In this archive episode, Dennis explains approaching parked motor vehicles and the laws around this subject. Recorded on 08/07/2017.

State v . Butler 1994 –

Under both the United States and New Jersey constitutions, a police officer has the authority to detain individuals without a warrant, on less than probable cause. See Terry v. Ohio, 392 U.S. 1, 26-27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Davis, supra, 104 N.J. at 502-504, 517 A.2d 859. And, in order to pass constitutional muster, the stop must be predicated upon specific and articulable suspicion that a person has been or is about to engage in criminal activity. United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981); Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); Davis, supra, 104 N.J. at 504, 517 A.2d 859. The Court in Davis noted:

A police officer charged with the duty of crime prevention and detection of the public safety must deal with a rich diversity of street encounters with citizens. In a given situation, even though a citizen’s behavior does not reach the level of highly suspicious activities, the officer’s experience may indicate that some investigation is in order. Depending on the circumstances, street interrogation may be most reasonable and proper. [Id. at 503, 517 A.2d 859]. The New Jersey Supreme Court has held that under a narrowly defined and controlled set of circumstances, investigatory stops and detentions are constitutionally permissible even though based on less than probable cause. In State v. Hall, 93 N.J. 552, 561, 461 A.2d 1155, cert. denied, 464 U.S. 1008, 104 S.Ct. 526, 78 L.Ed.2d 709 (1983), the Court explained: Our reading of Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), convinces us that for certain detentions — those that do not entail significant intrusions upon individual privacy or freedom, are productive of reliable evidence, and can be effectuated without abuse, coercion or intimidation — no probable cause in the traditional sense is necessary in order to obtain the authorization of a judicial officer[.] We conclude that, under a narrowly defined set of circumstances, such detentions can be constitutionally permissible. Davis, 394 U.S. at 727-28, 89 S.Ct. at 1398, 22 L.Ed.2d at 681. Strictly limiting the circumstances under which such detentions take place insures that the restrictions upon individual privacy and freedom interests are minimized so that a showing of need upon less than traditional probable cause can be tolerated. See United States v. Place, supra, [462] U.S. [696] at [703], 103 S.Ct. [2637] at 2642 [77 L.Ed.2d 110 (1983)] (minimally intrusive detention can be supported on less than probable cause); Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d 889 (1983) (permitting police to conduct stop and frisk upon less than probable cause); Michigan v. Long, [463] U.S. [1032], 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (permitting police to conduct protective search for weapons in passenger compartment of car upon less than probable cause); cf. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (permitting search upon probable cause determined by administrative standards). In evaluating whether an officer has acted reasonably under the circumstances, due weight must be given, not to his 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, supra, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909. In other words, the test for reasonable suspicion is whether [b]ased upon the whole picture the detaining officer [had] a particularized and objective basis for suspecting the particular person stopped of criminal activity. State v. Thomas, 110 N.J. 673, 678, 542 A.2d 912 (1988) (quoting Cortez, supra, 449 U.S. at 417, 101 S.Ct. at 694-95 (1981)). The Court in Davis, summarized this principle as follows: New Jersey has long recognized that a temporary street-detention based on less than probable cause may be constitutional. In a pre-Terry decision, we recognized that a police officer’s duties include vital preventive roles and that reason and common sense dictate he should clearly have the right to stop persons on the street for summary inquiry where, as here, the circumstances are so highly suspicious as to call for such an inquiry. [Id. at 503, 517 A.2d 859]. See also State v. Doos, 254 N.J.Super. 122, 128, 603 A.2d 102 (App.Div.), certif. denied, 130 N.J. 17, 611 A.2d 655 (1992); Murphy, supra, 238 N.J. Super. at 550-52, 570 A.2d 451; State v. Kuhn, 213 N.J.Super. 275, 280-281, 517 A.2d 162 (App.Div. 1986). In particular, an unconventional parking style and an engine in operation are additional factors which can augment an officer’s suspicions. See State v. George, 257 N.J.Super. 493, 495-496, 608 A.2d 957 (App.Div. 1992). Here, the officers had the requisite reasonable and articulable suspicion that defendant was engaged in criminal activity. Several factors support the validity of the officer’s actions, including: (a) the late hour of the night; (b) defendant’s car engine was running; (c) defendant’s rear vent window was broken; (d) defendant was sitting alone in the car; (e) defendant’s car was parked unusually far from the registration office; and (f) defendant was in a high crime neighborhood. In addition to permitting an investigatory stop based on particularized suspicion, Terry also authorizes an officer to conduct a limited pat-down frisk of the outer clothing of the person subjected to a stop, in an attempt to discover weapons which might be used to assault him or those nearby. Terry, supra, 392 U.S. at 27-31, 88 S.Ct. at 1883. The Court stated: The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonable prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger … And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his 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. [Id. at 27, 88 S.Ct. at 1883]. New Jersey courts have held that the lateness of the hour and high-crime status of an area are two important factors which can typically elevate an officer’s suspicion that a person is armed and dangerous. See State v. Valentine, 134 N.J. 536, 547, 636 A.2d 505 (1994); State v. Lund, 119 N.J. 35, 48, 573 A.2d 1376 (1990); State v. Otero, 245 N.J.Super. 