March 2, 2017

Defendant’s furtive movement after car stop here justified removal of passenger State v. Bacome __ NJ __ (2017}

Defendant’s furtive movement after car stop here justified removal of passenger  State v. Bacome __ NJ __ (2017}
The heightened-caution standard announced in Smith, supra, 134 N.J. at 618-20, remains the proper test for determining the appropriateness of ordering a passenger from a car. Under the Smith test, defendant’s furtive movements inside a recently stopped vehicle provided an objectively reasonable basis for officers’ exercising heightened caution, justifying removal of the passenger.  (A-9-15; 075953)
      State v. Tawian Bacome (A-9-15) (075953)

  Decided January 31, 2017

Timpone, J., writing for a unanimous Court.
In their unmarked vehicle, the detectives followed the Bronco, losing sight of it shortly after arriving in an area of Newark known for crime and drug trafficking. In an attempt to pick up the Bronco’s trail, the detectives drove back to Woodbridge, presuming that defendant and S.R. would return there with newly purchased drugs.
About an hour later, the detectives observed the Bronco re-enter Woodbridge. The detectives resumed surveillance and, after they both observed S.R. in the passenger seat not wearing his seatbelt, they conducted a traffic stop.
Once they stopped the Bronco, Harris approached the driver’s side while Jaremczak approached the passenger’s side. Harris reported that he saw defendant lean forward as if he were reaching under his seat. Harris immediately ordered defendant to exit the vehicle. Jaremczak then ordered S.R. out of the passenger’s seat. Both occupants complied.
The detectives questioned the men separately about their destination; they gave contradictory responses. Because S.R. no longer occupied the passenger’s seat, Jaremczak was able to glimpse a rolled-up piece of paper in the shape of a straw and a small piece of Brillo-like steel wool on the car floor, near the front of the center console. Jaremczak knew from experience that those items are consistent with narcotics use.
Following the inconsistent accounts of defendant and S.R. about their destination and the plain-view observation of the Brillo and straw, Jaremczak obtained S.R.’s written consent to search the car. Jaremczak concluded that S.R. did not appear to be under the influence of narcotics and apparently understood his rights. Upon execution of the search, Jaremczak found “blunt wrappers,” or cigar shells often used to wrap marijuana; a used crack pipe inside a cigarette pack; a larger piece of Brillo; and thirteen vials of crack cocaine in a separate cigarette pack. The detectives placed defendant and S.R. under arrest. At the police station, defendant gave a videotaped statement, confessing to being the sole owner of the crack cocaine and the narcotics-related paraphernalia.

In this appeal, the Court clarifies the circumstances under which police officers may require a passenger in an automobile to exit a vehicle after a valid stop.


Defendant later moved to suppress the seized narcotics and paraphernalia; the trial court denied the motion. The court found the stop to be lawful because of the passenger’s failure to wear a seatbelt. The court also found the passenger’s removal from the car to be lawful because the officers had reasonable and articulable suspicion of criminal activity. Defendant later pleaded guilty to third-degree possession of cocaine, a controlled dangerous substance, and was sentenced to a three-year prison term in accordance with his plea agreement.

For the first time on appeal, defendant specifically challenged S.R.’s removal from the vehicle. The Appellate Division remanded to the trial court, which found that defendant’s reaching under the seat created the heightened caution required under State v. Smith, 134 N.J. 599, 618-20 (1994), and warranted S.R.’s removal.

Defendant again appealed to the Appellate Division. In a split decision, the majority reversed the trial court’s order denying the suppression motion and concluded that the detectives failed to prove Smith’s heightened-caution requirement. 440 N.J. Super. 228, 244 (App. Div. 2015). The majority held that stopping the vehicle for a seatbelt violation was a “ruse” that allowed the detectives to conduct a narcotics investigation.

The dissent maintained that the detectives lawfully stopped the vehicle because S.R. had failed to wear a seatbelt and they reasonably suspected that the men had purchased narcotics in Newark. Id. at 248-50 (Nugent, J., dissenting). The dissent concluded that a culpable passenger’s liberty interest is no different from that of a driver who commits a traffic violation and that asking S.R. to step out of the vehicle was permissible. Id. at 247-50.

The split within the panel afforded the State an appeal as of right on the issues reached by the Appellate Division. The Court granted the State’s petition for certification on other relevant issues. 223 N.J. 279 (2015).

HELD: The heightened-caution standard announced in Smith, supra, 134 N.J. at 618-20, remains the proper test for determining the appropriateness of ordering a passenger from a car. Under the Smith test, defendant’s furtive movements inside a recently stopped vehicle provided an objectively reasonable basis for officers’ exercising heightened caution, justifying removal of the passenger.

