STATE v. TAWIAN BACOME,  440 N.J.Super. 228 (App. Div. 2015)

Based on speculation that defendant and a passenger in his vehicle were involved in illegal drug activity, police officers attempted to follow but lost sight of the vehicle in or near Newark and waited in Woodbridge for its return. Once the vehicle returned, the officers stopped it, ostensibly because the passenger was not wearing his seatbelt. On approaching, an officer, who did not testify, observed defendant reach under his seat. Both driver and passenger were then ordered out of the vehicle; after the passenger exited, an officer was able to observe in plain view materials that suggested drug usage. Based on that observation, a warrantless search of the vehicle ensued, and illegal drugs were found.


Because defendant's mere entry into and departure from Newark did not permit a reasonable suspicion of illegal drug activity and because the State had failed to present facts "that would create in a police officer a heightened awareness of danger" if the passenger were allowed to remain in the vehicle, State v. Smith, 134 N.J. 599, 618 (1994), the court found no sufficient ground for the ordering of the passenger out of the vehicle and reversed the denial of the suppression motion. Judge Nugent filed a dissenting opinion regarding this determination.


In addition, the court noted that only hearsay testimony supported the assertion that the driver reached underneath his seat. Despite the understanding that N.J.R.E. 101(a)(2)(E) permits the admission of hearsay at a suppression hearing, the court suggested there may be circumstances where the consequences resulting from the suppression hearing are of such magnitude that the admission of hearsay may create a Confrontation Clause deprivation. The court, however, did not further consider this point because it had not been raised by defendant.


NOTE: Certification granted  223 N.J. 279 (2015): It is ORDERED that the petition for certification is granted on all issues raised by the State in its petition for certification with the exception of the issue of whether defendant had a reasonable expectation of privacy in the removal of the passenger from the vehicle.