Opinion
DOCKET NO. A-3839-13T3
09-02-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JULIO RODRIGUEZ, a/k/a JOSE RODRIGUEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian F. Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Ryan J. Gaffney, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-07-1434. Joseph E. Krakora, Public Defender, attorney for appellant (Brian F. Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Ryan J. Gaffney, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals the denial of his motion to suppress. He argues the officers lacked reasonable suspicion to engage in the traffic stop that led to the discovery of an unlawful handgun. We affirm.
I.
We derive the following facts from the record of the suppression hearing. On March 14, 2013, North Bergen Police Department Detective Robert Maldonado and his partner, Investigator Botello, were in plain clothes and an unmarked vehicle patrolling an area with a high frequency of burglaries, during the midday "peak hours for burglaries."
Detective Maldonado observed defendant talking on a cell phone and repeatedly walking in and out of the foyer of a two-family residence. Maldonado found this suspicious because it could signify he was acting as a "lookout for a burglary that's being committed in the interior of the residence." The officers stopped and watched defendant continue this conduct for approximately fifteen minutes.
After this period, a taxicab pulled up to the residence to pick up defendant. The officers observed defendant get into the taxicab and slump low in the back seat, placing his entire body below the headrest of the seat and below the level of the window so he could not be seen. The officers followed the cab for approximately one block, and then executed a traffic stop.
The officers asked defendant to exit the vehicle. Defendant told the officers his name and said he was coming from a friend's house. While Investigator Botello walked to the house to verify defendant's story, Detective Maldonado stayed with defendant. Defendant kept putting his hands in his pockets, despite repeated orders from Maldonado to keep his hands visible and out of his pockets. Out of concern for his safety, Maldonado performed a pat down of defendant, and found a handgun tucked in his waistband. Detective Maldonado removed the handgun and arrested defendant.
Defendant was charged with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5(b); fourth-degree hindering his own apprehension by providing false information, N.J.S.A. 2C:29-3(b)(4); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b). Defendant moved to suppress the handgun, and his motion was denied after a hearing before Judge Frederick J. Theemling, Jr. Following the denial of the suppression motion, defendant pled guilty to second-degree possession of a weapon by a convicted person, based on a prior burglary conviction. Defendant was sentenced to five years in state prison with three years of parole ineligibility.
Defendant appealed, raising the following claims:
POINT I - THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE POLICE DID NOT HAVE THE REQUISITE REASONABLE SUSPICION TO CONDUCT AN INVESTIGATORY STOP OF DEFENDANT.
POINT II - BECAUSE THE STATE PRESENTED INSUFFICIENT FACTS FROM WHICH THE LOWER COURT COULD REASONABLY FIND THAT THE POLICE HAD A REASONABLE AND ARTICULABLE SUSPICION THAT DEFENDANT WAS PRESENTLY ARMED AND DANGEROUS, AND BECAUSE THE SEARCH OF DEFENDANT STEMMED FROM HIS ILLEGAL STOP, THE ORDER DENYING THE MOTION TO SUPPRESS SHOULD BE REVERSED.
II.
We must hew to our "deferential standard of review." State v. Rockford, 213 N.J. 424, 440 (2013). "[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." Ibid. (internal quotation marks omitted). "Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (alteration in original; internal quotation marks omitted). The suppression court's "'findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction.'" State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 244 (2007)).
A.
First, defendant argues first that the police lacked reasonable suspicion to conduct the initial investigatory stop of the taxi. The United States and New Jersey Constitutions allow an investigatory stop "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot[.]" Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 911; State v. Davis, 104 N.J. 490, 504-05 (1986). "'A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense . . . has been or is being committed.'" State v. Amelio, 197 N.J. 207, 211 (2008) (citation omitted).
To determine if there was reasonable suspicion to conduct an investigatory stop, "a reviewing court must assess whether 'the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate.'" State v. Mann, 203 N.J. 328, 338 (2010) (citation omitted). "Because the 'determination of reasonable [and articulable] suspicion is fact-sensitive,' a careful review of the totality of the circumstances surrounding each case is required." Ibid. (alteration in original; citation omitted). Here, the totality of the circumstances gave rise to reasonable suspicion.
At the time of his testimony, Detective Maldonado had seventeen years of experience as a member of the North Bergen Police Department, and was assigned to the Burglary Unit. "It is fundamental to a totality of the circumstances analysis of whether reasonable suspicion exists that courts may consider the experience and knowledge of law enforcement officers." State v. Stovall, 170 N.J. 346, 363 (2002). Courts must give "sufficient weight to the officer's knowledge and experience and to the rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." State v. Arthur, 149 N.J. 1, 10-11 (1997). An officer may further "consider an area's reputation for or history of crime," as well as the time of day. See State v. Pineiro, 181 N.J. 13, 26-27 (2004).
