NJ: Walking up to police at 1:30 am and reaching for back pocket justified frisk

Defendant walked up to officers at 1:30 am in a high crime area, did not acknowledge their words to him, and moved his hand to his back pocket as he got closer. They frisked him, finding only a baggie of marijuana. Nevertheless, the frisk was valid. State v. Bard, 2016 N.J. Super. LEXIS 55 (Feb. 29, 2016, approved for publication April 19, 2016):

Unlike the defendant in Davis, who was walking away from police, defendant in this case walked toward police as he moved his hand to his back pocket and continued to conceal his hand, despite requests for him to expose it to the troopers’ view. The troopers’ safety concerns were supported because defendant was no more than fifteen feet away when he concealed his hand, preventing the troopers from avoiding direct contact.

Further, the judge found defendant was not stopped merely because he decided not to talk to police while he walked through a high-crime area. He was not stopped merely because he appeared nervous when aware of the police presence or because he dropped his head and avoided eye contact as he continued toward the troopers. Defendant was not stopped when he moved his hand from his side to his back pocket. However, after crediting the training and practical experience of the troopers, whose every day work transpires on these streets, defendant’s refusal to show his concealed hand led to the reasonable belief he possessed a weapon and posed a threat. Bruzzese, supra, 94 N.J. at 228, 463 A.2d 320. See Otero, supra, 245 N.J. Super. at 93, 584 A.2d 260 (“When the occupants [of a motor vehicle] refused to expose their hands, justification arose for taking the ‘stop and frisk’ steps required to ensure the officer’s safety.”). Even if several factors viewed in isolation may not be enough, cumulatively all of these pieces of information are sufficient to meet the State’s burden to validate a Terry stop. Stovall, supra, 170 N.J. at 368, 788 A.2d 746.

Once an officer has a basis to make a lawful investigatory stop, he may protect himself during that stop by conducting a search for weapons if he “has reason to believe that the suspect is armed and dangerous.” Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 617 (1972) (“So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose.”). Here, for their protection, troopers had a right to disarm defendant, using a limited protective frisk of his back pocket. “The test is not whether there were other reasonable or even better ways to execute the search, for hindsight and considered reflection often permit more inspired after-the-fact decision-making.” Watts, supra, 223 N.J. at 514, 126 A.3d 1216. “[T]hose who must act in the heat of the moment do so without the luxury of time for calm reflection or sustained deliberation.” Hathaway, supra, 222 N.J. at 469, 120 A.3d 155 (quoting State v. Frankel, 179 N.J. 586, 599, 847 A.2d 561, certif. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004)). We must not examine the facts distorted by hindsight, but “examine the conduct of those officials in light of what was reasonable under the fast-breaking and potentially life-threatening circumstances that were faced at the time.” Ibid. (quoting Frankel, supra, 179 N.J. at 599, 847 A.2d 561). “For purposes of our Federal and State Constitutions, it is enough that the police officers, in performing their duties, acted in an objectively reasonable fashion.” Watts, supra, 223 N.J. at 515, 126 A.3d 1216.

The search and seizure was objectively reasonable. As a result, suppression was properly denied.