STATE OF NEW JERSEY VS. KURT STUMP (19-05-0789, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1865-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KURT STUMP,

Defendant-Appellant.
_________________________

Argued August 17, 2021 – Decided September 7, 2021

Before Judges Gilson and Gummer.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 19-05-
0789.

Kevin S. Finckenauer, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Kevin S.
Finckenauer, of counsel and on the briefs).

Monica do Outeiro, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Lori Linskey, Acting Monmouth
County Prosecutor, attorney; Monica do Outeiro, of
 counsel and on the brief; Alecia Woodard, Legal
Assistant, on the brief).

PER CURIAM

Defendant Kurt Stump was a passenger in a taxi when it was stopped for

motor-vehicle violations. A police officer removed defendant from the car,

seized a prescription bottle from him, and charged him with third-degree

possession of Xanax without a prescription, N.J.S.A. 2C:35-10(a)(1). The trial

court denied defendant's motion to suppress the warrantless seizure of the bottle

and Xanax pills. Thereafter, defendant pled guilty and was sentenced to one

year of probation.

He appeals, arguing he was illegally removed from the taxi and the

prescription bottle and pills were not lawfully seized. We agree. The trial court

did not find, and the record contains insufficient evidence to establish, that

defendant posed a heightened risk of danger justifying his removal from the taxi.

In addition, the evidence establishes that the bottle was recognizable as

contraband only after the officer seized it and saw the prescription was for

Methadone, but the pills appeared to be Xanax. Accordingly, we reverse the

order denying the motion to suppress and defendant's conviction.

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 I.

The facts were established at an evidentiary hearing where two witnesses

testified: Police Officer Barry Hollo and defendant. At approximately 5 p.m.

on March 21, 2019, Officer Hollo and two other officers were on a "proactive"

narcotics patrol in an unmarked police vehicle in a "high crime" area in Asbury

Park. The officers observed defendant walking on a sidewalk while talking on

a cellphone and looking around. Hollo explained that when he saw defendant,

he did not know him, nor had he had any prior interactions with defendant.

Nevertheless, the officers pulled their vehicle to the side of the road to observe

defendant. They saw defendant meet P.T., who Hollo recognized as someone

who had previously been involved in the distribution of narcotics.

As defendant and P.T. were standing on the sidewalk, a taxi pulled up to

the curb and defendant and P.T. got into the cab. Officer Hollo testified that the

cab had a female driver and another passenger in the rear seat. Hollo recognized

the passenger as L.K., who Hollo knew to be involved in "[n]arcotics and violent

offenses."

After defendant and P.T. entered the taxi, Officer Hollo observed the cab

pull away from the curb without signaling. Following in the police vehicle,

Hollo saw the taxi make a left turn at an intersection that was "clearly marked

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with a no left turn sign." Thereafter, the officers signaled for the taxi to pull

over, which it did.

The officers got out of their vehicle and approached the taxi. Officer

Hollo walked up to the cab on the passenger side and saw defendant "moving

frantically about the rear portion of the taxi." When Hollo got level with the

passenger window, he saw defendant trying to push an orange pill bottle into the

crease of the back seat. At that point, Hollo "escorted" defendant out of the cab

by taking his wrists and walking him to the rear of the taxi. Defendant was

holding the pill bottle in his left hand and Hollo could see that the pills in the

bottle appeared to be Xanax. Hollo then took the pill bottle from defendant,

examined it more closely, and saw that the prescription was in defendant's name,

but for Methadone. Hollo also observed the pills more closely and, based on his

training and experience, believed the pills were Xanax. Defendant told Hollo

he had a prescription but Hollo placed defendant under arrest for possessing

Xanax without a prescription.

P.T. and L.K. were also removed from the cab and arrested by Hollo's

fellow officers for possessing other narcotics. According to Hollo, the taxi

driver was not involved in any narcotic activity, and she was released without

being given summonses or tickets for the motor-vehicle violations.

