State of New Jersey v. Tawian Bacome

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3734-12T1

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

April 16, 2015
Plaintiff-Respondent,
APPELLATE DIVISION
v.

TAWIAN BACOME,

Defendant-Appellant.
_________________________________________________

Submitted September 23, 2014 – Remanded October 17, 2014
Argued March 24, 2015 - Decided April 16, 2015

Before Judges Fisher, Nugent and Accurso.

On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 11-08-1221.

Jacqueline E. Turner, Assistant Deputy
Public Defender, argued the cause for
appellant (Joseph E. Krakora, Public
Defender, attorney; Ms. Turner, on the
brief).

Frank Muroski, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Mr. Muroski, of counsel and on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.
 After the denial of his suppression motion, defendant

pleaded guilty to a drug possession offense and was sentenced to

a three-year prison term. In this appeal, defendant argues only

that the trial judge erred in denying his motion to suppress

evidence seized during a warrantless search of the motor vehicle

he was operating. We conclude – on the pivotal question – that

police lacked a reasonable and articulable basis for ordering

defendant's passenger out of the vehicle and reverse the order

denying suppression.1

I

At the suppression hearing, the State's only witness was

Woodbridge Detective Brian Jaremczak. He testified that, at

approximately 4:30 p.m., on April 29, 2011, he and his partner,

Detective Patrick Harris, observed defendant operating a Ford

Bronco; S.R., the owner of the vehicle, was in the front

passenger seat. The detective testified he was "very aware" of

S.R. and "had just recently heard about" defendant; he believed

1
We first heard this appeal earlier in the term. By way of an
unpublished opinion (hereafter Bacome I) filed on October 17,
2014, we remanded for additional findings, which the trial judge
promptly provided. This circumstance provides a valid basis for
our citing and quoting Bacome I even though it was unpublished.
See State v. W. World, Inc., __ N.J. Super. __, __ n.1 (App.
Div. 2015) (slip op. at 3 n.1); Badiali v. N.J. Mfrs. Ins. Grp.,
429 N.J. Super. 121, 126 n.4 (App. Div. 2012), aff’d, __ N.J. __
(2015).

2 A-3734-12T1
they were "narcotic users and narcotic dealers" because the

police department had received "information from concerned

citizens" about "a lot of traffic coming and going from

[defendant's] apartment."

The detectives, driving an unmarked vehicle, followed

defendant's Ford Bronco out of Woodbridge and onto Routes 1 and

9, heading toward Newark; they eventually lost the Bronco on

Frelinghuysen Avenue. Suspecting defendant and S.R. "were going

to purchase narcotics" and "would be back very shortly," the

detectives drove to Woodbridge and awaited the Bronco's return.

At approximately 5:30 p.m., while waiting on the border of

Woodbridge and Rahway, Detective Jaremczak observed the Bronco

traveling south on Routes 1 and 9. When asked what happened

next, the detective testified that "we" observed S.R. "wasn't

wearing his seatbelt." They activated their vehicle's emergency

lights and directed the Bronco to stop.

Detective Jaremczak approached the passenger side, and his

partner approached the driver's side. When asked whether he

"notice[d] any movement by either" occupant, Detective Jaremczak

responded that "[his] partner did," and that his partner "saw

[defendant] reaching forward . . . like, reaching under his

seat." Defense counsel immediately objected because the witness

lacked personal knowledge. The judge made no ruling but only

3 A-3734-12T1
asked the witness whether he observed defendant's movement, and

Detective Jaremczak responded "no." In answer to the

prosecutor's next question, the detective explained he was

"focused on" S.R., confirming he did not see defendant's alleged

furtive movement. The detective testified his partner asked

defendant to exit the vehicle, and he directed S.R. out of the

vehicle. Both occupants complied.

The detectives separately questioned the occupants, who

gave different responses to where they were coming from, which,

according to the witness, "further heighten[ed] [their]

suspicion as to what occurred." During his questioning of S.R.,

Detective Jaremczak noticed "a rolled up piece of paper[,] which

was in the shape of a straw[,] [a]nd a piece of Chore Boy

Brillo" "near the front of the middle console." He testified

that, in his experience, "[t]he straw can be used to snort

narcotics," and the other item "is used, pretty much, as a

filter in a crack pipe." As a result of these observations,

Detective Jaremczak requested and obtained S.R.'s consent to

search the vehicle. The detective read him the consent form; to

him, S.R. did not "appear to be under the influence of any

narcotics or drugs" and appeared to understand the consent form

that he signed.

4 A-3734-12T1
 In the search of the vehicle that followed, the officers

seized the straw and scrubber observed in "plain view," as well

as "blunt wrappers," "a used crack pipe inside of a Maverick

cigarette pack," "[a] larger piece of Chore Boy copper

scrubber," and "[thirteen] vials of crack cocaine in a Newport

cigarette pack."

