NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3734-12T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TAWIAN BACOME,

Defendant-Appellant.

_________________________________________________

Submitted September 23, 2014 – Remanded

Argued March 24, 2015 - Decided 

Before Judges Fisher, Nugent and Accurso.

On appeal from the Superior Court of New 

Jersey, Law Division, Middlesex County, 

Indictment No. 11-08-1221.

Jacqueline E. Turner, Assistant Deputy 

Public Defender, argued the cause for 

appellant (Joseph E. Krakora, Public 

Defender, attorney; Ms. Turner, on the 

brief).

Frank Muroski, Deputy Attorney General,

argued the cause for respondent (John J. 

Hoffman, Acting Attorney General, attorney; 

Mr. Muroski, of counsel and on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

October 17, 2014

April 16, 2015

APPROVED FOR PUBLICATION

April 16, 2015

APPELLATE DIVISION
2 A-3734-12T1

After the denial of his suppression motion, defendant 

pleaded guilty to a drug possession offense and was sentenced to 

a three-year prison term. In this appeal, defendant argues only 

that the trial judge erred in denying his motion to suppress 

evidence seized during a warrantless search of the motor vehicle 

he was operating. We conclude – on the pivotal question – that 

police lacked a reasonable and articulable basis for ordering 

defendant's passenger out of the vehicle and reverse the order 

denying suppression.1

I

At the suppression hearing, the State's only witness was 

Woodbridge Detective Brian Jaremczak. He testified that, at 

approximately 4:30 p.m., on April 29, 2011, he and his partner, 

Detective Patrick Harris, observed defendant operating a Ford

Bronco; S.R., the owner of the vehicle, was in the front 

passenger seat. The detective testified he was "very aware" of 

S.R. and "had just recently heard about" defendant; he believed 

 

1We first heard this appeal earlier in the term. By way of an 

unpublished opinion (hereafter Bacome I) filed on October 17, 

2014, we remanded for additional findings, which the trial judge 

promptly provided. This circumstance provides a valid basis for 

our citing and quoting Bacome I even though it was unpublished. 

See State v. W. World, Inc., __ N.J. Super. __, __ n.1 (App. 

Div. 2015) (slip op. at 3 n.1); Badiali v. N.J. Mfrs. Ins. Grp., 

429 N.J. Super. 121, 126 n.4 (App. Div. 2012), aff’d, __ N.J. __ 

(2015).
3 A-3734-12T1

they were "narcotic users and narcotic dealers" because the

police department had received "information from concerned 

citizens" about "a lot of traffic coming and going from 

[defendant's] apartment."

The detectives, driving an unmarked vehicle, followed 

defendant's Ford Bronco out of Woodbridge and onto Routes 1 and 

9, heading toward Newark; they eventually lost the Bronco on 

Frelinghuysen Avenue. Suspecting defendant and S.R. "were going 

to purchase narcotics" and "would be back very shortly," the 

detectives drove to Woodbridge and awaited the Bronco's return.

At approximately 5:30 p.m., while waiting on the border of 

Woodbridge and Rahway, Detective Jaremczak observed the Bronco 

traveling south on Routes 1 and 9. When asked what happened 

next, the detective testified that "we" observed S.R. "wasn't 

wearing his seatbelt." They activated their vehicle's emergency 

lights and directed the Bronco to stop.

Detective Jaremczak approached the passenger side, and his 

partner approached the driver's side. When asked whether he 

"notice[d] any movement by either" occupant, Detective Jaremczak 

responded that "[his] partner did," and that his partner "saw 

[defendant] reaching forward . . . like, reaching under his 

seat." Defense counsel immediately objected because the witness 

lacked personal knowledge. The judge made no ruling but only 
4 A-3734-12T1

asked the witness whether he observed defendant's movement, and 

Detective Jaremczak responded "no." In answer to the 

prosecutor's next question, the detective explained he was 

"focused on" S.R., confirming he did not see defendant's alleged 

furtive movement. The detective testified his partner asked 

defendant to exit the vehicle, and he directed S.R. out of the 

vehicle. Both occupants complied.

The detectives separately questioned the occupants, who 

gave different responses to where they were coming from, which, 

according to the witness, "further heighten[ed] [their] 

suspicion as to what occurred." During his questioning of S.R., 

Detective Jaremczak noticed "a rolled up piece of paper[,] which 

was in the shape of a straw[,] [a]nd a piece of Chore Boy 

Brillo" "near the front of the middle console." He testified 

that, in his experience, "[t]he straw can be used to snort 

narcotics," and the other item "is used, pretty much, as a 

filter in a crack pipe." As a result of these observations, 

Detective Jaremczak requested and obtained S.R.'s consent to 

search the vehicle. The detective read him the consent form; to 

him, S.R. did not "appear to be under the influence of any 

narcotics or drugs" and appeared to understand the consent form

that he signed.
5 A-3734-12T1

In the search of the vehicle that followed, the officers 

seized the straw and scrubber observed in "plain view," as well 

as "blunt wrappers," "a used crack pipe inside of a Maverick 

cigarette pack," "[a] larger piece of Chore Boy copper 

scrubber," and "[thirteen] vials of crack cocaine in a Newport 

cigarette pack."

