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The New Jersey Appellate Division once again reminded cops that they need to actually follow the rules if they want the evidence they seize to be admissible in court.

On August 23, 2017, Perth Amboy Detective Jessica DeJesus was in an unmarked police car on Goodwin Street near the corner of Market Street conducting narcotics surveillance. DeJesus knew from her years of experience on the police force that drugs were commonly bought and sold in that area of Perth Amboy. 

DeJesus was surveilling a woman, known to the detective as a drug user, who was pacing back and forth and looking around while on and off her cell phone in a manner that led the detective to believe the individual may be about to purchase narcotics. When Patrolman Matthew Vasquez arrived at the scene, he also observed the woman exhibiting the same behavior. 

A U-Haul van with Arizona license plates pulled up to the corner where the surveillance was taking place and illegally parked next to a yellow curb and a sign that designated the corner as a "no parking" zone. Upon stopping in the "no parking" zone, the driver of the van honked the horn and motioned to the female to approach him. DeJesus, Vazquez and the other responding officers suspected a narcotics transaction was about to occur and approached the van.

The officers showed their badges to defendant and identified themselves as law enforcement. 

As he was approaching the van, Vazquez saw Eladio Echartevera make quick and rapid movements towards his waistline area with his hands. DeJesus observed him fidgeting with his waistline. Both officers concluded that Echartevera could possibly have a concealed weapon on him. Vasquez nonetheless acknowledged that he also could have engaged in this behavior for other reasons such as adjusting his belt, trying to get keys out of his pocket or picking up paperwork that was next to him. 

DeJesus asked Echartevera to step out of the vehicle and to move to the rear of the van so that the officers could conduct a pat-down for weapons. Echartevera cooperated with the request. 

During the pat-down, Echartevera "swiped" Vazquez's hand away as it came near Echartevera's waistline in an apparent effort to prevent him from continuing the pat-down. Vasquez testified that based on his experience, Echartevera's actions indicated there was "potentially something there that [he didn't] want me to find, or feel, or locate" which could "be anything from a weapon to narcotics."

Vasquez also acknowledged that Echartevera could have been concerned the officer was intruding on a "very personal zone" of his body during the pat-down. 

Vasquez "felt a bulge protruding" from Echartevera's waistline that was not consistent with human anatomy or Echartevera's clothing. However, Vasquez was not able to tell if the bulge was a weapon, an item concealing a weapon, or contraband. Vasquez testified that the item just near the beltline area felt sturdy and was plastic in texture, but he was unsure if his initial contact was with the end of a plastic bag. The officer also heard the sound of rustling plastic as he conducted the pat-down.

Vasquez could not determine the dimensions of the item from the pat-down of the outer clothing. Vasquez testified the item did not feel like the butt of a handgun. When asked by the court whether he believed the item was more likely drugs than a weapon, Vasquez responded that "at that point it was still unknown."

After feeling the object, coupled with the way Echartevera swiped at the officer during the initial pat-down, Vasquez believed there was "a potential" that the object was a concealed weapon that posed a threat to his safety. Vasquez searched under Echartevera's clothing and initially he could not determine whether the item was a weapon. Vazquez removed the item from inside Echartevera's clothing and discovered it was a plastic bag containing 133 glassine envelopes of suspected heroin. Echartevera's arrest followed.

After he was indicted, Echartevera moved to suppress evidence seized from his person on the grounds that he was subjected to an illegal warrantless search. 

On August 5, 2021, the Middlesex County trial court denied the motion to suppress the CDS, holding that the police "conducted a constitutionally valid investigatory stop, pat-down, and seizure." The trial court found that the police lawfully stopped Echartevera based on his illegal parking of the van. The court also found Echartevera's fidgeting near his waistband and the potential occurrence of a drug transaction were specific and particularized reasons to believe he could have been armed.

The motion judge found that although a weapon was not identified during the pat-down, the bulge in Echartevera's waistline was properly retrieved to ensure officer safety. The motion judge found the officers' actions were reasonable and justified under prevailing case law.

In a written ruling, Appellate Division Judges Susswein and Vanek disagreed and vacated the denial of the motion to suppress evidence.