Although during direct examination the detective testified

only that "we" observed S.R. was not wearing a seatbelt, when

cross-examined he testified that he observed it, although he

could not remember any details and did not issue a summons for

that alleged violation. When pressed, Detective Jaremczak

acknowledged there were actually two reasons for the motor

vehicle stop: (1) S.R. was not wearing a seatbelt, and (2) he

"believe[d] that they just went to Newark to purchase

narcotics." The detective also agreed the observations of the

straw and scrubber were not made until after S.R. stepped out of

the vehicle as commanded:

Q. Did you see [those items] through the
windshield or through the side [window]?

A. Once he got out; the door was opened; and
that's when I s[aw] it.

Q. How did he get out?

A. I asked him out.

. . . .

5 A-3734-12T1
 Q. So you ordered him out of the car because
you were conducting what kind of investi-
gation?

A. I asked him out of the vehicle. And at
that time it became a narcotic investiga-
tion.

Q. Isn't it true that it already was a
narcotics investigation before [defendant]
was ordered out of the car?

A. Yeah. I did believe that they went to
Newark to purchase narcotics.

During direct examination, the prosecutor elicited

testimony from the detective that the consent form for the

search was executed at 5:55 p.m. The defense demonstrated

during cross-examination, through use of a video taken from

another police vehicle, that the detective was likely in error

about the timing of consent.

As can be seen, Detective Jaremczak did not have personal

knowledge of part of the circumstances that ostensibly justified

the warrantless search. He did not see defendant reach under

the seat; Detective Jaremczak testified only that Detective

Harris said he observed this. When asked where Detective Harris

was the day of the hearing, Detective Jaremczak said Harris was

home and not expected to appear at the hearing.

No one else testified.

6 A-3734-12T1
 II

A week after the hearing, the trial judge rendered an oral

decision, in which he found: the observation of S.R. not wearing

a seatbelt gave the detectives a lawful reason for stopping the

vehicle; defendant's reaching under his seat gave the detectives

a reasonable suspicion of criminal activity and authorized their

directions that defendant and S.R. exit the vehicle; once S.R.

was out of the vehicle, drug paraphernalia was seen in plain

view; and S.R. thereafter freely and voluntarily gave his

consent to the vehicle search, resulting in the seizure of

thirteen vials of crack cocaine. For these reasons, the judge

denied the motion to suppress.

Defendant later pleaded guilty to third-degree possession

of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1),

and was sentenced to a three-year prison term.

III

In this appeal, defendant argues only that the judge erred

in denying his suppression motion because the officers "did not

have cause to order [S.R.] from the car." Accordingly, we need

not question the legitimacy of the vehicle stop,2 notwithstanding

2
See Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401,
59 L. Ed. 2d 660, 673 (1979); State v. Locurto, 157 N.J. 463,
(continued)

7 A-3734-12T1
the officers' overarching desire to conduct a narcotics

investigation in the absence of reasonable suspicion to support

that undertaking.3 In addition, there is no dispute about the

observations of drug paraphernalia in plain sight once S.R. was

ordered out of the vehicle. And the voluntariness of the

consent given for the search that followed has not been

questioned. Consequently, this appeal rises and falls on

whether S.R. was lawfully ordered out of the vehicle because,

without that link in the chain of events, the evidence

thereafter seized would have to be excluded.4

(continued)
470 (1999); State v. Moss, 277 N.J. Super. 545, 547 (App. Div.
1994).
3
See State v. Kennedy, 247 N.J. Super. 21, 28 (App. Div. 1991)
(holding that "courts will not inquire into the motivation of a
police officer whose stop of an automobile is based upon a
traffic violation committed in his presence").
4
We reject the State's contention, based on State v. Robinson,
200 N.J. 1, 18-19 (2009), that we should not consider this
argument because defendant failed to pose this precise question
in the trial court. Robinson involved a pretrial application as
to which the defendant was saddled with the burden of proof.
Here, the opposite is true; defendant moved for the suppression
of evidence, and it was the State's burden to prove the
admissibility of the fruit of its warrantless search. State v.
Brown, 216 N.J. 508, 517 (2014). We see no harm to the
administration of justice, nor do we discern an inappropriate
tilt of the field of the type that prompted the Court's ruling
in Robinson. See 200 N.J. at 19. Indeed, in adhering to and
quoting from an article written by a federal appellate judge,
the Robinson Court expressed concern that permitting "late-
blooming issues . . . would be an incentive for game-playing by
(continued)

8 A-3734-12T1
 A

We initially observe that an officer's command that a

driver exit a vehicle constitutes a seizure, State v. Smith, 134

N.J. 599, 609 (1994), but a seizure understood to be

constitutionally permissible, Pennsylvania v. Mimms, 434 U.S.

