State of New Jersey v. Dion E. Robinson

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5600-12T3

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

Plaintiff-Respondent, May 21, 2015

APPELLATE DIVISION
v.

DION E. ROBINSON, a/k/a
QUANTAE MASON ALBERT MITCHELL,

Defendant-Appellant.

_______________________________________

Argued March 24, 2015 – Decided May 21, 2015

Before Judges Fisher, Nugent and Accurso.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment
Nos. 12-05-1236 and 12-03-0627.

Amira R. Scurato, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Ms. Scurato, of counsel and on the
brief).

Jane C. Schuster, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Ms. Schuster, of counsel and on the brief).
 The opinion of the court was delivered by

ACCURSO, J.A.D.

Following the denial of his motion to suppress evidence

seized in a warrantless search of his car, defendant Dion E.

Robinson entered a negotiated plea of guilty to second-degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and was

sentenced to a prison term of five years, with a mandatory

three-year period of parole ineligibility. Defendant appeals

from the denial of his motion to suppress the handgun, renewing

his argument to the trial court that the police were required to

obtain a warrant before searching his car. We agree and reverse

the denial of the motion.

The only witness at the suppression hearing was the

arresting officer. According to the officer, he was on routine

patrol in Galloway Township at approximately 12:55 a.m. when he

noticed defendant's car pull onto the highway from a motel

parking lot in "a high-crime, high-drug area." The officer

watched as the driver twice activated his right turn signal,

first to turn into a convenience store and then to enter a jug

handle for a U-turn, only to quickly cut back into his lane both

times. Although acknowledging that the driver signaled the lane

change back onto the highway each time, the officer termed the

2
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conduct a "little suspicious."1 He followed the car onto the

Garden State Parkway and initiated a motor vehicle stop after he

noticed an air freshener hanging from the interior rearview

mirror that "appeared it could have been a windshield

obstruction."

Upon approaching from the passenger side, the officer found

four young black people in the car. Defendant, who was driving,

immediately handed over the car registration and insurance card

and said his license was suspended. The car did not belong to

any of the occupants, and none could provide the name of the

owner. The officer, noticing an open beer bottle in the back

seat and that no one was wearing a seat belt, asked the

passengers for identification as well. Two of the passengers

produced identification cards, neither having a driver's

license. All were cooperative.2

1
Later in his testimony, the officer said that the driver had
not signaled as he returned to the highway either time. He did
not, however, consider those movements a motor vehicle
violation. "I just thought it was suspicious, suspicious, not
because of [] motor vehicle violations, but I don't know why
they'd be doing something like that."
2
Although the officer noted in his report that the occupants had
given conflicting statements, he clarified in his testimony that
the statements were actually consistent. The conflict was the
officer's assessment that the route "in which they were going
was suspicious and is conflicting with the general way you would
go to Vine Avenue from where they were."
3
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 When the officer returned to his patrol car to radio

dispatch with the information he had obtained from the group, he

learned that defendant and one of the men in the backseat,

Terron Henderson, had open warrants and that both were known to

carry weapons.3 The officer called for backup and a decision was

made to "proceed tactically and in a high-risk fashion." Four

additional cars quickly arrived and all five officers approached

the car with guns drawn. Defendant and Henderson were arrested,

searched, handcuffed and placed into patrol cars without

incident. No contraband was found on either man. The other two

passengers, the ones without drivers' licenses, were also

removed at gunpoint, patted down for weapons and detained on the

side of the road, away from the car.

After all of the occupants had been removed and defendant

and Henderson arrested, the officer testified that his sergeant

directed him to "conduct a sweep of the interior of the vehicle

. . . [t]o check for weapons." According to the officer, he

3
The officer later learned that the two men had misidentified
themselves, each claiming the name of the other. The officer
testified that dispatch informed him "Mr. Henderson had a
traffic warrant and Mr. Robinson had an outstanding NCIC
(National Crime Information Center) hit warrant for a drug
offense." The officer testified it made sense to him when
dispatch said defendant was known to carry weapons, because he
saw the NCIC hit, but "[w]here they got the information on Mr.
Henderson, I don't know."

4
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checked under the front seats and "common areas where a weapon

could be hidden." When he lifted the purse the front seat

passenger had left on her seat, he felt a heavy object in the

bottom. Touching it, he could feel the outline of a gun. The

officer opened the purse and retrieved a loaded .38 caliber

revolver. The officers placed the other two passengers under

arrest, towed the car and obtained a search warrant for the

vehicle. Nothing further was recovered.