The judges wrote:

We agree with the motion judge that the responding officers had a reasonable and articulable suspicion to justify stopping defendant under Terry v. Ohio in light of defendant committing a motor vehicle infraction by parking the van in a prohibited area. We also find that the trial court correctly concluded that asking defendant to step out of the vehicle and walk to the rear of the van for officers to conduct a pat-down for concealed weapons on the outside of his clothing was lawful. 

The motion judge found that the officers' credible testimony established that defendant was moving his hands by his waistband while seated in an illegally parked vehicle in an area where narcotics surveillance evidenced the potential for an imminent drug sale. We are satisfied that on these facts, the officers were permitted to conduct a pat-down of defendant's outer clothing to determine whether he had a concealed weapon that might be used to assault them. 

However, we part company with the trial court's conclusion that the manner in which the protective frisk was conducted was lawful under Fourth Amendment jurisprudence.

"A law enforcement officer, for their own protection and safety, may conduct a pat-down to find weapons that they reasonably believe or suspect are then in the possession of the person" they have lawfully stopped. Privott, citing Ybarra v. Illinois. 

"Because the intrusion is designed to protect the officer's safety, the standard governing protective searches is 'whether a reasonably prudent [person] in the circumstances would be warranted in [their] belief that [their] safety or that of others was in danger.'" State v. Roach, quoting State v. Valentine.

"The officer must be able 'to point to particular facts from which [they] reasonably inferred that the individual was armed and dangerous.'" Thomas, quoting Sibron v. New York.

"A protective frisk must be confined in scope to an intrusion designed only to reveal weapons, not CDS, and can be conducted only by a carefully limited pat-down of outer clothing to determine whether the defendant has a weapon that might be used to assault the officer rather than an under-the-clothing search." Roach, citing Terry.

The officer's testimony did not establish an objectively reasonable basis to conclude the object he felt in defendant's waistband was a weapon, as distinct from CDS. Accordingly, the officer was not authorized to remove the object. Officer Vasquez testified that during the initial pat-down on defendant's outer clothing, he felt a sturdy item with a hard plastic texture and he could hear the sound of rustling plastic. Vasquez did not testify that after the initial pat-down he thought the bulge was a weapon or that he feared for his safety. Instead, the officer testified there was a "potential" that the object posed a threat to his safety.

There was also no evidence that the officers asked defendant any questions that might have led to the discovery of further information regarding the contents of the bulge before proceeding with the search under his clothing. 

We find guidance in the Supreme Court's unanimous decision in Roach. In that case, the Court acknowledged that it had upheld seizures of unidentifiable objects on a suspect's person where a lawful pat-down was inconclusive. The Court reasoned that police officers do not have to "perceive tactile recognition of a firearm" before they may protect themselves by removing a potential weapon. Nor is it necessary for an officer to "identify by species the object of concern," so long as the fear for their safety resulting from the pat-down is reasonable.

In Roach, the officers were faced with a nervous and intoxicated defendant with bloodstains on his shirt who refused to obey their lawful orders, continued to move his hands toward the unidentified bulge, and had to be physically restrained. The Court characterized the circumstances as "frenetic," concluding "that erratic behavior justified the officers' further action to neutralize any potential threat." The Court cautioned that officers will not be free to seize an item every time an officer pats down a defendant and cannot ascertain what he is feeling, noting that hidden objects may be seized where the totality of the circumstances creates an objectively reasonable concern for officer safety. 

Here, in stark contrast to the facts in Roach, defendant was compliant and did not refuse to obey any of the officers' lawful orders. Nor did he continue to move his hands toward the unidentified bulge after the one time he swiped at the officer's hand, which may have been a reflexive response to the officer reaching towards his front waistband. Defendant's conduct, in other words, was neither erratic nor threatening. This conclusion is consistent with the officer's testimony that there are a number of items the suspect might not have wanted the officer to retrieve, including CDS. 

Thus, we are constrained to conclude the removal of the plastic bag exceeded the permissible scope of a Terry frisk because it was not reasonably believed to be a weapon based on the initial pat-down considered in light of the totality of the circumstances. Since the CDS was found after and only as a direct result of the unlawful search, that evidence must be suppressed as fruit of the poisonous tree, the Appellate judges concluded.

Eladio Echartevera was represented by Assistant Deputy Public Defender Susan L. Romeo.

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