State v. Tawian Bacome(075953) , 228 N.J. 94 ( 2017 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Tawian Bacome (A-9-15) (075953)
Argued November 30, 2016 -- Decided January 31, 2017
Timpone, J., writing for a unanimous Court.
In this appeal, the Court clarifies the circumstances under which police officers may require a passenger in
an automobile to exit a vehicle after a valid stop.
In April 2011, detectives observed defendant driving a blue Ford Bronco. S.R., the owner of the Bronco,
was riding in the front passenger seat. The detectives knew the men used and dealt narcotics and the police had
received complaints of traffic to and from defendant’s apartment, which is often indicative of narcotics activity. The
detectives followed the Bronco, losing sight of it shortly after arriving in an area of Newark known for crime and
drug trafficking. They drove back to Woodbridge and, about an hour later, observed the Bronco. The detectives
observed S.R. in the passenger seat not wearing his seatbelt and conducted a traffic stop.
Once they stopped the Bronco, one detective approached the driver’s side while the other approached the
passenger’s side. The first detective reported that he saw defendant lean forward as if he were reaching under his
seat and immediately ordered defendant to exit the vehicle. The second detective then ordered S.R. out of the
passenger’s seat. Both occupants complied.
The detectives questioned the men separately about their destination; they gave contradictory responses.
Because S.R. no longer occupied the passenger’s seat, the second detective was able to glimpse a rolled-up piece of
paper in the shape of a straw and a small piece of Brillo-like steel wool, items consistent with narcotics use. A
detective obtained S.R.’s written consent to search the car, where he found crack cocaine and narcotics-related
paraphernalia. The detectives placed defendant and S.R. under arrest.
Defendant later moved to suppress the seized narcotics and paraphernalia; the trial court denied the motion.
The court found the stop to be lawful because of the passenger’s failure to wear a seatbelt. The court also found the
passenger’s removal from the car to be lawful because the officers had reasonable and articulable suspicion of
criminal activity. Defendant later pleaded guilty to third-degree possession of cocaine, a controlled dangerous
substance, and was sentenced to a three-year prison term in accordance with his plea agreement.
For the first time on appeal, defendant specifically challenged S.R.’s removal from the vehicle. The
Appellate Division remanded to the trial court, which found that defendant’s reaching under the seat created the
heightened caution required under State v. Smith, 134 N.J. 599, 618-20 (1994), and warranted S.R.’s removal.
Defendant again appealed to the Appellate Division. In a split decision, the majority reversed the trial
court’s order denying the suppression motion and concluded that the detectives failed to prove Smith’s heightened-
caution requirement. 440 N.J. Super. 228, 244 (App. Div. 2015). The majority held that stopping the vehicle for a
seatbelt violation was a “ruse” that allowed the detectives to conduct a narcotics investigation.
The dissent maintained that the detectives lawfully stopped the vehicle because S.R. had failed to wear a
seatbelt and they reasonably suspected that the men had purchased narcotics in Newark. Id. at 248-50 (Nugent, J.,
dissenting). The dissent concluded that a culpable passenger’s liberty interest is no different from that of a driver
who commits a traffic violation and that asking S.R. to step out of the vehicle was permissible. Id. at 247-50.
The split within the panel afforded the State an appeal as of right on the issues reached by the Appellate
Division. The Court granted the State’s petition for certification on other relevant issues. 223 N.J. 279 (2015).
1
HELD: The heightened-caution standard announced in Smith, supra, 134 N.J. at 618-20, remains the proper test for
determining the appropriateness of ordering a passenger from a car. Under the Smith test, defendant’s furtive
movements inside a recently stopped vehicle provided an objectively reasonable basis for officers’ exercising
heightened caution, justifying removal of the passenger.
