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(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6301-04T5
A-6302-04T5
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ALLEN HUGHES,
Defendant-Respondent.
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KENNETH HARRELL,
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Defendant-Respondent.
February 21, 2007
Argued January 10, 2007 - Decided
Before Judges Wefing, Yannotti and Messano.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex
County, Indictment No. 973-07-04.
Simon Louis Rosenbach, Assistant Prosecutor argued the cause for appellant
(Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Rosenbach, on the
brief).
Richard J. Simon argued the cause for respondents (Richard J. Simon, attorney;
Jeffrey Zajac, on the brief).
PER CURIAM
By leave granted, the State of New Jersey (the State) appeals from an order suppressing evidence seized
during the warrantless search of a vehicle occupied by defendants, Kenneth Harrell and Alan Hughes. The
motion judge concluded that although the police had sufficient "reasonable and justifiable suspicion" to stop
the vehicle, they lacked "a heightened awareness of danger" justifying their command to Harrell, the
passenger, to exit the car. The judge concluded, therefore, the seizure of evidence that followed was
improper.
We have consolidated the two appeals for purposes of this opinion. After careful review of the record and
governing legal principles, we reverse the order of suppression for a portion of the evidence, and remand
the matter for further proceedings regarding the balance of items seized.
Pursuant to our standard of review, we defer to the factual findings made by the motion judge to the
extent they are supported by sufficient credible evidence present in the record. State v. Locurto, 157 N.J.
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463, 472 (1999); State v. Barone, 147 N.J. 599, 615 (1997). "However, where the rulings are based upon
legal conclusions, the judge is afforded no deference on appeal." State v. Ventura, 353 N.J. Super. 251, 258
(2002). Here, while satisfied that the judge's factual findings were amply supported by the credible
evidence, we part company with the legal conclusions he reached.
The State produced North Brunswick Police detective Michael Braun (Braun) as its only witness at the
motion hearing. He testified that on March 18, 2004, members of his department were conducting a
narcotics investigation in the area of the Oakleaf and Georgetown Apartment complexes. They received
information from a previously reliable confidential informant that two individuals "Ro," who Braun knew to
be Harrell, and "Squirt", a nickname also known to Braun, would be in a red Windstar in the area.
At the request of Sergeant Anthony Falcone, Braun's supervisor, the confidential informant placed a call to a
cell phone the informant claimed belonged to Harrell and arranged for a narcotics purchase. At midnight,
Falcone called Braun and advised that he had spotted the Windstar in one of the apartment complexes and
that Harrell was the passenger in the vehicle. "Within moments," Braun spotted the vehicle, with its
headlights off, run a stop sign as it exited the complex onto Route 27. Braun radioed for marked police
vehicles to stop the Windstar.
Braun, who was following behind the marked police units, saw the uniformed officers stop the Windstar. He
then exited his car and immediately went to the passenger side. Braun testified that he knew Harrell had a
previous conviction for possession of a handgun, though he did not know when he had been convicted. He
opened the door of the Windstar and ordered Harrell out of the vehicle. As he did, he observed a package
of what he believed to be cocaine on the floor near the passenger's seat and another in the pocket of the
door panel. He arrested Harrell.
After Harrell was in custody, Braun approached the driver's side of the Windstar. He could not recall
whether the driver was already out of the vehicle, but he examined the individual's driver's license, which
was in the name "Ernest Terrell." Braun also observed a small bag of marijuana on the driver's seat. Terrell
was arrested and a subsequent search of the Windstar revealed thirty glassine bags of suspected heroin in
the rear access panel of the minivan.1 Braun testified that nearly two weeks later he determined Terrell's
real name was Alan Hughes. The parties stipulated that Harrell had been convicted of possession of a
handgun in July, 1996.
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Harrell testified that the number the confidential informant claimed to have called was not his cell phone
number and, further, that he did not possess any cell phone on the evening in question. He also testified
that Braun immediately arrested him as he exited the Windstar and then threw a glassine bag onto the
floor of the passenger's side. Harrell claimed to have no knowledge of any drugs in the vehicle.