1. To be lawful, an automobile stop must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed. S.R. failed to wear his seatbelt and therefore violated the traffic code. The stop followed the detectives’ observation of the traffic code violation and was therefore valid. The detectives’ subjective intent is irrelevant in light of the objective grounds for the stop. Because the stop was justified by the detectives’ reasonable and articulable suspicion as to the traffic offense, the Court does not reach the issue of reasonable and articulable suspicion of drug activity.  

2. The New Jersey and Federal Constitutions protect against “unreasonable searches and seizures.” N.J. Const. art. I, ¶ 7; see U.S. Const. amend. IV. In 1977, the United States Supreme Court held it objectively reasonable for officers to order a driver out of a lawfully stopped vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977). In 1994, this Court declined to extend the Mimms rule to passengers, instead determining that officers may order passengers out of a vehicle only if they can assert “specific and articulable facts that would warrant heightened caution.” Smith, supra, 134 N.J. at 618.  

3. Three years after Smith, the United States Supreme Court declared, “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, 415 (1997). After Wilson, New Jersey law was more protective than federal law on the issue of passenger removal. In State v. Sloane, 193 N.J. 423, 431 (2008), the Court concluded that, “when a police officer conducts a traffic stop of a private vehicle, the passenger as well as the driver are seized under both the federal and state constitutions.” Most recently, the Court reaffirmed the Smith standard in State v. Mai, 202 N.J. 12, 22, 24-25 (2010).  

4. As to the State’s contention that the Smith standard has been eroded by subsequent decisions, the Court observes that no decision since Smith, including Sloane, has implicitly or explicitly modified or overruled Smith. Here, the Court reaffirms the Smith heightened-caution standard for questions of passenger removal: officers may remove passengers only when the circumstances present reason for heightened caution

5. Furtive movements may satisfy the heightened caution standard. See Smith, supra, 134 N.J. at 618-19. The unknown nature of surreptitious movements creates risk for an officer and, in turn, that risk supports the exercise of heightened caution. It would be impractical to require officers to determine whether the movement was to hide a weapon or a box of tissues before taking any precautionary measures. Such a rule would threaten officer safety.

6. Here, the furtive movements inside the car were “specific and articulable facts” that warranted heightened caution and justified removal of the passenger, placing the detectives in a position lawfully to observe the contraband in plain view. The evidence was appropriately seized under the plain-view exception to the warrant requirement, and defendant’s conviction and sentence were based on properly admitted evidence.  

7. The Court notes that defendants should state the basis for a motion to suppress when making it to allow for appropriate development of the record.  

The judgment of the Appellate Division is REVERSED. Defendant’s conviction and sentence are REINSTATED.

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


February 24, 2017

Criminal Justice Reform - Prosecutor's Role in Pretrial Monitoring Violations Proceedings

Criminal Justice Reform - Prosecutor's Role in Pretrial Monitoring Violations
Proceedings
Date: December 30, 2016
This directive outlines the procedure for the · prosecution of violations of conditions of
pretrial release as referenced in R. 3:26-2, · which establishes, among other things, two types of
proceedings for violations of conditions of pretrial release: (1) violations filed by the State
seeking revocation of pretrial release, and (2) violations filed by the State or the court on its own
motion seeking modification of conditions of release.
Although violations of conditions of pretrial release are new proceedings under Criminal
Justice Reform, the role of the prosecutor in similar types of proceedings has previously been
considered. Specifically, on July 11, 1966, then Administrative Director Edward B. McConnell
issued Directive #34A-65, which established that Prosecutors, not Probation Officers, are
responsible for the prosecution of defendants charged with violating the terms of their probation.
Thereafter, in 2006, the issue was once again revisited due to considerable variation in vicinage
practice with respect to the prosecution of violations of probation (VOPs). In some counties, the
Prosecutor was involved in VOP proceedings, while in others Probation staff was handling all
aspects of the VOP process. As a result, the Conferences of Criminal Presiding Judges and
Vicinage Chief Probation Officers reviewed the practice at that time and concluded that the
policy contained in the 1966 Directive should be reaffirmed. The Criminal Presiding Judges
reasoned that because a VOP involves a violation of court ordered conditions, it is akin to
contempt for violating a court order, and since the Prosecutor represents the State's interest at
contempt proceedings, the same should hold true for VOP proceedings. The Presiding Criminal
Judges also reasoned that the Prosecutor has a fundamental role at VOP proceedings to
represent the interests of the State and the victim(s), and that the Probation Officer ought not to
act as both witness and prosecutor. At the direction of the Supreme Court, then Acting
Administrative Director Philip S. Carchman on April 7, 2006 issued Directive #04-06 restating
the substance of the earlier directive.
The same reasoning holds true for violations of conditions of pretrial release. Conditions
of pretrial release are set via court order; therefore, violations of these conditions are likewise
akin to contempt proceedings. Since the prosecutor represents the State's interest at both
contempt and VOP proceedings, the same should hold true for violations of conditions of pretrial
release filed pursuant to R. 3:26-2. During the pretrial phase of a criminal proceeding, the
prosecutor plays a vital role in representing the interest of the State and victims during the
pretrial process. Further, as in the case of VOP proceedings, Pretrial Services Officers should
not be required to act as both the witness and the prosecutor during violations of conditions of
pretrial release proceedings. Therefore, to ensure statewide consistency, it must follow that
County Prosecutors, and not Pretrial Services Officers, are responsible for the prosecution of
violations of conditions of pretrial release filed pursuant to R. 3:26-2.
Questions regarding this directive or the procedure for violations of conditions of pretrial
release may be directed to Sue Callaghan, Assistant Director for Criminal Practice, by email at
Sue.Callaghan@njcourts.gov or by phone at (609) 292-4638.
cc: Chief Justice Stuart Rabner
Criminal Presiding Judges
Family Presiding Judges
Municipal Presiding Judges
Steven D. Banville, Chief of Staff
AOC Directors and Assistant Directors
Clerks of Court
Melaney Payne, Special Assistant
Ann Marie Fleury, Special Assistant
Criminal Division Managers
Family Division Managers
Municipal Division Managers
G.A.G.
Assistant Criminal Division Managers-Pretrial Services
I.

