                  NOT FOR PUBLICATION WITHOUT THE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,                   APPROVED FOR PUBLICATION

                                            April 16, 2015
         Plaintiff-Respondent,
                                         APPELLATE DIVISION
    v.

TAWIAN BACOME,

          Defendant-Appellant.
_________________________________________________

         Submitted September 23, 2014 – Remanded October 17, 2014
         Argued March 24, 2015 - Decided April 16, 2015

         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.
     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


1
 We 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).



                                          2                              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




                                                3                               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.




                                         4                                      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.

                  . . . .




                                       5                                       A-3734-12T1
              Q. So you ordered him out of the car because
              you were conducting what kind of investi-
              gation?

              A. I asked him out of the vehicle. And at
              that time it became a narcotic investiga-
              tion.

              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.




                                         6                                      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




2
 See 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)


                                     7                               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).
3
 See 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").
4
 We 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 "late-
blooming issues . . . would be an incentive for game-playing by
                                                     (continued)


                                           8                                 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.
5
 See 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).



                                             9                                      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.




6
 Mimms 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."



                                                10                                    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.




                                              11                               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



                                               12                                        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),




                                               13                                    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




7
 The 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.



                                 14                              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.]

8
 There 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.
9
 Again, the testifying     detective       did   not   witness     this;   his
partner allegedly did.



                                      15                             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



                                         16                                 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



                                    17                           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."




                                   18                             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.




10
 We   provided  the   parties   with  an  opportunity to  file
supplemental briefs.    Defendant provided a brief, the Acting
Attorney General declined the invitation.



                                          19                              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



                                             20                                      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




                                      21                                  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




11
 Although 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.



                                22                       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.




12
 We 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.



                                        23                              A-3734-12T1
___________________________________________

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?
          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 under 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



                                    2                             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 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



                                                  3                                     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).]



                                    4                                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




                                     5                                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



                                          6                                 A-3734-12T1
               Fourth Amendment.      Subjective intentions
               play no role in ordinary, probable-cause
               Fourth Amendment analysis.

               [Id. at 813, 116 S. Ct. at 1774, 135 L. Ed.
               2d at 98.]

       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



                                           7                                   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            cross-

examination 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




                                       8                                          A-3734-12T1
Amendment cases, I find no basis for engaging in such analysis

here.   For that reason, I respectfully dissent.




                                9                      A-3734-12T1