106, 111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331, 337 (1977);

Smith, supra, 134 N.J. at 611, and based on the policy

determination that police officer safety should prevail over the

minimal intrusion on the driver's privacy interest, Mimms,

supra, 434 U.S. at 110-11, 98 S. Ct. at 333, 54 L. Ed. 2d at

336-37; Smith, supra, 134 N.J. at 610-11.5

In declaring this new federal constitutional principle, the

Mimms Court was not clear whether it applied to all occupants of

a vehicle. And in cases that followed the Court did not appear

(continued)
counsel." Ibid. We detect no game-playing here. In any event,
because the State was not prejudiced by defendant's refinement
of his argument about this warrantless search – the State having
rested at the hearing before the significance of the evidence
was argued – we will consider on its merits the slightly
different argument defendant has posed in this appeal.
5
See also State v. Mai, 202 N.J. 12, 22-23 (2010) (finding no
difference in whether an officer orders an occupant out of a
vehicle or opens the vehicle door to accomplish the same
object).

9 A-3734-12T1
to confine this rule's application to drivers.6 This uncertainty

about Mimms's reach was finally swept away in 1997, when the

Court held, as a matter of federal constitutional law, that

"danger to an officer from a traffic stop is likely to be

greater when there are passengers in addition to the driver in

the stopped car" and concluded – despite the passenger's

"stronger" "personal liberty interest" than the driver's in that

instance – the intrusion remains "minimal"; consequently, the

Court held that "an officer making a traffic stop may order

passengers to get out of the car pending completion of the

stop." Maryland v. Wilson, 519 U.S. 408, 413-15, 117 S. Ct.

882, 886, 137 L. Ed. 2d 41, 47-48 (1997) (emphasis added).

Insofar as defendant relies on federal constitutional

principles, there is no merit to his argument that the command

that S.R. exit the vehicle was constitutionally prohibited.

6
Mimms had referred to the right of police to order a driver out
of a vehicle rightfully detained. 434 U.S. at 111, 98 S. Ct. at
333, 54 L. Ed. 2d at 337. But questions as to Mimms's scope
later arose from Michigan v. Long, 463 U.S. 1032, 1047-48, 103
S. Ct. 3469, 3480, 77 L. Ed. 2d 1201, 1218-19 (1983) (emphasis
added), where the Court restated the rule as authorizing police
to "order persons out of an automobile during a stop for a
traffic violation." And in a concurring opinion in Rakas v.
Illinois, 439 U.S. 128, 155 n.4, 99 S. Ct. 421, 436 n.4, 58 L.
Ed. 2d 387, 409 n.4 (1978) (emphasis added), Justice Powell
mentioned that Mimms determined "that passengers in automobiles
have no Fourth Amendment right not to be ordered from their
vehicle, once a proper stop is made."

10 A-3734-12T1
 B

Not long before the Court decided Maryland v. Wilson, our

Supreme Court considered the application of paragraph 7 of

Article I of the New Jersey Constitution to police seizure of a

driver or occupant from a vehicle stopped for a traffic

violation. The Court concluded in Smith that "as applied to

drivers," Mimms's per se rule passes state constitutional

muster. 134 N.J. at 610-11 (emphasis added). Unlike the per se

rule that the Court ultimately adopted in Maryland v. Wilson,

however, our Supreme Court "decline[d] to extend [Mimms's] per

se rule to passengers," and determined that "an officer must be

able to point to specific and articulable facts that would

warrant heightened caution to justify ordering the occupants to

step out of a vehicle detained for a traffic violation." Smith,

supra, 134 N.J. at 618. The Court described the scope of this

principle in the following way:

To support an order to a passenger to alight
from a vehicle stopped for a traffic
violation, . . . 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.

11 A-3734-12T1
 [Ibid.]

Although not relevant to this appeal, the Smith Court further

noted that to justify a pat-down in this circumstance, the

prosecution must satisfy the more stringent requirements of

Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed.

2d 889, 909 (1968). See Smith, supra, 134 N.J. at 619.

The Smith Court also observed that, in one respect, "the

Terry standard and the standard for ordering a passenger out of

a car are the same," rejecting "the proposition that such an

intrusion will be justified solely because of an officer's

'hunch.'" Ibid. Instead, "the officer must be able to

articulate specific reasons why the person's gestures or other

circumstances caused the officer to expect more danger from this

traffic stop than from other routine traffic stops." Ibid.

C

In considering these principles and the matter at hand, the

record reveals that much of what motivated this stop and

investigation was the detectives' assumption that defendant and

S.R. were narcotics users or sellers or both. The record

contains nothing but rumor and innuendo to support that

assertion. Detective Jaremczak testified that this supposition

of illegal narcotic activity was based on the department's

receipt of citizen complaints about the number of people

12 A-3734-12T1
entering and leaving defendant's residence and by the fact that

defendant and S.R. were observed traveling toward Newark.