Isource http://www.judiciary.state.nj.us/directive/2016/dir_05_16.pdf

Criminal Justice Reform - Prosecutor's Role in Pretrial Monitoring Violations Proceedings

Criminal Justice Reform - Prosecutor's Role in Pretrial Monitoring Violations
Proceedings
Date: December 30, 2016
This directive outlines the procedure for the · prosecution of violations of conditions of
pretrial release as referenced in R. 3:26-2, · which establishes, among other things, two types of
proceedings for violations of conditions of pretrial release: (1) violations filed by the State
seeking revocation of pretrial release, and (2) violations filed by the State or the court on its own
motion seeking modification of conditions of release.
Although violations of conditions of pretrial release are new proceedings under Criminal
Justice Reform, the role of the prosecutor in similar types of proceedings has previously been
considered. Specifically, on July 11, 1966, then Administrative Director Edward B. McConnell
issued Directive #34A-65, which established that Prosecutors, not Probation Officers, are
responsible for the prosecution of defendants charged with violating the terms of their probation.
Thereafter, in 2006, the issue was once again revisited due to considerable variation in vicinage
practice with respect to the prosecution of violations of probation (VOPs). In some counties, the
Prosecutor was involved in VOP proceedings, while in others Probation staff was handling all
aspects of the VOP process. As a result, the Conferences of Criminal Presiding Judges and
Vicinage Chief Probation Officers reviewed the practice at that time and concluded that the
policy contained in the 1966 Directive should be reaffirmed. The Criminal Presiding Judges
reasoned that because a VOP involves a violation of court ordered conditions, it is akin to
contempt for violating a court order, and since the Prosecutor represents the State's interest at
contempt proceedings, the same should hold true for VOP proceedings. The Presiding Criminal
Judges also reasoned that the Prosecutor has a fundamental role at VOP proceedings to
represent the interests of the State and the victim(s), and that the Probation Officer ought not to
act as both witness and prosecutor. At the direction of the Supreme Court, then Acting
Administrative Director Philip S. Carchman on April 7, 2006 issued Directive #04-06 restating
the substance of the earlier directive.
The same reasoning holds true for violations of conditions of pretrial release. Conditions
of pretrial release are set via court order; therefore, violations of these conditions are likewise
akin to contempt proceedings. Since the prosecutor represents the State's interest at both
contempt and VOP proceedings, the same should hold true for violations of conditions of pretrial
release filed pursuant to R. 3:26-2. During the pretrial phase of a criminal proceeding, the
prosecutor plays a vital role in representing the interest of the State and victims during the
pretrial process. Further, as in the case of VOP proceedings, Pretrial Services Officers should
not be required to act as both the witness and the prosecutor during violations of conditions of
pretrial release proceedings. Therefore, to ensure statewide consistency, it must follow that
County Prosecutors, and not Pretrial Services Officers, are responsible for the prosecution of
violations of conditions of pretrial release filed pursuant to R. 3:26-2.
Questions regarding this directive or the procedure for violations of conditions of pretrial
release may be directed to Sue Callaghan, Assistant Director for Criminal Practice, by email at
Sue.Callaghan@njcourts.gov or by phone at (609) 292-4638.
cc: Chief Justice Stuart Rabner
Criminal Presiding Judges
Family Presiding Judges
Municipal Presiding Judges
Steven D. Banville, Chief of Staff
AOC Directors and Assistant Directors
Clerks of Court
Melaney Payne, Special Assistant
Ann Marie Fleury, Special Assistant
Criminal Division Managers
Family Division Managers
Municipal Division Managers
G.A.G.
Assistant Criminal Division Managers-Pretrial Services
I.

Isource http://www.judiciary.state.nj.us/directive/2016/dir_05_16.pdf