State v. Dion E. Robinson (A-40-15) (076267)Five officers’ swift and coordinated action eliminated the risk that any of the four occupants would gain immediate access to the weapon

State v. Dion E. Robinson (A-40-15) (076267)Five officers’ swift and coordinated action eliminated the risk that any of the four occupants would gain immediate access to the weapon

Argued January 4, 2017 -- Decided May 1, 2017

Patterson, J., writing for a unanimous Court.

In this appeal as of right, the Court considers whether the protective sweep exception to the warrant requirement applies to a police officer’s search of a vehicle’s passenger compartment in the wake of a traffic stop.

After observing a driving pattern he considered unsafe in an area associated with drug activity, Officer Ceci conducted a motor vehicle stop. The driver was defendant Dion Robinson, the front seat passenger was Catilya Carson, the left-rear-seat passenger was Marcus Sanders, and the right-rear-seat passenger was Terron Henderson.

Officer Ceci asked defendant for his license, registration, and insurance. Defendant misidentified himself, stated that his license was suspended, and provided the registration and insurance. Henderson misidentified himself as defendant. Carson and Sanders accurately identified themselves and presented identification cards but no driver’s licenses. Defendant said that the car was owned by his friend, but that he did not know the friend’s name.

Officer Ceci was advised by the dispatcher that defendant and Henderson each had an outstanding warrant and that defendant was known to carry weapons. Officer Ceci confirmed that information and found that Henderson also had a “caution for weapons.” He called for backup; a sergeant and three officers joined him at the scene.

The officers directed defendant and Henderson out of the car, handcuffed them, and arrested them. A search incident to arrest revealed no weapons on either. Some of the officers were assigned to watch defendant and Henderson, who stood handcuffed on the side of the highway and were not permitted to return to the vehicle.

Next, the officers detained, but did not arrest, Carson and Sanders, on whom the officers found no weapons. Carson and Sanders were then directed to stand on the side of the road, monitored by officers. Officer Ceci did not observe Carson or Sanders make any motion that suggested that either was reaching for a weapon, attempting to hide any object, or resisting the directions of the officers. Carson and Sanders were not allowed access to the vehicle. They were not licensed drivers and would not have been permitted to drive the vehicle home.

Officer Ceci then conducted a sweep of the interior of the vehicle to check for weapons. He searched the front-seat passenger area, where Carson had left her purse. When he touched the bottom of the purse, Officer Ceci felt the outline of a handgun, which he retrieved and brought to his patrol vehicle. He then asked the other officers to place Carson and Sanders in custody, summoned a tow truck, and applied for a search warrant.

Defendant was charged with two weapons offenses, hindering apprehension, and four drug offenses, which were the subject of the outstanding warrant. Defendant moved to suppress the handgun found by Officer Ceci during his search of the car. The trial court denied the motion, finding that the traffic stop was properly based on the officer’s articulable and reasonable suspicion that defendant had committed traffic offenses and that the search constituted a reasonable and lawful protective sweep. Pursuant to a plea agreement, defendant pled guilty to second-degree unlawful possession of a handgun and third-degree possession of a CDS.

Defendant appealed the trial court’s denial of his motion to suppress. The majority of the Appellate Division panel concluded that Officer Ceci’s search of the motor vehicle was not a lawful protective sweep and reversed the trial court’s determination. 441 N.J. Super. 33, 46-47 (App. Div. 2015). The panel rejected the State’s assertion that the community-caretaking exception governs this case and noted that the “plain-feel” doctrine was irrelevant. One member of the panel dissented, finding that the search was justified as both a valid protective sweep and an exercise of police community-caretaking functions. The State appealed as of right.  R. 2:2-1(a)(2).

HELD: Although the circumstances gave rise to a reasonable suspicion that there was a weapon in the vehicle, the five officers’ swift and coordinated action eliminated the risk that any of the four occupants would gain immediate access to the weapon. Accordingly, the protective sweep exception to the warrant requirement does not govern this case. The community-caretaking exception to the warrant requirement is irrelevant. However, the inevitable discovery exception to the exclusionary rule may be pertinent to this case.

1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution guarantee “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and set forth the requirements for warrants. Warrantless searches are permissible only if justified by one of the few specifically established and well-delineated exceptions to the warrant requirement. It is the State’s burden to prove that a warrantless search falls within one or more of those exceptions.

2. The protective sweep exception to the warrant requirement derives from Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the Supreme Court held that a police officer may initiate an investigatory stop in the presence of “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”  Id. at 21.  Terry stops are narrowly drawn to permit a reasonable search for weapons.

