STATE OF NEW JERSEY VS. AHLONZO S. MILLER (18-04-0435, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-2195-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AHLONZO S. MILLER,
Defendant-Appellant.
Submitted January 19, 2021 – Decided March 8, 2021
Before Judges Sabatino and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 18-04-
0435.
Law Offices of Fetky & Petty, LLC, attorneys for
appellant (Jonathan M. Petty, of counsel and on the
brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outeiro, Assistant Prosecutor, of counsel and on the
brief; Katrina Koerner, Legal Assistant, on the brief).
PER CURIAM
Defendant Ahlonzo Miller appeals from the April 5, 2019 order denying
his motion to suppress evidence seized following a stop of his vehicle. We
affirm.
We derive the facts from testimony presented at the suppression hearing.
On January 19, 2018, Belmar police officer Lawrence Kelly and Detective
Michael Campbell were patrolling the area near the Marina View Towers, an
area known to police for narcotics activity. Campbell was driving an unmarked
vehicle; Kelly was in a marked patrol car.
At approximately 5:59 p.m., Campbell radioed Kelly he had observed a
"suspicious white pickup truck" run a stop sign located at the intersection of
11th and Railroad Avenues. Campbell then saw the truck turn left onto Railroad
Avenue and park for three to five minutes. The truck then "headed north on
Railroad Avenue, up to a stop sign, then made a left on 10th Avenue . . . going
westbound."
Kelly turned onto 10th Avenue and began to follow the truck. He
observed it make a "right off of 10th Avenue onto Railroad Avenue without
signaling[.]" According to Kelly, it appeared the vehicle was circling the block
around Marina View Towers.
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After observing the motor vehicle violation, Kelly initiated a motor
vehicle stop by activating his lights and sirens. The driver, identified as
defendant, pulled over and Kelly approached the truck. Defendant provided his
license and registration upon request. Thereafter, Campbell arrived at the scene
and joined the stop.
When Kelly asked defendant where he was going, defendant replied he
was "just getting off of work and heading home to Lake Como." Defendant told
Kelly his vehicle was a work truck and did not belong to him. Kelly noted that
defendant "began to get nervous" and "seemed very confused." Kelly testified
that defendant's answers were delayed, as if he had to think about them.
Kelly asked defendant if he knew anyone who lived in Marina View
Towers; defendant replied that he did not. Defendant stated he was circling the
Towers because he was looking at papers; however, he could not produce these
papers upon Kelly's request. Defendant repeatedly looked down at his hands in
his lap, which were not visible to Kelly due to the height of the truck.
Because of defendant's nervous behavior and hesitant and confusing
answers, along with his repeated gaze towards his lap, Kelly became concerned
for his safety. He asked defendant if there was anything in the truck he should
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know about, to which defendant replied, "I ain't saying anything." Kelly then
asked defendant to get out of the vehicle.
As defendant did so, Kelly observed "a big bulge coming out of
[defendant's] left pocket." When Kelly asked defendant about the bulge,
defendant turned away from the officers so they could no longer see the bulge
and replied "I ain't saying nothing." Kelly instructed defendant to put his hands
on the truck. Defendant refused to follow the instruction and the officers had to
place defendant's hands on the truck. Kelly performed a pat-down of the exterior
of defendant's clothes. Kelly did not manipulate the bulge or look at it while
performing the pat-down.
When Kelly felt the bulge in defendant's pocket, he "[i]mmediately"
recognized it as packaged heroin. Kelly testified he recognized the package as
heroin because of his extensive experience in heroin investigations coupled with
his training.
Thereafter, Kelly handcuffed defendant and removed the package from
defendant's pants. The package contained 100 wax folds of heroin. Defendant
also had three cell phones and $2047 in cash on his person. A search of the
truck yielded an additional cell phone and $150 in cash.
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Defendant was charged with third-degree possession of a controlled
dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession
of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(3); and third-degree
possession of CDS with intent to distribute on or within 1000 feet of school
property, N.J.S.A. 2C:35-7. He later moved to suppress the evidence found
during the search of his person and the truck.
At the suppression hearing, defendant argued that the evidence seized
from him and the vehicle should be suppressed because it was discovered during
an improper motor vehicle stop. He asserted that Kelly did not have reasonable
suspicion that defendant was engaged in criminal activity and the police
improperly prolonged the traffic stop by asking questions in the hope of creating
a reason to justify further police action. Lastly, defendant argued that Kelly did
not stop the vehicle after the first alleged traffic infraction which indicated there
was no actual reason to initiate a traffic stop.
Judge David F. Bauman denied the motion to suppress in a comprehensive
April 12, 2019 oral decision. In finding Kelly's testimony credible, the judge
noted Kelly observed defendant commit a motor vehicle infraction when he
failed to signal before turning. Therefore, the officer had "a reasonable and
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articulable suspicion that a motor vehicle offense had been committed, thereby
justifying his stop of . . . defendant."
Because the stop of defendant's vehicle was lawful, Judge Bauman
reasoned the officers were entitled to conduct a routine inquiry and question
defendant about the motor vehicle offense as well as defendant's route of travel
and purpose. They also had the right to request defendant to get out of his
vehicle.
In addition, the judge found the stop was not unduly prolonged and that it
was reasonable in duration. He stated:
When Patrolman Kelly asked defendant why he was
circling the complex defendant told him he was just
heading home. Defendant could not articulate a reason
for circling and idling in front of the Marina View
Towers, an area that the [o]fficers knew to be a known
drug area.
The State also asserts through the testimony of
Patrolman Kelly whose testimony the [c]ourt found
credible that . . . defendant became visibly nervous and
continuously looked in the direction of his left which
the [o]fficers could not see given the elevation of the
vehicle.
Based on the totality of the circumstances the [c]ourt
finds that the [o]fficers had a reasonable suspicion to
broaden the scope of the initial traffic stop, which they
did by ultimately ordering . . . defendant out of the
vehicle.
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Therefore, . . . defendant's motion to suppress evidence
based on the assertion the stop of the vehicle was
improperly prolonged is denied.
Although defendant did not challenge the pat-down and subsequent search
of his person and vehicle, Judge Bauman addressed those issues and determined
they were properly executed. The judge noted that after defendant got out of the
truck, Kelly noticed a bulge in defendant's pocket which defendant attempted to
hide from him. The judge found Kelly had a "reasonable belief that . . .
defendant was armed and dangerous[.]" And a pat-down was warranted. The
judge further explained, "[W]hile conducting a lawful pat-down of . . . defendant
Patrolman Kelly found an item that from his training and experience h e
immediately recognized to be evidence of a crime. Accordingly, he was
authorized to seize the item which turned out to be a controlled dangerous
substance."
After finding 100 folds of heroin, over $2000 in cash and three cell phones
on defendant's person, the judge concluded that the officers "had a well-
grounded suspicion that . . . defendant's vehicle was being used to facilitate
narcotics sale[s]." Therefore, the search of the truck was lawful, and the
evidence seized from it was properly obtained.
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Defendant pled guilty to the charges and was sentenced to an aggregate
term of six years' incarceration, subject to a three-year parole disqualifier.
On appeal, defendant presents a sole issue for our consideration:
THE COURT BELOW ERRED IN FINDING THAT
PATROLMAN KELLY POSSESSED A
REASONABLE AND ARTICULABLE SUSPICION
THAT DEFENDANT WAS PRESENTLY ARMED
AND DANGEROUS AND AS SUCH ALL
EVIDENCE DERIVED FROM THE ILLEGAL
[TERRY] FRISK SHOULD HAVE BEEN
SUPPRESSED
A trial court's factual findings in a suppression hearing are afforded great
deference. State v. Gonzales, 227 N.J. 77, 101 (2016) (citing State v. Hubbard,
222 N.J. 249, 262 (2015)). In reviewing a decision on a motion to suppress, we
defer to the findings of fact and credibility determinations of the trial judge,
recognizing that he or she has had an "opportunity to hear and see the witnesses
and to have the 'feel' of the case, which a reviewing court cannot enjoy." State
v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). We will uphold the trial judge's decision so long as it is "supported by
sufficient credible evidence" and not "so clearly mistaken 'that the interests of
justice demand intervention and correction.'" State v. Scriven, 226 N.J. 20, 32-
33 (2016) (quoting Elders, 192 N.J. at 243-44).
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Defendant argues the officers did not have a reasonable and articulable
suspicion that he was armed and dangerous to permit a protective search.
Therefore, the evidence seized as a result of the search should have been
suppressed. We disagree and affirm substantially for the reasons set forth in
Judge Bauman's well-reasoned decision. We add the following comments.
To conduct a protective search, an officer must have a "specific and
particularized basis for an objectively reasonable suspicion that defendant was
armed and dangerous." State v. Roach, 172 N.J. 19, 27 (2002). "The protective
search exception to the warrant requirement was created to protect an officer's
safety where there is reason to believe that a suspect is armed and dangerous."
Ibid. (citing Terry v. Ohio, 392 U.S. 1, 26-27 (1968)). "The exception allows a
law enforcement officer 'to take necessary measures to determine whether the
person is in fact carrying a weapon and to neutralize the threat of physical
harm.'" Ibid. (citing Terry, 392 U.S. at 23). "Specifically, the officer may
conduct 'a carefully limited search of the outer clothing . . . in an attempt to
discover weapons which might be used to assault him.'" Ibid. (alteration in
original) (citing Terry, 392 U.S. at 30). "The search must, however, be 'confined
in scope to an intrusion reasonably designed to discover' weapons that might be
used to assault the police officer." Ibid. (citing Terry, 392 U.S. at 29). An
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objective reasonable suspicion is based on "the totality of the circumstances."
State v. Valentine, 134 N.J. 536, 532 (1994).
Here, Judge Bauman noted Kelly's testimony in which he described
defendant as nervous and unable to answer routine questions. In addition,
defendant repeatedly looked towards his lap. Because the officer could not see
inside the truck or defendant's hands or what was in defendant's lap, Kelly
became concerned for his safety. After Kelly ordered defendant out of the
vehicle, he observed a bulge in defendant's pants which defendant attempted to
hide from the officer. Defendant also refused to tell Kelly what the bulge was.
Judge Bauman concluded that under the totality of the circumstances, Kelly had
a reasonable belief that defendant was armed and dangerous. Given our
deference to the trial judge's credibility determinations, we cannot disagree.
As a result, the seizure of the heroin was warranted. Kelly testified that
as he patted the bulge in defendant's pocket, he immediately recognized it as
packaged heroin. He was able to identity the narcotics because of his
experience, training, and previous opportunities to observe and physically
handle the substance. Therefore, under the plain feel doctrine, Kelly had the
authority to seize the contraband from defendant. See State v. Evans, 235 N.J.
125, 138 (2018) (holding "[c]ontraband found during the course of a lawful pat
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down may be seized without a warrant if the officer 'feels an object whose
contour or mass makes its identity immediately apparent.'") (citation omitted).
We are satisfied Judge Bauman's denial of defendant's motion to suppress
is supported by sufficient credible evidence in the record and the applicable law.
Affirmed.
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