Opinion
DOCKET NO. A-5896-12T4
07-17-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AHMAD CAUTHEN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel; Garima Joshi, Volunteer Attorney, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Fasciale. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-08-01968. Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel; Garima Joshi, Volunteer Attorney, on the brief). PER CURIAM
After the denial of his motion to suppress evidence seized during a Terry patdown, which occurred after he was ordered from a motor vehicle in which he was a passenger, defendant pleaded guilty to third-degree CDS possession with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(3), and was sentenced to a four-year prison term, subject to a fifteen-month parole disqualifier. Defendant appeals, arguing in a single point:
THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE PRESENCE WITHIN A HIGH-CRIME AREA, AND REACHING UNDER A CAR SEAT DOES NOT CREATE A REASONABLE AND ARTICULABLE SUSPICION THAT DEFENDANT HAD A WEAPON ON HIS BODY THAT WOULD JUSTIFY A PAT-DOWN SEARCH.We find insufficient merit in this argument to warrant discussion in a written opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons set forth by Judge Thomas M. Moore in his thorough and well-reasoned written opinion. We add just a few additional comments.
After a two-day hearing, the judge found that on February 23, 2012, two police officers were in an unmarked police vehicle in Orange when they observed a vehicle they decided to stop because of its tinted windows, N.J.S.A. 39:3-75. As the officers approached, the vehicle's driver, Jamal Amos, lowered his window and, upon request, provided his credentials; defendant, who was in the front passenger seat, then "reach[ed] under his seat." Defendant was twice ordered not to do so but failed to comply, causing the officers to order him out of the vehicle out of concern for their safety. After exiting the vehicle, defendant was patted down by one of the officers, who felt in his clothing "three medium squares," which, based on training and experience, suggested the presence of bundled heroin. This was confirmed upon further investigation, and defendant was arrested.
Amos testified at the hearing and asserted, among other things, that defendant never reached below his seat. He also denied, as the judge described, that "the folds of heroin were ever in the jacket pocket or in plain view but rather that the police opened [d]efendant's jacket."
The judge found that the testifying officer was credible and Amos was not. The judge also found: the vehicle stop was lawful; defendant's movement toward the underneath of his seat justified his removal from the vehicle; and the Terry patdown, which led to discovery of illegal drugs, was also lawful.
In rejecting defendant's arguments, we are satisfied not only that the judge applied the correct legal standards for such a stop and search of a motor vehicle passenger, State v. Smith, 134 N.J. 597, 617-19 (1994); State v. Bacome, 440 N.J. Super. 228, 236-38 (App. Div. 2015), but also that his factual findings are entitled to our deference, State v. Elders, 192 N.J. 224, 245 (2007).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Terry v. Ohio, 392 U.S. 1, 9-10, 88 S. Ct. 1868, 1873, 20 L. Ed. 2d 889, 899 (1968).