Obviously, these two circumstances do not suggest anything other

than a mere "hunch" that defendant and S.R. may have been

engaged in buying, using or selling illegal narcotics. The fact

that S.R. was alleged not to have been wearing his seatbelt when

the detectives observed the vehicle's return to Woodbridge adds

nothing to whether either defendant or S.R. "caused the officer

to expect more danger from this traffic stop than from other

routine traffic stops." Smith, supra, 134 N.J. at 619. S.R.'s

failure to wear a seatbelt generated a danger only to himself.

This leaves the assertion that, after the vehicle came to a

stop, defendant was seen by Detective Harris "reaching forward

. . . reaching under his seat." This event was not observed by

Detective Jaremczak, the only witness called by the State to

testify at the suppression hearing. Defendant objected to this

hearsay testimony, and the judge never adequately responded.

Although Detective Harris's absence and the lack of evidence

based on personal knowledge on this critical point are

troubling, it is understood that, as a general matter, the State

may offer evidence at a suppression hearing that would

constitute inadmissible hearsay if offered at trial. See e.g.,

State v. Wright, 431 N.J. Super. 558, 565 n.3 (App. Div. 2013),

13 A-3734-12T1
certif. granted on other grounds, 217 N.J. 283 (2014); N.J.R.E.

101(a)(2)(E).7 The weight such testimony should be given,

however, is a matter left to the trial judge as factfinder, with

the prosecution running the risk that the factfinder may draw an

7
The Supreme Court of the United States has rejected the notion
that due process is denied by such a rule, reasoning that "the
interests at stake in a suppression hearing are of a lesser
magnitude than those in the criminal trial itself." United
States v. Raddatz, 447 U.S. 667, 679, 100 S. Ct. 2406, 2414, 65
L. Ed. 2d 424, 435 (1980). This, however, is not always true;
in fact, the matter at hand presents one of those many instances
where the denial of a suppression motion leaves the accused
defenseless, inexorably leading to a guilty plea or easy
conviction. See United States v. Wade, 388 U.S. 218, 235, 87 S.
Ct. 1926, 1937, 18 L. Ed. 2d 1149, 1162 (1967) (recognizing that
"[t]he trial which might determine the accused's fate may well
not be that in the courtroom but that at the pretrial
confrontation"); United States v. Green, 670 F.2d 1148, 1154
(D.C. Cir. 1981) (finding a suppression hearing to be "a
critical stage of the prosecution which affects substantial
rights of an accused person . . . [that] may often determine the
eventual outcome of conviction or acquittal"); Olney v. United
States, 433 F.2d 161, 163 (9th Cir. 1970) (observing that a
suppression hearing may be a critical stage of a prosecution
"particularly in narcotics cases, where the crucial issue may
well be the admissibility of narcotics allegedly found in the
possession of the defendant"). Indeed, we are not so quick to
assume the Confrontation Clause may not be violated when the
admission of damning evidence turns on inadmissible hearsay –
frustrating or precluding the accused's right to cross-examine
the absent declarant – because the prosecution decided to
present certain critical facts through a witness who only
received the critical information from someone the State chose
not to call. See, e.g., Green, supra, 670 F.2d at 1154.
Nevertheless, the understanding our courts have adopted – that
hearsay may be admitted at a suppression hearing without
apparent offense to the Confrontation Clause – has not been
challenged here, so we consider the point no further.

14 A-3734-12T1
inference adverse to the prosecution's interests when a key fact

is supported only by hearsay.8

Here, notwithstanding the presentation of this key fact

through hearsay testimony, the judge initially made no finding

regarding whether there was "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." Smith, supra, 134 N.J. at 618. We quote the entirety

of the judge's initial decision on this pivotal question:

While effectuating the stop the
detective says he witness[ed] [defendant]
reach under the driver's seat.[9] He – they
don't say – they don't call – movements
nowadays. Because they know that's not good
language. But, basically, that's what he's
saying. Seen some – movements under the
driver seat.

In a totality of the circumstances
analysis does the officer have a reasonable
and articula[ble] suspicion to believe that
criminal activity is afoot? All right. So
he removes the defendants [sic] from the
vehicle to speak with them.

[Emphasis added.]

8
There was no showing that Detective Harris was unavailable; to
the contrary, Detective Jaremczak testified Detective Harris was
home at the time of the hearing. The judge drew no adverse
inference.
9
Again, the testifying detective did not witness this; his
partner allegedly did.

15 A-3734-12T1
The judge did not thereafter address this question again in his

initial decision, but instead turned to what he found the

officers saw in plain sight once the occupants were removed from

the vehicle, and then to the events that followed the plain-view

observations.

D

In our earlier opinion we concluded that the judge's

findings did not adequately address the permissibility of

ordering S.R. from the vehicle.

First, we previously stated that

even if we liberally interpret the judge's
comments to suggest that the "movement[]
under the driver seat" was found to be "some
fact" that would "create . . . a heightened
awareness of danger," the judge did not
explain how the driver's movement suggested
the passenger posed a danger.

[Bacome I, supra, slip op. at 15-16.]