The judge determined the officer lawfully stopped the car

based on defendant having committed, in the officer's judgment,

"a number of motor vehicle offenses as evidenced by the motor

vehicle summonses ultimately issued in the case," namely unsafe

lane change, windshield obstruction and careless driving. The

judge concluded that the information the officer received from

dispatch, that defendant and Henderson had outstanding warrants

and were known to carry weapons, gave the officer ample reason

to have ordered the men out of the car. Finding that the

officer had a reasonable suspicion that defendant was armed and

dangerous, the judge concluded that it was

certainly reasonable to believe that the
weapon may have been located somewhere
within the vehicle, possibly hidden in a
purse or certainly secreted on top of a car
seat or anywhere else, and that certainly is
reasonable for officers to want to protect
themselves and the public . . . .

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 As such, the court concludes the State
has demonstrated by a preponderance of the
credible evidence that the motor vehicle
stop was lawful and appropriate. The police
acted reasonably in the totality of the
circumstances in performing the protective
sweep, so-called Terry[4] frisk, of the
interior of the car, and the . . . purse for
officer's safety and the protection of the
public and, as such, falls within the
exception to the warrant requirement
including the evidence of crime, namely, the
handgun shall be admissible in trial against
the defendants.

Our review begins with familiar principles. We defer to

the trial court's factual findings on a motion to suppress

unless they were "clearly mistaken" or "so wide of the mark"

that the interests of justice require appellate intervention.

State v. Elders, 192 N.J. 224, 245 (2007). Our review of the

trial court's application of the law to the facts, however, is

plenary. State v. Rockford, 213 N.J. 424, 440 (2013).

Because the parties agree on the facts, our focus, like

theirs, is on the judge's application of the law to those

established facts. The State argues, as it has since the

inception of the matter, that the protective sweep and plain-

feel exceptions to the warrant requirement justified the

warrantless search of the car. It also contends that defendant

lacked the requisite expectation of privacy in his passenger's

4
Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed.
2d 889, 906 (1968).
6
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purse to challenge the search. Defendant contends that the

protective sweep doctrine does not apply to automobiles and that

the police needed to obtain a warrant before searching his car.

After the judge rendered his decision, and the parties

filed their briefs in this court, the Supreme Court issued its

decision in State v. Gamble, 218 N.J. 412 (2014), limning the

permissible protective sweep of the passenger compartment of an

automobile.

Gamble arose out of two anonymous late night 9-1-1 calls,

the first reporting "shots fired" and the second, an individual

sitting in a tan van with a gun on his lap. Id. at 419. When

officers responded to the high-crime neighborhood, they spotted

the van and approached with guns drawn. Ibid. The officers

watched the two occupants move frantically about as they neared

and ordered the men out of the van. Ibid. The passenger did as

directed, but the driver, after starting to comply, attempted to

duck back into his seat. Id. at 420. Fearing that the driver

could have been going for a gun, one of the officers struck the

driver and pulled him from the vehicle. Ibid. Officers frisked

the men for weapons but found nothing. Ibid.

Neither man was under arrest at that point. Before

allowing the men to return to the van, one of the officers went

to search the interior. Ibid. The officer testified that as he

7
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entered the vehicle, he saw the handle of a handgun sticking up

from the center console. Ibid.

After reviewing federal and State law regarding the

protective sweep exception to the warrant requirement, the Court

applied the doctrine to the facts before it. First, the Court

found that the 9-1-1 calls, corroborated by the police finding

the van in the location it was reported, combined with the high-

crime neighborhood, the late hour and the furtive movements of

the occupants as the officers approached, created a reasonable

suspicion sufficient to justify the investigatory stop. Id. at

431. Those circumstances, in addition to the driver's retreat

to his seat after the officers had ordered him out of the van,

created reasonable suspicion "that defendant was dangerous and

could gain immediate access to a weapon, specifically the

handgun that had been reported in the 9-1-1 call." Id. at 432.

Turning to the protective sweep of the van, the Court noted

that it occurred only after the frisk of the van's occupants

revealed that neither carried a weapon. Ibid. Because of the

circumstances that had precipitated the officers' arrival on the

scene and the men's conduct, the frisk, however, heightened

rather than allayed the officers' concern that there was a gun

in the van that would be easily accessible to the men when

allowed to return to the vehicle. Ibid. Considering those

8
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circumstances, the Court held that the same rationale of

allowing a cursory visual inspection for the safety of police

officers that had justified protective sweeps of a home in

Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 1094, 108

L. Ed. 2d 276, 281 (1990) and State v. Davila, 203 N.J. 97, 116

(2010), "applies equally to limited protective searches of

vehicles, where officers are permitted to 'ferret out weapons

that might be used against police officers.'" Gamble, supra,

218 N.J. at 433 (quoting Davila, supra, 203 N.J. at 129).

Based on the confluence of the facts before it, the Court

concluded that "once the officer completed the pat down of

defendant and did not locate the gun, it was reasonable for the

officer to believe the van contained a gun. To permit defendant

and his passenger to reenter the van before ensuring that it did

not contain a weapon ignores the risk to officers and public

safety." Id. at 434. It thus determined that "the narrowly

confined visual sweep of the passenger compartment, which

revealed a handgun protruding from the center console, was

permissible." Id. at 433.