3. The United States Supreme Court applied the protective sweep exception to an automobile setting in Michigan v. Long, 463 U.S. 1032, 1049 (1983). The Court adopted that standard in State v. Lund, 119 N.J. 35, 48 (1990), but rejected the State’s claim that the search reviewed in that case was a valid protective sweep. In State v. Gamble, the Court upheld an automobile search as a lawful protective sweep. 218 N.J.412, 431-33 (2014).

4. Long and the Court’s opinions in Lund and Gamble define the standard for a valid protective sweep of an automobile following a traffic stop: the State must present specific and articulable facts that, considered with the rational inferences from those facts, warrant a belief that an individual in the vehicle is dangerous and that he or she may gain immediate control of weapons. The protective sweep exception in the automobile setting does not turn solely on the potential presence of a weapon in a vehicle. Instead, it addresses the imminent danger to police when a driver or passenger will be permitted access to a vehicle that may contain a weapon or may be in a position to evade or overpower the officers at the scene. That standard governs this appeal. (p. 22)

5. In light of Officer Ceci’s observations of defendant’s driving, there were specific and articulable facts giving rise to reasonable suspicion that defendant had committed motor vehicle violations and that the traffic stop was therefore lawful. However, Officer Ceci’s search of the car was not a valid protective sweep. There is no doubt that Officer Ceci’s concerns that defendant and Henderson could be armed were justified, but Officer Ceci addressed the potential danger with prompt and effective action. None of the four occupants was given an opportunity to return to the car or was in a position to gain access to any weapon. The record did not reveal specific and articulable facts that, at the time of Officer Ceci’s search of the vehicle, would reasonably warrant the conclusion that any of the vehicle’s four occupants was potentially capable of gaining immediate control of weapons. The search of the car was not within the protective sweep exception to the warrant requirement.  

6. This case does not fit within the narrow parameters of the community-caretaking doctrine as applied to the search of a motor vehicle. There was no potential threat to any person’s safety warranting application of the doctrine at the time that the search took place. The Court does not reach the “plain-feel” exception.  

7. In light of the officers’ continued control over the vehicle, their reasonable concern that one or more occupants could have been armed, and the uncertain status of the vehicle’s owner, it may have been inevitable that the handgun would have been discovered. Consequently, the inevitable discovery exception to the exclusionary rule is potentially relevant to this case. The Court explains that exception and provides guidance for evaluating its applicability on remand, but offers no view on the resolution of any issues raised on remand.

The judgment of the Appellate Division is MODIFIED and AFFIRMED, and the matter is REMANDED to the trial court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s opinion. 

Reasonable articulable suspicion was not present when this investigative detention began. Therefore, the statements and evidence obtained thereafter must be suppressed, State v. Lurdes Rosario

Reasonable articulable suspicion was not present when this investigative detention began. Therefore, the statements and evidence obtained thereafter must be suppressed,

State v. Lurdes Rosario (A-91-15) (077420) Argued February 28, 2017 -- Decided June 6, 2017

LaVecchia, J., writing for the Court.

    In this appeal, the Court addresses whether and at what point defendant’s interaction with the police officer escalated from a field inquiry into an investigative detention. The Court then assesses whether reasonable articulable suspicion supported the detention’s restriction on defendant’s freedom of movement.

    The Colts Neck Police Department received an anonymous tip, on April 27, 2013, that defendant Lurdes Rosario was selling heroin from her home, located in a residential development known as “the Grande,” as well as out of her “older burg[undy] Chevy Lumina.” On May 1, 2013, at about 11:30 p.m., Officer Campan was patrolling in the Grande, and his attention was drawn to a moving silhouette in a parked burgundy Chevy Lumina.

     Campan testified that he pulled up and parked his patrol car seven to ten feet behind defendant’s vehicle and at a perpendicular angle. The cruiser’s positioning blocked in defendant’s car. Campan turned on the patrol car’s rooftop, right alley light aimed at the parked vehicle, but not the siren or emergency lights. The alley light revealed a woman sitting in the driver’s seat of the Lumina. Campan testified that the woman, later identified as defendant, looked back at him and then leaned toward the passenger’s seat and was “scuffling around” with something there. He exited his car and approached her vehicle, going directly to the driver’s-side door. Finding the driver’s window half-open, he addressed defendant by asking for “identification and driver’s license.” After she produced them, he recognized her as the subject of the anonymous tip. Campan testified that he also recalled, at that moment, that he had arrested defendant on drug-related charges approximately six months earlier.

