STATE OF NEW JERSEY VS. KURT STUMP (19-05-0789, MONMOUTH COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1865-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KURT STUMP,
Defendant-Appellant.
_________________________
Argued August 17, 2021 – Decided September 7, 2021
Before Judges Gilson and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 19-05-
0789.
Kevin S. Finckenauer, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Kevin S.
Finckenauer, of counsel and on the briefs).
Monica do Outeiro, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Lori Linskey, Acting Monmouth
County Prosecutor, attorney; Monica do Outeiro, of
counsel and on the brief; Alecia Woodard, Legal
Assistant, on the brief).
PER CURIAM
Defendant Kurt Stump was a passenger in a taxi when it was stopped for
motor-vehicle violations. A police officer removed defendant from the car,
seized a prescription bottle from him, and charged him with third-degree
possession of Xanax without a prescription, N.J.S.A. 2C:35-10(a)(1). The trial
court denied defendant's motion to suppress the warrantless seizure of the bottle
and Xanax pills. Thereafter, defendant pled guilty and was sentenced to one
year of probation.
He appeals, arguing he was illegally removed from the taxi and the
prescription bottle and pills were not lawfully seized. We agree. The trial court
did not find, and the record contains insufficient evidence to establish, that
defendant posed a heightened risk of danger justifying his removal from the taxi.
In addition, the evidence establishes that the bottle was recognizable as
contraband only after the officer seized it and saw the prescription was for
Methadone, but the pills appeared to be Xanax. Accordingly, we reverse the
order denying the motion to suppress and defendant's conviction.
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I.
The facts were established at an evidentiary hearing where two witnesses
testified: Police Officer Barry Hollo and defendant. At approximately 5 p.m.
on March 21, 2019, Officer Hollo and two other officers were on a "proactive"
narcotics patrol in an unmarked police vehicle in a "high crime" area in Asbury
Park. The officers observed defendant walking on a sidewalk while talking on
a cellphone and looking around. Hollo explained that when he saw defendant,
he did not know him, nor had he had any prior interactions with defendant.
Nevertheless, the officers pulled their vehicle to the side of the road to observe
defendant. They saw defendant meet P.T., who Hollo recognized as someone
who had previously been involved in the distribution of narcotics.
As defendant and P.T. were standing on the sidewalk, a taxi pulled up to
the curb and defendant and P.T. got into the cab. Officer Hollo testified that the
cab had a female driver and another passenger in the rear seat. Hollo recognized
the passenger as L.K., who Hollo knew to be involved in "[n]arcotics and violent
offenses."
After defendant and P.T. entered the taxi, Officer Hollo observed the cab
pull away from the curb without signaling. Following in the police vehicle,
Hollo saw the taxi make a left turn at an intersection that was "clearly marked
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with a no left turn sign." Thereafter, the officers signaled for the taxi to pull
over, which it did.
The officers got out of their vehicle and approached the taxi. Officer
Hollo walked up to the cab on the passenger side and saw defendant "moving
frantically about the rear portion of the taxi." When Hollo got level with the
passenger window, he saw defendant trying to push an orange pill bottle into the
crease of the back seat. At that point, Hollo "escorted" defendant out of the cab
by taking his wrists and walking him to the rear of the taxi. Defendant was
holding the pill bottle in his left hand and Hollo could see that the pills in the
bottle appeared to be Xanax. Hollo then took the pill bottle from defendant,
examined it more closely, and saw that the prescription was in defendant's name,
but for Methadone. Hollo also observed the pills more closely and, based on his
training and experience, believed the pills were Xanax. Defendant told Hollo
he had a prescription but Hollo placed defendant under arrest for possessing
Xanax without a prescription.
P.T. and L.K. were also removed from the cab and arrested by Hollo's
fellow officers for possessing other narcotics. According to Hollo, the taxi
driver was not involved in any narcotic activity, and she was released without
being given summonses or tickets for the motor-vehicle violations.
