STATE OF NEW JERSEY VS. BRUCE A. POOLE (18-08-0457, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 25, 2021
• Docket: A-0128-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0128-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRUCE A. POOLE, a/k/a BRUCE POOL,

Defendant-Appellant. _______________________

Submitted April 28, 2021 – Decided June 25, 2021

Before Judges Vernoia and Enright.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 18-08-0457.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel S. Rockoff, Assistant Deputy Public Defender, of counsel and on the brief).

Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Taylor S. Hicks, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Following the denial of his motion to suppress a handgun seized from his

pocket during a pat-down frisk by police, defendant Bruce A. Poole pleaded

guilty to second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-

7(b)(1), and was sentenced to a five-year custodial term with a five-year period

of parole ineligibility. Defendant appeals from his conviction, challenging the

denial of his suppression motion. Defendant contends the frisk was unlawful

because the State's evidence did not establish the police had a reasonable

suspicion he possessed a weapon, and the search of his person was otherwise

improper because the police did not have probable cause to believe he possessed

marijuana. Unpersuaded by defendant's arguments, we affirm.

I.

During the hearing on defendant's suppression motion, the State presented

the testimony of Trenton Police Department officer Chelsea Quinlan and

detective Matthew Hutchinson. Their testimony, which the court found credible,

established that during the afternoon of June 27, 2018, Quinlan and police

officer John Murphy responded in a marked police vehicle to a report of "shots

fired" on East State Street in Trenton. 1 The location at which it was reported

1 On June 27, 2018, Quinlan was a police officer assigned to the patrol unit. When she testified at the suppression hearing, she held the title of detective. A-0128-19 2 the shots were fired is within a known high-crime area characterized by illegal

narcotics distribution and gun violence. Days earlier, there was a homicide, as

well as a separate shooting, in the area. The Trenton Police Department's

Intelligence Unit had reported to the officers and detectives that gangs were

going "back and forth retaliating against each other for the shootings."

As Quinlan and Murphy approached East State Street in their marked

patrol vehicle with its lights and siren activated, Quinlan observed a black Chevy

Impala with "heavily tinted windows" in the "front and back" and a temporary

Pennsylvania license plate traveling towards them "at a high rate of speed." The

Impala made a "wide left turn." Quinlan testified vehicles with heavily tinted

windows and temporary license plates are frequently used in drive-by shootings,

and that heavily tinted windows constituted a violation of the motor vehicle

code. The Impala was traveling in a direction away from the location Quinlan

understood the reported shots had been fired.

The officers conducted a motor vehicle stop of the Impala. Quinlan

approached the driver's side of the vehicle, and Murphy approached the

passenger side. The officers observed three people in the car: the driver,

defendant; a front passenger; and a rear passenger. The officers also detected

the odor of marijuana emanating from the vehicle.

A-0128-19 3 Quinlan and Murphy returned to their patrol car and requested backup

officers for safety reasons because there were two officers on the scene and three

occupants in the Impala. While in their patrol car, the officers were informed

the "shots fired" call they had received was a false alarm and the alleged shots

had been firecrackers.

Hutchinson, who was assigned to the Trenton Police Department's Street

Crimes Unit, and his partner, Detective Vitter, responded to the scene of the

motor vehicle stop. 2 They parked their police vehicle in front of the Impala.

After exiting the car, Vitter directed the occupants of the Impala "to show their

hands and keep [their] hands where [the officers] could see them." The two

passengers in the vehicle complied with Vitter's directive, but defendant did not .

Instead, he made "movements toward[s] his lap area." As Hutchinson moved

towards the Impala, he detected the odor of marijuana emanating from it.

After conferring with Hutchinson, Quinlan advised the Impala's occupants

that she smelled marijuana and asked them to remove themselves from the car.

Hutchinson removed defendant, who appeared to be "preoccupied with

something in his pants pocket," almost as if he was trying to hide something.

Hutchinson observed that defendant kept looking "back and forth" "towards" his

2 The record does not include Detective Vitter's first name. A-0128-19 4 pocket, he kept "his hand towards his lap area, his pocket area, almost to be in

that specific area of his pocket," and "it seemed like there was something in

[defendant's] pocket he didn’t want [Hutchinson] to see." Hutchinson testified

defendant's movements towards his lap area, his noncompliance with the initial

order to show his hands, the recent and recurring gun violence in the high-crime

area where the Impala was stopped, and Hutchinson's suspicion that defendant

possessed marijuana caused him to believe that defendant might possess a

weapon. Hutchinson therefore decided to conduct a pat-down frisk of defendant

for weapons.