1. To be 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. S.R. failed to wear his seatbelt and therefore violated the
traffic code. The stop followed the detectives’ observation of the traffic code violation and was therefore valid. The
detectives’ subjective intent is irrelevant in light of the objective grounds for the stop. Because the stop was
justified by the detectives’ reasonable and articulable suspicion as to the traffic offense, the Court does not reach the
issue of reasonable and articulable suspicion of drug activity. (pp. 10-12)
2. The New Jersey and Federal Constitutions protect against “unreasonable searches and seizures.” N.J. Const. art.
I, ¶ 7; see U.S. Const. amend. IV. In 1977, the United States Supreme Court held it objectively reasonable for
officers to order a driver out of a lawfully stopped vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977). In
1994, this Court declined to extend the Mimms rule to passengers, instead determining that officers may order
passengers out of a vehicle only if they can assert “specific and articulable facts that would warrant heightened
caution.” Smith, supra, 134 N.J. at 618. (pp. 12-14)
3. Three years after Smith, the United States Supreme Court declared, “an officer making a traffic stop may order
passengers to get out of the car pending completion of the stop.” Maryland v. Wilson, 519 U.S. 408, 415 (1997).
After Wilson, New Jersey law was more protective than federal law on the issue of passenger removal. In State v.
Sloane, 193 N.J. 423, 431 (2008), the Court concluded that, “when a police officer conducts a traffic stop of a
private vehicle, the passenger as well as the driver are seized under both the federal and state constitutions.” Most
recently, the Court reaffirmed the Smith standard in State v. Mai, 202 N.J. 12, 22, 24-25 (2010). (pp. 14-15)
4. As to the State’s contention that the Smith standard has been eroded by subsequent decisions, the Court observes
that no decision since Smith, including Sloane, has implicitly or explicitly modified or overruled Smith. Here, the
Court reaffirms the Smith heightened-caution standard for questions of passenger removal: officers may remove
passengers only when the circumstances present reason for heightened caution. (pp. 15-17)
5. Furtive movements may satisfy the heightened caution standard. See Smith, supra, 134 N.J. at 618-19. The
unknown nature of surreptitious movements creates risk for an officer and, in turn, that risk supports the exercise of
heightened caution. It would be impractical to require officers to determine whether the movement was to hide a
weapon or a box of tissues before taking any precautionary measures. Such a rule would threaten officer safety.
6. Here, the furtive movements inside the car were “specific and articulable facts” that warranted heightened
caution and justified removal of the passenger, placing the detectives in a position lawfully to observe the
contraband in plain view. The evidence was appropriately seized under the plain-view exception to the warrant
requirement, and defendant’s conviction and sentence were based on properly admitted evidence. (pp. 17-18)
7. The Court notes that defendants should state the basis for a motion to suppress when making it to allow for
appropriate development of the record. (pp. 18-19)
The judgment of the Appellate Division is REVERSED. Defendant’s conviction and sentence are
REINSTATED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-9 September Term 2015
075953
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
TAWIAN BACOME,
Defendant-Respondent.
Argued November 30, 2016 – Decided January 31, 2017
On appeal from and certification to the
Superior Court, Appellate Division, whose
opinion is reported 440 N.J. Super. 228
(App. Div. 2015).
Frank Muroski, Deputy Attorney General,
argued the cause for appellant (Christopher
S. Porrino, Attorney General of New Jersey,
attorney).
Michele E. Friedman, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney; Ms. Friedman and Jacqueline E.
Turner, Assistant Deputy Public Defender, on
the briefs).
CJ Griffin argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey (Edward L. Barocas, Legal Director,
attorney; Ms. Griffin, Mr. Barocas, Jeanne
M. LoCicero, and Alexander R. Shalom, of
counsel and on the brief).
JUSTICE TIMPONE delivered the opinion of the Court.
1
In this appeal, we clarify the circumstances under which
police officers may require a passenger in an automobile to exit
a vehicle after a valid stop.
We underscore that the heightened-caution standard we
announced in State v. Smith, 134 N.J. 599, 618-20 (1994),
remains the proper test for determining the appropriateness of
ordering a passenger from a car. Under the Smith test, we hold
that defendant’s furtive movements inside a recently stopped
vehicle provided an objectively reasonable basis for officers’
exercising heightened caution, justifying removal of the
passenger.
I.
In April 2011, Detectives Jaremczak and Harris were engaged
in an undercover drug patrol in Woodbridge when they observed
defendant driving a blue Ford Bronco. S.R., the owner of the
Bronco, was riding in the front passenger seat. Having
previously encountered both men, Jaremczak knew the men used and
dealt narcotics. The police department had also received
complaints from defendant’s neighbors of “a lot of traffic
coming and going from [his] apartment,” which, in Jaremczak’s
experience, is often indicative of narcotics activity.
In their unmarked vehicle, the detectives followed the
Bronco, losing sight of it shortly after arriving in an area of
Newark known for crime and drug trafficking. In an attempt to
2
pick up the Bronco’s trail, the detectives drove back to
Woodbridge, presuming that defendant and S.R. would return there
with newly purchased drugs.
About an hour later, the detectives observed the Bronco re-
enter Woodbridge. The detectives resumed surveillance and,
after they both observed S.R. in the passenger seat not wearing
his seatbelt, they conducted a traffic stop.
Once they stopped the Bronco, Harris approached the
driver’s side while Jaremczak approached the passenger’s side.
Harris reported that he saw defendant lean forward as if he were
reaching under his seat. Harris immediately ordered defendant
to exit the vehicle. Jaremczak then ordered S.R. out of the
passenger’s seat. Both occupants complied.
The detectives questioned the men separately about their
destination; they gave contradictory responses. Because S.R. no
longer occupied the passenger’s seat, Jaremczak was able to
glimpse a rolled-up piece of paper in the shape of a straw and a
small piece of Brillo-like steel wool on the car floor, near the
front of the center console. Jaremczak knew from experience
that those items are consistent with narcotics use.
Following the inconsistent accounts of defendant and S.R.
about their destination and the plain-view observation of the
Brillo and straw, Jaremczak obtained S.R.’s written consent to
search the car. Jaremczak concluded that S.R. did not appear to
3
be under the influence of narcotics and apparently understood
his rights. Upon execution of the search, Jaremczak found
“blunt wrappers,” or cigar shells often used to wrap marijuana;
a used crack pipe inside a cigarette pack; a larger piece of
Brillo; and thirteen vials of crack cocaine in a separate
cigarette pack. The detectives placed defendant and S.R. under
arrest. At the police station, defendant gave a videotaped
statement, confessing to being the sole owner of the crack
cocaine and the narcotics-related paraphernalia.
Defendant later moved to suppress the seized narcotics and
paraphernalia. At the suppression hearing, the State produced
Jaremczak, who testified to the facts described; Harris did not
testify.
The trial court denied defendant’s suppression motion. The
court found the stop to be lawful because of the passenger’s
failure to wear a seatbelt. The court also found the
passenger’s removal from the car to be lawful because the
officers had reasonable and articulable suspicion of criminal
activity. The court also determined that S.R. freely and
voluntarily consented to the search, permitting the officers to
lawfully seize the paper straw and the Brillo under the plain-
view doctrine.
Defendant later pleaded guilty to third-degree possession
of cocaine, a controlled dangerous substance (CDS), contrary to
4
N.J.S.A. 2C:35-10(a)(1), and was sentenced to a three-year
prison term in accordance with his plea agreement.
For the first time on appeal, defendant specifically
challenged S.R.’s removal from the vehicle. The Appellate
Division remanded to the trial court for a more fulsome review
of the permissibility of S.R.’s removal, including any
constitutional implications of the search and seizure. On
remand, the trial court found that defendant’s reaching under
the seat created the heightened caution required under Smith and
warranted S.R.’s removal. Defendant again appealed to the
Appellate Division.
In a split decision, a majority of the Appellate Division
panel reversed the trial court’s order denying the suppression
motion and concluded that the detectives failed to prove Smith’s
heightened-caution requirement. State v. Bacome, 440 N.J.
Super. 228, 244 (App. Div. 2015). The majority held that
stopping the vehicle for a seatbelt violation was a “ruse” that
allowed the detectives to conduct a narcotics investigation.
