State v. Stump
| Decision Date | 07 September 2021 |
| Docket Number | A-1865-19 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. KURT STUMP, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 17, 2021
On appeal from the Superior Court of New Jersey, Law Division Monmouth County, Indictment No. 19-050789.
Kevin S. Finckenauer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender attorney; Kevin S. Finckenauer, of counsel and on the briefs).
Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Lori Linskey Acting Monmouth County Prosecutor, attorney; Monica do Outeiro, of counsel and on the brief; Alecia Woodard, Legal Assistant, on the brief).
Before Judges Gilson and Gummer.
Defendant Kurt Stump was a passenger in a taxi when it was stopped for motor-vehicle violations. A police officer removed defendant from the car, seized a prescription bottle from him, and charged him with third-degree possession of Xanax without a prescription, N.J.S.A. 2C:35-10(a)(1). The trial court denied defendant's motion to suppress the warrantless seizure of the bottle and Xanax pills. Thereafter, defendant pled guilty and was sentenced to one year of probation.
He appeals, arguing he was illegally removed from the taxi and the prescription bottle and pills were not lawfully seized. We agree. The trial court did not find, and the record contains insufficient evidence to establish, that defendant posed a heightened risk of danger justifying his removal from the taxi. In addition, the evidence establishes that the bottle was recognizable as contraband only after the officer seized it and saw the prescription was for Methadone, but the pills appeared to be Xanax. Accordingly, we reverse the order denying the motion to suppress and defendant's conviction.
The facts were established at an evidentiary hearing where two witnesses testified: Police Officer Barry Hollo and defendant. At approximately 5 p.m. on March 21, 2019, Officer Hollo and two other officers were on a "proactive" narcotics patrol in an unmarked police vehicle in a "high crime "area in Asbury Park. The officers observed defendant walking on a sidewalk while talking on a cellphone and looking around. Hollo explained that when he saw defendant, he did not know him, nor had he had any prior interactions with defendant. Nevertheless, the officers pulled their vehicle to the side of the road to observe defendant. They saw defendant meet P.T., who Hollo recognized as someone who had previously been involved in the distribution of narcotics.
As defendant and P.T. were standing on the sidewalk, a taxi pulled up to the curb and defendant and P.T. got into the cab. Officer Hollo testified that the cab had a female driver and another passenger in the rear seat. Hollo recognized the passenger as L.K., who Hollo knew to be involved in "[n]arcotics and violent offenses."
After defendant and P.T. entered the taxi, Officer Hollo observed the cab pull away from the curb without signaling. Following in the police vehicle, Hollo saw the taxi make a left turn at an intersection that was "clearly marked with a no left turn sign." Thereafter, the officers signaled for the taxi to pull over, which it did.
The officers got out of their vehicle and approached the taxi. Officer Hollo walked up to the cab on the passenger side and saw defendant "moving frantically about the rear portion of the taxi." When Hollo got level with the passenger window, he saw defendant trying to push an orange pill bottle into the crease of the back seat. At that point, Hollo "escorted" defendant out of the cab by taking his wrists and walking him to the rear of the taxi. Defendant was holding the pill bottle in his left hand and Hollo could see that the pills in the bottle appeared to be Xanax. Hollo then took the pill bottle from defendant, examined it more closely, and saw that the prescription was in defendant's name, but for Methadone. Hollo also observed the pills more closely and, based on his training and experience, believed the pills were Xanax. Defendant told Hollo he had a prescription but Hollo placed defendant under arrest for possessing Xanax without a prescription.
P.T and L.K. were also removed from the cab and arrested by Hollo's fellow officers for possessing other narcotics. According to Hollo, the taxi driver was not involved in any narcotic activity, and she was released without being given summonses or tickets for the motor-vehicle violations.
On cross-examination, Hollo elaborated that he had seen the pills in the bottle when defendant was still in the cab. He testified that he "immediately recognized the pills in the pill bottle as Xanax" because of their distinct rectangular shape. During recross-examination, in response to a question from the judge, Hollo explained that he was first able to see the label on the bottle when he removed the bottle from defendant and "was able to observe it . . . in a closer view." Later, Hollo was shown his police report, which stated that defendant had told Hollo that the prescription was for Xanax. Hollo then clarified that if he had earlier testified that defendant told him that the prescription was for Methadone, he "misspoke." Thus, Hollo confirmed that defendant had told him that the prescription was for Xanax, and Hollo saw that the prescription label was for Methadone only after he had taken the bottle from defendant.
Defendant's testimony was in marked contrast to the testimony by Officer Hollo. Defendant stated that he was walking down a street in Asbury Park trying to call a cab so he could go see a friend who was at a hospital. Defendant waved a cab down, and the cab already had a passenger who he did not know. Defendant got into the cab, and, as they were driving toward the hospital, the cab stopped to pick up another person. The cab then began to move again but suddenly pulled over. Defendant testified that his door "fl[ew] open," he was "grabbed and dragged out of [the] cab," and told "to put [his] hands on the vehicle." Defendant was then searched, and a police officer took a prescription bottle out of defendant's pocket. Thereafter, the officer conferred with other officers on scene, came back to defendant, and asked defendant if the pills were Xanax, then pointed out the prescription was for Methadone. According to defendant, he did not respond and was arrested.
Defendant claimed he never gave the police permission to search him or to take the pill bottle from his pocket. Defendant also explained that when he was dragged out of the cab, the other two passengers were simultaneously pulled out of the vehicle and all three were searched. By contrast, defendant stated that the taxi driver was not questioned.
After hearing the testimony and considering the physical evidence, which included the pill bottle, the trial court denied the motion to suppress. Relying on the testimony of Officer Hollo, the court found that the police had lawfully stopped the taxi because of two traffic violations. The court also found that defendant had been lawfully removed from the cab because the vehicle was stopped in a high-crime area and Officer Hollo saw defendant moving frantically in the cab while holding the pill bottle.
In making those findings, the court questioned whether Hollo could see the pills while the bottle was in defendant's possession. Nevertheless, the court found, under the circumstances, that Hollo was permitted to "investigate what was in defendant's hand." The court ultimately found Hollo could see through the bottle when he took the bottle from defendant.
Finally, the trial court found that the bottle had been lawfully seized under the plain-view doctrine. In that regard, the court found that Officer Hollo was lawfully in an area to view defendant after the taxi had been stopped. The court found Hollo "had a right to ask to see [the prescription] bottle" and, consequently, was able to see the bottle's contents and label. The court also found that the pills in the bottle were immediately recognizable as contraband because "[p]rior to seeing the prescription bottle, Officer Hollo observed defendant moving frantically in what he believed was an attempt to conceal something." Moreover, when defendant exited the cab, he claimed to have a prescription bottle, but the officer saw that the prescription did not match the shape of the pills. The court went on to find that once the officer had seized the bottle, the officer could observe that the prescription was for Methadone, but the pills appeared to be Xanax. In making that finding, the trial court stated:
Looking at the totality of the circumstances from the standpoint of an objectively reasonable police officer with Officer Hollo's training and experience, Officer Hollo had probable cause to associate the Xanax pills found in plain view with contraband prior to his seizure or at the time that he seized them.
On appeal, defendant makes two arguments, which he articulates as follows:
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