In a footnote in our earlier opinion, we observed that

in such an instance, the prosecution should
be expected to present evidence of a
reasonable and articulable suspicion that a
weapon was under the driver's seat and the
passenger was capable of reaching it while
remaining seated in the vehicle. Here,
there was no testimony that the Bronco's
console did not constitute an obstacle to
the passenger reaching under the driver's
seat, or that the officer on the passenger's
side of the vehicle was not capable of
keeping watch over the passenger or prevent

16 A-3734-12T1
 him from reaching under the driver's seat,
without unnecessarily intruding on the
passenger's privacy by removing him from the
vehicle.

[Id. at 16 n.9.]

These alleged circumstances may have been a reason for ordering

defendant out of the vehicle, but the judge originally did not

explain why defendant's movement suggested S.R. posed a danger.

Second, the "fact" that triggered the order that the

passenger exit the vehicle had to be considered in light of "the

totality of the circumstances." Smith, supra, 134 N.J. at 618.

The mere fact that the vehicle's occupants were traveling to and

from Newark, or the fact that defendant received many visitors

at his residence, did not suggest a danger was posed when the

vehicle was stopped for a seatbelt violation. Certainly, not

every driver entering or leaving Newark may be assumed to be a

drug user or drug dealer. Nor, even were this so, would it

suggest the occupants posed a risk for the officers. In our

earlier opinion, we directed "[t]he judge to discuss further

whether and – if so – how these circumstances supported the

removal of [S.R.] from the vehicle." Bacome I, supra, slip op.

at 16.

Third, in his earlier decision, the judge considered only

whether defendant's movement under the driver's seat provided a

reasonable and articulable suspicion "that criminal activity is

17 A-3734-12T1
afoot" (emphasis added). That was not the right question. The

"fact or facts" to which the officer alludes must "create . . .

a heightened awareness of danger." Smith, supra, 134 N.J. at

618 (emphasis added). Accordingly, we previously held in this

case:

No matter how broadly we may interpret the
judge's comments, we cannot locate in his
opinion a finding that defendant's alleged
movement would have suggested "a heightened
awareness of danger." We are not splitting
hairs in focusing so closely on the judge's
precise words; it is all we have to
consider. An officer's limited right to
order a passenger out of a vehicle arises
from the policy determinations made by the
Courts in Mimms and Smith that officer
safety – not the investigation of criminal
activity – overrides the minor intrusion
into the passenger's privacy right.

[Bacome I, supra, slip op. at 17.]

And fourth, we previously concluded that the judge's posing

of this incorrect question of whether the officer had "a

reasonable and articul[able] suspicion to believe that criminal

activity is afoot," followed by his answer – "All right" – did

not sufficiently convey the substance of his findings. Even if

that was the correct question, it was not clear whether "All

right" was intended as the means of expressing a finding that

the officers did have a reasonable and articulable suspicion of

"criminal activity [being] afoot."

18 A-3734-12T1
 As a result, we concluded that "[a]lthough we are required

to defer to a trial judge's factual findings on a motion to

suppress, State v. Elders, 192 N.J. 224, 254 (2007), the

factfinding on the critical issue that this appeal poses does

not command our deference. The judge clearly posed the wrong

question and then gave no clear answer." Bacome I, supra, slip

op. at 17. We, thus, remanded for further findings.

IV

By way of a brief written decision,10 the trial judge

responded to the questions posed in Bacome I. Based on the same

evidence, the judge drew the factual conclusion that the

movement of the driver – a fact before the court only by way of

hearsay that would be inadmissible at trial – suggested the

passenger posed a danger. The judge described these conclusions

by employing a series of double negatives and by delineating

what it was that the record did not reveal:

∙ If the [d]efendant put a weapon under his
seat, there is nothing to suggest that S.R.
would have been unable to reach or gain
access to it while remaining seated in the
vehicle.

10
We provided the parties with an opportunity to file
supplemental briefs. Defendant provided a brief, the Acting
Attorney General declined the invitation.

19 A-3734-12T1
 ∙ there was no indication that the vehicle's
center console constituted an obstacle to
S.R. reaching under the [d]efendant's seat.

∙ there was also no testimony that the
officer who was standing on the passenger
side of the vehicle was not capable of
keeping watch over S.R. so as to prevent him
from reaching under the [d]efendant's seat.

[Emphasis added.]

In other words, based on that which was not explained by the

factual record, the judge determined that in light of "the

danger inherent in motor vehicle stops" and the "totality of the

circumstances," the driver's movement under his seat was a

"specific and articulable fact" that would create a "heightened

awareness of danger." The judge added that because the officers

were surveilling defendant and S.R. for drug activity, and

because they were "suspected of having made a drug run to Newark

just prior to the traffic stop," it was not unreasonable "for

the officers to believe" that defendant "did indeed place a

weapon under his seat," and, for that additional reason, the

order that both individuals exit the vehicle "was necessary to

secure the scene in a more effective manner." Based on these

suppositions, the judge concluded that the ordering of both

defendant and S.R. from the vehicle was warranted.