Applying the rationale of Gamble to the established facts,

we think it clear the search of defendant's car was

impermissible. The police arrested defendant and Henderson

after learning from dispatch the men had open warrants. The

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searches of their persons were conducted incident to arrest.

See State v. Dangerfield, 171 N.J. 446, 461 (2002) (describing

purpose and scope of contemporaneous search incident to arrest

exception to the warrant requirement). Unlike the driver and

passenger in Gamble, defendant and Henderson were handcuffed and

placed in patrol cars; neither was going to return to the car

where there might be a weapon they could use against the

officers.

The other two passengers, while not under arrest, were not

licensed to drive. Although the arresting officer conceded "in

hindsight" that none of the occupants was going to be allowed to

drive the car away, he testified "that was not the first thing

on my mind. I would have figured that out after I finished my

sweep and made [sure] everything was safe."

The point, of course, is that there was no demonstrable

need to sweep the car to make sure everything was safe for the

officers after defendant and Henderson had been placed under

arrest and secured in patrol cars. See State v. Eckel, 185 N.J.

523, 541 (2006) (holding that a search of a passenger

compartment of a car incident to arrest cannot be sustained

where the occupant has been "arrested, removed[,] and secured

elsewhere," because the potential for obtaining a weapon has

been eliminated).

10
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 Unlike in Gamble, neither the searches of defendant and

Henderson, nor the protective frisks of the two unlicensed

passengers reasonably heightened the officers' concerns for the

presence of a weapon in the car that could be used against them.

Although dispatch reported that defendant and Henderson were

known to carry weapons, there were no reports of anyone seeing a

weapon in their possession that evening or hearing shots fired

in their vicinity. The officer did not observe furtive

movements upon his initial approach as if the occupants might be

trying to conceal a weapon. And none of the occupants made any

attempt to retreat to the car as if trying to get at a gun. The

officer testified that all of the occupants of the car were calm

and cooperative. In short, there were no facts to give rise to

a reasonable suspicion that the car contained a gun, and, more

importantly, that the unlicensed passengers posed a danger to

the officers requiring a protective sweep of the car after the

arrest of defendant and Henderson.5

At argument before us, the State contended that the

officer's protective sweep was reasonable because the unlicensed

5
Because we conclude the officer's protective sweep of the car
constituted an unlawful search, the State's argument that the
seizure of the handgun was justified under the plain-feel
doctrine is unavailing. State v. Johnson, 171 N.J. 192, 206
(2002) (noting plain view doctrine requires the officer to
lawfully be in the viewing area).

11
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occupants would have been allowed to return to the car to await

rescue by a licensed driver or to retrieve their belongings. We

reject this argument. First, the officer did not testify that

he intended to allow the unlicensed drivers to return to the car

for any reason. This stop was conducted on the Garden State

Parkway after midnight. The officer several times referred to

that fact and its significance for the safety of the officers

and the occupants of the car.6

Second, there was no testimony that the unlicensed

occupants asked to return to the car to retrieve their

belongings. We cannot speculate about what might have occurred

had the officer chosen not to sweep the car. What we have is

the officer's testimony that his sergeant directed him to sweep

the car after defendant and Henderson were handcuffed, and that

he did so without considering that the unlicensed passengers

would not be driving the car away. When pressed on cross-

examination for justification of the sweep under those

circumstances, the officer offered, "[b]ecause as far as I'm

aware, there's still two people unhandcuffed, there could still

have been a weapon in the car that someone could have access to

6
For example, referring to his initial approach to the car, the
officer explained "[t]he Garden State Parkway is a highway with
high speeds, and because it was dark out, I just didn't feel
safe approaching from the driver's side."
12
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even if I didn't let them back in the car, and I wasn't about to

let some other person, whoever we can get to pick up the car, go

into the car if there was a weapon in the car."

The Court's carefully crafted opinion in Gamble teaches

that there must be facts sufficient to support a reasonable

suspicion on the part of the officer of the presence of a weapon

within easy reach of a person returning to the vehicle, whom the

officer has reasonably concluded poses a danger to the officers

or others before a protective sweep of the car can be justified.

A review of the transcript makes plain that there were no facts

developed on this record to support a reasonable suspicion that

the car contained a gun or that the unlicensed passengers posed

any threat to the officers. The record on this motion simply

does not support the State's argument that the unlicensed

passengers would be returning to the car or that their doing so

posed any threat to the officers.

We also reject the State's argument that defendant lacked

the requisite expectation of privacy in his passenger's purse to

successfully challenge the search here. As the officer's

testimony made clear, he was searching the passenger compartment

of defendant's car, not his passenger's purse. Because

defendant's possessory interest in the car in which the purse

was found is obvious, the State's argument is plainly without

13
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merit. R. 2:11-3(e)(2). See State v. Johnson, 193 N.J. 528,

547 (2008) (explaining that in typical case the notion of

possessory or proprietary interest in thing searched or item

seized is clear and no inquiry into individual's substantive

right of privacy is required).