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 On cross-examination, Hollo elaborated that he had seen the pills in the

bottle when defendant was still in the cab. He testified that he "immediately

recognized the pills in the pill bottle as Xanax" because of their dis tinct

rectangular shape. During recross-examination, in response to a question from

the judge, Hollo explained that he was first able to see the label on the bottle

when he removed the bottle from defendant and "was able to observe it . . . in a

closer view." Later, Hollo was shown his police report, which stated that

defendant had told Hollo that the prescription was for Xanax. Hollo then

clarified that if he had earlier testified that defendant told him that the

prescription was for Methadone, he "misspoke." Thus, Hollo confirmed that

defendant had told him that the prescription was for Xanax, and Hollo saw that

the prescription label was for Methadone only after he had taken the bottle from

defendant.

Defendant's testimony was in marked contrast to the testimony by Officer

Hollo. Defendant stated that he was walking down a street in Asbury Park trying

to call a cab so he could go see a friend who was at a hospital. Defendant waved

a cab down, and the cab already had a passenger who he did not know.

Defendant got into the cab, and, as they were driving toward the hospital, the

cab stopped to pick up another person. The cab then began to move again but

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suddenly pulled over. Defendant testified that his door "fl[ew] open," he was

"grabbed and dragged out of [the] cab," and told "to put [his] hands on the

vehicle." Defendant was then searched, and a police officer took a prescription

bottle out of defendant's pocket. Thereafter, the officer conferred with other

officers on scene, came back to defendant, and asked defendant if the pills were

Xanax, then pointed out the prescription was for Methadone. According to

defendant, he did not respond and was arrested.

Defendant claimed he never gave the police permission to search him or

to take the pill bottle from his pocket. Defendant also explained that when he

was dragged out of the cab, the other two passengers were simultaneously pulled

out of the vehicle and all three were searched. By contrast, defendant stated that

the taxi driver was not questioned.

After hearing the testimony and considering the physical evidence, which

included the pill bottle, the trial court denied the motion to suppress. Relying

on the testimony of Officer Hollo, the court found that the police had lawfully

stopped the taxi because of two traffic violations. The court also found that

defendant had been lawfully removed from the cab because the vehicle was

stopped in a high-crime area and Officer Hollo saw defendant moving frantically

in the cab while holding the pill bottle.

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 In making those findings, the court questioned whether Hollo could see

the pills while the bottle was in defendant's possession. Nevertheless, the court

found, under the circumstances, that Hollo was permitted to "investigate what

was in defendant's hand." The court ultimately found Hollo could see through

the bottle when he took the bottle from defendant.

Finally, the trial court found that the bottle had been lawfully seized under

the plain-view doctrine. In that regard, the court found that Officer Hollo was

lawfully in an area to view defendant after the taxi had been stopped. The court

found Hollo "had a right to ask to see [the prescription] bottle" and,

consequently, was able to see the bottle's contents and label. The court also

found that the pills in the bottle were immediately recognizable as contraband

because "[p]rior to seeing the prescription bottle, Officer Hollo observed

defendant moving frantically in what he believed was an attempt to conceal

something." Moreover, when defendant exited the cab, he claimed to have a

prescription bottle, but the officer saw that the prescription did not match the

shape of the pills. The court went on to find that once the officer had seized the

bottle, the officer could observe that the prescription was for Methadone, but the

pills appeared to be Xanax. In making that finding, the trial court stated:

Looking at the totality of the circumstances from the
standpoint of an objectively reasonable police officer

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 with Officer Hollo's training and experience, Officer
Hollo had probable cause to associate the Xanax pills
found in plain view with contraband prior to his seizure
or at the time that he seized them.

II.