     Campan asked defendant what she was doing, and she replied that she was smoking a cigarette. Campan testified that he did not observe a cigarette or cigarette butt. Campan asked her why she began to scuffle around the passenger-seat area when he pulled his car up behind hers. Defendant replied that she had been applying makeup and was putting it away in her purse. When Campan asked how she could apply makeup in the dark, she did not reply. Campan then asked defendant whether there was “anything he should know about” in the vehicle. According to Campan, defendant responded by stating something along the lines of “yes . . . it’s the same thing you arrested me for before in the past.” Then, according to Campan, defendant, unprompted, reached over to the passenger seat and produced an eyeglass case. Defendant opened the eyeglass case and Capman observed a white powdery substance that he identified as drugs. Campan ordered defendant out of the vehicle and placed her under arrest.

         Defendant was charged with third-degree possession of a controlled dangerous substance. The motion court denied defendant’s motion to suppress, concluding that the encounter did not escalate into an investigatory stop until Campan asked defendant whether she had anything in the car he should know about. By that point, the court found, the brief detention was supported by the officer’s reasonable and articulable suspicion due to defendant’s implausible responses to the officer’s questions and his prior knowledge of her criminal activity. The court also rejected defendant’s Miranda argument, determining that defendant voluntarily relinquished the drugs, volunteered statements to the officer, and was not in custody prior to her arrest. Defendant pled guilty. The Appellate Division affirmed, and the Court granted defendant’s petition for certification, 227 N.J. 22 (2016).

       HELD: Defendant was faced with an investigative detention once the officer blocked in her vehicle, directed the patrol car’s alley light to shine into her car, and then approached her driver’s-side window to address her. Under the totality of the circumstances, a reasonable person would feel the constraints on her freedom of movement from having become the focus of law enforcement attention. Accordingly, an investigative detention had begun. Reasonable articulable suspicion did not ripen prior to the officer’s subsequent exchanges with defendant.

1. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Warrantless searches and seizures presumptively violate those protections, but not all police-citizen encounters constitute searches or seizures for purposes of the warrant requirement.   

2. Three categories of encounters with police have been identified by the courts: (1) field inquiry; (2) investigative detention; and (3) arrest. The test of a field inquiry is whether a defendant, under all of the attendant circumstances, reasonably believed he could walk away without answering any of the officer’s questions. In contrast to a field inquiry, an investigative detention, also called a Terry stop or an investigatory stop, occurs during a police encounter when an objectively reasonable person would feel that his or her right to move has been restricted. Because an investigative detention is a temporary seizure that restricts a person’s movement, it must be based on an officer’s reasonable and particularized suspicion that an individual has just engaged in, or was about to engage in, criminal activity. An arrest requires probable cause and generally is supported through an arrest warrant or by demonstration of grounds that would have justified one.   

3. The key issue in this case lies in the distinction between a field inquiry and an investigative detention. The difference between a field inquiry and an investigative detention always comes down to whether an objectively reasonable person would have felt free to leave or terminate the encounter with police. The encounter is measured from a defendant’s perspective.  

4. A person sitting in a lawfully parked car outside her home who suddenly finds herself blocked in by a patrol car that shines a flood light into the vehicle, only to have the officer exit his marked car and approach the driver’s side of the vehicle, would not reasonably feel free to leave. Here, the officer immediately asked for defendant’s identification. Although not determinative, that fact only reinforces that this was an investigative detention. It defies typical human experience to believe that one who is ordered to produce identification in such circumstances would feel free to leave. That conduct is not a garden-variety, non-intrusive, conversational interaction between an officer and an individual.   

5. Because it was an investigative detention from the point that Campan took those directed actions toward defendant, the Court must consider whether, based on a totality of the circumstances, the encounter was “justified at its inception” by a reasonable and articulable suspicion of criminal activity. An anonymous tip, standing alone, inherently lacks the reliability necessary to support reasonable suspicion. Mere furtive gestures of an occupant of an automobile do not give rise to an articulable suspicion suggesting criminal activity. The suspicious behavior identified by the State in defendant’s later responses to Campan’s questioning occurred after the investigative detention had begun. Neither those responses, nor her blurted-out incriminatory statements, nor the surrendered contraband can be used, post hoc, to establish the reasonable and articulable suspicion required at the outset of the investigative detention that here began earlier in time.   

6. Reasonable articulable suspicion was not present when this investigative detention began. Therefore, the statements and evidence obtained thereafter must be suppressed, and it is unnecessary to address the Miranda arguments advanced by the parties.   

The judgment of the Appellate Division is REVERSED.

JUSTICE SOLOMON, DISSENTING, agrees with the majority that the encounter did not implicate Miranda, but views New Jersey jurisprudence to mandate a different holding as to when the encounter became an investigative detention and concludes that the interaction evolved from a field inquiry into an investigative detention when Campan asked whether there was anything in the vehicle he should know about. In Justice Solomon’s view, the detention was lawful and the trial court properly denied defendant’s motion to suppress. The majority’s holding unreasonably and unnecessarily limits an officer’s ability to explore a suspicious scenario and ensure that the community and officers are safe, and no crime is being committed, according to Justice Solomon.