Detective Malonado testified he was patrolling the area due to its high burglary rates. He also testified that midday hours were "peak hours" for burglaries. Maldonado's experience as a police officer, combined with the time of day and high frequency of burglaries in the area, led to his opinion that defendant's continuous movements in and out of the foyer of the residence, while talking on a cell phone, "could be a sign of a person being a lookout for a burglary that's being committed."
Defendant's actions once he entered the taxicab only added to the existing suspicion of defendant's conduct. An attempt to hide from police can contribute to reasonable suspicion. See State v. Valentine, 134 N.J. 536, 553-54 (1994) (finding "defendant's decision to duck behind a tree after seeing a police car" contributed to the officer's reasonable suspicion). Three times during his testimony, Detective Maldonado displayed for the trial court how defendant was slumped in the backseat of the cab.
Detective Maldonado explained that defendant's departure in the cab was consistent with being a lookout for a burglary, because in his experience a lookout "leaves all by himself" while the burglars leave from the rear.
The motion court credited Detective Maldonado's testimony, and found there was reasonable basis to suspect that defendant was acting like a lookout for a burglary, and was trying to hide from the officers. The motion court had the opportunity to hear and see the witnesses and to have the "feel" of the case, which we as a reviewing court cannot enjoy. Rockford, supra, 213 N.J. at 440. "The motion judge's findings concerning . . . whether the [police] possessed the necessary suspicion were close calls. We cannot conclude, however, based on our review of the record, that those findings are so clearly mistaken that an appellate court should substitute its own judgment." Elders, supra, 192 N.J. at 250-51.
Based on the Detective Maldonado's experience as a police officer working in the Burglary Unit, the area in which defendant was observed, the time of day defendant was observed, his actions indicating he was a lookout for a burglary, and his attempt to hide once he entered the taxicab, all gave rise to reasonable suspicion to conduct an investigatory stop. Thus, Detective Maldonado's stop of the taxicab was based on more than inarticulate hunches. See Arthur, supra, 149 N.J. at 8.
Regardless of whether an actual burglary took place, defendant's actions still raised a reasonable suspicion of criminal activity. --------
B.
Second, defendant challenges the pat down Detective Maldonado performed. We note at the outset that defendant failed to raise this argument at the trial level. "It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available[.]" Robinson, supra, 200 N.J. at 20 (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Moreover, trial counsel objected when the prosecutor was eliciting testimony from Detective Maldonado about the pat down, saying it was "irrelevant" because "[w]e're not challenging the pat down though, we're just challenging the stop." Nonetheless, because we detect no "factual shortcoming" in the record regarding defendant's new claim, we address the merits. See id. at 18-22. Like the trial court, we conclude Detective Maldonado had reasonable suspicion to perform a pat-down of defendant.
Our Supreme Court "recognize[s] 'a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, when he has reason to believe he is dealing with an armed and dangerous individual.'" State v. Privott, 203 N.J. 16, 25 (2010) (quoting Terry, supra 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). "'[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.'" State v. O'Neal, 190 N.J. 601, 623 (2007) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). For the purposes of a Terry stop, the reasonableness of a search is measured in objective terms by examining the totality of the circumstances. State v. Bernokeits, 423 N.J. Super. 365, 372 (App. Div. 2011) (citing State v. Davis, 104 N.J. 490, 504 (1986)); see State v. Roach, 172 N.J. 19, 27 (2002).
Detective Maldonado conducted the pat down search of defendant out of a fear for his safety because defendant continually put his hands in his pockets, despite being instructed multiple times to keep his hands visible. A suspect's refusal to obey police commands to keep his hands visible is a relevant circumstance justifying a pat down. See State v. Otero, 245 N.J. Super. 83, 92 (App. Div. 1990); see also Roach, supra, 172 N.J. at 28. By ignoring the detective's repeated commands to remove his hands from his pockets, defendant provided an additional basis for suspicion "that defendant in fact possessed a weapon." State v. Sharpless, 314 N.J. Super. 440, 452 (App. Div.), certif. denied, 157 N.J. 542 (1998). Defendant argues he was complying with Detective Maldonado's instructions because he pulled his hands out of his pockets when asked. However, defendant does not contest that he continually put his hands back into his pockets, despite being told by Maldonado several times to keep his hands visible. While briefly complying with the detective's instructions, defendant immediately reverted to disobeying those instructions when placing his hands back into his pockets.
Detective Maldonado, based on the totality of the circumstances, possessed reasonable suspicion to perform both the investigatory stop of the taxicab and the pat down of defendant.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION