STATE OF NEW JERSEY VS. BRUCE A. POOLE (18-08-0457, MERCER COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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 odor of marijuana emanating from the vehicle.
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