At the conclusion of the testimony, in an oral opinion, the motion judge determined that the "low standard
to justify the stop of the motor vehicle ha[d] been met by the State." However, citing State v. Smith, 134
N.J. 599 (1994), he determined that Braun had not "articulated specific reasons why the defendant's
gestures or other circumstances caused a heightened awareness of danger." He noted, "[T]he information
that [the police] had was that the defendants were engaged in drug transactions. In and of itself that
cannot be the basis to conclude that there was a heightened awareness of danger." Considering Braun's
knowledge of Harrell's prior conviction, the motion judge acknowledged that Braun did not know when the
conviction occurred, but nonetheless continued, "[I]t would be hard for this Court to accept the fact that a
conviction of ten years vintage would be sufficient to cause a heightened awareness of danger." He found
the State's reliance upon Harrell's prior conviction to justify his removal from the passenger seat of the
Windstar "insufficient as a matter of law." He suppressed all the evidence seized.
In Smith, supra, 134 N.J. at 618, the Court held,
To support an order to a passenger to alight from a vehicle stopped for a traffic
violation, therefore, the officer need not point to specific facts that the occupants
are "armed and dangerous." Rather, the officer need point only to some fact or
facts in the totality of the circumstances that would create in a police officer a
heightened awareness of danger that would warrant an objectively reasonable
officer in securing the scene in a more effective manner by ordering the
passenger to alight from the car.
[Ibid.]
The Court noted that the standard it adopted "d[id] not rise to the Terry2 standard that must be met for a
protective pat-down" because, unlike a protective frisk, ordering a passenger out of a vehicle was a
"minimal intrusion" of that person's privacy. Ibid. The Court concluded the removal of the passenger from
the vehicle was reasonable considering the totality of the circumstances including, the apparent passing of
items between the front and rear-seat passengers, the early morning hour, and the nearly deserted stretch
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of road. Id. at 619.
Other cases have similarly concluded that the totality of the circumstances presented to the officer at the
time of the motor vehicle stop justified removing the passenger from the vehicle. In State v. Matthews, 330
N.J. Super. 1, 5-6 (App. Div. 2000), we held that signs of intoxication of the driver and passenger, the
failure to produce credentials for the vehicle, the passenger's seatbelt law violation, and his refusal to
acknowledge the officer's presence all justified the removal of the passenger from the vehicle. In State v.
Cargill, 312 N.J. Super. 13, 17 (App. Div.), certif. denied, 156 N.J. 408 (1998), we upheld the search of a
passenger removed from the vehicle when he refused to respond to the police officer's routine inquiries.
And, in State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997), we concluded that the officer was
justified in ordering the defendant passenger out of the vehicle when he disobeyed an order to keep his
hands on the dashboard.
The motion judge correctly noted that in most cases the totality of the circumstances included some
"suspicious conduct" by the occupants of the vehicle that justified the officer's "concerns for his safety." He
noted that Harrell engaged in no such conduct prior to being ordered out of the car by Braun. However,
restricting the analysis to Braun's observations of Harrell's conduct in the car ignores the officer's knowledge
of all that transpired prior to the motor vehicle stop.
From his conversation with his supervisor, Braun knew that a reliable confidential informant had provided
information that defendants would be together in a red Windstar minivan in the vicinity of the apartment
complexes. He also knew that the informant had placed a call to Harrell arranging for a narcotics
transaction to take place. At midnight, Braun observed defendants' vehicle in the vicinity where the
informant said it would be, being driven without its headlights on, and running a stop sign. Thus, unlike the
cases relied upon by the motion judge, and, indeed, most of the reported decisions where the initial motor
vehicle stop was solely the result of a violation of the motor vehicle laws, in this case, Braun was armed
with significant information that would heighten his concern for his safety. See State v. Spivey, 179 N.J.
229, 240 (2004) (noting affinity between firearms and illegal drug activity).
Additionally, Braun knew Harrell had been convicted of possessing a firearm in the past. We know of no
reported case that has considered the precise issue presented; that is, may the officer's prior knowledge of
the passenger's criminal history be one circumstance, among the totality of circumstances, justifying his
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removal of the passenger from the vehicle? By analogy to other types of police-civilian encounters,
however, we do not hesitate to answer the question affirmatively.
