NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2983-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAMIK T. ROMERO,
Defendant-Appellant.
Submitted December 16, 2020 –Decided March 4, 2021
Before Judges Alvarez and Geiger.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 17-02-0096.
Joseph E. Krakora, Public Defender, attorney for appellant (Margaret McLane, Assistant Deputy Public Defender, and Lisa Waters, Assistant Deputy Public Defender, of counsel and on the briefs).
Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Shamik T. Romero appeals the denial of his motion to suppress
evidence, after which he entered a guilty plea to second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(d). The State agreed to a Graves Act
waiver, and pursuant to a non-negotiated plea, defendant was sentenced to a
term of four years' probation concurrent with his New York parole. We now
reverse and remand.
At approximately 1:50 a.m. on September 13, 2016, City of Elizabeth
Police Officer Edward J. Benenati, Jr., was on routine patrol with another
officer, Joshua S. Kelly, when he noticed a broken left taillight on the car i n
front of him. Benenati and Kelly verified the Florida plates were legitimate as
they followed the car while it made a right-hand turn into a darkened "dead end
industrial area . . . ." The vehicle pulled over before the officers engaged the
overhead lights. Benenati considered the location to be a high crime area. Both
officers' body cameras were working, and the judge saw video clips from both
devices.
When the officers approached, defendant had his door open and was
looking in the front and back seat of the car. Defendant told the officers he had
lost his license but had a temporary one. He searched through the vehicle,
A-2983-18 2 avoiding the center console, stepping out momentarily to check his pockets and
then returning to continue searching.
Defendant also told the officers the vehicle belonged to his father, who
was staying two blocks away. When his cell phone rang, Benenati ordered him
not to answer and to put the phone down. Defendant told Benenati his father
was calling and that he might have the registration on his phone. Benenati again
ordered him to put the phone down.
Benenati, whom the judge found credible, said defendant was excited,
talking a lot, moving a lot, and unable to sit still. Defendant touched a bag on
the back seat of his car but did not open it. In the driver's side door pocket,
Benenati saw a clear plastic bag tied with a knot that he thought might hold
controlled dangerous substances. Benenati said he became apprehensive as a
result of defendant's demeanor and behavior.
Kelly, called by defendant as his witness in the suppression hearing,
testified that he did not believe that defendant posed a threat to the officers'
safety. This contrasted with Benenati's conclusion that he was at risk.
Benenati asked defendant to step out of his car. Defendant attempted to
bring his cell phone when doing so, but Benenati told him to leave it because he
does not allow suspects to use their cell phones during motor vehicle stops.
A-2983-18 3 Benenati directed defendant to place his hands on top of the car, patted
him down for weapons, felt a bulge in defendant's pocket, reached into it, but
found nothing. He placed defendant in the rear of the police vehicle, over
defendant's objection that he could not be legally required to do so. Benenati
responded that it was legal but did not handcuff him.
When asked, defendant gave his name, date of birth, and social security
number. He stated he was staying with his father around the corner and gave
the address, two blocks away from the stop. Defendant explained his father
registered the car in Florida when he lived there. Benenati checked New York
and New Jersey databases, but could not verify that defendant had a driver's
license.
Benenati then conducted a search of the vehicle, stating he feared there
was a weapon inside. Using a flashlight, he checked the driver's door pocket,
only to find the plastic bag he previously saw was ripped open and empty. He
then began to search the center console, glove compartment, and back seat. Not
finding anything of interest, he returned to the police car.
Benenati confirmed that defendant's father's name matched the Florida
registration. He checked that the VIN plate matched the Florida registration.
After further questioning defendant, Benenati then returned to defendant's
A-2983-18 4 vehicle to search the center console because defendant appeared to have avoided
it during his search for documents. Having found nothing there, as he was
backing out, he glimpsed a gun stuffed between the driver's seat and the center
console. Benenati testified that the only reason he searched the vehicle was
because he was concerned it held weapons.
The judge found the motor vehicle stop lawful because the broken taillight
on defendant's vehicle violated N.J.S.A. 39:3-66. She concluded "that the
officers lawfully stopped defendant's car because his rear lamp was not in 'good
working order.'"
