to suppress.

Defendants entered into a new plea agreement and pled guilty to the first degree charge with the higher sentence recommendations by the prosecutor of eighteen years incarceration and six years of parole ineligibility for Thompson and fourteen years with a four year eight month parole ineligibility term for Smith. Prior to sentencing both defendants moved to withdraw their guilty pleas and compel specific performance of the original plea offer, but the sentencing judge denied the motion and sentenced each defendant to the maximum permitted by the plea agreement.

I.

Defendants base their discovery demand on State v. Kennedy, 247 N.J.Super. 21, 588 A.2d 834 (App.Div.1991) in which two African-American "American men were stopped for speeding on Interstate 80 in a vehicle with Ohio license plates and a subsequent search resulted in drug charges. The defendants sought discovery of State Police documents to buttress their argument that their arrests were tainted by a systematic practice of discrimination against minorities reflected in the selective enforcement of traffic laws by New Jersey State Troopers. A supporting study by the Warren County Public Defender's Office indicated that its caseload statistics over eight months showed representation of seventy-six percent Caucasians and seventeen percent Afro-Americans but that in the forty-three cases involving motor vehicle stops on Route 80 over a three year period seventy percent involved Afro-Americans and twenty-three percent Caucasians. Stating that the defendants have the burden of producing "some evidence" tending to show the existence of selective enforcement by the State Police, this court held as follows:

[W]e find that the Public Defender's statistical survey was marginally sufficient to raise a colorable claim of selective enforcement. At the very least, the data contained in the study took "the question past the frivolous state and raised a reasonable doubt" as to whether the State Police are enforcing the traffic laws in an evenhanded fashion without regard to non-germane racial criteria.

Kennedy, supra, at 33 (quoting United States v. Hazel, 696 F.2d 473, 475 (6th Cir.1983)).

The supporting statistical data presented by defendant in this case consists of logs of the Teaneck Municipal Court for the three year period from July 11, 1991 to August 24, 1994 indicating forty-eight defendants charged by Trooper Long as a result of motor vehicle stops. The public defender represented thirty-three defendants, twenty-four of whom were Afro-American with only four Caucasians. No information was provided as to the race of the fifteen defendants not represented by the public defender.

The defendants also submitted a report by Joseph Naus, a Rutgers professor of statistics, commissioned by the Office of the Public Defender indicating that from December 6 to December 12, 1988 between 9 a.m. and 4:15 p.m. five percent of the cars between exits eight and twelve on the New Jersey Turnpike contained black motorists in vehicles with out-of-state licenses plates. Also submitted were several newspaper articles quoting former State Troopers to the effect that the New Jersey State Police used profiles in effecting motor vehicle stops.

Defendants' evidence is less satisfactory than was deemed "marginally sufficient" in Kennedy. The newspaper articles are obvious and unreliable hearsay. The Naus report is a survey completed six years prior to this arrest conducted during daytime hours on a portion of the Turnpike a considerable distance from the arrest site in this case. The municipal court logs show a relatively modest total number of arrests following car stops by one trooper over four years reduced to an even smaller number of public defender clients.

Kennedy underscored that the validity of statistical information claimed to show selective enforcement by race depends upon an accurate identification of the group of persons who violate the traffic laws on trooper-patrolled roads. State v. Kennedy, supra, at 33, 588 A.2d 834. Similarly, in United States v. Armstrong, the United States Supreme Court held that to obtain discovery with an allegation of selective prosecution a defendant must make "a credible showing of different treatment of similarly situated persons." United States v. Armstrong, 517 U.S. 456, ----, 116 S.Ct. 1480, 1489, 134 L.Ed.2d 687, 702 (1996). However in the instant case there is no evidence that defines the group of persons who violate traffic laws or specifies the disparate treatment of persons who could have been but were not stopped for traffic violations by the State Police.

At best, the evidence proffered relates to defendants' belief that Trooper Long had a hidden agenda and profiled Afro-American citizens driving out-of-state vehicles by making traffic stops a pretext to arrest and search. However, the constitutionality of a search and seizure is determined by whether the actions taken are objectively reasonable and supported by probable cause and not whether an individual police officer has underlying motives. United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 1587, 104 L.Ed.2d 1, 12 (1989). "[T]he Fourth Amendment proscribes unreasonable actions, not improper thoughts." State v. Bruzzese, 94 N.J. 210, 219, 463 A.2d 320 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984).

The discovery sought herein is permitted only when there is a colorable claim that a police agency has an officially sanctioned or de facto policy of selective enforcement against minorities. Kennedy, supra, at 29-30, 588 A.2d 834. The alleged motives of an individual police officer are not enough. See, Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 1298-99, 89 L.Ed.2d 452, 462-63 (1986). Therefore, we concur with the motion judge that defendants did not produce sufficient evidence to raise a colorable claim of selective enforcement and affirm the order denying the requested discovery.

II.

Defendants contend that the motion court erred in denying their motion to suppress evidence seized and statements taken. At the suppression hearing Trooper Long testified that at about 9:15 p.m. on January 14, 1994, he was driving his marked state police car in the southbound express lane of Route 95 in Teaneck when he noticed a 1988 Nissan Maxima with Pennsylvania license plates straddling the left and right lanes. He followed the Maxima for about a mile, saw at least six instances when it veered lanes from right to left, and stopped the vehicle by activating his overhead lights.

Smith was the driver, and Thompson was in the front passenger seat. Trooper Long testified that he approached the car from the passenger side and saw a plastic bag protruding from Thompson's right front pocket which appeared to contain marijuana. He also smelled the odor of alcohol in the car. He requested driving credentials from Smith, who produced his license and a Pennsylvania registration with a woman's name.

Trooper Long asked Smith to step to the rear of the car and told Thompson to keep his hands on the dashboard. While talking to Smith, the Trooper saw Thompson move his hands from the dashboard and out of view. He immediately went to...