Id. at 244 n.11. On that premise, the majority concluded that
S.R.’s removal from the vehicle was based on nothing more than a
“hunch” that fell short of the heightened awareness of danger
required to order a passenger out of the car. Id. at 238.
The dissent took issue with the majority’s characterization
of the detectives’ conduct as a “ruse,” maintaining instead that
5
the detectives lawfully stopped the vehicle because S.R. had
failed to wear a seatbelt and they reasonably suspected that
defendant and S.R. had purchased narcotics in Newark. Id. at
248-50 (Nugent, J., dissenting). The dissent distinguished this
case from Smith because here it was the passenger who engaged in
the illegal conduct of not wearing a seatbelt, whereas in Smith
the court was protecting non-culpable passengers. Id. at 248.
The dissent also discussed the United States Supreme Court’s
opinion in Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct.
330, 333, 54 L. Ed. 2d 331, 337 (1977), which indicated that,
even in the absence of furtive movements or evidence of criminal
activity, a police officer has the right to demand that a driver
stopped for a traffic violation exit the vehicle. Bacome,
supra, 440 N.J. Super. at 248 (Nugent, J., dissenting). Because
this Court has not spoken on the issue of the culpable
passenger, the dissent relied on Mimms to conclude that a
culpable passenger’s liberty interest is no different from that
of a driver who commits a traffic violation. Id. at 247-48.
The dissent concluded, based on the available case law, that
asking S.R. -- a culpable passenger -- to step out of the
vehicle was permissible. Id. at 250.
The split within the panel afforded the State an appeal as
of right on the issues of whether the police need enhanced
suspicion before ordering an allegedly culpable passenger from a
6
car and whether the detectives’ subjective intent to investigate
drug activity defeated their objectively reasonable decision to
stop the automobile for a motor-vehicle violation. See R. 2:2-
1(a)(2).
In addition, we granted the State’s petition for
certification on the issue of whether this Court’s holding in
State v. Sloane, 193 N.J. 423 (2008), is in tension with Smith.
223 N.J. 279 (2015). We further granted certification regarding
the sufficiency of the detectives’ reasonable and articulable
suspicion that defendant and passenger were engaged in drug
activity. Ibid. We also granted certification on the final
issue raised in the State’s petition -- whether a defendant-
appellant may challenge for the first time on appeal the removal
of a co-occupant from a vehicle. Ibid. We granted the motion
of the American Civil Liberties Union of New Jersey (ACLU) to
participate as amicus curiae.
II.
A.
The State advances two independent grounds, both of which
it argues justify the stop: the seat belt violation and the
detectives’ reasonable and articulable suspicion of drug
activity. Echoing the Appellate Division dissent, the State
argues that the subjective intentions of the police play no role
in search-and-seizure analysis. The State asserts that the
7
Appellate Division majority’s characterization of the stop as a
“ruse” to pursue a drug investigation was in error.
The State further argues that police officers have inherent
authority to remove passengers from lawfully stopped vehicles,
deriving the authority from this Court’s decision in Sloane,
supra, which held that “passenger[s] as well as the driver are
seized under both the federal and state constitutions” during
traffic stops. 193 N.J. at 431. Reasoning that Sloane adopted
the rationale of two United States Supreme Court cases --
Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L.
Ed. 2d 132 (2007), and Maryland v. Wilson, 519 U.S. 408, 117 S.
Ct. 882, 137 L. Ed. 2d 41 (1997) -- the State asserts that the
Appellate Division failed to consider the effect of Sloane in
its analysis. In the State’s view, in holding that passengers
are seized during a stop, Sloane recognized that a passenger’s
liberty interest is de minimis during a stop and therefore does
not outweigh the interest in officer and public safety.
Relatedly, the State argues that the Appellate Division
erred in relying on Smith. The State asserts that this Court’s
holding in Sloane, which relied on United States Supreme Court
precedent that came after Smith, superseded Smith’s distinction
between drivers and passengers.