Although during direct examination the detective testified 

only that "we" observed S.R. was not wearing a seatbelt, when 

cross-examined he testified that he observed it, although he 

could not remember any details and did not issue a summons for 

that alleged violation. When pressed, Detective Jaremczak 

acknowledged there were actually two reasons for the motor 

vehicle stop: (1) S.R. was not wearing a seatbelt, and (2) he 

"believe[d] that they just went to Newark to purchase 

narcotics." The detective also agreed the observations of the 

straw and scrubber were not made until after S.R. stepped out of 

the vehicle as commanded:

Q. Did you see [those items] through the 

windshield or through the side [window]?

A. Once he got out; the door was opened; and 

that's when I s[aw] it.

Q. How did he get out?

A. I asked him out.

. . . .
6 A-3734-12T1

Q. So you ordered him out of the car because 

you were conducting what kind of investigation?

A. I asked him out of the vehicle. And at 

that time it became a narcotic investigation.

Q. Isn't it true that it already was a 

narcotics investigation before [defendant] 

was ordered out of the car?

A. Yeah. I did believe that they went to 

Newark to purchase narcotics.

During direct examination, the prosecutor elicited 

testimony from the detective that the consent form for the 

search was executed at 5:55 p.m. The defense demonstrated 

during cross-examination, through use of a video taken from 

another police vehicle, that the detective was likely in error 

about the timing of consent.

As can be seen, Detective Jaremczak did not have personal 

knowledge of part of the circumstances that ostensibly justified 

the warrantless search. He did not see defendant reach under 

the seat; Detective Jaremczak testified only that Detective 

Harris said he observed this. When asked where Detective Harris 

was the day of the hearing, Detective Jaremczak said Harris was 

home and not expected to appear at the hearing.

No one else testified.
7 A-3734-12T1

II

A week after the hearing, the trial judge rendered an oral 

decision, in which he found: the observation of S.R. not wearing 

a seatbelt gave the detectives a lawful reason for stopping the 

vehicle; defendant's reaching under his seat gave the detectives 

a reasonable suspicion of criminal activity and authorized their 

directions that defendant and S.R. exit the vehicle; once S.R. 

was out of the vehicle, drug paraphernalia was seen in plain 

view; and S.R. thereafter freely and voluntarily gave his 

consent to the vehicle search, resulting in the seizure of 

thirteen vials of crack cocaine. For these reasons, the judge 

denied the motion to suppress.

Defendant later pleaded guilty to third-degree possession

of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), 

and was sentenced to a three-year prison term.

III

In this appeal, defendant argues only that the judge erred 

in denying his suppression motion because the officers "did not 

have cause to order [S.R.] from the car." Accordingly, we need 

not question the legitimacy of the vehicle stop,2 notwithstanding 

 

2See Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 

59 L. Ed. 2d 660, 673 (1979); State v. Locurto, 157 N.J. 463, 

(continued)
8 A-3734-12T1

the officers' overarching desire to conduct a narcotics 

investigation in the absence of reasonable suspicion to support 

that undertaking.3 In addition, there is no dispute about the 

observations of drug paraphernalia in plain sight once S.R. was 

ordered out of the vehicle. And the voluntariness of the 

consent given for the search that followed has not been 

questioned. Consequently, this appeal rises and falls on 

whether S.R. was lawfully ordered out of the vehicle because, 

without that link in the chain of events, the evidence 

thereafter seized would have to be excluded.4

 

(continued)

470 (1999); State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 

1994).

3See State v. Kennedy, 247 N.J. Super. 21, 28 (App. Div. 1991) 

(holding that "courts will not inquire into the motivation of a 

police officer whose stop of an automobile is based upon a 

traffic violation committed in his presence").

4We reject the State's contention, based on State v. Robinson, 

200 N.J. 1, 18-19 (2009), that we should not consider this 

argument because defendant failed to pose this precise question 

in the trial court. Robinson involved a pretrial application as 

to which the defendant was saddled with the burden of proof. 

Here, the opposite is true; defendant moved for the suppression 

of evidence, and it was the State's burden to prove the 

admissibility of the fruit of its warrantless search. State v. 

Brown, 216 N.J. 508, 517 (2014). We see no harm to the 

administration of justice, nor do we discern an inappropriate 

tilt of the field of the type that prompted the Court's ruling 

in Robinson. See 200 N.J. at 19. Indeed, in adhering to and 

quoting from an article written by a federal appellate judge, 

the Robinson Court expressed concern that permitting "lateblooming issues . . . would be an incentive for game-playing by 

(continued)
9 A-3734-12T1

A

We initially observe that an officer's command that a 

driver exit a vehicle constitutes a seizure, State v. Smith, 134 

N.J. 599, 609 (1994), but a seizure understood to be

constitutionally permissible, Pennsylvania v. Mimms, 434 U.S.

106, 111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331, 337 (1977); 

Smith, supra, 134 N.J. at 611, and based on the policy 

determination that police officer safety should prevail over the 

minimal intrusion on the driver's privacy interest, Mimms, 

supra, 434 U.S. at 110-11, 98 S. Ct. at 333, 54 L. Ed. 2d at 

336-37; Smith, supra, 134 N.J. at 610-11.5

In declaring this new federal constitutional principle, the 

Mimms Court was not clear whether it applied to all occupants of 

a vehicle. And in cases that followed the Court did not appear 

 

(continued)

counsel." Ibid. We detect no game-playing here. In any event, 

because the State was not prejudiced by defendant's refinement 

of his argument about this warrantless search – the State having 

rested at the hearing before the significance of the evidence 

was argued – we will consider on its merits the slightly 

different argument defendant has posed in this appeal.

5See also State v. Mai, 202 N.J. 12, 22-23 (2010) (finding no 

difference in whether an officer orders an occupant out of a 

vehicle or opens the vehicle door to accomplish the same 

object).
10 A-3734-12T1

to confine this rule's application to drivers.6 This uncertainty 

about Mimms's reach was finally swept away in 1997, when the 

Court held, as a matter of federal constitutional law, that 

"danger to an officer from a traffic stop is likely to be 

greater when there are passengers in addition to the driver in 

the stopped car" and concluded – despite the passenger's 

"stronger" "personal liberty interest" than the driver's in that 

instance – the intrusion remains "minimal"; consequently, the 

Court held that "an officer making a traffic stop may order 

passengers to get out of the car pending completion of the 

stop." Maryland v. Wilson, 519 U.S. 408, 413-15, 117 S. Ct.

882, 886, 137 L. Ed. 2d 41, 47-48 (1997) (emphasis added). 

Insofar as defendant relies on federal constitutional 

principles, there is no merit to his argument that the command 

that S.R. exit the vehicle was constitutionally prohibited.

 

6Mimms had referred to the right of police to order a driver out 

of a vehicle rightfully detained. 434 U.S. at 111, 98 S. Ct. at 

333, 54 L. Ed. 2d at 337. But questions as to Mimms's scope 

later arose from Michigan v. Long, 463 U.S. 1032, 1047-48, 103 

S. Ct. 3469, 3480, 77 L. Ed. 2d 1201, 1218-19 (1983) (emphasis 

added), where the Court restated the rule as authorizing police 

to "order persons out of an automobile during a stop for a 

traffic violation." And in a concurring opinion in Rakas v. 

Illinois, 439 U.S. 128, 155 n.4, 99 S. Ct. 421, 436 n.4, 58 L. 

Ed. 2d 387, 409 n.4 (1978) (emphasis added), Justice Powell 

mentioned that Mimms determined "that passengers in automobiles 

have no Fourth Amendment right not to be ordered from their 

vehicle, once a proper stop is made."
11 A-3734-12T1

B

Not long before the Court decided Maryland v. Wilson, our 

Supreme Court considered the application of paragraph 7 of 

Article I of the New Jersey Constitution to police seizure of a 

driver or occupant from a vehicle stopped for a traffic

violation. The Court concluded in Smith that "as applied to 

drivers," Mimms's per se rule passes state constitutional 

muster. 134 N.J. at 610-11 (emphasis added). Unlike the per se 

rule that the Court ultimately adopted in Maryland v. Wilson, 

however, our Supreme Court "decline[d] to extend [Mimms's] per 

se rule to passengers," and determined that "an officer must be 

able to point to specific and articulable facts that would 

warrant heightened caution to justify ordering the occupants to 

step out of a vehicle detained for a traffic violation." Smith, 

supra, 134 N.J. at 618. The Court described the scope of this 

principle in the following way:

To support an order to a passenger to alight 

from a vehicle stopped for a traffic 

violation, . . . the officer need not point 

to specific facts that the occupants are 

"armed and dangerous." Rather, the officer 

need point only to some fact or facts in the 

totality of the circumstances that would 

create in a police officer a heightened 

awareness of danger that would warrant an 

objectively reasonable officer in securing 

the scene in a more effective manner by 

ordering the passenger to alight from the 

car.
12 A-3734-12T1

[Ibid.]

Although not relevant to this appeal, the Smith Court further 

noted that to justify a pat-down in this circumstance, the 

prosecution must satisfy the more stringent requirements of 

Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed.

2d 889, 909 (1968). See Smith, supra, 134 N.J. at 619.

The Smith Court also observed that, in one respect, "the 

Terry standard and the standard for ordering a passenger out of 

a car are the same," rejecting "the proposition that such an 

intrusion will be justified solely because of an officer's 

'hunch.'" Ibid. Instead, "the officer must be able to 

articulate specific reasons why the person's gestures or other 

circumstances caused the officer to expect more danger from this 

traffic stop than from other routine traffic stops." Ibid.

C

In considering these principles and the matter at hand, the 

record reveals that much of what motivated this stop and 

investigation was the detectives' assumption that defendant and 

S.R. were narcotics users or sellers or both. The record 

contains nothing but rumor and innuendo to support that 

assertion. Detective Jaremczak testified that this supposition 

of illegal narcotic activity was based on the department's 

receipt of citizen complaints about the number of people 
13 A-3734-12T1

entering and leaving defendant's residence and by the fact that 

defendant and S.R. were observed traveling toward Newark. 

Obviously, these two circumstances do not suggest anything other 

than a mere "hunch" that defendant and S.R. may have been 

engaged in buying, using or selling illegal narcotics. The fact 

that S.R. was alleged not to have been wearing his seatbelt when 

the detectives observed the vehicle's return to Woodbridge adds 

nothing to whether either defendant or S.R. "caused the officer 

to expect more danger from this traffic stop than from other 

routine traffic stops." Smith, supra, 134 N.J. at 619. S.R.'s 

failure to wear a seatbelt generated a danger only to himself.

This leaves the assertion that, after the vehicle came to a 

stop, defendant was seen by Detective Harris "reaching forward 

. . . reaching under his seat." This event was not observed by 

Detective Jaremczak, the only witness called by the State to 

testify at the suppression hearing. Defendant objected to this 

hearsay testimony, and the judge never adequately responded. 

Although Detective Harris's absence and the lack of evidence 

based on personal knowledge on this critical point are 

troubling, it is understood that, as a general matter, the State 

may offer evidence at a suppression hearing that would 

constitute inadmissible hearsay if offered at trial. See e.g., 

State v. Wright, 431 N.J. Super. 558, 565 n.3 (App. Div. 2013), 
14 A-3734-12T1

certif. granted on other grounds, 217 N.J. 283 (2014); N.J.R.E.

101(a)(2)(E).7 The weight such testimony should be given, 

however, is a matter left to the trial judge as factfinder, with 

the prosecution running the risk that the factfinder may draw an 

 

7The Supreme Court of the United States has rejected the notion 

that due process is denied by such a rule, reasoning that "the 

interests at stake in a suppression hearing are of a lesser 

magnitude than those in the criminal trial itself." United 

States v. Raddatz, 447 U.S. 667, 679, 100 S. Ct. 2406, 2414, 65 

L. Ed. 2d 424, 435 (1980). This, however, is not always true; 

in fact, the matter at hand presents one of those many instances 

where the denial of a suppression motion leaves the accused 

defenseless, inexorably leading to a guilty plea or easy 

conviction. See United States v. Wade, 388 U.S. 218, 235, 87 S. 

Ct. 1926, 1937, 18 L. Ed. 2d 1149, 1162 (1967) (recognizing that 

"[t]he trial which might determine the accused's fate may well 

not be that in the courtroom but that at the pretrial 

confrontation"); United States v. Green, 670 F.2d 1148, 1154 

(D.C. Cir. 1981) (finding a suppression hearing to be "a 

critical stage of the prosecution which affects substantial 

rights of an accused person . . . [that] may often determine the 

eventual outcome of conviction or acquittal"); Olney v. United 

States, 433 F.2d 161, 163 (9th Cir. 1970) (observing that a 

suppression hearing may be a critical stage of a prosecution

"particularly in narcotics cases, where the crucial issue may 

well be the admissibility of narcotics allegedly found in the 

possession of the defendant"). Indeed, we are not so quick to 

assume the Confrontation Clause may not be violated when the 

admission of damning evidence turns on inadmissible hearsay –

frustrating or precluding the accused's right to cross-examine 

the absent declarant – because the prosecution decided to 

present certain critical facts through a witness who only 

received the critical information from someone the State chose 

not to call. See, e.g., Green, supra, 670 F.2d at 1154. 

Nevertheless, the understanding our courts have adopted – that 

hearsay may be admitted at a suppression hearing without 

apparent offense to the Confrontation Clause – has not been 

challenged here, so we consider the point no further.
15 A-3734-12T1

inference adverse to the prosecution's interests when a key fact 

is supported only by hearsay.8

Here, notwithstanding the presentation of this key fact 

through hearsay testimony, the judge initially made no finding 

regarding whether there was "some fact or facts in the totality 

of the circumstances that would create in a police officer a 

heightened awareness of danger that would warrant an objectively 

reasonable officer in securing the scene in a more effective 

manner." Smith, supra, 134 N.J. at 618. We quote the entirety 

of the judge's initial decision on this pivotal question:

While effectuating the stop the 

detective says he witness[ed] [defendant] 

reach under the driver's seat.[9] He – they 

don't say – they don't call – movements 

nowadays. Because they know that's not good 

language. But, basically, that's what he's 

saying. Seen some – movements under the 

driver seat.

In a totality of the circumstances 

analysis does the officer have a reasonable 

and articula[ble] suspicion to believe that 

criminal activity is afoot? All right. So 

he removes the defendants [sic] from the 

vehicle to speak with them.

[Emphasis added.]

 

8There was no showing that Detective Harris was unavailable; to 

the contrary, Detective Jaremczak testified Detective Harris was 

home at the time of the hearing. The judge drew no adverse 

inference.

9Again, the testifying detective did not witness this; his 

partner allegedly did.
16 A-3734-12T1

The judge did not thereafter address this question again in his 

initial decision, but instead turned to what he found the 

officers saw in plain sight once the occupants were removed from 

the vehicle, and then to the events that followed the plain-view 

observations.

D

In our earlier opinion we concluded that the judge's 

findings did not adequately address the permissibility of 

ordering S.R. from the vehicle.

First, we previously stated that

even if we liberally interpret the judge's 

comments to suggest that the "movement[] 

under the driver seat" was found to be "some 

fact" that would "create . . . a heightened 

awareness of danger," the judge did not 

explain how the driver's movement suggested 

the passenger posed a danger.

[Bacome I, supra, slip op. at 15-16.]

In a footnote in our earlier opinion, we observed that

in such an instance, the prosecution should 

be expected to present evidence of a 

reasonable and articulable suspicion that a 

weapon was under the driver's seat and the 

passenger was capable of reaching it while 

remaining seated in the vehicle. Here, 

there was no testimony that the Bronco's 

console did not constitute an obstacle to 

the passenger reaching under the driver's 

seat, or that the officer on the passenger's 

side of the vehicle was not capable of 

keeping watch over the passenger or prevent 
17 A-3734-12T1

him from reaching under the driver's seat, 

without unnecessarily intruding on the 

passenger's privacy by removing him from the 

vehicle.

[Id. at 16 n.9.]

These alleged circumstances may have been a reason for ordering 

defendant out of the vehicle, but the judge originally did not 

explain why defendant's movement suggested S.R. posed a danger.

Second, the "fact" that triggered the order that the

passenger exit the vehicle had to be considered in light of "the 

totality of the circumstances." Smith, supra, 134 N.J. at 618. 

The mere fact that the vehicle's occupants were traveling to and

from Newark, or the fact that defendant received many visitors 

at his residence, did not suggest a danger was posed when the 

vehicle was stopped for a seatbelt violation. Certainly, not 

every driver entering or leaving Newark may be assumed to be a 

drug user or drug dealer. Nor, even were this so, would it 

suggest the occupants posed a risk for the officers. In our 

earlier opinion, we directed "[t]he judge to discuss further 

whether and – if so – how these circumstances supported the 

removal of [S.R.] from the vehicle." Bacome I, supra, slip op. 

at 16.

Third, in his earlier decision, the judge considered only 

whether defendant's movement under the driver's seat provided a 

reasonable and articulable suspicion "that criminal activity is 
18 A-3734-12T1

afoot" (emphasis added). That was not the right question. The 

"fact or facts" to which the officer alludes must "create . . . 

a heightened awareness of danger." Smith, supra, 134 N.J. at 

618 (emphasis added). Accordingly, we previously held in this 

case:

No matter how broadly we may interpret the 

judge's comments, we cannot locate in his 

opinion a finding that defendant's alleged 

movement would have suggested "a heightened 

awareness of danger." We are not splitting 

hairs in focusing so closely on the judge's 

precise words; it is all we have to 

consider. An officer's limited right to 

order a passenger out of a vehicle arises 

from the policy determinations made by the 

Courts in Mimms and Smith that officer 

safety – not the investigation of criminal 

activity – overrides the minor intrusion 

into the passenger's privacy right.

[Bacome I, supra, slip op. at 17.]

And fourth, we previously concluded that the judge's posing 

of this incorrect question of whether the officer had "a 

reasonable and articul[able] suspicion to believe that criminal 

activity is afoot," followed by his answer – "All right" – did 

not sufficiently convey the substance of his findings. Even if 

that was the correct question, it was not clear whether "All 

right" was intended as the means of expressing a finding that 

the officers did have a reasonable and articulable suspicion of 

"criminal activity [being] afoot."
19 A-3734-12T1

As a result, we concluded that "[a]lthough we are required 

to defer to a trial judge's factual findings on a motion to 

suppress, State v. Elders, 192 N.J. 224, 254 (2007), the 

factfinding on the critical issue that this appeal poses does 

not command our deference. The judge clearly posed the wrong 

question and then gave no clear answer." Bacome I, supra, slip 

op. at 17. We, thus, remanded for further findings.

IV

By way of a brief written decision,10 the trial judge 

responded to the questions posed in Bacome I. Based on the same 

evidence, the judge drew the factual conclusion that the 

movement of the driver – a fact before the court only by way of 

hearsay that would be inadmissible at trial – suggested the 

passenger posed a danger. The judge described these conclusions 

by employing a series of double negatives and by delineating 

what it was that the record did not reveal:

∙ If the [d]efendant put a weapon under his 

seat, there is nothing to suggest that S.R. 

would have been unable to reach or gain 

access to it while remaining seated in the 

vehicle.

 

10We provided the parties with an opportunity to file 

supplemental briefs. Defendant provided a brief, the Acting 

Attorney General declined the invitation.
20 A-3734-12T1

∙ there was no indication that the vehicle's 

center console constituted an obstacle to 

S.R. reaching under the [d]efendant's seat.

∙ there was also no testimony that the 

officer who was standing on the passenger 

side of the vehicle was not capable of 

keeping watch over S.R. so as to prevent him 

from reaching under the [d]efendant's seat.

[Emphasis added.]

In other words, based on that which was not explained by the 

factual record, the judge determined that in light of "the 

danger inherent in motor vehicle stops" and the "totality of the 

circumstances," the driver's movement under his seat was a 

"specific and articulable fact" that would create a "heightened 

awareness of danger." The judge added that because the officers 

were surveilling defendant and S.R. for drug activity, and 

because they were "suspected of having made a drug run to Newark 

just prior to the traffic stop," it was not unreasonable "for 

the officers to believe" that defendant "did indeed place a 

weapon under his seat," and, for that additional reason, the 

order that both individuals exit the vehicle "was necessary to 

secure the scene in a more effective manner." Based on these 

suppositions, the judge concluded that the ordering of both 

defendant and S.R. from the vehicle was warranted.

What is lost in this blizzard of double negatives and 

speculative findings is that it was the State's burden to 
21 A-3734-12T1

justify this warrantless search. Brown, supra, 216 N.J. at 517. 

"A search conducted without a warrant is presumptively invalid, 

and the burden falls on the State to demonstrate that the search 

is justified by one of the 'few specifically established and 

well-delineated exceptions' to the warrant requirement." State 

v. Frankel, 179 N.J. 586, 598 (2004). Contrary to the trial 

judge's determination, the absence of adequate evidence is 

detrimental to the State's position, not defendant's.

The record unmistakably compels our agreement with the 

judge's determination that there was an absence of proof on 

these critical questions. No officer testified to a heightened 

safety concern. No officer testified S.R. was capable of 

reaching under defendant's seat if he remained seated in the 

passenger seat. No officer described the interior of the 

vehicle at all, let alone with enough concrete details from 

which an inference could be drawn that S.R. posed a danger if he 

remained in the passenger seat while being watched by an armed 

police officer. Absent findings that S.R. remaining in the 

vehicle created "a heightened awareness of danger," Smith, 

supra, 134 N.J. at 618, the State could not sustain its burden 

of proof on this motion.

As we have already demonstrated, the mere fact that the 

vehicle traveled to and returned from the Newark area adds 
22 A-3734-12T1

nothing to the circumstances. And the basis for the stop itself 

– S.R.'s unbuckled seatbelt – was not ground alone for ordering 

either individual out of the vehicle.11 If that was the only 

legitimate basis for the stop in this case – and it was – then 

 

11Although the principles governing appellate review generally 

require deference to a trial judge's fact findings, they do not 

require a surrender of our common sense or the adoption of a 

standard of credulity. See United States v. City of Jackson, 

318 F.2d 1, 5 (5th Cir. 1963). We are not being unduly cynical 

in concluding what is plainly apparent: the unbuckled seatbelt 

was a ruse for the stop and the officers were interested only in 

pursuing their hunch – concededly accurate – that the vehicle's 

occupants were involved in illegal drug activity. Why else did 

the officers remain on the outskirts of Woodbridge awaiting the 

vehicle's return from the Newark area? Are we to believe they 

remained there for no other purpose but to ensure S.R. was 

wearing his seatbelt on the return trip? Our dissenting 

colleague emphasizes that in Smith it was the driver – not the 

passenger – who "engaged in the culpable conduct that result[ed] 

in the vehicle stop," 134 N.J. at 615, and because the opposite 

is true here – S.R.'s unbuckled seatbelt generated the stop –

that S.R. cannot claim the same liberty interest possessed by 

the passenger in Smith. Even if we accept the premise that the 

unbuckled seatbelt was a legitimate ground for stopping the 

vehicle, our colleague gives too much weight to S.R.'s 

"culpability" in this chain of events. The record demonstrates 

the officers were unconcerned about the seatbelt and, more 

importantly, the unbuckled seatbelt posed them no danger. We do 

not depart from the letter or spirit of the applicable standard 

of appellate review, nor the principles enunciated in Smith, in 

concluding that the State failed to demonstrate a basis for 

overriding S.R.'s liberty interest in remaining in the vehicle. 

Just as a fluidity of events may transform an unlawful 

investigatory stop into a lawful search, State v. Williams, 192 

N.J. 1, 10-11 (2007), the opposite can be true, and the lack of 

a link between the unbuckled seatbelt and the order given S.R. 

to exit the vehicle transformed what may have been a lawful stop 

into an unlawful deprivation of S.R.'s liberty interests.
23 A-3734-12T1

S.R. should have been served with a summons and he and defendant 

permitted to go on their way.

The order that S.R. exit the vehicle was impermissible and 

– because it was the linchpin for all that followed –

defendant's motion to suppress what was thereafter discovered 

and seized should have been granted.12

V

The order denying defendant's suppression motion is 

reversed, the judgment of conviction vacated, and the matter 

remanded for further proceedings. We do not retain

jurisdiction.

 

12We lastly note that the State has argued defendant lacked the 

requisite expectation of privacy to assert the infringement of 

S.R.'s liberty interest, citing State v. Hinton, 216 N.J. 211 

(2013). In Hinton, the Court recognized that the defendant had 

standing to argue but ultimately did not possess a reasonable 

expectation of privacy in an apartment he shared with his mother

for six years because he had been "served with official notice 

that a court officer would soon enter the premises and repossess 

it on the landlord's behalf." Id. at 216. In reaching that 

conclusion, the Court emphasized it was dealing with a "novel 

case" that arose "in unusual circumstances." Id. at 236. We, 

therefore, reject the argument that Hinton has any bearing on 

the significantly different circumstances presented here.
___________________________________________

NUGENT, J.A.D., dissenting.

I agree with the majority that "this appeal rises and falls 

on whether S.R. was lawfully ordered out of the vehicle because, 

without that link in the chain of events, the evidence 

thereafter seized would have to be excluded." Ante at ___ (slip 

op. at 8). Unlike the majority, however, I find that Detective 

Jaremczak lawfully ordered the passenger, S.R., to exit the 

vehicle. In my view, the detective violated neither the Federal 

nor the State Constitution by ordering S.R. to exit the Bronco.

Detective Jaremczak's testimony at the suppression hearing 

established, indisputably, that when the detectives stopped the 

Bronco they believed defendant and S.R. had purchased drugs in 

Newark. The detectives did not stop the Bronco, however, until 

they observed that S.R. was not wearing a seatbelt. When 

Detective Jaremczak was questioned on cross-examination about 

his motive for ordering S.R. out of the car, the following 

exchange took place:

A. Once [the passenger] got out; the door 

was opened; and that's when I seen [the 

straw and scrubber].

Q. How did he get out?

A. I asked him out.

Q. Why did you ask him out?
2 A-3734-12T1

A. Just so that I could bring him back to 

the car. Because my partner was speaking 

with [defendant]. It's just easier if both 

us - - if they're both watched at the same 

time in case one of them wanted to act.

Q. So you ordered him out of the car 

because you were conducting what kind of 

investigation?

A. I asked him out of the vehicle. And at 

that time it became a narcotic 

investigation. 

Q. Isn't it true that it already was 

a narcotics investigation before [defendant] 

was ordered out of the car?

A. Yes. I did believe that they went to 

Newark to purchase narcotics.

Q. Who opened the door?

A. He would have.

The critical issue we must decide is whether Detective 

Jaremczak's order to S.R. to get out of the car was reasonable. 

See State v. Smith, 134 N.J. 599, 609 (1994). 

Ordering a person out of a car constitutes a 

seizure of the Fourth Amendment because the 

person's liberty has been restricted. See

State v. Davis, 104 N.J. 490, 498 (1986) 

(citing Terry [v. Ohio, 392 U.S. 1, 16, 88 

S. Ct. 1868, 1877, 20 L. Ed. 2d 889, 903 

(1968)]). Whether such a seizure is 

constitutional depends on the reasonableness 

of the order. 

[Ibid.]

Under a Fourth Amendment analysis, it is reasonable for an 

officer to order a driver and passenger out of the car after the 
3 A-3734-12T1

officer has pulled the driver over for a traffic offense. In 

Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 

L. Ed. 2d 331, 337 (1977), the Supreme Court held that even in 

the absence of furtive movements or evidence of criminal 

activity, a police officer had the right to demand that a driver 

stopped for a traffic violation exit the vehicle. Because 

"[t]he police have already lawfully decided that the driver 

shall be briefly detained; the only question is whether he shall 

spend that period sitting in the driver's seat of his car or 

standing alongside it." Ibid. Balancing the driver's liberty 

interest against the State's interest in protecting its police 

officers, the Supreme Court struck the balance in favor of the 

latter, finding that the intrusion on the driver's liberty 

interest in such circumstances to be de minimis. Ibid. The 

Court extended the rationale in Mimms to a vehicle's passengers 

in Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S. Ct. 882, 

886, 137 L. Ed. 2d 41, 48 (1997). 

Our Supreme Court has followed Mimms with respect to 

drivers, but not passengers; at least passengers not involved in 

the culpable conduct leading to the traffic stop: 

Although the per se rule under Mimms permits 

an officer to order the driver out of a 

vehicle incident to a lawful stop for a 

traffic violation, we decline to extend that 

per se rule to passengers. Instead, we 

determine that an officer must be able to 
4 A-3734-12T1

point to specific and articulable facts that 

would warrant heightened caution to justify 

ordering the occupants to step out of a 

vehicle detained for a traffic violation. 

[Smith, supra, 134 N.J. at 618.]

The Supreme Court explained in Smith that a standard, 

lesser than the Terry standard, is required for officers to 

order passengers to exit a vehicle. Significantly, however, 

Smith did not involve culpable conduct on the part of a 

passenger. In explaining the rationale for its decision in 

Smith, the Court stated:

Ordering a passenger to leave the vehicle is 

distinguishable from ordering the driver to 

get out of the vehicle because the passenger 

has not engaged in the culpable conduct that 

resulted in the vehicle's stop. Although 

the State's interest in safety remains the 

same whether the driver or the passenger is 

involved, requiring a passenger to alight 

from a car in the course of a routine 

traffic stop represents a greater intrusion 

on a passenger's liberty than the same 

requirement does on a driver's liberty. 

With respect to the passenger, the only 

justification for the intrusion on the 

passenger's privacy is the untimely 

association with the driver on the day the 

driver is observed committing a traffic 

violation. Because the passenger has not 

engaged in culpable conduct, the passenger 

has a legitimate expectation that no further 

inconvenience will be occasioned by any 

intrusions beyond the delay caused by the 

lawful stop. The intrusion on the 

passenger's privacy, therefore, is greater 

than it is on the driver's privacy.

[Id. at 615 (emphasis added).]
5 A-3734-12T1

Unlike the passenger in Smith, here S.R. engaged in the 

"culpable conduct that resulted in the vehicle's stop." Ibid. 

Consequently, S.R.'s liberty interest in this case is no 

different from that of a driver who has committed a traffic 

violation: "The police have already lawfully decided that the 

driver shall be briefly detained; the only question is whether 

he shall spend that period sitting in the driver's seat of the 

car or standing alongside it." Mimms, supra, 434 U.S. at 111, 

98 S. Ct. at 333, 54 L. Ed. 2d at 337. In my view, that rubric 

applies equally to culpable passengers, that is, passengers who 

have committed traffic violations. For that reason, the 

detectives in the case before us did not violate the protections 

afforded New Jersey citizens under our State Constitution. 

The majority's decision is based in large part upon its 

observation "that much of what motivated this stop and 

investigation was the detectives' assumption that defendant and 

S.R. were narcotics users or sellers or both." Ante at ____ 

(slip op. at 12). Specifically, the majority states: "We are 

not being unduly cynical in concluding what is plainly apparent: 

the unbuckled seat belt was a ruse for the stop and the officers 

were interested only in pursuing their hunch – concededly 

accurate – that the vehicle's occupants were involved in illegal 

drug activity." Ante at ____ (slip op. at 22, n.11). Although 
6 A-3734-12T1

one can debate the meaning of the term "ruse" in this context, 

it is clear that S.R.'s failure to wear a seatbelt provided the 

police with probable cause to stop the Bronco. Neither 

defendant nor S.R. disputed that S.R. was not wearing a 

seatbelt. Once the lawful traffic stop occurred for that 

purpose, S.R.'s liberty interest in remaining in the car was 

outweighed by the State's interest in the safety of its 

officers. The subjective intent of the officers at that time 

was not relevant. 

In Whren v. United States, 517 U.S. 806, 808, 116 S. Ct.

1769, 1771, 135 L. Ed. 2d 89, 95 (1996), the Supreme Court 

decided 

whether the temporary detention of a 

motorist who the police have probable cause 

to believe has committed a civil traffic 

violation is inconsistent with the Fourth 

Amendment's prohibition against unreasonable 

seizures unless a reasonable officer would 

have been motivated to stop the car by a 

desire to enforce the traffic laws.

After reviewing relevant precedent, the Court stated: 

We think these cases foreclose any argument 

that the constitutional reasonableness of 

traffic stops depends on the actual 

motivations of the individual officers 

involved. We of course agree with 

petitioners that the Constitution prohibits 

selective enforcement of the law based on 

considerations such as race. But the 

constitutional basis for objecting to 

intentionally discriminatory application of 

laws is the Equal Protection Clause, not the 
7 A-3734-12T1

Fourth Amendment. Subjective intentions 

play no role in ordinary, probable-cause 

Fourth Amendment analysis.

[Id. at 813, 116 S. Ct. 1774, 135 L. Ed. 2d 

89.]

Our Supreme Court has similarly rejected a subjective test 

when determining whether police officers have acted reasonably 

for Fourth Amendment purposes. See e.g., State v. Brown, 216 

N.J. 508, 531 (2014) (noting that, with respect to whether 

property had been abandoned, "[t]he test is whether, given the 

totality of the circumstances, an objectively reasonable police 

officer would believe the property is abandoned" and that "[t]he 

subjective belief of the officer is not a relevant 

consideration, and thus the court should not delve into the 

murky area of whether an officer acted in good faith or bad 

faith"); State v. Kennedy, 247 N.J. Super. 21, 27 (App. Div. 

1991) ("We begin with the well-recognized principle that 

generally the proper inquiry for determining the 

constitutionality of a search and seizure is whether the conduct 

of the law enforcement officer who undertook the search was 

objectively reasonable, without regard to his or her underlying 

motives or intent.") (citations omitted).

Moreover, our Supreme Court has stated: 

[O]ur Article I, Paragraph 7 jurisprudence 

primarily has eschewed any consideration of 

the subjective motivations of a police 
8 A-3734-12T1

officer in determining the constitutionality 

of a search and seizure . . . . [W]e do not 

believe that the elusive attempt to plumb 

the subjective motivations of an officer 

will meaningfully advance either the privacy 

interests of an individual or the ultimate 

determination of whether a particular search 

or seizure was unreasonable under state law.

[State v. Edmonds, 211 N.J. 117, 132-33 

(2012) (citations and internal quotation 

marks omitted).]

In the case before us, Detective Jaremczak's crossexamination does not lead to an entirely unequivocal answer as 

to whether, when he ordered S.R. out of the car, his motivation 

was to continue to pursue the seatbelt violation or to pursue 

the drug investigation or both. What is unequivocal is that he 

acted for his safety. He testified, explicitly, that he asked 

S.R. out "[j]ust so that I could bring him back to the car

because my partner was speaking with [defendant]. It's just 

easier if . . . they're both watched at the same time in case 

one of them wanted to act."

Under the circumstances of this case – where the 

passenger's liberty expectation to remain in the car was de 

minimis in view of his seatbelt violation – the State's interest 

in the safety of its officers prevailed. In the face of federal 

and State precedent eschewing judicial analysis of law 

enforcement officers' subjective intentions in such Fourth 
9 A-3734-12T1

Amendment cases, I find no basis for engaging in such analysis 

here. For that reason, I respectfully dissent.