In State v. Valentine, 134 N.J. 536 (1994), the Court held that knowledge of a suspect's prior criminal
record, standing alone, could not justify a Terry protective frisk. Id. at 550. However, the Court noted that
a "Terry frisk is not automatically invalid because the frisking officer's reasonable suspicion is grounded, in
part, by the suspect's prior criminal history" particularly if that involves "weapons offenses." Ibid. The
officer's knowledge of the suspect's criminal history was one factor in the totality of circumstances that
justified his reasonable stop and frisk of the defendant. Id. at 553-54. Indeed, the Court has held that an
officer's knowledge of a suspect's involvement in criminal activity, even if not evidenced by a conviction, can
be a factor in the totality of circumstances justifying an investigatory detention. See State v. Pineiro, 181
N.J. 13, 25 (2004) (police officer's knowledge of defendant from "clearing him off the corners" and from
intelligence reports identifying him as suspected drug dealer was among totality of circumstances justifying
investigatory stop).
In State v. Jones, 179 N.J. 377 (2004), the Court considered whether the "no-knock" provisions of a search
warrant were justified, in part, because the occupant of the premises had been arrested seven years earlier
for assault on a police officer and possession of a dangerous weapon. Id. at 383. Analogizing the concern
for police officer safety in such a situation to safety concerns during an investigatory stop, the Court
concluded,
Because the same test for reasonable and particularized suspicion applies to
both protective frisks and no-knock entries, we conclude that a suspect's criminal
history may be used as part of the totality of the circumstances analysis to
justify a no-knock entry.
[Id. at 399.]
The Court further noted that knowledge of an arrest, even absent a conviction for the crime, "was
probative" of the officer's safety concerns "because [the arrest] was based on probable cause to believe"
the suspect had engaged in criminal conduct, specifically assaulting a police officer. Id. at 402.
We conclude, therefore, that Braun's knowledge of Harrell's prior conviction for possession of a handgun,
though eight years old, was among the totality of circumstances that could support a finding of his
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"reasonable suspicion" that criminal activity was afoot, and further justify an investigatory detention and
protective frisk. Since our review of Braun's request to have Harrell exit the passenger side of the vehicle
requires application of a lesser standard -- whether the officer experienced "a heightened awareness of
danger," Smith, supra, 134 N.J. at 618 -- we conclude that knowledge of defendant's prior firearm
conviction was an additional factor among the totality of circumstances that justified Braun's command to
defendant to exit the car.
After Harrell exited the vehicle, Braun observed the two bags of suspected cocaine, one on the floor in front
of the passenger's seat, and one in the passenger door's pocket. He also observed a small bag of marijuana
on the driver's seat. Braun made his observations while he had a legal right to be where he was, his
discovery of the objects was inadvertent, and he immediately knew them to be contraband. State v.
Johnson, 171 N.J. 192, 206-07 (2002). By application of the "plain view" exception to the warrant
requirement, the order suppressing this evidence must therefore be reversed.
Because the motion judge determined Braun lacked the authority to order Harrell from the vehicle, he
concluded all that followed was tainted. From the testimony, we gather that thirty packs of suspected
heroin were found in a "rear access panel" of the Windstar, but the issue of whether this seizure without a
warrant was justified was not specifically addressed by the judge or the parties. We also recognize that the
motion judge did not have the benefit of the Supreme Court's decisions in State v. Eckel, 185 N.J. 523
(2006) and State v. Dunlap, 185 N.J. 543 (2006), decided after his ruling, both of which may impact his
determination. We therefore remand this matter so that the judge may make appropriate findings of fact
and conclusions of law regarding the seizure of the thirty packs of suspected heroin from inside the
Windstar minivan.
Reversed in part; remanded for further proceedings consistent with this opinion. We do not retain
jurisdiction.
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1 Defendants disputed whether these items, later tested at the laboratory, actually contained any controlled
dangerous substances.
2 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
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