What is lost in this blizzard of double negatives and

speculative findings is that it was the State's burden to

20 A-3734-12T1
justify this warrantless search. Brown, supra, 216 N.J. at 517.

"A search conducted without a warrant is presumptively invalid,

and the burden falls on the State to demonstrate that the search

is justified by one of the 'few specifically established and

well-delineated exceptions' to the warrant requirement." State

v. Frankel, 179 N.J. 586, 598 (2004). Contrary to the trial

judge's determination, the absence of adequate evidence is

detrimental to the State's position, not defendant's.

The record unmistakably compels our agreement with the

judge's determination that there was an absence of proof on

these critical questions. No officer testified to a heightened

safety concern. No officer testified S.R. was capable of

reaching under defendant's seat if he remained seated in the

passenger seat. No officer described the interior of the

vehicle at all, let alone with enough concrete details from

which an inference could be drawn that S.R. posed a danger if he

remained in the passenger seat while being watched by an armed

police officer. Absent findings that S.R. remaining in the

vehicle created "a heightened awareness of danger," Smith,

supra, 134 N.J. at 618, the State could not sustain its burden

of proof on this motion.

As we have already demonstrated, the mere fact that the

vehicle traveled to and returned from the Newark area adds

21 A-3734-12T1
nothing to the circumstances. And the basis for the stop itself

– S.R.'s unbuckled seatbelt – was not ground alone for ordering

either individual out of the vehicle.11 If that was the only

legitimate basis for the stop in this case – and it was – then

11
Although the principles governing appellate review generally
require deference to a trial judge's fact findings, they do not
require a surrender of our common sense or the adoption of a
standard of credulity. See United States v. City of Jackson,
318 F.2d 1, 5 (5th Cir. 1963). We are not being unduly cynical
in concluding what is plainly apparent: the unbuckled seatbelt
was a ruse for the stop and the officers were interested only in
pursuing their hunch – concededly accurate – that the vehicle's
occupants were involved in illegal drug activity. Why else did
the officers remain on the outskirts of Woodbridge awaiting the
vehicle's return from the Newark area? Are we to believe they
remained there for no other purpose but to ensure S.R. was
wearing his seatbelt on the return trip? Our dissenting
colleague emphasizes that in Smith it was the driver – not the
passenger – who "engaged in the culpable conduct that result[ed]
in the vehicle stop," 134 N.J. at 615, and because the opposite
is true here – S.R.'s unbuckled seatbelt generated the stop –
that S.R. cannot claim the same liberty interest possessed by
the passenger in Smith. Even if we accept the premise that the
unbuckled seatbelt was a legitimate ground for stopping the
vehicle, our colleague gives too much weight to S.R.'s
"culpability" in this chain of events. The record demonstrates
the officers were unconcerned about the seatbelt and, more
importantly, the unbuckled seatbelt posed them no danger. We do
not depart from the letter or spirit of the applicable standard
of appellate review, nor the principles enunciated in Smith, in
concluding that the State failed to demonstrate a basis for
overriding S.R.'s liberty interest in remaining in the vehicle.
Just as a fluidity of events may transform an unlawful
investigatory stop into a lawful search, State v. Williams, 192
N.J. 1, 10-11 (2007), the opposite can be true, and the lack of
a link between the unbuckled seatbelt and the order given S.R.
to exit the vehicle transformed what may have been a lawful stop
into an unlawful deprivation of S.R.'s liberty interests.

22 A-3734-12T1
S.R. should have been served with a summons and he and defendant

permitted to go on their way.

The order that S.R. exit the vehicle was impermissible and

– because it was the linchpin for all that followed –

defendant's motion to suppress what was thereafter discovered

and seized should have been granted.12

V

The order denying defendant's suppression motion is

reversed, the judgment of conviction vacated, and the matter

remanded for further proceedings. We do not retain

jurisdiction.

12
We lastly note that the State has argued defendant lacked the
requisite expectation of privacy to assert the infringement of
S.R.'s liberty interest, citing State v. Hinton, 216 N.J. 211
(2013). In Hinton, the Court recognized that the defendant had
standing to argue but ultimately did not possess a reasonable
expectation of privacy in an apartment he shared with his mother
for six years because he had been "served with official notice
that a court officer would soon enter the premises and repossess
it on the landlord's behalf." Id. at 216. In reaching that
conclusion, the Court emphasized it was dealing with a "novel
case" that arose "in unusual circumstances." Id. at 236. We,
therefore, reject the argument that Hinton has any bearing on
the significantly different circumstances presented here.

23 A-3734-12T1
___________________________________________

NUGENT, J.A.D., dissenting.

I agree with the majority that "this appeal rises and falls

on whether S.R. was lawfully ordered out of the vehicle because,

without that link in the chain of events, the evidence

thereafter seized would have to be excluded." Ante at ___ (slip

op. at 8). Unlike the majority, however, I find that Detective

Jaremczak lawfully ordered the passenger, S.R., to exit the

vehicle. In my view, the detective violated neither the Federal

nor the State Constitution by ordering S.R. to exit the Bronco.