Our dissenting colleague concludes that the search of

defendant's car could be justified as either a legitimate

protective sweep under Gamble and Michigan v. Long, 463 U.S.

1032, 1051-52, 103 S. Ct. 3469, 3481-82, 77 L. Ed. 2d 1201,

1221-22 (1983), or under the community caretaking doctrine

explained in State v. Navarro, 310 N.J. Super. 104, 108 (App.

Div.), certif. denied, 56 N.J. 382 (1998).

Here is why we think he is wrong. Defendant and Henderson,

the two occupants of the car with open warrants and the ones

known to carry weapons, had been subject to a full custodial

arrest and were already secured in the back of separate patrol

cars at the time of the officer's search. There can be no doubt

that if they had been the only occupants of the car, this search

would have been illegal under both federal and State law. See

Arizona v. Gant, 556 U.S. 332, 343, 129 S. Ct. 1710, 1719, 173

L. Ed. 2d 485, 496 (2009) (holding police may "search a vehicle

incident to a recent occupant's arrest only when the arrestee is

unsecured and within reaching distance of the passenger

14
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compartment at the time of the search"7); Eckel, supra, 185 N.J.

at 541. The question then becomes how the presence of the two

unlicensed occupants might change that clear result.

The dissent focuses on the officer's reasonable suspicion

that there still may have been a gun in the car. Accepting that

might be so, we are left to wonder what evidence the police

possessed to conclude the unlicensed passengers posed any danger

to them.8 Michigan v. Long permits an officer to search a car's

passenger compartment only when the officer "has reasonable

suspicion that an individual, whether or not the arrestee, is

'dangerous' and might access the vehicle to 'gain immediate

control of weapons.'" Gant, supra, 556 U.S. at 346-47, 129 S.

Ct. at 1721, 173 L. Ed. 2d at 498 (quoting Michigan v. Long,

supra, 463 U.S. at 1049, 103 S. Ct. at 3469, 77 L. Ed. 2d at

1201).

7
The State has not argued the officer's sweep of the car could
be justified by Gant's other holding, that is, that police may
also search a vehicle incident to an occupant's lawful arrest
when it is reasonable to conclude evidence relevant to the crime
prompting the arrest might be found there. Gant, supra, 556
U.S. at 343-44, 129 S. Ct. at 1719, 173 L. Ed. 2d at 496.
8
The officer testified that after the police ordered the
unlicensed occupants out of the car, "[w]e just had them come
back. We patted them down for our safety and had them stand on
the side of the road." He noted that one of the other officers
"not knowing the situation," had briefly placed the front-seat
passenger in handcuffs. After the testifying officer explained
she was not under arrest, the handcuffs were "immediately
removed."
15
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 Once the police decided to proceed "tactically," the

unlicensed passengers, who had cooperated with the police by

presenting identification when asked, who had no discernible

criminal records and who had not engaged in any suspicious

behavior or committed any traffic offense, were ordered out of

the car at gunpoint and frisked by one of the five officers on

the scene. The officer testified they were removed from the car

after defendant and Henderson were arrested and searched. The

State, which bore the burden of proving the justification for

this warrantless search, State v. Brown, 216 N.J. 508, 517

(2014), did not elicit testimony explaining why it was necessary

to remove those passengers from the car at that point instead of

monitoring them in place, see State v. Smith, 134 N.J. 599, 618

(1994) (holding "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"), or why their pat downs were

warranted, see id. at 619 ("to justify a pat-down of an occupant

once alighted from a vehicle, specific, articulable facts must

demonstrate that a 'reasonably prudent man in the circumstances

would be warranted in the belief that his safety or that of

others was in danger'") (quoting Terry, supra, 392 U.S. at 27,

88 S. Ct. at 1883, 20 L. Ed. 2d at 909).

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 The testimony that was elicited made clear beyond doubt

that the officer swept the car without first considering whether

there was any actual need to do so to ensure officer safety.

The officer learned there were no valid drivers in the car

before he ever contacted dispatch for a records check.9

Accordingly, he knew the passengers the police had detained but

not arrested would not be driving the car away, yet he failed to

consider the implication of that fact on the need to make a

protective sweep of the car. Sweeping a car reflexively for

officer safety in the absence of a genuine safety concern

transforms a protective sweep from an exception to the warrant

requirement to a police entitlement, a result the United States

Supreme Court has termed anathema to the Fourth Amendment. See

Gant, supra, 556 U.S. at 347, 129 S. Ct. at 1721, 173 L. Ed. 2d

at 499.