The judge also concluded that the officers' removal of defendant from the
vehicle, direction to defendant to sit in the police car, and subsequent search of
defendant's car, were justified. She opined that despite State v. Lark's1
prohibition against an arrest for driving without a license, it would have been
unreasonable for the officers to permit defendant to continue on his way after
producing only the registration. The judge weighed the lateness of the hour, the
empty plastic bag, the neighborhood, and defendant's behavior, to decide the
officer had a reasonable and articulable suspicion that defendant was involved
1 163 N.J. 294, 296 (2000). A-2983-18 5 in criminal activity. Therefore, the officer was entitled to search the vehicle and
defendant's person.
The judge specifically found that although upon removing the knotted
plastic bag, the officer was able to confirm that defendant was not in possession
of any drugs, Benenati "still was not able to confirm defendant's identity or
driver's license status" and therefore had a lawful basis for continuing to detain
him. Given the officers' polite demeanor towards defendant, his approximately
ten-minute detention "did not amount to a de facto arrest."
In the judge's view, despite State v. Lund, holding that a defendant's
anxious demeanor does not alone give rise to a suspicion of criminal activity or
a basis to search a vehicle, in this case, the early morning stop in a "desolate
area" justified Benenati's belief that the car might contain weapons potentially
dangerous to the officers. 119 N.J. 35 (1990).
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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-2983-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAMIK T. ROMERO,
Defendant-Appellant.
Submitted December 16, 2020 –Decided March 4, 2021
Before Judges Alvarez and Geiger.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 17-02-0096.
Joseph E. Krakora, Public Defender, attorney for appellant (Margaret McLane, Assistant Deputy Public Defender, and Lisa Waters, Assistant Deputy Public Defender, of counsel and on the briefs).
Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Shamik T. Romero appeals the denial of his motion to suppress
evidence, after which he entered a guilty plea to second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(d). The State agreed to a Graves Act
waiver, and pursuant to a non-negotiated plea, defendant was sentenced to a
term of four years' probation concurrent with his New York parole. We now
reverse and remand.
At approximately 1:50 a.m. on September 13, 2016, City of Elizabeth
Police Officer Edward J. Benenati, Jr., was on routine patrol with another
officer, Joshua S. Kelly, when he noticed a broken left taillight on the car i n
front of him. Benenati and Kelly verified the Florida plates were legitimate as
they followed the car while it made a right-hand turn into a darkened "dead end
industrial area . . . ." The vehicle pulled over before the officers engaged the
overhead lights. Benenati considered the location to be a high crime area. Both
officers' body cameras were working, and the judge saw video clips from both
devices.
When the officers approached, defendant had his door open and was
looking in the front and back seat of the car. Defendant told the officers he had
lost his license but had a temporary one. He searched through the vehicle,
A-2983-18 2 avoiding the center console, stepping out momentarily to check his pockets and
then returning to continue searching.
Defendant also told the officers the vehicle belonged to his father, who
was staying two blocks away. When his cell phone rang, Benenati ordered him
not to answer and to put the phone down. Defendant told Benenati his father
was calling and that he might have the registration on his phone. Benenati again
ordered him to put the phone down.
Benenati, whom the judge found credible, said defendant was excited,
talking a lot, moving a lot, and unable to sit still. Defendant touched a bag on
the back seat of his car but did not open it. In the driver's side door pocket,
Benenati saw a clear plastic bag tied with a knot that he thought might hold
controlled dangerous substances. Benenati said he became apprehensive as a
result of defendant's demeanor and behavior.
Kelly, called by defendant as his witness in the suppression hearing,
testified that he did not believe that defendant posed a threat to the officers'
safety. This contrasted with Benenati's conclusion that he was at risk.
Benenati asked defendant to step out of his car. Defendant attempted to
bring his cell phone when doing so, but Benenati told him to leave it because he
does not allow suspects to use their cell phones during motor vehicle stops.
A-2983-18 3 Benenati directed defendant to place his hands on top of the car, patted
him down for weapons, felt a bulge in defendant's pocket, reached into it, but
found nothing. He placed defendant in the rear of the police vehicle, over
defendant's objection that he could not be legally required to do so. Benenati
responded that it was legal but did not handcuff him.
When asked, defendant gave his name, date of birth, and social security
number. He stated he was staying with his father around the corner and gave
the address, two blocks away from the stop. Defendant explained his father
registered the car in Florida when he lived there. Benenati checked New York
and New Jersey databases, but could not verify that defendant had a driver's
license.
