STATE OF NEW JERSEY VS. NAZIER D. GOLDSMITH (19-10-2563, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-0652-20
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
NAZIER D. GOLDSMITH,
Defendant-Respondent.
_________________________
Argued March 1, 2021 – Decided March 18, 2021
Before Judges Fasciale and Mayer.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Camden County,
Indictment No. 19-10-2563.
Rachel M. Lamb, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for appellant (Jill S. Mayer, Acting Camden County
Prosecutor, attorney; Rachel M. Lamb, of counsel and
on the briefs).
Ashley T. Brooks, Assistant Deputy Public Defender,
argued the cause for respondent (Joseph E. Krakora,
Public Defender, attorney; Marcia H. Blum, Assistant
Deputy Public Defender, of counsel and on the brief;
Ashley T. Brooks, on the brief).
PER CURIAM
By leave granted, the State appeals from a September 25, 2020 order
granting a motion to suppress drugs, cash, a handgun, and ammunition seized
from defendant Nazier D. Goldsmith by Camden County Sheriff's officers. 1 We
reverse.
The facts are taken from a September 23, 2020 evidentiary hearing and
the motion judge's September 25, 2020 written memorandum of decision.
On January 15, 2019, Officer Joseph Goonan, a twenty-year veteran of the
Camden County Sheriff's Department, and his partner were on routine patrol in
a high crime neighborhood in the City of Camden. The neighborhood was
known for shootings and drugs. From his patrol car, Officer Goonan saw
defendant emerge from a walkway adjacent to an abandoned house and proceed
to walk toward two men. In the officer's experience, local drug dealers
"stash[ed]" their drugs in the area, and Officer Goonan believed defendant was
1
The judge stayed the order to allow the State to seek interlocutory review. On
November 5, 2020, we granted the State's motion for leave to appeal from the
suppression order.
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engaged in a drug transaction. The two unidentified men walked away from
defendant when they saw the officers.
The officers exited their car and approached defendant. According to
Officer Goonan, defendant appeared nervous and looked furtively from side -to-
side and up-and-down the street. Goonan testified defendant's hands were
shaking and, despite it being an evening in early January, defendant was
sweating profusely.
In accordance with his police training and experience, Officer Goonan
suspected defendant was selling drugs and asked defendant if he had
identification. The officer did not want defendant reaching into his own pocket
to retrieve the identification based on defendant's body language and the
officer's awareness that weapons were commonly found in the area. Defendant
responded the identification could be found in his upper jacket pocket. Officer
Goonan told defendant he would retrieve the identification. As the officer
reached for the identification, defendant said, "I'd appreciate if you guys didn't
pat me down."
Based on the totality of the circumstances -- the nature of the area as a
known "drug stash," the presence of weapons in known high crime areas,
defendant's body language and furtive behaviors, and defendant's statement
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regarding a pat down -- Officer Goonan "became concerned for his safety and
conducted a pat down frisk of defendant." The judge deemed Officer Goonan's
testimony credible, particularly the officer's concern for his safety in explaining
why the officer insisted on retrieving defendant's identification.
In conducting the pat down, Officer Goonan felt what he "believed to be
a handgun in the lower pocket of [defendant's] jacket." Officer Goonan found a
handgun in defendant's jacket "with ammunition in the magazine." Defendant
was handcuffed and searched. The search of defendant's person revealed "$740
in United States currency and one vial containing suspected CDS." In searching
the walkway area, the officers found "twenty-one vials of suspected CDS." 2
A grand jury returned an indictment against defendant, charging him with
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1); fourth-
degree possession of a weapon, N.J.S.A. 2C:39-3(j); and third-degree possession
of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1).
Prior to trial, defendant sought to bar the physical evidence seized by the
officers. Officer Goonan was the only witness to testify during the evidentiary
hearing conducted on September 23, 2020. After reviewing the officer's
2
The color of the vial found on defendant's person matched the color of the
vials discovered in the walkway.
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testimony, the judge found the officers' initial stop of defendant to be lawful.
However, the judge determined the State failed to establish reasonable suspicion
in support of frisking defendant because there was "no objective basis to believe
defendant was armed."
The judge explained the officer "did not observe an unexplained bulge in
defendant's clothing that might have been a weapon" and did not see defendant
make any "threatening or suspicious movement[s] such as reaching to his
waistband or pocket." Nor did the judge determine defendant's "nervous
reaction . . . constitute[d] reasonable suspicion that defendant was armed and
dangerous." The judge stated, "[T]he fact that defendant asserted his right to be
free from a frisk does not create the basis to believe defendant possessed a
weapon." Citing State v. Thomas, 110 N.J. 673, 683-85 (1988), the judge found
"the facts that support a lawful stop do not always support a lawful frisk." As a
result, the judge held "Officer Goonan violated the constitutional proscription
against warrantless searches" and suppressed all physical evidence seized from
defendant on the night of his arrest.
On appeal, the State argues "the trial judge erred in finding that there was
no justification for frisking defendant . . . ." In addition, the State contends the
judge "misapplied the investigatory frisk standard" because the State "presented
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sufficient evidence of reasonable suspicion to frisk defendant during a lawful
investigatory stop." We agree.
"An appellate court reviewing a motion to suppress evidence in a criminal
case must uphold the factual findings underlying the trial court's decision,
provided that those findings are 'supported by sufficient credible evidence in the
record.'" State v. Boone, 232 N.J. 417, 425-26 (2017) (quoting State v. Scriven,
226 N.J. 20, 40 (2016)). "We owe no deference, however, to conclusions of law
made by trial courts in deciding suppression motions, which we instead review
de novo." State v. Brown, 456 N.J. Super. 352, 358-59 (App. Div. 2018) (citing
State v. Watts, 223 N.J. 503, 516 (2015)).
A protective search, also known as a Terry3 frisk or pat down, is an
exception to the requirement that an officer obtain a search warrant. When there
is a lawful stop and the officer believes the suspect is armed and dangerous, the
officer may, without a warrant, "take necessary measures to determine whether
the person is in fact carrying a weapon and to neutralize the threat of physical
harm." State v. Roach, 172 N.J. 19, 27 (2002) (quoting Terry, 392 U.S. at 26-
27). "When a police officer forms a reasonable and articulable suspicion to
justify an investigatory stop, the officer may also conduct a [pat[] down] or frisk
3
Terry v. Ohio, 392 U.S. 1 (1968).
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of the outer clothing of such persons in an attempt to discover weapons." State
v. Gamble, 218 N.J. 412, 430 (2014) (citing Terry, 392 U.S. at 30-31). The
intention behind "this limited search is not to discover evidence of crime, but to
allow the officer to pursue his [or her] investigation without fear of violence."
State v. Thomas, 110 N.J. 673, 683 (1988) (quoting Adams v. Williams, 407
U.S. 143, 146 (1972)). A protective "search must 'be confined in scope to an
intrusion reasonably designed to discover guns, knives, clubs, or other hidden
instruments for the assault of the police officer.'" State v. Privott, 203 N.J. 16,
25 (2010) (quoting Terry, 392 U.S. at 29). An officer may conduct a protective
search when, based on the "totality of the circumstances," he or she possesses
"a 'specific and particularized basis for an objectively reasonable suspicion that
defendant was armed and dangerous.'" Roach, 172 N.J. at 27 (quoting Thomas,
110 N.J. at 638).
Here, under the totality of the circumstances, the State met its burden of
demonstrating the pat down of defendant was justified. Officer Goonan testified
the section of Camden where defendant was arrested was a high crime area ,
known for drugs, weapons, and shootings. In addition, the officer believed he
witnessed a drug sale between defendant and the two unidentified men who
quickly left the area. Courts "have recognized that to 'substantial dealers in
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narcotics[,]' firearms are as much 'tools of the trade' as are most commonly
recognized articles of narcotics paraphernalia." United States v. Oates, 560 F.2d
45, 62 (2d Cir. 1977) (quoting United States v. Weiner, 534 F.2d 15, 18 (2d Cir.
1976)).
Officer Goonan used his knowledge, training, and experience regarding
drug transactions, coupled with his observation of defendant's behavior and
body language, to suspect defendant had a weapon and concluded his safety and
that of his partner was in jeopardy. Thus, Officer Goonan's decision to conduct
a protective search of defendant for a weapon was objectively reasonable. See
State v. Valentine, 134 N.J. 536, 547 (1994) ("Terry itself acknowledges that
police officers must be permitted to use their knowledge and experi ence in
deciding whether to frisk a suspect."). Under these circumstances, the frisk of
defendant was permissible, and the judge erred in granting the motion to
suppress the physical evidence seized as a result of Officer Goonan's protective
search of defendant.
Reversed. We do not retain jurisdiction.
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