The officer having swept the car before considering whether

the unlicensed passengers would be allowed to return to it, the

State was reduced to engaging in a game of "what if" with the

officer in order to save the search - what if the passengers

9
The officer testified he "asked for the documents after I
realized they weren't wearing their seatbelts. . . . I
generally don't ask everyone for the IDs, but seeing some minor
violation and knowing the driver had no license, I figured I
would ask for a license to see maybe if they could at least have
a valid driver."
17
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wanted to leave the scene, what if they wanted to retrieve their

belongings from the car.10 The problem, obviously, is that none

of those things actually occurred, and we cannot know what might

have happened had the officer chosen a different course.

Our dissenting colleague has fallen prey to the same trap,

concluding on the basis of one such hypothetical exchange that

had they not found the weapon, "the officers would not have had

the vehicle towed," post at ___ (slip op. at 7), ignoring that

at the time he conducted his sweep, the officer did not know

whether the occupants were lawfully in possession of the car and

that the officer also testified he "would have taken the time to

at least try and contact the registered owner to see who [the

car] belonged to and ensure that it was supposed to be in one of

their hands." The dissent concludes that because the police

would not have towed the car and the passengers would have been

10
After referring to testimony by the officer on cross-
examination conceding the unlicensed drivers would have had no
reason to go back into the car "except to retrieve belongings,
if they had any," the prosecutor asked him on re-direct, "Is it
fair, then, that [the front-seat passenger] would have been able
to go back into that vehicle[,] had you not found the gun[,] and
retrieve her purse?" The officer responded, "Yes, that's fair
to say." A similar exchange took place regarding whether the
front-seat passenger would have been free to leave the scene,
retrieving her belongings before she departed. These forays are
ridiculous to us. How exactly would the passenger have departed
the side of the Parkway after 2 a.m. without a car, and what was
the likelihood of her asking to retrieve her purse with the
loaded .38 inside, or better yet, asking one of the officers to
fetch it for her, before she left?
18
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allowed back into the vehicle, two "facts" unknowable to the

officer at the time he conducted his search, "the officer's

testimony amply supports the trial court's conclusion that the

officer reasonably believed a risk remained."11 Post at ___

(slip op. at 9).

Searches are judged by what the officer knew at the time

the search was conducted. State v. Bruzzese, 94 N.J. 210, 221

(1983) ("Facts learned by the authorities after the search and

seizure occurs will not validate unreasonable intrusions.").

Accepting, as we do for purposes of engaging our colleague's

argument, that a dispatch report that defendant and Henderson

were known to carry weapons is sufficient after Gamble to give

rise to a reasonable suspicion of a weapon in the car under the

circumstances here, it does not suffice to justify this

protective sweep under either Michigan v. Long or Gamble. What

is lacking are specific, articulable facts in the record to

support what the officer also needed to conclude before

conducting his sweep, that the unlicensed passengers were

11
The dissent relies on other "facts," including that defendant
and Henderson had lied to police and that defendant "had been at
a motel in an area notorious for drug activity." Post at ___
(slip op. at 5). The officer did not learn that the men had
lied to him about their names until later. The only proof that
the men had been at the motel was the officer seeing them turn
out of the parking lot. As the stop took place on the Parkway,
it might be more accurately said that defendant drove through a
high-crime area before he was pulled over.
19
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dangerous, and that they could access the car to gain immediate

control of the suspected weapon to use against the officer or

others.

The judge failed to make any findings on those critical

issues because the State failed to elicit the testimony

necessary to allow him to do so. In the absence of facts in the

record demonstrating the sweep was necessary for the safety of

the officers, it cannot be judged objectively reasonable. See

Bruzzese, supra, 94 N.J. at 219.

Finally, we reject our colleague's conclusion that this

search could be justified under the community caretaking

doctrine, a position not urged by the State or considered by the

trial court. As the Supreme Court has recently noted, it has

applied the doctrine cautiously. State v. Vargas, 213 N.J. 301,

317-19 (2013). In State v. Diloreto, 180 N.J. 264, 282 (2004),

it took pains to warn the State against construing its approval

of the warrantless search and seizure there as "approving wide

application of the community caretaker doctrine" in the setting

of a car stop. The Court stated emphatically that "[t]he

community caretaker doctrine remains a narrow exception to the

warrant requirement," ibid., a position it reaffirmed in Vargas,

supra, 213 N.J. at 326 ("Under our state law jurisprudence -

outside of the car-impoundment context — warrantless searches

20
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justified in the name of the community-caretaking doctrine have

involved some form of exigent or emergent circumstances.").

Applying the doctrine here, on the basis of the officer's

post hoc justification for the protective sweep when confronted

with the fact that the unlicensed drivers would not be taking

possession of the car ("I wasn't about to let some other person,

whoever we can get to pick up the car, go into the car if there

was a weapon in the car"), is unwarranted because there was no

exigency and an unwise expansion of the doctrine beyond anything

contemplated by the Court to date. See State v. Bogan, 200 N.J.