Benenati then conducted a search of the vehicle, stating he feared there
was a weapon inside. Using a flashlight, he checked the driver's door pocket,
only to find the plastic bag he previously saw was ripped open and empty. He
then began to search the center console, glove compartment, and back seat. Not
finding anything of interest, he returned to the police car.
Benenati confirmed that defendant's father's name matched the Florida
registration. He checked that the VIN plate matched the Florida registration.
After further questioning defendant, Benenati then returned to defendant's
A-2983-18 4 vehicle to search the center console because defendant appeared to have avoided
it during his search for documents. Having found nothing there, as he was
backing out, he glimpsed a gun stuffed between the driver's seat and the center
console. Benenati testified that the only reason he searched the vehicle was
because he was concerned it held weapons.
The judge found the motor vehicle stop lawful because the broken taillight
on defendant's vehicle violated N.J.S.A. 39:3-66. She concluded "that the
officers lawfully stopped defendant's car because his rear lamp was not in 'good
working order.'"
The judge also concluded that the officers' removal of defendant from the
vehicle, direction to defendant to sit in the police car, and subsequent search of
defendant's car, were justified. She opined that despite State v. Lark's1
prohibition against an arrest for driving without a license, it would have been
unreasonable for the officers to permit defendant to continue on his way after
producing only the registration. The judge weighed the lateness of the hour, the
empty plastic bag, the neighborhood, and defendant's behavior, to decide the
officer had a reasonable and articulable suspicion that defendant was involved
1 163 N.J. 294, 296 (2000). A-2983-18 5 in criminal activity. Therefore, the officer was entitled to search the vehicle and
defendant's person.
The judge specifically found that although upon removing the knotted
plastic bag, the officer was able to confirm that defendant was not in possession
of any drugs, Benenati "still was not able to confirm defendant's identity or
driver's license status" and therefore had a lawful basis for continuing to detain
him. Given the officers' polite demeanor towards defendant, his approximately
ten-minute detention "did not amount to a de facto arrest."
In the judge's view, despite State v. Lund, holding that a defendant's
anxious demeanor does not alone give rise to a suspicion of criminal activity or
a basis to search a vehicle, in this case, the early morning stop in a "desolate
area" justified Benenati's belief that the car might contain weapons potentially
dangerous to the officers. 119 N.J. 35 (1990). She analyzed Benenati's failure
to find a weapon on defendant's person to merely "underscore[] the need to
inspect the interior of the vehicle to make sure it did not contain a weapon before
[defendant] . . . reentered [it]." State v. Gamble, 218 N.J. 412, 427 (2014).
Therefore, the protective sweep of defendant's car was warranted, and the
handgun should not be suppressed.
On appeal, defendant raises the following points:
A-2983-18 6 POINT I
THE POLICE DID NOT HAVE A VALID BASIS FOR THE MOTOR VEHICLE STOP.
POINT II
THE POLICE WERE NOT ALLOWED TO SEARCH THE CAR, LET ALONE REENTER AND CONDUCT A SECOND SEARCH UNDER THE PROTECTIVE SWEEP DOCTRINE.
A. THE PROTECTIVE SWEEP WAS ILLEGAL BECAUSE THERE WAS NO OBJECTIVE, REASONABLE BASIS TO BELIEVE THAT THERE WAS A WEAPON IN THE CAR, AND DEFENDANT DID NOT HAVE IMMEDIATE ACCESS TO THE CAR.
B. THE POLICE WERE NOT ALLOWED TO REENTER AND CONDUCT A SECOND SEARCH OF THE CAR UNDER THE PROTECTIVE SWEEP DOCTRINE.
We do not address defendant's challenge to the motor vehicle stop, as we
consider it so lacking in merit as to not warrant discussion in a written opinion.
R. 2:11-3(e)(2). We reach a different conclusion regarding the protective sweep
of defendant's car.
An exception to the warrant requirement is a protective sweep of a vehicle,
permitted when the totality of the circumstances gives rise to a suspicion that a
driver or passenger "[is] dangerous and may gain immediate access to weapons."
A-2983-18 7 Gamble, 218 N.J. at 432 (citing Michigan v. Long, 463 U.S. 1032, 1049 (1983));
Lund, 119 N.J. at 48. The purpose of a protective sweep is to protect police
officers from weapons that might be used against them. Gamble, 218 N.J. at
433. The sweep "must be cursory and limited in scope to the location where the
danger may be concealed." State v. Robinson, 228 N.J. 529, 534 (2017).
When a warrantless search is challenged, "the State bears the burden of
establishing by a preponderance of the credible evidence that the search fits
within the scope of one of [the] exceptions." State v. Minitee, 210 N.J. 307, 318
(2012).
Here, defendant repeatedly insisted the car was registered and licensed to
his father, who had lived in Florida, and who lived nearby. The Florida plates
and registration were in good order. In fact, this bears strong resemblance to
the Lark situation, where a routine motor vehicle stop occurred. 163 N.J. at 296.
Ordinarily, there is no right to arrest for a motor vehicle offense. Ibid. An
otherwise proper motor vehicle stop should not be used as the gateway for
officers to ask drivers to step out, to search them, and upon finding nothing, to
direct them to be seated in a police car while a search of the interior of the
motorist's car is conducted. See ibid.
A-2983-18 8 Defendant's removal from the car was improper, as was his detention in
the patrol car. The search of his person and the two searches of his car were
also improper. The seizure occurred because of Benenati's hunch—and that is
not enough to salvage the search. See State v. Coles, 218 N.J. 322, 344 (2014).
Reasonable and articulable suspicion is defined as a level of suspicion that
"is considerably less than proof of wrongdoing by a preponderance of the
evidence." United States v. Sokolow, 490 U.S. 1, 7 (1989). The test is objective
and must weigh the totality of the circumstances.
In Lund, the Florida-registered vehicle was occupied by the driver and
two passengers. 119 N.J. at 41. Although the driver was unable to produce
proof of registration, he did produce a Massachusetts driver's license. While the
officer was speaking to him, the driver kept turning and looking into the back
seat, so nervous that his "voice was cracking." Ibid. The pat-down search did
not reveal a weapon. When the officer returned to defendant's vehicle and
searched the back, he reached into the crevice of the seat, discovering an
envelope containing a large quantity of cocaine. Id. at 42. Even in that scenario,
the Court invalidated the search on the basis that mere nervousness and furtive
gestures simply do not give rise to an articulable suspicion suggesting criminal
activity. Id. at 47. A nervous reaction on the part of a driver is simply not
A-2983-18 9 unusual, nor would it be in this case where defendant did not have a driver's
license. There was nothing inherent in the stop in Lund any more than in this
case that should have given rise to a concern that the defendant was in possession
of a weapon that would have posed a risk to the officers.
Similarly, in Robinson, officers stopped a car for a motor vehicle
infraction after they observed it leaving a motel known for drug activity. 228
N.J. at 534-35. When questioned, the driver and his passengers all gave
confusing and evasive answers. Id. at 534. When the officer conducted a search
of the law enforcement database available from the troop car, two of these
individuals were flagged as known to carry weapons. Ibid. Thus, the officer's
reasonable and articulable suspicion in that case arose not just from the reaction
of the car's occupants, and the late hour, but the fact they were known to law
enforcement as often carrying weapons, the high crime area, and confusing and
evasive answers. Nonetheless, the Court held that although the officers had a
reasonable suspicion to believe a weapon was present, the protective sweep was
invalid. The officers' swift and coordinated actions eliminated the risk that
anyone would gain immediate access to weapons. Id. at 547. The driver and
passengers were detained. The number of police officers outnumbered the
occupants of the vehicle. Id. at 549.
A-2983-18 10 Here, defendant did not provide confusing or evasive answers. He told
the officers that the car was owned by his father and was registered in Florida,
a fact they confirmed. He told them that his father was two blocks away, a fact
also confirmed by police databases. When Benenati frisked defendant, finding
neither contraband nor weapons on his person, that should have put to rest an y
fear that a weapon that posed a risk of harm was in the vehicle. The generalities
Benenati used to justify the protective sweep were insufficient to establish a
reasonable, objective fear that defendant had a weapon.
But after the initial sweep that uncovered neither contraband nor weapons,
the officer made a second search, also lacking in legal justification. The State's
characterization of the second search as merely a continuation of the first
because the officer had not finished is not supported by the record. In any event,
each warrantless entry and sweep requires a separate legal justification. Arizona
v. Hicks, 480 U.S. 321, 324-25 (1987); State v. Williams, 930 F.3d 44, 53 (2d
Cir. 2019) (holding two consecutive automobile inventory searches are each
separate, distinct, and each require legal justification).