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On cross-examination, Hollo elaborated that he had seen the pills in the
bottle when defendant was still in the cab. He testified that he "immediately
recognized the pills in the pill bottle as Xanax" because of their dis tinct
rectangular shape. During recross-examination, in response to a question from
the judge, Hollo explained that he was first able to see the label on the bottle
when he removed the bottle from defendant and "was able to observe it . . . in a
closer view." Later, Hollo was shown his police report, which stated that
defendant had told Hollo that the prescription was for Xanax. Hollo then
clarified that if he had earlier testified that defendant told him that the
prescription was for Methadone, he "misspoke." Thus, Hollo confirmed that
defendant had told him that the prescription was for Xanax, and Hollo saw that
the prescription label was for Methadone only after he had taken the bottle from
defendant.
Defendant's testimony was in marked contrast to the testimony by Officer
Hollo. Defendant stated that he was walking down a street in Asbury Park trying
to call a cab so he could go see a friend who was at a hospital. Defendant waved
a cab down, and the cab already had a passenger who he did not know.
Defendant got into the cab, and, as they were driving toward the hospital, the
cab stopped to pick up another person. The cab then began to move again but
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suddenly pulled over. Defendant testified that his door "fl[ew] open," he was
"grabbed and dragged out of [the] cab," and told "to put [his] hands on the
vehicle." Defendant was then searched, and a police officer took a prescription
bottle out of defendant's pocket. Thereafter, the officer conferred with other
officers on scene, came back to defendant, and asked defendant if the pills were
Xanax, then pointed out the prescription was for Methadone. According to
defendant, he did not respond and was arrested.
Defendant claimed he never gave the police permission to search him or
to take the pill bottle from his pocket. Defendant also explained that when he
was dragged out of the cab, the other two passengers were simultaneously pulled
out of the vehicle and all three were searched. By contrast, defendant stated that
the taxi driver was not questioned.
After hearing the testimony and considering the physical evidence, which
included the pill bottle, the trial court denied the motion to suppress. Relying
on the testimony of Officer Hollo, the court found that the police had lawfully
stopped the taxi because of two traffic violations. The court also found that
defendant had been lawfully removed from the cab because the vehicle was
stopped in a high-crime area and Officer Hollo saw defendant moving frantically
in the cab while holding the pill bottle.
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In making those findings, the court questioned whether Hollo could see
the pills while the bottle was in defendant's possession. Nevertheless, the court
found, under the circumstances, that Hollo was permitted to "investigate what
was in defendant's hand." The court ultimately found Hollo could see through
the bottle when he took the bottle from defendant.
Finally, the trial court found that the bottle had been lawfully seized under
the plain-view doctrine. In that regard, the court found that Officer Hollo was
lawfully in an area to view defendant after the taxi had been stopped. The court
found Hollo "had a right to ask to see [the prescription] bottle" and,
consequently, was able to see the bottle's contents and label. The court also
found that the pills in the bottle were immediately recognizable as contraband
because "[p]rior to seeing the prescription bottle, Officer Hollo observed
defendant moving frantically in what he believed was an attempt to conceal
something." Moreover, when defendant exited the cab, he claimed to have a
prescription bottle, but the officer saw that the prescription did not match the
shape of the pills. The court went on to find that once the officer had seized the
bottle, the officer could observe that the prescription was for Methadone, but the
pills appeared to be Xanax. In making that finding, the trial court stated:
Looking at the totality of the circumstances from the
standpoint of an objectively reasonable police officer
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with Officer Hollo's training and experience, Officer
Hollo had probable cause to associate the Xanax pills
found in plain view with contraband prior to his seizure
or at the time that he seized them.
II.