61, 77 (2009) (discussing parameters of simultaneous engagement

of officers in community caretaking and criminal investigation).

Because we have concluded the protective sweep of

defendant's car was not permissible under Gamble, we have no

need to consider whether the trial court's finding of an initial

lawful stop, supported by a two-inch by three-inch tree-shaped

air freshener hanging from the rear-view mirror and two signaled

lane changes, is supported by sufficient credible evidence in

the record.

Reversed.

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NUGENT, J.A.D., dissenting.

The Fourth Amendment to the United States Constitution and

Article I, paragraph 7 of the New Jersey Constitution prohibit

unreasonable searches and seizures. "The touchstone of the

Fourth Amendment is reasonableness, and the reasonableness of a

search is determined 'by assessing, on the one hand, the degree

to which it intrudes upon an individual's privacy and, on the

other, the degree to which it is needed for the promotion of

legitimate government interests.'" United States v. Knights,

534 U.S. 112, 118-19, 122 S. Ct. 587, 591, 151 L. Ed. 2d 497,

505 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119

S. Ct. 1297, 1300, 143 L. Ed. 2d 408, 414 (1999)). Applying

that standard to its factual determinations, the trial court in

the case before us determined that an officer's protective sweep

of the car defendant had been driving was reasonable. Finding

no error in either the trial court's factual determinations or

its application of law to those determinations, I would affirm

the denial of defendant's suppression motion.

The issue this court must decide is whether the trial court

erred when it determined that the arresting officer had a

reasonable articulable suspicion that the car's occupants and

the area of the protective sweep posed a danger to himself, the

other officers who had arrived on the scene, or the public.
State v. Gamble, 218 N.J. 412, 427 (2014). When making such a

determination, a trial court must "take[] into account 'the

totality of the circumstances – the whole picture.'" Id. at 431

(quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct.

690, 695, 66 L. Ed. 2d 621, 629 (1981)). In resolving the

inquiry, "due weight must be given, not to [the officer's]

inchoate and unparticularized suspicion or 'hunch,' but to the

specific reasonable inferences which he is entitled to draw from

the facts in light of his experience." Terry v. Ohio, 392 U.S.

1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968).

As the United States Supreme Court recognized in Terry,

"[t]he officer need not be absolutely certain that the

individual is armed; the issue is whether a reasonably prudent

man in the circumstances would be warranted in the belief that

his safety or that of others was in danger." Ibid. And though

a mere "hunch" does not create reasonable suspicion, ibid., the

level of suspicion required is "considerably less than proof of

wrongdoing by a preponderance of the evidence[,]" and "obviously

less" than is necessary for probable cause, United States v.

Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1,

10 (1989) (citation omitted).

In the case before us, these are the facts that led the

arresting officer to believe there was a gun in the car at the

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time he conducted the protective sweep. At one o'clock in the

morning, the car driven by defendant pulled out of a motel

located in a "notorious high-crime, high-drug area[]" where

there had been a "significant amount of . . . drug and weapons

offenses and other vice offenses . . . ." In response to the

officer's questions, defendant falsely identified himself and

claimed that he was driving from Atlantic City to Galloway

Township without a license, in the car of a friend whose name he

did not know, to take home one of the passengers. Yet, instead

of taking a direct route to the passenger's home, defendant

drove onto the Garden State Parkway after the officer had begun

to follow him. In addition, when asked where he was coming

from, defendant omitted to disclose that he had been at the

motel.

Two of the car's four occupants had outstanding warrants,

defendant for a drug offense. Defendant and a passenger were

both flagged in the National Crime Information Center (NCIC)

database as known to carry weapons.

The National Crime Information Center is a
computerized database of criminal justice
information available to law enforcement
agencies nationwide. . . .

. . . .

NCIC is available to more than 90,000 local
law enforcement and criminal justice
agencies twenty-four hours a day, 365 days a

3
A-5600-12T3
 year . . . . In 2007, there were more than
1.8 billion NCIC queries, with an average of
more than five million each day.

Underlying those transactions is a concern
for the safety of police officers, who are
at risk when they approach individuals
during a traffic stop. See United States v.
Finke, 85 F.3d 1275, 1280-81 (7th Cir. 1996)
(finding that concerns for officer safety
supported criminal history check during
traffic stop). The tragic reality is that
"a significant percentage of murders of
police officers occurs when the officers are
making traffic stops." Pennsylvania v.
Mimms, 434 U.S. 106, 110, 98 S. Ct. 330,
333, 54 L. Ed. 2d 331, 337 (1977) (per
curiam) (internal quotation marks and
citation omitted); see also United States v.
McRae, 81 F.3d 1528, 1535-36 n.6 (10th Cir.
1996). In 2005, ten officers throughout the
country were killed while conducting traffic
stops. FBI, U.S. Dep't of Justice, Law
Enforcement Officers Killed and Assaulted,
2005 (2006). In New Jersey alone, more than
250 officers were assaulted during traffic
stops in 2006.