83, 92, 584 A.2d 260 (App.Div. 1990). Here, the officers had an articulable and reasonable belief that their safety might be in jeopardy, when they saw defendant in his car and in a high-crime neighborhood shortly after midnight. When defendant exited his car and requested that he be able to reach into his pocket to remove his driver’s license, the officers acted reasonably when they patted him down. It was entirely reasonable for the officers to believe that defendant might be armed and, therefore, properly patted him down to protect themselves from foreseeable harm. The officers conduct in this regard falls within the proper scope of a protective search justified by reasonable suspicion under the principles discussed in Terry, supra, Valentine, supra and Lund, supra. See also Minnesota v. Dickerson, 508 U.S. ___, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). State v. Jackson, 276 N.J.Super. 626, 648 A.2d 738 (App.Div. 1994), is distinguishable from the facts of our case and does not support a contrary conclusion. In Jackson, the State stipulated and the police officer later testified that the object contained in defendant’s jacket pocket did not feel like a weapon. Yet, the officer continued to explore defendant’s jacket pocket even after concluding that the object was not a gun. This was not the situation here. In sum, the officers’ conduct was legally valid in light of the legitimate concerns they had for their safety. In this regard, the language of Chief Justice Hughes in State in the Interest of H.B., 75 N.J. 243, 252, 381 A.2d 759 (1977), is still most appropriate and worthy of repeating: While this court has not been reticent in going beyond naked constitutional right as defined by the United States Supreme Court, we think we should not so act in the circumstances here. To do so in the face of the violent climate of the times and the universal threat of handguns, particularly to the policeman as he carries out official duties, would seem foolhardy and wrong, and needlessly expose society and the police community to serious risk of death or injury. Consequently, we hold that the trial court properly denied defendant’s motion to suppress the evidence. III. Finally, we are satisfied that the sentences imposed upon defendant were neither illegal nor excessive. The sentences complied with the provisions of the New Jersey Code of Justice and resulted from the trial court’s thorough analysis and careful weighing of the aggravating factors against the non-existent mitigating factors. The trial court found three aggravating factors: the need for deterring defendant and others from violating the law (N.J.S.A. 2C:44-1a(9)); the risk that defendant would commit another offense (N.J.S.A. 2C:44-1a(3)) and defendant’s prior record (N.J.S.A. 2C:44-1a(6)). The totality of the aggravating factors substantially outweighed the non-existing mitigating factors, and, justified the sentences imposed upon defendant. The trial court’s findings in this regard are amply supported by the record. In our view, the concurrent five-year terms with concurrent two-year periods of parole ineligibility imposed upon defendant for his convictions for possession of a handgun without first having a permit to carry the same and possession of cocaine, are neither manifestly excessive nor unduly punitive. They do not represent a miscarriage of justice or shock the judicial conscience. State v. O’Donnell, 117 N.J. 210, 215-16, 564 A.2d 1202 (1989); State v. Jarbath, 114 N.J. 394, 401, 555 A.2d 559 (1989); State v. Ghertler, 114 N.J. 383, 387-88, 393-94, 555 A.2d 553 (1989); State v. Roth, 95 N.J. 334, 364-65, 471 A.2d 370 (1984). Accordingly, the judgment of conviction and order for commitment under review are affirmed. FootNotes 1. R. 3:16, which was in effect at the time of trial, provided: The defendant shall be present at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by rule, but the defendant’s voluntary absence after trial has commenced in his presence shall not prevent its continuing to and including the return of the verdict…. The defendant’s presence is not required at a reduction of sentence under R. 3:21-10. After this matter had been tried, R. 3:16 was amended, effective September 1, 1992, and now provides: The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule. Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found either from (a) the defendants’ express written or oral waiver placed on the record, or (b) the defendants’ conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court that his or her trial will commence that day, or on the next court date, or (2) trial has commenced in defendants’ presence…. The 1992 Amendment expressly permits a defendant to waive his right to be present at trial by either a written or oral waiver or by conduct evincing what is in effect such a waiver. Pressler, Current N.J. Court Rules, comment on R. 3:16 (1995). Comment Your Name Your Email Comments 1000 Characters Remaining reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions. State v George 1992…/1992/257-n-j-super-493-1.html