Alternatively, the State contends that if Sloane did not
overrule Smith’s heightened-caution requirement, the detectives
8
had the necessary heightened awareness of danger to remove S.R.
from the car, due to the suspected drug activity from which the
detectives could reasonably surmise that weapons might be in the
vehicle.
The State also posits that the removal of both occupants
was justified because the detectives articulated reasonable
suspicion of drug activity. In the State’s view, the
information about defendant’s apartment and the reputations of
defendant and S.R. as drug dealers, combined with their presence
in a known narcotic-trafficking area, gave the detectives a
reasonable suspicion that defendant and S.R. were engaged in
drug activity.
B.
Defendant asks this Court to affirm the Appellate
Division’s decision and find that the circumstances here did not
warrant heightened caution under Smith. Defendant contests the
State’s assertion that Sloane overruled Smith, pointing out that
this Court reaffirmed Smith’s holding in State v. Mai, 202 N.J.
12, 22, 24-25 (2010).
Defendant also contends that the seatbelt violation did not
create heightened caution warranting S.R.’s removal. Defendant
argues that officers should not have the power to automatically
order passengers out of a vehicle each time a motor vehicle
summons is issued. Instead, defendant suggests that passengers
9
who commit “innocuous motor vehicle violation[s],” or “minor
traffic offense[s] such as a seatbelt violation,” should be
ordered out of a vehicle only when there is a threat of danger.
Finally, defendant asserts that the detectives did not have
a reasonable suspicion of drug activity. Defendant argues their
observations gave rise to a hunch at most, and a hunch falls
short of reasonable suspicion. According to defendant, the only
valid basis for the stop was the seatbelt violation, which did
not justify ordering the passenger out of the vehicle.
C.
Amicus ACLU encourages the Court to uphold the Smith
standard and permit police officers to remove a passenger from a
vehicle only when the officer is “able to point to specific and
articulable facts that would warrant heightened caution to
justify ordering the occupants to step out of a vehicle detained
for a traffic violation.” The ACLU asserts that this Court has
already rejected the State’s argument to overturn Smith in Mai.
III.
We begin our analysis by considering whether the stop was
justified.
The Appellate Division majority emphasized the subjective
intent of the detectives regarding their narcotics investigation
in effectuating the motor vehicle stop. Bacome, supra, 440 N.J.
Super. at 238. The objective reasonableness of police officers’
10
actions -- not their subjective intentions -- is the central
focus of federal and New Jersey search-and-seizure
jurisprudence. See, e.g., Whren v. United States, 517 U.S. 806,
813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89, 98 (1996)
(“Subjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis.”); State v. Bruzzese, 94 N.J. 210,
219 (1983) (“[T]he proper inquiry for determining the
constitutionality of a search-and-seizure is whether the conduct
of the law enforcement officer who undertook the search was
objectively reasonable, without regard to his or her underlying
motives or intent.”), cert. denied, 465 U.S. 1030, 104 S. Ct.
1295, 79 L. Ed. 2d 695 (1984).
Rather than focus on the detectives’ putative intentions,
our attention belongs on the objective reasonableness of the
stop. To be 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.” State
v. Carty, 170 N.J. 632, 639-40 (2002). This traffic stop had
all the indicia of validity. S.R. failed to wear his seatbelt
and therefore violated the traffic code. See N.J.S.A. 39:3-
76.2(f). The stop followed the detectives’ observation of the
traffic code violation and was therefore valid. The detectives’
subjective intent is irrelevant in light of the objective
grounds for the stop.
11
Because the stop was justified by the detectives’
reasonable and articulable suspicion that a traffic offense was
being committed, we need not reach the issue of whether the
detectives had reasonable and articulable suspicion of drug
activity to stop the vehicle.
With that determination, we turn next to the propriety of
the detectives’ ordering the passenger out of the stopped
vehicle.
IV.
Article I, Paragraph 7 of the New Jersey Constitution, like
its federal counterpart, protects against “unreasonable searches
and seizures.” N.J. Const. art. I, ¶ 7; see U.S. Const. amend.