[State v. Sloane, 193 N.J. 423, 433-34
(2008) (citations omitted).]

Considering the "whole picture," I cannot conclude the

trial court erred in determining the arresting officer had a

reasonable articulable suspicion that defendant possessed a gun

based on "the specific reasonable inferences which [the officer

was] entitled to draw from the facts in light of his

experience." Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883,

20 L. Ed. 2d at 909.

4
A-5600-12T3
 In Gamble, the Court recounted "objective facts" that,

combined with furtive movements, could give rise to an officer's

reasonable suspicion. 218 N.J. at 430. The factors included

evasive action, lying to the police, other incriminating

information about the driver or occupants of the car, absence of

identification, and the lateness of the hour. Ibid. Further,

"the high-crime nature of [an] area" may also contribute to that

suspicion. State v. Valentine, 134 N.J. 536, 553-54 (1994).

Here, the officer did not see defendant or any of his

passengers make any furtive movements. However, that defendant

had been at a motel in an area notorious for drug activity was

not insignificant. Our Supreme Court has commented on the

connection between drug activity and guns. See State v. Spivey,

179 N.J. 229, 240 (2004) (quoting Report to the Governor by

Attorney General on the Need to Update the Comprehensive Drug

Reform Act of 1987 (Dec. 9, 1996)) ("'Firearms have become

ubiquitous in the world of illegal drug activity. Dealers are

armed to protect themselves from law enforcement officers, from

other dealers and from their customers.'"). In addition, other

judicially recognized "factors" supported the officer's

reasonable suspicion, including defendant's evasive action,

lying, and the lateness of the hour. Furthermore, defendant had

an outstanding warrant for a drug offense and was flagged in the

5
A-5600-12T3
NCIC as known to carry a weapon. The officer's suspicion, based

on the totality of the circumstances, that is, the whole

picture, was not unreasonable.

The majority points out that, though defendant and another

of the car's occupants were known to carry weapons, there were

no reports of anyone seeing a weapon in their possession or

hearing shots fired. But the police officer in Terry had no

information that the suspects he was observing were carrying

guns; he feared the men "may have a gun" because their

"elaborately casual and oft-repeated reconnaissance of [a] store

window" at 2:30 in the afternoon led him to believe the men were

"casing a job, a stick-up." Terry, supra, 392 U.S. at 6, 88 S.

Ct. at 1872, 20 L. Ed. 2d at 898. I fail to discern a legally

significant reason for differentiating between the experience of

an officer who suspects three people are armed because they are

"casing a job, a stick-up," in the middle of the afternoon, from

that of an officer who has observed four occupants of an

automobile leave a motel in an area notorious for drugs at 1:00

in the morning, one of whom has an outstanding warrant for drugs

and two of whom have been flagged in the NCIC database as known

to carry guns.

The arresting officer having had a reasonable articulable

suspicion to believe the occupants or the area to be swept

6
A-5600-12T3
presented a danger, namely a gun, there are two reasons why the

protective sweep was justified: two passengers posed a potential

threat to the officers if permitted to return to the car to

obtain their belongings; and the need to protect the public

outweighed defendant's privacy interest in the car and justified

the protective sweep as part of the officer's community

caretaking function.

The majority concludes the passengers who were not arrested

posed no threat to the officers because the arresting "officer

did not testify that he intended to allow the unlicensed drivers

to return to the car for any reason[,]" and because "there was

no testimony that the unlicensed occupants asked to return to

the car to retrieve their belongings." Ante at ___ (slip op. at

12). But the arresting officer's reasonable suspicion

concerning a gun "did not evaporate when [he] failed to find a

weapon on either defendant or [the] passenger[s]. The risk to

officers and public safety . . . is equally present here."

Gamble, supra, 218 N.J. at 433. Moreover, there was evidence to

support a contrary factual determination concerning the

passengers who had not been arrested.

The evidence established that the officers would not have

had the vehicle towed. The officer who testified at the

suppression hearing made that fact clear:

7
A-5600-12T3
 Q. But prior to making this
protective sweep, you would have to make the
determination that you were impounding the
car, so you didn’t need to do a protective
sweep.

A. I had no reason to impound the car. As
far as I was aware, it was validly
registered and insured.

Q. But there were no licensed
drivers.

A. Right. It's not a policy to impound
vehicles just because there's a suspended
driver and no one could drive it. If
they're comfortable leaving it somewhere
safe off the side of the road or if we can
get another licensed drive to respond to the
scene, that would be fine. Generally, we
only tow unregistered or highly disabled
vehicles.

Q. So they would have no reason to go
back into the car, right?

A. Correct, except to retrieve their
belongings, if they had any.

The officer confirmed his testimony on redirect examination

by the prosecutor:

Q. Officer, [defense counsel] asked
you some questions about whether or not
there was anyone who would have been able,
of the four occupants of the vehicle, she
asked you a question about whether any of
them would have been able to actually drive
the vehicle away. Do you remember that line
of questioning?

