                                NOT FOR PUBLICATION WITHOUT THE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-0170-19T4

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

TYRONE WILLIAMS and
ABDUR MUHAMMAD,1

     Defendants-Respondents.
__________________________

                    Argued January 8, 2020 – Decided January 24, 2020

                    Before Judges Fuentes, Haas and Enright.

                    On appeal from an interlocutory order of the Superior
                    Court of New Jersey, Law Division, Essex County,
                    Indictment No. 18-02-0020.

                    Sarah D. Brigham, Deputy Attorney General, argued
                    the cause for appellant (Gurbir S. Grewal, Attorney
                    General, attorney; Sarah D. Brigham, of counsel and on
                    the brief).



1
 This defendant also is referenced in the record as Abdurnd Muhammad and
Abdur Muhammed.
               Joseph D. Rotella argued the cause for respondent
               Tyrone Williams.

               Michael B. Campagna argued the cause for respondent
               Abdur Muhammad (Michael B. Campagna, attorney,
               joins in the brief of respondent Tyrone Williams).

PER CURIAM

         On February 18, 2018, a grand jury indicted defendants Tyrone Williams

and Abdur Muhammad for second-degree conspiracy to possess with intent to

distribute heroin, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1), or to possess with

intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count

one); third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count two);

first-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5(a)(1),

2C:35-5(b)(1), and 2C:35-5(c) (count four); and third-degree possession with

intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count

five).     Additionally, the grand jury indicted Williams for second-degree

distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2) (count three).

         By leave granted, the State appeals from an interlocutory order granting

defendants' motion to suppress evidence seized from a vehicle driven by

Williams. Based on this record and mindful of prevailing legal standards, we

affirm.



                                                                         A-0170-19T4
                                         2
      We recite only the pertinent facts, which are gleaned from the testimony

of the only witness to testify at the suppression hearing, Detective Christopher

Durning.

      On July 8, 2016, Detective Durning and Detective Joseph Palach of the

New Jersey State Police were detailed to a Targeted Integrated Deployment

Effort in Newark, to suppress violent crime and narcotics distribution. While

on duty and driving in an unmarked vehicle, the officers observed a Dodge

station wagon that was illegally parked about five feet from a stop sign, in

violation of N.J.S.A. 39:4-138(h). The Dodge's engine was running, its front

windows were open, but its headlights were off. Williams was in the driver's

seat and Muhammad was in the front passenger's seat. Both defendants were

using their cell phones.

      Detective Durning drove up alongside the Dodge and when he was within

a few feet of it, he saw Williams pass Muhammad an opaque black bag that

appeared "bricked off" at the bottom. The detectives shone their flashlight into

the interior of the vehicle and Detective Durning saw Muhammad immediately

drop the bag.

      The police officers exited their unmarked car and Detective Durning

walked up to the driver's side of the Dodge; Detective Palach approached the


                                                                        A-0170-19T4
                                       3
passenger side, where Muhammad was seated. Detective Durning saw the bag

Muhammad dropped to the floorboard of the Dodge and wondered what was in

it. The detective could not see the bag's contents, and believed Muhammad was

"trying to hide [the bag]." Muhammad blocked the detective's view of the bag

with his left leg.

       After Detective Durning approached Williams, he told Detective Palach

he detected the odor of alcohol emanating from the passenger compartment of

the Dodge. Detective Durning was concerned Williams might be guilty of

driving while under the influence of alcohol or that the occupants of the Dodge

had an open container of alcohol inside the running car,2 but he did not find

evidence of either infraction or recall asking Williams any questions. Detective

Durning testified he did not fear for his safety when he walked toward the

defendants.

       Once Detective Durning told his partner he detected the odor of alcohol

coming from inside the Dodge, Detective Palach ordered Muhammad out of the

vehicle. Contemporaneously, Detective Durning ordered Williams out of the

car.   When Muhammad exited the Dodge, Detective Durning saw green


2
  Pursuant to N.J.S.A. 39:4-51b, "[a]ll occupants of a motor vehicle located on
a public highway, or the right-of-way of a public highway, shall be prohibited
from possessing any open or unsealed alcoholic beverage container."
                                                                        A-0170-19T4
                                       4
cellophane sticking out of the open black bag on the floorboard. The contents

of the bag looked to him like bricks of heroin. Detective Palach retrieved the

bag and discovered it contained 105 bricks of heroin.

      Defendants were arrested at the scene. Following their arrest, the police

officers conducted a warrantless search of the Dodge's passenger compartment.

They recovered 360 additional bricks of heroin during this search.

      At the suppression hearing, Detective Durning testified it was not his

intention to look in the black bag when he initially exited his vehicle. However,

he also testified that his "focus" during the incident "was to see what . . . that

bag was." The detective admitted in his testimony that the contents of the bag

"could have been something completely . . . not illegal at all," and "could have

been boxes of cereal." He also affirmed he did not see defendants engage in any

illegal activity before Detective Palach found the heroin.

      Although the motion judge granted defendants' motion to suppress all

evidence seized from the Dodge, she found Detective Durning to be a credible

witness. She further found he was not interested in the contents of the black bag

when he initially approached the Dodge and only became interested in the

contents of the bag after Muhammad exited the vehicle. Additionally, she found

the detectives initiated a lawful investigatory stop of the defendants based on a


                                                                          A-0170-19T4
                                        5
suspected motor vehicle infraction under N.J.S.A. 39:4-138(h). The judge was

satisfied the detectives were lawfully in the viewing area when they saw the

contents of the black bag. However, she determined that in the absence of a

heightened sense of caution, the officers exceeded the scope of their

investigatory stop by ordering Muhammad out of the vehicle. As the judge

noted:

           [h]ad [d]efendant Muhammad never been given
           instructions to exit the car, the [d]etectives would never
           have seen the contents of the bag. As a result, the
           seizure of [d]efendant Muhammad that yielded the
           seizure of the evidence itself the [c]ourt deems is the
           result of the unconstitutional activities of the police and
           [the evidence] is hereby suppressed as the fruit of the
           poisonous tree. Wong Sun v. United States, 371 U.S.
           471 (1963).

     On appeal, the State raises the following arguments:

     POINT I

           THE DETECTIVES PROPERLY SEIZED THE
           BRICKS OF HEROIN UNDER THE PLAIN-VIEW
           DOCTRINE AND THE AUTOMOBILE EXCEPTION.

     A.    The stop was lawful because the detectives not only had
           reasonable suspicion that the station wagon was in
           violation of the motor-vehicle code, they had
           reasonable suspicion that defendants were engaged in
           other illegal activity.

     B.    The passenger was lawfully ordered out of the vehicle
           because not only did the detectives have heightened

                                                                         A-0170-19T4
                                       6
            caution based on defendants' suspicious movements in
            the vehicle, they had reasonable suspicion that the
            passenger was engaged in culpable conduct.

      C.    The detectives lawfully seized the 105 bricks of heroin
            in the black bag under the plain-view doctrine.

      D.    The detectives also lawfully seized the additional 360
            bricks of heroin in the blue bag under the automobile
            exception.

      We are not persuaded by these arguments and affirm, substantially for the

reasons set forth in the motion judge's oral decision of July 1, 2019 and her

written opinion dated August 7, 2019. We add only a few brief remarks.

      Our review of a trial court's decision on a motion to suppress is limited.

State v. Robinson, 200 N.J. 1, 15 (2009). "[A]n appellate court reviewing a

motion to suppress must uphold the factual findings underlying the trial court's

decision so long as those findings are 'supported by sufficient credible evidence

in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (citing State v. Locurto,

157 N.J. 463, 474 (1999)). The "trial court's findings should be disturbed only

if they are so clearly mistaken 'that the interests of justice demand int ervention

and correction.'" Id. at 244 (citing State v. Johnson, 42 N.J. 146, 162 (1964)).

However, we utilize a de novo standard when reviewing a trial judge's legal

conclusions. State v. Boone, 232 N.J. 417, 426 (2017).



                                                                            A-0170-19T4
                                         7
      We perceive no basis to disturb the motion judge's finding that the

detectives' initial investigatory stop was justified by their reasonable and

articulable suspicion that a traffic offense was being committed . Accordingly,

we turn to the propriety of Muhammad being ordered out of the stopped vehicle.

Our Supreme Court has held a police officer "may 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 occupants to step out of a

vehicle detained for a traffic violation.'" State v. Bacome, 228 N.J. 94, 106

(2017) (quoting State v. Smith, 134 N.J. 599, 618 (1994)).

            [T]he 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.

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

      The Bacome Court confirmed that even if an officer has authority to

remove a driver from a vehicle, that authority does not automatically exten d to

removal of a passenger "because the passenger has not engaged in the culpable

conduct that resulted in the vehicle's stop." 228 N.J. at 105 (quoting Smith, 134

N.J. at 615).



                                                                         A-0170-19T4
                                        8
      Here, the record is devoid of any explanation as to why Detective Palach

ordered Muhammad out of the vehicle. Likewise, there is nothing in the record

to demonstrate circumstances that created a heightened awareness of danger that

warranted defendants' removal from the Dodge. Although the motion judge's

factual findings did not include Detective Durning's "focus" on the black bag

before its contents were revealed, we are satisfied such an omission is

inconsequential. Moreover, we are persuaded the motion judge's finding that

the detectives improperly ordered defendants out of their vehicle is fully

supported by the facts in the record. Therefore, her legal conclusions are

unassailable.

      The State's remaining arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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                                        9