While performing the frisk, Hutchinson felt the outline of an object in

defendant's pocket he recognized as consistent with the size and shape of a

handgun. Hutchinson seized the object, a .22 caliber semi-automatic handgun,

from defendant's pocket. Officers arrested defendant and subsequently searched

the Impala, where they found and seized marijuana in the front driver's side

floorboard.

Following the presentation of evidence at the suppression hearing, the

court found the officers had reasonable suspicion to stop the Impala for the

motor vehicle violations of careless driving, N.J.S.A. 39:4-97, and having

heavily tinted windows, N.J.S.A. 39:3-75. The court noted the officers observed

A-0128-19 5 the Impala traveling at a high rate of speed and turning abruptly, and the car was

stopped in a high-crime area. The court further found removal of defendant

from the car was lawful because the officers detected the "distinct odor of

marijuana emanating from the vehicle."

The court found Hutchinson's pat-down frisk was proper because

defendant "was concerned with his pocket," he "was the one who was operating

the vehicle" when it was stopped, "and the smell of weed . . . emanated from the

car." The court further determined the officers had probable cause to search the

vehicle because they seized a handgun from defendant and otherwise detected

The court entered an order denying defendant's motion to suppress

evidence seized without a warrant. Defendant subsequently pleaded guilty to

second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b)(1),

and was sentenced to a five-year custodial term with a five-year parole

ineligibility period. 3 This appeal followed.

Defendant presents the following argument for our consideration:

3 Pursuant to defendant's plea agreement, the court dismissed two other counts in the indictment charging offenses arising from the June 27, 2018 motor vehicle stop. A-0128-19 6 POINT I

AFTER OFFICERS LEARNED THAT A REPORT OF SHOTS FIRED IN THE AREA WAS FALSE, THERE WAS NO CONSTITUTIONAL BASIS TO FRISK THE OCCUPANTS OF [THE] STOPPED CAR. U.S. Const., [a]mends. IV, XIV; N.J. Const., [a]rt. I., [¶] 7.

II.

"When [an appellate court] review[s] a trial court's denial or grant of a

motion to suppress, [it] 'defer[s] to the factual findings of the trial court so long

as those findings are supported by sufficient evidence in the record.'" State v.

Vincenty, 237 N.J. 122, 131-32 (2019) (quoting State v. Hubbard, 222 N.J. 249,

262 (2015)). We defer to the trial court's factual findings unless they are "clearly

mistaken." State v. Hathaway, 222 N.J. 453, 467 (2015). In contrast, "[a] trial

court's interpretation of the law . . . and the consequences that flow from

established facts are not entitled to any special deference." State v. Gamble, 218

N.J. 412, 425 (2014).

Defendant makes a precise and limited argument on appeal. He does not

dispute that the officer's observations of the manner in which he operated the

Impala, as well as the vehicle's heavily tinted windows, provided a reasonable

and articulable suspicion he committed motor vehicle violations supporting the

motor vehicle stop. See State v. Bacome, 228 N.J. 94, 103 (2017) ("To be

A-0128-19 7 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.'" (quoting State v. Carty, 170 N.J. 632, 639-40 (2002))). He also

does not challenge the officer's directive that he exit the vehicle following the

stop. See State v. Smith, 134 N.J. 599, 611-12 (1994) (explaining "once a motor

vehicle has been lawfully [detained,] . . . police officers may order the driver to

get out of the vehicle without violating the Fourth Amendment's proscription

against unreasonable searches and seizures" (quoting Pennsylvania v. Mimms,

434 U.S. 106, 111 n.6 (1977))). Defendant argues only that the frisk was

unlawful because the officers lacked an objectively reasonable basis to suspect

he had a weapon or was dangerous.

"The Fourth Amendment to the United States Constitution and Article I,

paragraph 7 of the New Jersey Constitution require that police officers obtain a

warrant 'before searching a person's property, unless the search "falls within one

of the recognized exceptions to the warrant requirement."'" State v. Cassidy,

179 N.J. 150, 159-60 (2004) (quoting State v. DeLuca, 168 N.J. 626, 631

(2001)). Where a search is conducted without a warrant, the State has the burden

to prove, by a preponderance of evidence, that it "falls within one of the few

A-0128-19 8 well-delineated exceptions to the warrant requirement." State v. Pineiro, 181

N.J. 13, 19-20 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).