A. Right.

Q. And I believe your answer was
that, no, that was for once you conducted

8
A-5600-12T3
 subsequent investigation, you were able to
confirm that those four would not have been
able to drive it away; however, they could
have retrieved their belongings.

A. Right.

Q. Is it fair, then, that [the female
passenger] would have been able to go back
into that vehicle had you not found the gun
and retrieve her purse?

A. Yes, that's fair to say.

Q. And her purse contained a loaded
handgun?

A. Right.

Thus, the officer's testimony amply supports the trial

court's conclusion that the officer reasonably believed a risk

remained.

Moreover, the United States Supreme Court has rejected the

notion that if a person subject to a Terry stop is under police

control, then police may not conduct a protective sweep of the

person's automobile:

The Michigan Supreme Court appeared to
believe that it was not reasonable for the
officers to fear that Long could injure
them, because he was effectively under their
control during the investigative stop and
could not get access to any weapons that
might have been located in the
automobile. See 413 Mich., at 472, 320 N.
W. 2d, at 869. This reasoning is mistaken
in several respects. During any
investigative detention, the suspect is "in
the control" of the officers in the sense
that he "may be briefly detained against his

9
A-5600-12T3
 will . . . ." Terry, supra, at 34 (WHITE,
J., concurring). Just as a Terry suspect on
the street may, despite being under the
brief control of a police officer, reach
into his clothing and retrieve a weapon, so
might a Terry suspect in Long's position
break away from police control and retrieve
a weapon from his automobile. See United
States v. Rainone, 586 F.2d 1132, 1134 (CA7
1978), cert. denied, 440 U.S. 980 (1979). In
addition, if the suspect is not placed under
arrest, he will be permitted to reenter his
automobile, and he will then have access to
any weapons inside. United States v.
Powless, 546 F.2d 792, 795-796 (CA8), cert.
denied, 430 U.S. 910 (1977). Or, as here,
the suspect may be permitted to reenter the
vehicle before the Terry investigation is
over, and again, may have access to
weapons. In any event, we stress that a
Terry investigation, such as the one that
occurred here, involves a police
investigation "at close range," Terry, 392
U.S., at 24, when the officer remains
particularly vulnerable in part because a
full custodial arrest has not been effected,
and the officer must make a "quick decision
as to how to protect himself and others from
possible danger . . . ." Id., at 28. In
such circumstances, we have not required
that officers adopt alternative means to
ensure their safety in order to avoid the
intrusion involved in a Terry encounter.

[Michigan v. Long, 463 U.S. 1032, 1051-52,
103 S. Ct. 3469, 3481-82, 77 L. Ed. 2d 1201,
1221-22 (1983).]

Apart from the risk posed by the car's occupants, "[i]t is

now well recognized that in addition to investigating crimes,

the police also engage in what has been 'described as community

caretaking functions, totally divorced from the detection,

10
A-5600-12T3
investigation, or acquisition of evidence relating to the

violation of a criminal statute.'" State v. Navarro, 310 N.J.

Super. 104, 108 (App. Div.) (citation omitted) (quoting Cady v.

Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed.

2d 706, 715 (1973)), certif. denied, 156 N.J. 382 (1998). Here,

the trial judge determined that the officer acted reasonably not

only to protect himself, but also to protect the public. This

determination is supported by ample credible evidence in the

record. As the majority has recounted, when asked if there was

a need to do a protective sweep while two of the car's occupants

were handcuffed and the other two were standing on the side of

the road in the presence of other officers, the officer who

conducted the protective sweep testified that there was such a

need:

Because as far as I'm aware, there's still
two people unhandcuffed, there could still
have been a weapon in the car that someone
could have had access to even if I didn't
let them back in the car, and I wasn't about
to let some other person, whoever we can get
to pick up the car, go into the car if there
was a weapon in the car.

The officer reasonably believed that "there could still

have been a weapon in the car that someone could have had access

to." Under those circumstances, the officer's protective sweep

was reasonable.

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A-5600-12T3
 As the trial court properly stated, quoting Knights, supra,

534 U.S. at 118-19, 122 S. Ct. at 591, 151 L. Ed. 2d at 505,

"the reasonableness of a search is determined by assessing on

the one hand the degree to which it intrudes upon an

individual's privacy, and, on the other hand, the degree to

which it is needed to promote legitimate governmental

interests." When defendant's privacy interest in a car that he

was unlicensed to drive, that he did not own, and that was owned

by a person he could not name, is balanced against an officer's

reasonable articulable suspicion that there is a gun in the car

that could come into the possession of an innocent or not-so-

innocent person, the balance tips in favor of the State.

For the foregoing reasons, I would affirm the trial court's

denial of defendant's suppression motion.

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