On appeal, defendant makes two arguments, which he articulates as

follows:

POINT I – DEFENDANT'S REMOVAL FROM THE
VEHICLE WAS UNCONSTITUTIONAL BECAUSE
THERE WAS NO "H[E]IGHTENED AWARENESS
OF DANGER" DURING THE MOTOR VEHICLE
STOP

POINT II – SEIZURE OF DEFENDANT'S PILL
BOTTLE WAS UNCONSTITUTIONAL BECAUSE
IT WAS NOT IMMEDIATELY APPARENT THAT
THE PILL BOTTLE CONTAINED CONTRABAND,
AND INSTEAD THE COURT RELIED ON
OBSERVATIONS MADE AFTER DEFENDANT'S
ILLEGAL REMOVAL FROM THE VEHICLE AND
AFTER THE SEIZURE ITSELF OCCURRED IN
FINDING THE SEIZURE WAS PROPER

A. The Pill Bottle was an Intrinsically
Innocent Object that Fails to Provide
Grounds for Probable Cause

B. Defendant's Movements while in the
Taxi, Even in Conjunction with the Pill
Bottle, Fail to Give Rise to Probable Cause

C. The Motion Court Improperly Relied
on Observations Made After Defendant

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 was Unlawfully Removed from the Vehicle
and After the Pill Bottle was Unlawfully
Seized in Determining Probable Cause

In reviewing an order concerning a motion to suppress following an

evidentiary hearing, appellate courts generally defer to the factual findings made

by the trial court "so long as those findings are supported by sufficient cred ible

evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State

v. Elders, 192 N.J. 224, 243 (2007)). The legal conclusions of a trial court are

reviewed de novo. State v. Hubbard, 222 N.J. 249, 263 (2015) (citing State v.

Gandhi, 201 N.J. 161, 176 (2010)).

Having reviewed the record, we find no evidence supporting a heightened

caution or reasonable suspicion that defendant was engaged in illegal activity

justifying his removal from the taxi. In addition, there was no evidence from

which Officer Hollo could have determined that the bottle contained

unprescribed drugs before seizing it from defendant. Therefore, we reverse.

A.

Both the United States and New Jersey Constitutions prohibit

"unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art.

I, ¶ 7. A motor vehicle can be lawfully stopped without a warrant if a police

officer has "a reasonable and articulable suspicion that the driver of a vehicle,

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or its occupants, is committing a motor-vehicle violation or a criminal or

disorderly persons offense." State v. Scriven, 226 N.J. 20, 33-34 (2016) (citing

State v. Locurto, 157 N.J. 463, 470 (1999)).

"[O]rdering a person out of a car constitutes a seizure because the person's

liberty has been restricted." State v. Bacome, 228 N.J. 94, 104 (2017) (citing

State v. Smith, 134 N.J. 599, 609, 611 (1994)). Consequently, an occupant can

be ordered to get out of a vehicle "only when it is objectively reasonable to do

so." Ibid.; see also Maryland v. Wilson, 519 U.S. 408, 411-14 (1997).

New Jersey law is more protective than federal law on the grounds

justifying a passenger's removal from a car stopped for a motor-vehicle

violation. Bacome, 228 N.J. at 105. Under New Jersey's Constitution, police

officers can "remove passengers only when the circumstances present reason for

heightened caution." Id. at 107. Accordingly, a police officer can "order a

passenger out of a vehicle if the officer can 'point to specific and articulable

facts that would warrant heightened caution to justify ordering the occupant [] to

step out of a vehicle detained for a traffic violation.'" Id. at 106 (quoting Smith,

134 N.J. at 618). An officer can also "order a passenger out of an automobile if

the officer ha[s] an articulable suspicion short of probable cause to believe that

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a crime ha[s] been committed." State v. Mai, 202 N.J. 12, 25 (2010) (quoting

State v. Tucker, 136 N.J. 158, 167 (1994)).

Furtive movements by a passenger may satisfy the heightened-caution

standard. Bacome, 228 N.J. at 107 (citing Smith, 134 N.J. at 618-19).

Consequently, if a passenger is observed making surreptitious movements and

those movements suggest a risk to officer safety, that risk supports the exercise

of heightened caution. Ibid. Nevertheless, "[n]either 'inarticulate hunches' nor

an arresting officer's subjective good faith can justify infringement of a citizen's

constitutionally guaranteed rights." State v. Alessi, 240 N.J. 501, 518 (2020)

(alteration in original) (quoting State v. Arthur, 149 N.J. 1, 8 (1997)).

Here, the trial court found that the taxi was lawfully stopped because of

two motor-vehicle violations. That finding is supported by substantial credible

evidence in the record. The trial court did not, however, find that there were

circumstances warranting heightened caution for officers' safety. Officer Hollo

never testified that he had any concern about defendant posing a risk. Instead,

Hollo's testimony focused on his observation that defendant was holding a

prescription bottle. While Hollo testified on cross-examination that he had a

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general concern for officer safety because "[y]ou never know what's going to

happen on a car stop," he never linked that concern to defendant. 1

Because there is no evidence that defendant's movements presented reason

for heightened caution due to officer safety, the question becomes whether

defendant's possession of a prescription bottle gave rise to a reasonable and

articulable suspicion that defendant was engaged in criminal activity. Officer

Hollo testified that when he walked up to the passenger window, he saw

defendant trying to stuff a prescription bottle into a crease in the rear seat of the

taxi. The prescription bottle by itself is not inherently dangerous nor was it

immediately recognized as contraband. See Russell v. Coyle, 266 N.J. Super.

651, 660 (App. Div. 1993). The prescription bottle and pills could be recognized

as contraband only when the officer knew what the prescription was for and

whether the pills in the bottle matched that prescription.

Officer Hollo testified that he first had seen that the prescription on the

bottle was for Methadone after he had taken the bottle from defendant.

Accordingly, when the officer observed defendant in the car, he had no

articulable facts indicating that the possession of the prescription bottle was

1
Based on Officer Hollo's testimony, L.K. may have presented a risk, since
Hollo testified L.K. was known to have engaged in "violent offenses." Hollo,
however, did not testify that defendant posed a safety risk.
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illegal. In short, there are insufficient facts in the record to support the officer's

removal of defendant from the taxi.

B.

In addition, there are no facts supporting the seizure of the prescription

bottle and pills under the plain-view doctrine. The plain-view exception allows

police to seize contraband when (1) a police officer is lawfully in the area where

he or she makes the observation; and (2) it is "immediately apparent that the

seized item is evidence of a crime." State v. Gonzales, 227 N.J. 77, 101 (2016).

Officer Hollo testified that he first had seen the label on the prescription

bottle after he took the bottle from defendant. Accordingly, before seizing the

bottle the officer had no articulable suspicion or probable cause to believe that

the prescription bottle contained unprescribed drugs. While Officer Hollo

testified that he could see the pills in the bottle when the bottle was still in

defendant's possession, and while he also testified that he believed the pills were

Xanax, he had no basis to believe that the prescription on the bottle was for

something other than Xanax until he seized the bottle and observed it more

closely.

The trial court found, under the circumstances, Officer Hollo had probable

cause to associate the pills with contraband "prior to his seizure or at the time

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that he seized them." The law does not allow an "either-or" finding. The bottle

and pills could be seized under the plain-view exception only if it was

"immediately apparent" they were contraband. Ibid. Moreover, the plain-view

exception does not apply retrospectively. A police officer must have "probable

cause to associate the property with criminal activity" before seizing it. State v.

Bruzzese, 94 N.J. 210, 237 (1983) (citation omitted); accord State v. Williams,

461 N.J. Super. 1, 11 (App. Div. 2019) (citing State v. Johnson, 171 N.J. 192,

208 (2002)).

C.

In summary, the trial court never found that there were circumstances

giving rise to a heightened caution justifying defendant's removal from the taxi.

Furthermore, the facts do not support the seizure of the bottle and pills under the

plain-view exception. Accordingly, we reverse the order denying defendant's

motion to suppress the seizure of the prescription bottle and the pills . We also

reverse defendant's conviction. We remand with direction that the prescription

bottle and the pills be suppressed. The State can then decide how it wishes to

proceed.

Reversed and remanded. We do not retain jurisdiction.

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