Included among the "constitutionally permissible forms of police

encounters that do not constitute searches or seizures for purposes of the warrant

requirement" is "an investigatory stop, sometimes referred to as a 'Terry' stop or

a 'stop and frisk.'" 4 State v. Privott, 203 N.J. 16, 24-25 (2010) (footnote

omitted). A "frisk" is "a carefully limited search of the outer clothing of [a

suspect] [] in an attempt to discover weapons which might be used to assault [an

officer]." Id. at 26 (second alteration in original) (quoting Terry, 392 U.S. at

30). An officer may lawfully frisk a suspect when he or she has "a 'specific and

particularized basis for an objectively reasonable suspicion that [the suspect is]

armed and dangerous.'" State v. Roach, 172 N.J. 19, 27 (2002) (quoting State

v. Thomas, 110 N.J. 673, 683 (1988)); see also State v. Matthews, 398 N.J.

Super. 551, 557 (App. Div. 2008). Conversely, an officer's frisk for weapons is

unlawful if he or she lacks an objectively reasonable and articulable suspicion

to believe a suspect is armed and dangerous. Thomas, 110 N.J. at 679 (quoting

Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979)).

4 The United States Supreme Court established the standard for constitutionally permissible investigatory stops and pat-down frisks in Terry v. Ohio, 392 U.S. 1 (1968). A-0128-19 9 "The existence of an objectively reasonable suspicion is based on the

totality of the circumstances." Roach, 172 N.J. at 27 (citing State v. Valentine,

134 N.J. 536, 546 (1994)). Even "a group of innocent circumstances in the

aggregate can support a reasonable suspicion finding." State v. Bard, 445 N.J.

Super. 145, 160 (App. Div. 2016) (citing State v. Stovall, 170 N.J. 346, 368

(2002)). Factors that support an articulable and reasonable suspicion a suspect

is armed and dangerous include: a stop occurring in a high-crime area, see

Privott, 203 N.J. at 26; see also Valentine, 134 N.J. at 547 (explaining "the

location of the investigatory stop can reasonably elevate a police officer's

suspicion that a suspect is armed"); the knowledge and experience of police

officers, see Valentine, 134 N.J. at 547 ("Terry itself acknowledges that police

officers must be permitted to use their knowledge and experience in deciding

whether to frisk a suspect."); see also Bard, 445 N.J. Super. at 156-57; and a

suspect's movements towards a waistband, pocket, or other area of the body

where the suspect is likely to conceal a weapon, see, e.g., Privott, 203 N.J. at

29; Bard, 445 N.J. Super. at 157-58; State v. Bellamy, 260 N.J. Super. 449, 457

(App. Div. 1992).

In assessing "the lawfulness of an investigatory stop, a reviewing court

must 'evaluate the totality of circumstances surrounding the police-citizen

A-0128-19 10 encounter, balancing the State's interest in effective law enforcement against the

individual's right to be protected from unwarranted and/or overbearing police

intrusions.'" Privott, 203 N.J. at 25-26 (quoting State v. Davis, 104 N.J. 490,

504 (1986)). "[A]n 'officer need not be absolutely certain that the individual is

armed'"; "the test under Terry 'is whether a reasonably prudent man [or woman]

in the circumstances would be warranted in the belief that his [or her] safety or

that of others was in danger.'" State v. Diloreto, 180 N.J. 264, 276 (2004)

(quoting Terry, 392 U.S. at 27). "[T]he same conduct that justifies an

investigatory stop may also present the officer with a specific and particularized

reason to believe that the suspect is armed." Privott, 203 N.J. at 30.

Here, as noted, the officers stopped the vehicle in a high-crime area known

for gun violence and illegal narcotics distribution. There had been a murder and

another shooting in the area in the days preceding the motor vehicle stop, and

the police department's intelligence unit informed the officers that gangs were

retaliating against each other in response to shootings. Based on their

experience, the officers understood that vehicles with heavily tinted windows

and temporary out-of-state license plates, like the Impala defendant operated,

were frequently used in drive-by shootings. In addition, after the motor vehicle

stop, defendant failed to comply with the officer's directive to show his hands

A-0128-19 11 and keep his hands where they could be seen, and instead kept his hands near

his lap. Once he exited the vehicle, defendant kept his hand near his pocket as

he continuously looked toward his pocket. Further, the officers detected the

odor of marijuana emanating from the vehicle, and thereby reasonably

understood defendant was engaged in criminal activity. 5 In our view, that

5 Our Supreme Court has held that mere suspicion a suspect is in possession of an illegal drug is insufficient to support a pat-down search, but the Court also explained it did not adopt a "hard and fast rule that suspicion of illegal drug possession never can form the basis for a protective search of a suspect." Thomas, 110 N.J. at 685. Contrary to defendant's contention, the motion court did not base its finding the pat-down frisk was lawful only upon the officers' detection of the odor of marijuana, and we do not find the officers' detection of the odor alone permitted the pat-down frisk. The odor of marijuana, however, supported a suspicion defendant was engaged in criminal activity, see State v. Nishina, 175 N.J. 502, 515-16 (2003) (finding the odor of marijuana supports a probable cause finding that a crime has been or is going to be committed), and thereby constituted a proper factor in the totality of the circumstances presented supporting an objectively reasonable basis to believe defendant was armed, see, e.g., Valentine, 134 N.J. at 551 (explaining an officer's reasonable suspicion a suspect "was engaged or about to become engaged in criminal activity" is a factor to be considered among the totality of the circumstances to determine if a pat-down search is justified); see also United States v. Oates, 560 F.2d 45, 62 (2d Cir. 1977) (noting courts "have recognized that to 'substantial dealers in narcotics[,]' firearms are as much 'tools of the trade' as are most commonly recognized articles of narcotics paraphernalia" (quoting United States v. Wiener, 534 F.2d 15, 18 (2d Cir. 1976))). We note that following the February 22, 2021 effective date of the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, L. 2021, c. 16, the odor of marijuana "shall not constitute reasonable articulable suspicion to initiate a search of a person to determine" if a suspect committed the fourth-degree offense of possession of more than six ounces of marijuana as proscribed in N.J.S.A. 2C:35-10(a)(3)(b). N.J.S.A. 2C:35-10(a)(3)(b)(i). A-0128-19 12 confluence of circumstances, when considered in its totality, established an

objectively reasonable basis supporting a belief by a reasonably prudent officer

that his or her safety was in danger and defendant was armed. See Terry, 392

U.S. at 27; Diloreto, 180 N.J. at 276; see also Thomas, 110 N.J. at 679

(explaining the reasonableness of a pat-down frisk is measured by an objective

standard and not the subjective impressions of the officers).

During the frisk, Hutchinson felt the outline of an object that he

recognized as consistent with the size and shape of a handgun in defendant's

right pants pocket. When "a police officer lawfully pats down a suspect's outer

clothing and feels an object whose contour or mass makes its identity

immediately apparent," that contraband lawfully may be seized without a

warrant. State v. Evans, 235 N.J. 125, 136 (2018) (quoting Minnesota v.

Dickerson, 508 U.S. 366, 375 (1993)). Accordingly, the seizure of the handgun

from defendant's pocket was lawful, ibid., and the court correctly denied

defendant's suppression motion.6

6 We also observe that even if the frisk was unlawful, the evidence presented at the hearing supports the court's order denying the suppression motion. "[T]he inevitable discovery doctrine allows for the admission of evidence obtained through law enforcement's unconstitutional conduct if that evidence would have been discovered in the absence of that unlawful conduct." State v. Camey, 239

A-0128-19 13 N.J. 282, 301 (2019). Under this doctrine, the State bears the burden of proving by clear and convincing evidence that

(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.

[State v. Maltese, 222 N.J. 525, 552 (2015) (quoting State v. Johnson, 120 N.J. 263, 289 (1990)).]

Here, the evidence established the officers' detection of the odor of marijuana in the Impala following the unanticipated motor vehicle stop provided probable cause for a permissible search of the vehicle. State v. Rodriguez, 459 N.J. Super. 13, 22, 25-26 (App. Div. 2019); see also State v. Witt, 223 N.J. 409, 447-48 (2015). Thus, independent of the pat-down frisk, the officers would have searched the vehicle and discovered the marijuana. Upon seizing the marijuana, it would have been both proper and normal for officers to arrest the vehicle's occupants, including defendant who operated the vehicle, and search the occupants incident to arrest. See State v. Oyenusi, 387 N.J. Super. 146, 154 (App. Div. 2006) (recognizing an officer may search a suspect incident to an arrest "to disarm the arrestee and preserve evidence for later use at trial"). Once officers searched defendant incident to his arrest, they would have immediately discovered the handgun in defendant's pocket. In other words, even if officers did not frisk defendant, they would have inevitably discovered the handgun on his person after arresting him for possession of marijuana and searching him incident to arrest. Thus, assuming Hutchinson's frisk of defendant was unlawful, the handgun was otherwise admissible under the inevitable discovery doctrine. A-0128-19 14 To the extent we have not expressly addressed any other of defendant's

contentions, we find they are without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2).

Affirmed.

A-0128-19 15