Detective Jaremczak's testimony at the suppression hearing

established, indisputably, that when the detectives stopped the

Bronco they believed defendant and S.R. had purchased drugs in

Newark. The detectives did not stop the Bronco, however, until

they observed that S.R. was not wearing a seatbelt. When

Detective Jaremczak was questioned on cross-examination about

his motive for ordering S.R. out of the car, the following

exchange took place:

A. Once [the passenger] got out; the door
was opened; and that's when I seen [the
straw and scrubber].

Q. How did he get out?

A. I asked him out.

Q. Why did you ask him out?
 A. Just so that I could bring him back to
the car. Because my partner was speaking
with [defendant]. It's just easier if both
us - - if they're both watched at the same
time in case one of them wanted to act.

Q. So you ordered him out of the car
because you were conducting what kind of
investigation?

A. I asked him out of the vehicle. And at
that time it became a narcotic
investigation.

Q. Isn't it true that it already was
a narcotics investigation before [defendant]
was ordered out of the car?

A. Yes. I did believe that they went to
Newark to purchase narcotics.

Q. Who opened the door?

A. He would have.

The critical issue we must decide is whether Detective

Jaremczak's order to S.R. to get out of the car was reasonable.

See State v. Smith, 134 N.J. 599, 609 (1994).

Ordering a person out of a car constitutes a
seizure of the Fourth Amendment because the
person's liberty has been restricted. See
State v. Davis, 104 N.J. 490, 498 (1986)
(citing Terry [v. Ohio, 392 U.S. 1, 16, 88
S. Ct. 1868, 1877, 20 L. Ed. 2d 889, 903
(1968)]). Whether such a seizure is
constitutional depends on the reasonableness
of the order.

[Ibid.]

Under a Fourth Amendment analysis, it is reasonable for an

officer to order a driver and passenger out of the car after the

2 A-3734-12T1
officer has pulled the driver over for a traffic offense. In

Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54

L. Ed. 2d 331, 337 (1977), the Supreme Court held that even in

the absence of furtive movements or evidence of criminal

activity, a police officer had the right to demand that a driver

stopped for a traffic violation exit the vehicle. Because

"[t]he police have already lawfully decided that the driver

shall be briefly detained; the only question is whether he shall

spend that period sitting in the driver's seat of his car or

standing alongside it." Ibid. Balancing the driver's liberty

interest against the State's interest in protecting its police

officers, the Supreme Court struck the balance in favor of the

latter, finding that the intrusion on the driver's liberty

interest in such circumstances to be de minimis. Ibid. The

Court extended the rationale in Mimms to a vehicle's passengers

in Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S. Ct. 882,

886, 137 L. Ed. 2d 41, 48 (1997).

Our Supreme Court has followed Mimms with respect to

drivers, but not passengers; at least passengers not involved in

the culpable conduct leading to the traffic stop:

Although the per se rule under Mimms permits
an officer to order the driver out of a
vehicle incident to a lawful stop for a
traffic violation, we decline to extend that
per se rule to passengers. Instead, we
determine that an officer must be able to

3 A-3734-12T1
 point to specific and articulable facts that
would warrant heightened caution to justify
ordering the occupants to step out of a
vehicle detained for a traffic violation.

[Smith, supra, 134 N.J. at 618.]

The Supreme Court explained in Smith that a standard,

lesser than the Terry standard, is required for officers to

order passengers to exit a vehicle. Significantly, however,

Smith did not involve culpable conduct on the part of a

passenger. In explaining the rationale for its decision in

Smith, the Court stated:

Ordering a passenger to leave the vehicle is
distinguishable from ordering the driver to
get out of the vehicle because the passenger
has not engaged in the culpable conduct that
resulted in the vehicle's stop. Although
the State's interest in safety remains the
same whether the driver or the passenger is
involved, requiring a passenger to alight
from a car in the course of a routine
traffic stop represents a greater intrusion
on a passenger's liberty than the same
requirement does on a driver's liberty.
With respect to the passenger, the only
justification for the intrusion on the
passenger's privacy is the untimely
association with the driver on the day the
driver is observed committing a traffic
violation. Because the passenger has not
engaged in culpable conduct, the passenger
has a legitimate expectation that no further
inconvenience will be occasioned by any
intrusions beyond the delay caused by the
lawful stop. The intrusion on the
passenger's privacy, therefore, is greater
than it is on the driver's privacy.

[Id. at 615 (emphasis added).]

4 A-3734-12T1
 Unlike the passenger in Smith, here S.R. engaged in the

"culpable conduct that resulted in the vehicle's stop." Ibid.