IV. Under both Constitutions, ordering a person out of a car
constitutes a seizure because the person’s liberty has been
restricted. Smith, supra, 134 N.J. at 609, 611. Ordering an
occupant out of a vehicle is permitted only when it is
objectively reasonable to do so. See Whren, supra, 517 U.S. at
813, 116 S. Ct. at 1774, 135 L. Ed. 2d at 98; Bruzzese, supra,
94 N.J. 210, 219-20.
In 1977, the United States Supreme Court held it
objectively reasonable for officers to order a driver out of a
lawfully stopped vehicle, finding removal only a minor intrusion
into a driver’s personal liberty. Mimms, supra, 434 U.S. at
111, 98 S. Ct. at 333, 54 L. Ed. 2d at 337. After Mimms,
12
however, uncertainty remained concerning the authority of law
enforcement to remove passengers from a car.
Notably, in 1994, this Court declined to extend the Mimms
rule to passengers. See Smith, supra, 134 N.J. at 618.
Instead, we determined that officers may order passengers out of
a vehicle only if they can assert “specific and articulable
facts that would warrant heightened caution.” Ibid.
In Smith, two police officers spotted a vehicle speeding on
the highway and initiated a traffic stop. Id. at 604. As the
vehicle moved to the shoulder, the officers observed the rear
passenger reach forward toward the front passenger and the
driver reach back toward the rear passenger. Id. at 604-05.
Based on those observations, the officers asked all three
occupants to step out of the vehicle. Id. at 605. A pat-down
of the front passenger resulted in the seizure of crack cocaine.
Id. at 606. Both the driver and the passenger moved to suppress
the seized crack cocaine evidence as the fruit of a warrantless
search. Id. at 607.
We rejected the argument that the officers’ automatic
authority to remove drivers extends to passengers, emphasizing
that passengers are different from drivers “because the
passenger has not engaged in the culpable conduct that resulted
in the vehicle’s stop.” Id. at 615. We concluded that ordering
a passenger out of the car represents an intrusion on a
13
passenger’s liberty and is therefore proper only when the
circumstances warrant heightened caution. Id. at 615, 618-19.
Applying that standard to the defendants, we found the officers’
observations of suspicious movements after the vehicle was
stopped sufficient to warrant heightened caution, permitting
them to remove the passengers from the car. Id. at 618-19.
Three years after this Court decided Smith, the United
States Supreme Court declared, “an officer making a traffic stop
may order passengers to get out of the car pending completion of
the stop.” Wilson, supra, 519 U.S. at 415, 117 S. Ct. at 886,
137 L. Ed. 2d at 48. The Court opined that “danger to an
officer . . . is likely to be greater when there are passengers
in addition to the driver in the stopped car,” and that danger
outweighs the minor intrusion on the passenger’s liberty. Id.
at 414-15, 117 S. Ct. at 886, 137 L. Ed. 2d at 48.
After Wilson, New Jersey law was more protective than
federal law on the issue of passenger removal, consistent with
this Court’s interpretation of the State Constitution to provide
greater protection against unreasonable searches and seizures
than the Fourth Amendment. See, e.g., State v. Earls, 214 N.J.
564, 584 (2013).
In 2008, this Court returned to the issue of automobile
stops when we considered whether a passenger in a car is seized
during a traffic stop. Sloane, supra, 193 N.J. at 429. During
14
the course of a routine traffic stop, officers ordered both a
driver and a passenger back to their car after they exited their
stopped vehicle and approached the patrol car. Id. at 426. We
relied on the United States Supreme Court’s analysis in Brendlin
to conclude that, “when a police officer conducts a traffic stop
of a private vehicle, the passenger as well as the driver are
seized under both the federal and state constitutions.” Id. at
431. We did not discuss our Smith decision when deciding
Sloane.
Most recently, we reaffirmed the Smith standard in Mai,
supra, 202 N.J. at 15. Finding “no reason to depart from the
elegant reasoning” in Smith, we determined that an officer may
open the door of a vehicle if the circumstances create a
heightened awareness of danger. Id. at 22.
