New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

State v. Bacome – NJ Supreme Court Reaffirms “Heightened Caution” Standard for Ordering Passenger From Stopped Vehicle

In State v. Bacome, decided January 31, 2017, two Woodbridge detectives observed the defendant-driver and a passenger in a Ford Bronco.  The passenger, who was in the front seat, was later identified as the vehicle’s owner.  The detectives claimed that both men were known drug dealers.  They followed the Bronco to Newark, but lost sight of it in an area purportedly known for drug trafficking.  They then assumed that the Bronco would return to Woodbridge with drugs purchased in Newark.  They spotted the Bronco after returning to Woodbridge, and stopped it when they saw the passenger was not wearing a seatbelt.

Each detective approached the Bronco from opposite sides of the vehicle.  One detective stated that Bacome leaned forward and appeared to be reaching under his seat.  He immediately ordered Bacome out of the car.  The other detective then ordered the passenger from the car, and both men complied.  Each was questioned separately about their trip, and gave contradictory responses.  Since the passenger was now out of the car, the detective was able to to see rolled up paper shaped like a straw and a small piece of steel wool.  Both items were indicative of drug use.  The passenger consented in writing to a vehicle search.  The search yielded crack cocaine and other paraphernalia.  Both men were arrested.

The trial court denied defendants’ motion to suppress the drugs and other seized items, finding that the vehicle stop based upon the seatbelt violation was lawful.  Further, the removal of both men from the Bronco was also lawful because the detectives had reasonable and articulable suspicion of criminal activity.

On appeal, Bacome challenged the passenger’s removal from the Bronco.  The appellate panel remanded the case to the trial court which, in turn, found that Bacome’s act of reaching under the seat created the need for “heightened caution” under State v. Smith, 134 N.J. 599 (1994), which then justified the passenger’s removal from the car.  Bacome returned to the Appellate Division, where the majority reversed the trial court’s denial of the suppression motion.  The majority found that the State failed to show that there was a need for heightened caution that justified the passenger’s removal, and that conducting a vehicle stop because of a seatbelt violation amounted to a “ruse”.  The dissent believed that the vehicle stop based on the seatbelt violation was lawful, and that the detectives had a reasonable suspicion that the men had purchased drugs in Newark.  Additionally, the passenger’s liberty interest was no different from that of a driver who committed a traffic infraction, and that asking him to get out of the Bronco was a lawful request.

Because of the split appellate panel, the State appealed as of right to the New Jersey Supreme Court, which reversed the Appellate Division and reinstated Bacome’s convictions.  In doing so, the Supreme Court reaffirmed that the “heightened caution” standard set by Smith as the proper test for ascertaining whether it was appropriate for the police to order a passenger to get out of a vehicle.  Bacome’s furtive movements while sitting in a recently stopped car provided the detectives with an objectively reasonable basis for exercising heightened caution and ordering the passenger from the Bronco.

In reaffirming the Smith standard, the Court outlined the case’s history, as well as some of the law applicable to vehicle stops and subsequent search and seizure activity.  A lawful vehicle stop must be based upon a reasonable and articulable suspicion that an offense including, without limitation, a relatively minor traffic infraction, was or is being committed.  The passenger’s failure to wear his seatbelt was a traffic code violation, and it preceded the stop.  Thus, the stop was grounded in the detectives’ reasonable and articulable suspicion that the passenger had violated the traffic code by failing to wear a seatbelt.  Further, in Pennsylvania v. Mimms, 434 U.S. 106 (1977), the United States Supreme Court held that it was objectively reasonable for officers to order a driver out of a recently stopped vehicle.  In Smith, the New Jersey Supreme Court declined to extend this rule to passengers, holding instead that officers can order the passenger from a vehicle only if they can assert “specific and articulable facts that would warrant heightened caution.”  The United States Supreme Court later found in Maryland v. Wilson, 519 U.S. 408 (1997), that officers making traffic stops can order passengers from the car pending completion of the stop.

The Court observed that there were no decisions after Smith that modified or overruled its findings or conclusions.  In fact, the Court noted that the Smith standard was reaffirmed in State v. Mai, 202 N.J. 12 (2010).  Against this backdrop, the Court again reaffirmed the Smith standard for removing passengers from lawfully stopped vehicles – a police officer can remove a passenger only when circumstances present reasons for heightened caution.

Turning to the matter at bar, the Court found that furtive movements can provide the need for heightened caution.  Bacome’s furtive movements were specific and articulable facts that provided the need for heightened caution justifying his removal from the Bronco, thereby positioning the detectives to observe contraband (the straw and steel wool) in plain view.

A significant number of drug cases begin with vehicle stops.  Many clients with narcotics charges question the justification for the initial vehicle stop, and the discovery in these cases frequently includes some indication of a traffic violation.  Cases like Bacome’s often start with a broken headlight, failure to wear a seatbelt, use of a cell phone in a moving vehicle, or even dirty license plates.  Any vehicle or traffic offense can lead to a stop.  Further, the likelihood of this case ever getting off the ground would have been greatly reduced had Bacome simply sat still after the police stopped the Bronco.  His “furtive movements” provide the police with the ability to take it to the next level.  Finally, the passenger consented to a search of the car.  This was a mistake – generally speaking, someone suspected of criminal activity should refuse to consent to a vehicle (or home) search, or make a statement to police.  Statements almost always lead to problems such as enhanced charges or easier proofs for the State.  Similarly, a suspect cannot be compelled to consent to a search, regardless of what the police may say when they are detained or arrested.  Those making the mistake of consenting to a search can – and should – withdraw their consent after the search begins.

New Brunswick, New Jersey criminal defense attorney James S. Friedman represents defendants with drug charges in the Superior Court of New Jersey, the New York State Supreme Court in Manhattan and Brooklyn, and the United States District Courts located in New Jersey and New York City.  If you have narcotics charges, do not talk to the police – instead, contact us immediately to learn about your rights and start planning your defense.