Consequently, S.R.'s liberty interest in this case is no

different from that of a driver who has committed a traffic

violation: "The police have already lawfully decided that the

driver shall be briefly detained; the only question is whether

he shall spend that period sitting in the driver's seat of the

car or standing alongside it." Mimms, supra, 434 U.S. at 111,

98 S. Ct. at 333, 54 L. Ed. 2d at 337. In my view, that rubric

applies equally to culpable passengers, that is, passengers who

have committed traffic violations. For that reason, the

detectives in the case before us did not violate the protections

afforded New Jersey citizens under our State Constitution.

The majority's decision is based in large part upon its

observation "that much of what motivated this stop and

investigation was the detectives' assumption that defendant and

S.R. were narcotics users or sellers or both." Ante at ____

(slip op. at 12). Specifically, the majority states: "We are

not being unduly cynical in concluding what is plainly apparent:

the unbuckled seat belt was a ruse for the stop and the officers

were interested only in pursuing their hunch – concededly

accurate – that the vehicle's occupants were involved in illegal

drug activity." Ante at ____ (slip op. at 22, n.11). Although

5 A-3734-12T1
one can debate the meaning of the term "ruse" in this context,

it is clear that S.R.'s failure to wear a seatbelt provided the

police with probable cause to stop the Bronco. Neither

defendant nor S.R. disputed that S.R. was not wearing a

seatbelt. Once the lawful traffic stop occurred for that

purpose, S.R.'s liberty interest in remaining in the car was

outweighed by the State's interest in the safety of its

officers. The subjective intent of the officers at that time

was not relevant.

In Whren v. United States, 517 U.S. 806, 808, 116 S. Ct.

1769, 1771, 135 L. Ed. 2d 89, 95 (1996), the Supreme Court

decided

whether the temporary detention of a
motorist who the police have probable cause
to believe has committed a civil traffic
violation is inconsistent with the Fourth
Amendment's prohibition against unreasonable
seizures unless a reasonable officer would
have been motivated to stop the car by a
desire to enforce the traffic laws.

After reviewing relevant precedent, the Court stated:

We think these cases foreclose any argument
that the constitutional reasonableness of
traffic stops depends on the actual
motivations of the individual officers
involved. We of course agree with
petitioners that the Constitution prohibits
selective enforcement of the law based on
considerations such as race. But the
constitutional basis for objecting to
intentionally discriminatory application of
laws is the Equal Protection Clause, not the

6 A-3734-12T1
 Fourth Amendment. Subjective intentions
play no role in ordinary, probable-cause
Fourth Amendment analysis.

[Id. at 813, 116 S. Ct. 1774, 135 L. Ed. 2d
89.]

Our Supreme Court has similarly rejected a subjective test

when determining whether police officers have acted reasonably

for Fourth Amendment purposes. See e.g., State v. Brown, 216

N.J. 508, 531 (2014) (noting that, with respect to whether

property had been abandoned, "[t]he test is whether, given the

totality of the circumstances, an objectively reasonable police

officer would believe the property is abandoned" and that "[t]he

subjective belief of the officer is not a relevant

consideration, and thus the court should not delve into the

murky area of whether an officer acted in good faith or bad

faith"); State v. Kennedy, 247 N.J. Super. 21, 27 (App. Div.

1991) ("We begin with the well-recognized principle that

generally the proper inquiry for determining the

constitutionality of a search and seizure is whether the conduct

of the law enforcement officer who undertook the search was

objectively reasonable, without regard to his or her underlying

motives or intent.") (citations omitted).

Moreover, our Supreme Court has stated:

[O]ur Article I, Paragraph 7 jurisprudence
primarily has eschewed any consideration of
the subjective motivations of a police

7 A-3734-12T1
 officer in determining the constitutionality
of a search and seizure . . . . [W]e do not
believe that the elusive attempt to plumb
the subjective motivations of an officer
will meaningfully advance either the privacy
interests of an individual or the ultimate
determination of whether a particular search
or seizure was unreasonable under state law.

[State v. Edmonds, 211 N.J. 117, 132-33
(2012) (citations and internal quotation
marks omitted).]

In the case before us, Detective Jaremczak's cross-

examination does not lead to an entirely unequivocal answer as

to whether, when he ordered S.R. out of the car, his motivation

was to continue to pursue the seatbelt violation or to pursue

the drug investigation or both. What is unequivocal is that he

acted for his safety. He testified, explicitly, that he asked

S.R. out "[j]ust so that I could bring him back to the car

because my partner was speaking with [defendant]. It's just

easier if . . . they're both watched at the same time in case

one of them wanted to act."

Under the circumstances of this case – where the

passenger's liberty expectation to remain in the car was de

minimis in view of his seatbelt violation – the State's interest

in the safety of its officers prevailed. In the face of federal

and State precedent eschewing judicial analysis of law

enforcement officers' subjective intentions in such Fourth

8 A-3734-12T1
Amendment cases, I find no basis for engaging in such analysis

here. For that reason, I respectfully dissent.

9 A-3734-12T1