V.
A.
Before applying the legal principles set forth above to the
facts of this case, we pause to address the State’s contention
that the Smith standard has been eroded by subsequent decisions.
In Smith, we determined that a police officer may order a
passenger out of a vehicle if the officer can “point to specific
and articulable facts that would warrant heightened caution to
justify ordering the occupants to step out of a vehicle detained
15
for a traffic violation.” Smith, supra, 134 N.J. at 618. We
find no reason to depart from that practical standard.
No decision since Smith, including Sloane, has implicitly
or explicitly modified or overruled our decision in Smith.
Contrary to the State’s assertion, Sloane and Smith are readily
harmonized. They share the commonality of heightened danger.
In Sloane, supra, the police officer ordered the car occupants
back into their car as they ran toward his patrol car after the
stop. 193 N.J. at 426. The officer was reasonably concerned
for his own safety; there was no need to discuss heightened
caution. In Smith, supra, the police officer ordered the
passengers out of the vehicle after witnessing furtive movements
inside the car. 134 N.J. at 604-05. Again, the officer was
reasonably concerned for his own safety. In both cases, the
scales tipped in favor of officer safety, given the limited
liberty interests of the automobile occupants.
Two years after our Sloane decision, this Court further
reaffirmed the Smith standard in Mai. In Mai, supra, a police
officer opened a passenger-side sliding door as a protective
measure before ordering the passengers to exit the van. 202
N.J. at 16. There, we expressly rejected the State’s request to
overturn Smith and adopt Wilson, finding no legitimate reason to
do so. Id. at 22.
16
In this case, we reaffirm the Smith heightened-caution
standard for questions of passenger removal. Our position with
respect to automatic authority to order passengers out of a
vehicle has not changed: officers may remove passengers only
when the circumstances present reason for heightened caution.
B.
In applying the heightened-caution standard to the facts of
this case, we apply a deferential standard of review to the
motion judge’s factual findings made at the suppression hearing.
See State v. Elders, 192 N.J. 224, 245 (2007). A key element in
our analysis is Detective Jaremczak’s testimony that, after the
detectives pulled the Bronco over, Detective Harris observed
defendant reaching forward under his seat. We defer to the
motion judge’s finding that Jaremczak’s testimony was credible.
Furtive movements may satisfy the heightened caution
standard. See Smith, supra, 134 N.J. at 618-19. The unknown
nature of surreptitious movements creates risk for an officer
and, in turn, that risk supports the exercise of heightened
caution. It would be impractical to require officers to
determine whether the movement was to hide a weapon or a box of
tissues before taking any precautionary measures. Such a rule
would threaten officer safety.
Here, the furtive movements inside the car were “specific
and articulable facts” that warranted heightened caution to
17
order the passengers out of the vehicle. That the passenger’s
removal led to the plain-view observation of the narcotics
paraphernalia is a natural consequence of the officers’
legitimate exercise of heightened caution.
In sum, we find that the detectives’ heightened caution
justified removal of the passenger from the vehicle, placing the
detectives in a position lawfully to observe the contraband in
plain view. The evidence, therefore, was appropriately seized
under the plain-view exception to the warrant requirement. See
State v. Gonzales, 227 N.J. 77 (2016). Accordingly, defendant’s
conviction and sentence were based on properly admitted
evidence.
VI.
We conclude with a final point. Defendants should state
the basis for a motion to suppress at the outset to allow for
appropriate development of the record. See State v. Robinson,
200 N.J. 1, 18-19 (2009). Here, defendant raised concerns about
the passenger’s removal for the first time on appeal. Had
defendant raised this issue earlier, the State could have called
Detective Harris to testify to his personal observations during
the traffic stop, which were the basis for the passenger’s
removal. Instead, the record consisted only of Detective
Jaremczak’s report of his partner’s observations. In the
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future, the better course is for defendants to state the basis
of the suppression motion when making it.
VII.
We reverse the decision of the Appellate Division and
reinstate defendant’s conviction and sentence.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s
opinion.
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