On appeal, defendant makes two arguments, which he articulates as
follows:
POINT I – DEFENDANT'S REMOVAL FROM THE
VEHICLE WAS UNCONSTITUTIONAL BECAUSE
THERE WAS NO "H[E]IGHTENED AWARENESS
OF DANGER" DURING THE MOTOR VEHICLE
STOP
POINT II – SEIZURE OF DEFENDANT'S PILL
BOTTLE WAS UNCONSTITUTIONAL BECAUSE
IT WAS NOT IMMEDIATELY APPARENT THAT
THE PILL BOTTLE CONTAINED CONTRABAND,
AND INSTEAD THE COURT RELIED ON
OBSERVATIONS MADE AFTER DEFENDANT'S
ILLEGAL REMOVAL FROM THE VEHICLE AND
AFTER THE SEIZURE ITSELF OCCURRED IN
FINDING THE SEIZURE WAS PROPER
A. The Pill Bottle was an Intrinsically
Innocent Object that Fails to Provide
Grounds for Probable Cause
B. Defendant's Movements while in the
Taxi, Even in Conjunction with the Pill
Bottle, Fail to Give Rise to Probable Cause
C. The Motion Court Improperly Relied
on Observations Made After Defendant
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was Unlawfully Removed from the Vehicle
and After the Pill Bottle was Unlawfully
Seized in Determining Probable Cause
In reviewing an order concerning a motion to suppress following an
evidentiary hearing, appellate courts generally defer to the factual findings made
by the trial court "so long as those findings are supported by sufficient cred ible
evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State
v. Elders, 192 N.J. 224, 243 (2007)). The legal conclusions of a trial court are
reviewed de novo. State v. Hubbard, 222 N.J. 249, 263 (2015) (citing State v.
Gandhi, 201 N.J. 161, 176 (2010)).
Having reviewed the record, we find no evidence supporting a heightened
caution or reasonable suspicion that defendant was engaged in illegal activity
justifying his removal from the taxi. In addition, there was no evidence from
which Officer Hollo could have determined that the bottle contained
unprescribed drugs before seizing it from defendant. Therefore, we reverse.
A.
Both the United States and New Jersey Constitutions prohibit
"unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art.
I, ¶ 7. A motor vehicle can be lawfully stopped without a warrant if a police
officer has "a reasonable and articulable suspicion that the driver of a vehicle,
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or its occupants, is committing a motor-vehicle violation or a criminal or
disorderly persons offense." State v. Scriven, 226 N.J. 20, 33-34 (2016) (citing
State v. Locurto, 157 N.J. 463, 470 (1999)).
"[O]rdering a person out of a car constitutes a seizure because the person's
liberty has been restricted." State v. Bacome, 228 N.J. 94, 104 (2017) (citing
State v. Smith, 134 N.J. 599, 609, 611 (1994)). Consequently, an occupant can
be ordered to get out of a vehicle "only when it is objectively reasonable to do
so." Ibid.; see also Maryland v. Wilson, 519 U.S. 408, 411-14 (1997).
New Jersey law is more protective than federal law on the grounds
justifying a passenger's removal from a car stopped for a motor-vehicle
violation. Bacome, 228 N.J. at 105. Under New Jersey's Constitution, police
officers can "remove passengers only when the circumstances present reason for
heightened caution." Id. at 107. Accordingly, a police officer can "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 occupant [] to
step out of a vehicle detained for a traffic violation.'" Id. at 106 (quoting Smith,
134 N.J. at 618). An officer can also "order a passenger out of an automobile if
the officer ha[s] an articulable suspicion short of probable cause to believe that
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a crime ha[s] been committed." State v. Mai, 202 N.J. 12, 25 (2010) (quoting
State v. Tucker, 136 N.J. 158, 167 (1994)).
Furtive movements by a passenger may satisfy the heightened-caution
standard. Bacome, 228 N.J. at 107 (citing Smith, 134 N.J. at 618-19).
Consequently, if a passenger is observed making surreptitious movements and
those movements suggest a risk to officer safety, that risk supports the exercise
of heightened caution. Ibid. Nevertheless, "[n]either 'inarticulate hunches' nor
an arresting officer's subjective good faith can justify infringement of a citizen's
constitutionally guaranteed rights." State v. Alessi, 240 N.J. 501, 518 (2020)
(alteration in original) (quoting State v. Arthur, 149 N.J. 1, 8 (1997)).
Here, the trial court found that the taxi was lawfully stopped because of
two motor-vehicle violations. That finding is supported by substantial credible
evidence in the record. The trial court did not, however, find that there were
circumstances warranting heightened caution for officers' safety. Officer Hollo
never testified that he had any concern about defendant posing a risk. Instead,
Hollo's testimony focused on his observation that defendant was holding a
prescription bottle. While Hollo testified on cross-examination that he had a
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general concern for officer safety because "[y]ou never know what's going to
happen on a car stop," he never linked that concern to defendant. 1
Because there is no evidence that defendant's movements presented reason
for heightened caution due to officer safety, the question becomes whether
defendant's possession of a prescription bottle gave rise to a reasonable and
articulable suspicion that defendant was engaged in criminal activity. Officer
Hollo testified that when he walked up to the passenger window, he saw
defendant trying to stuff a prescription bottle into a crease in the rear seat of the
taxi. The prescription bottle by itself is not inherently dangerous nor was it
immediately recognized as contraband. See Russell v. Coyle, 266 N.J. Super.
651, 660 (App. Div. 1993). The prescription bottle and pills could be recognized
as contraband only when the officer knew what the prescription was for and
whether the pills in the bottle matched that prescription.
Officer Hollo testified that he first had seen that the prescription on the
bottle was for Methadone after he had taken the bottle from defendant.
Accordingly, when the officer observed defendant in the car, he had no
articulable facts indicating that the possession of the prescription bottle was
1
Based on Officer Hollo's testimony, L.K. may have presented a risk, since
Hollo testified L.K. was known to have engaged in "violent offenses." Hollo,
however, did not testify that defendant posed a safety risk.
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illegal. In short, there are insufficient facts in the record to support the officer's
removal of defendant from the taxi.
B.
In addition, there are no facts supporting the seizure of the prescription
bottle and pills under the plain-view doctrine. The plain-view exception allows
police to seize contraband when (1) a police officer is lawfully in the area where
he or she makes the observation; and (2) it is "immediately apparent that the
seized item is evidence of a crime." State v. Gonzales, 227 N.J. 77, 101 (2016).
Officer Hollo testified that he first had seen the label on the prescription
bottle after he took the bottle from defendant. Accordingly, before seizing the
bottle the officer had no articulable suspicion or probable cause to believe that
the prescription bottle contained unprescribed drugs. While Officer Hollo
testified that he could see the pills in the bottle when the bottle was still in
defendant's possession, and while he also testified that he believed the pills were
Xanax, he had no basis to believe that the prescription on the bottle was for
something other than Xanax until he seized the bottle and observed it more
closely.
The trial court found, under the circumstances, Officer Hollo had probable
cause to associate the pills with contraband "prior to his seizure or at the time
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that he seized them." The law does not allow an "either-or" finding. The bottle
and pills could be seized under the plain-view exception only if it was
"immediately apparent" they were contraband. Ibid. Moreover, the plain-view
exception does not apply retrospectively. A police officer must have "probable
cause to associate the property with criminal activity" before seizing it. State v.
Bruzzese, 94 N.J. 210, 237 (1983) (citation omitted); accord State v. Williams,
461 N.J. Super. 1, 11 (App. Div. 2019) (citing State v. Johnson, 171 N.J. 192,
208 (2002)).
C.
In summary, the trial court never found that there were circumstances
giving rise to a heightened caution justifying defendant's removal from the taxi.
Furthermore, the facts do not support the seizure of the bottle and pills under the
plain-view exception. Accordingly, we reverse the order denying defendant's
motion to suppress the seizure of the prescription bottle and the pills . We also
reverse defendant's conviction. We remand with direction that the prescription
bottle and the pills be suppressed. The State can then decide how it wishes to
proceed.
Reversed and remanded. We do not retain jurisdiction.
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