CHIEF JUSTICE RABNER and JUSTICES ALBIN and TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE SOLOMON filed a separate, dissenting opinion, in which JUSTICES PATTERSON and FERNANDEZ-VINA join.

T.M.S. VS. W.C.P. A-4900-15T2

T.M.S. VS. W.C.P. 

A-4900-15T2 

In the court's review of a reinstated final restraining order entered pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 - 35, we conclude the court may not sua sponte reinstate a final restraining order absent a Rule 4:50-1 application by plaintiff. Due process requires the party seeking to reinstate a final restraining order file a motion so defendant may have an opportunity to adequately defend the re-imposition of a final restraining order. 

In this case, defendant was deprived of due process because the trial court, after vacating the final restraining order pursuant to N.J.S.A. 2C:25-29(d) and Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995), sua sponte reinstated the final restraining order based on plaintiff's claim she was not adequately served with defendant's Carfagno application. When the dispute arose regarding whether plaintiff had been served with defendant's Carfagno application, plaintiff should have asserted her claims via a Rule 4:50-1 motion in the domestic violence proceeding rather than have the final restraining order sua sponte and summarily reinstated in a separate weapons forfeiture hearing. 

State v. Dasean Harper (A-74-1

State v. Dasean Harper (A-74-15; 077427) 

The amnesty law did not afford defendants blanket immunity for the entire amnesty period. Reading the law in that way would lead to absurd results that the Legislature did not intend. Instead, the law created a period of no more than six months during which people could dispose of weapons they illegally possessed without being prosecuted. The provision affords a defense to those who attempted to comply with its terms. As with other affirmative defenses, a defendant must raise the defense at trial or it is waived. 

State v. Lurdes Rosario (A-91-15

State v. Lurdes Rosario (A-91-15; 077420) 

Defendant was faced with an investigative detention once the officer blocked in her vehicle, directed the patrol car’s alley light to shine into her car, and then approached her driver’s-side window to address her. Under the totality of the circumstances, a reasonable person would feel the constraints on her freedom of movement from having become the focus of law enforcement attention. Accordingly, an investigative detention had begun. Reasonable articulable suspicion did not ripen prior to the officer’s subsequent exchanges with defendant. 

In the Matter of the Enforcement of New Jersey False Claims Act Subpoenas (A-5-16;

In the Matter of the Enforcement of New Jersey False 

Claims Act Subpoenas (A-5-16; 077506) 

The Court concurs with the Appellate Division panel’s conclusion that the language of the NJFCA does not authorize the Attorney General to invoke his or her administrative subpoena power in a given matter after the right to intervene in the qui tam action has expired. After the Attorney General declines to intervene in a qui tam action pursuant to N.J.S.A. 2A:32C-5(g) and leaves that action in the relator’s control, the Attorney General loses the authority conferred by N.J.S.A. 2A:32C-14(a) to issue administrative subpoenas. 

State v. Crisoforo Montalvo (A-76-15

 State v. Crisoforo Montalvo (A-76-15; 077331) 

The right to possess a weapon in one’s own home for self-defense would be of little effect if one were required to keep the weapon out-of-hand, picking it up only “spontaneously.” Defendant had a constitutional right to possess the machete in his home for his own defense and that of his pregnant wife. Because the trial court’s instructions did not convey this principle, the instructions were erroneous. Further, because the erroneous instructions were capable of producing an unjust result in this matter, they constitute plain error. 

STATE OF NEW JERSEY VS. JOHN C. VAN NESS A-2728-14T1

 STATE OF NEW JERSEY VS. JOHN C. VAN NESS 

A-2728-14T1 

Defendant was convicted of third degree theft by deception, N.J.S.A. 2C:20-4, and fourth degree bad checks, N.J.S.A. 2C:21-5. The Criminal Division Manger twice rejected his application for representation by the Public Defender. The trial judge accepted this rejection as final. Under In re Custodian of Records, Criminal Div. Manager, 214 N.J. 147, 152 (2013), no rejection is final until the Assignment Judge or the Assignment Judge's designee reviews it. This court holds that when the Criminal Division Manager denies a defendant's application for representation by the Public Defender, the trial judge should assign temporary counsel, as Rule 3:4-2(b) now provides, and inform defendant of the right to have the application reviewed by the Assignment Judgment or designee. N.J.S.A. 2A:158A-15.1. 

The trial judge also misapplied State v. King, 210 N.J. 2 (2012), when he relied on the following as evidence of defendant's knowing and voluntary waiver of his Constitutional right to counsel: (1) the Criminal Division Manager's denial of defendant's application for representation by the Public Defender; and (2) defendant's failure to obtain private counsel.