It is well-established in New Jersey that law enforcement may conduct a
Terry stop and lawfully detain an individual for a traffic violation only for so
long as is necessary to investigate. State v. Dickey, 152 N.J. 468, 475-76 (1998).
A-2983-18 11 Any questioning must be limited to matters directly related to the stop. State v.
Baum, 393 N.J. Super. 275, 286 (App. Div. 2007) (citing Terry, 392 U.S. at 20)
(holding that during an investigatory stop, the officer's conduct and search must
be "reasonably related in scope to the circumstances which justified the
interference in the first place."), aff’d as modified, 199 N.J. 407 (2009).
An officer can request that the driver produce their license, registration,
and proof of insurance. Ibid.; accord Delaware v. Prouse, 440 U.S. 648, 659
(1979); see State v. Perlstein, 206 N.J. Super. 246, 253 (App. Div. 1985)
(holding driver is required to produce driver's license, registration, and
insurance ID card when requested to do so). Additionally, the officer can pose
routine questions to a motorist about their whereabouts. Baum, 393 N.J. Super.
at 286-87. See also United States v. Bloomfield, 40 F.3d 910, 915-16 (8th Cir.
1994) (officer requesting driver's license, rental agreement, and request for
driver to accompany officer to police vehicle while officer radio checked the
license was within the scope of a traffic stop). But during the stop, the officer
must conduct the investigation in a manner intended to promptly complete the
investigation of the traffic violation. Dickey, 152 N.J. at 477 (citing United
States v. Sharpe, 470 U.S. 675, 686 (1985)).
A-2983-18 12 An investigative stop becomes a de facto arrest requiring probable cause
"when 'the officers' conduct is more intrusive than necessary for an investigative
stop.'" Dickey, 152 N.J. at 478. In this case, nothing came to the officer's
attention which justified the extension of the search. The detention became a de
facto arrest. See State v. Shaw, 237 N.J. 588, 612 (2019) ("There is no simple
test for determining at which point a prolonged investigative stop turns into a de
facto arrest, but important factors include unnecessary delays, handcuffing the
suspect, confining the suspect in a police car, transporting the suspect, isolating
the suspect, and the degree of fear and humiliation engendered by the police
conduct.").
Once Benenati examined the empty plastic bag, assuming his look was
lawful, he had no basis to continue the traffic stop. See Dickey, 152 N.J. at 179-
80. Although Benenati may have had a basis to order defendant out of the
vehicle, once an individual is detained, "a police officer must have a reasonable,
articulable suspicion that the person [stopped] is involved in criminal or
unlawful activity beyond that which initially justified the stop." State v.
Bernokeits, 423 N.J. Super. 365, 371-72 (App. Div. 2011) (citing State v. Davis,
104 N.J. 490, 504 (1986)). After the pat down, Benenati led defendant to the
back of the police vehicle, even though he had no objective reason to search.
A-2983-18 13 Questioning him there, he then returned to conduct his first protective swee p.
He looked inside the pocket of the driver's door, looked around the center
console and under the glove compartment, searched the back seat and moved
items around as he believed defendant was concealing something. Benenati
checked the plastic bag he thought might have contained drugs, but it was ripped
open. Based on these factors, it seems clear there was no continued reasonable
suspicion justifying that second sweep.
The State argues that Benenati had the right to search the center console
as a proper credential sweep. We do not reach that argument because it was not
previously raised. See State v. Witt, 223 N.J. 409, 419 (2015) (holding "the
points of divergence developed in proceedings before a trial court define the
metes and bounds of appellate review" and "[f]or sound jurisprudential reasons,
with few exceptions, our appellate courts will decline to consider questions or
issues not properly presented to the trial court when an opportunity for such a
presentation is available").
Furthermore, the argument ignores the obvious. There was simply "no
particularized suspicion" that defendant was engaged in some criminal activity
justifying his further detention. Shaw, 237 N.J. at 613. We reverse the trial
judge's decision denying the suppression of the handgun and remand the matter
A-2983-18 14 for further proceedings in accord with this decision. The motion to suppress
should have been granted.
Reversed.
A-2983-18 15