Opinion
DOCKET NO. A-2727-14T1
07-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CLIFFORD THOMAS, a/k/a THOMAS CLIFFORD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John. On appeal before Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 13-02-0284. Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief). PER CURIAM
After his motion to suppress was denied, defendant Clifford Thomas pled guilty, pursuant to a negotiated plea agreement, to unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b. Defendant was sentenced, consistent with the terms of the plea agreement, to a five-year prison term with three years of parole ineligibility. He now appeals and raises the following arguments for our consideration:
POINT I
THE STATE FAILED TO SUSTAIN ITS BURDEN OF PROVING THAT THE WARRANTLESS SEARCH WAS CONSTITUTIONALLY JUSTIFIED. ACCORDINGLY, SUPPRESSION IS NECESSARY. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. 1, PAR. 7.
A. The Police Lacked the Requisite Constitutional Basis To Stop, And Subsequently Arrest, the Defendant.
B. Grounds To Arrest the Defendant Did Not Arise From His Act Of Running From Police.
C. The Defendant Did Not Abandon The Gun, And Accordingly Retains His Right To Challenge Its Seizure.
We glean the following facts from the hearing on defendant's motion to suppress. At the hearing, Sergeant Brian Suschke of the Trenton Police Department and Detective Michael Fiabane of the Mercer County Prosecutor's Office testified as to the incident in question. Defendant did not call any witnesses or testify.
On November 15, 2012, Suschke and Fiabane were on patrol in Trenton in an unmarked car, but both wearing clothing bearing police insignia. At 8:27 p.m., Suschke received a call from a concerned citizen (CC), stating that the CC saw a black male in the area of Ardmore and Hamilton Avenues, wearing a black jacket, black knitted hat, and in possession of a handgun. Suschke identified the area as a "high crime area," in which drug and weapons' offenses, and homicides occurred.
The CC did not state how he/she was in possession of that information. The CC was a person who had contacted Suschke a year earlier, offering to help reduce crime in that area. Suschke stated that he had previously received information from the CC, which had "proved accurate," and although he did not know the individual personally, he had used the CC before for investigations. Suschke had the CC's telephone number, and would have been able to challenge the individual concerning false information. Suschke acknowledged that the information from the CC did not indicate where the subject was going, or any further action that the subject would take.
After receiving the information, Suschke and Fiabane drove to the area of Ardmore and Hamilton Avenues, arriving less than two minutes after receiving the tip from the CC. When they arrived, they saw a male fitting the suspect's description, wearing a black jacket and black knitted hat, walking down the sidewalk. No one was with him or around him. Both Suschke and Fiabane identified that individual in court as the defendant.
Suschke stated that when he saw defendant, he illuminated him with a spotlight. In response, defendant looked in the direction of the police and "appeared startled." According to Suschke, "[h]e immediately grabbed his waistband and completely turned around and changed the direction he was walking and started walked [sic] the other way quickly." Suschke further stated that he had made hundreds of arrests during which a weapon was concealed in the subject's waistband. Fiabane corroborated Suschke's testimony, stating that when defendant was illuminated with the spotlight, "he kind of looked at us and he had his hands in like his waist area, his pocket area."
Suschke stated that the officers exited their vehicle to further investigate the matter, and upon exiting, they ordered defendant to show his hands and stop. Fiabane testified that they asked defendant if they could speak to him, or if they could see his hands, but then testified to saying, "[p]olice, let me see your hands, stop, things of that nature."
Defendant began to run toward Hamilton Avenue with the officers in pursuit. Suschke then ran back toward his car and, while defendant was fifty to seventy-five yards away, he heard the sounds of "metal on concrete, metal-on-metal," which he believed to have been made by a weapon. Fiabane continued the chase and saw defendant reach into his waist area, take out a handgun and throw it into a sewer. Fiabane stated he heard what he described as the "very distinct sound" of a gun hitting the pavement or sewer grate.
Fiabane caught and subdued defendant and told Suschke that defendant had thrown a gun into the sewer. Fiabane reached into the sewer and recovered the weapon. Neither officer saw any other civilian in the area in which the gun was found. Upon arresting defendant, marijuana was found on his person.
The motion judge denied defendant's motion to suppress the weapon and the marijuana. The judge determined that defendant's flight from a lawful investigatory stop provided probable cause to believe that a crime had been committed, and that his flight also gave rise to probable cause for the obstruction of police, under N.J.S.A. 2C:29-1(a), even if the stop was unsupported by reasonable suspicion. However, the judge did determine that the stop of defendant was lawful, given the tip provided to the police by the CC. The judge found that by discarding the handgun in a sewer, defendant abandoned the firearm and therefore had no privacy interest in the gun. As to the seized marijuana, the motion judge determined that the search incident to defendant's arrest was valid.
A warrantless seizure of a person is "presumptively invalid as contrary to the United States and the New Jersey Constitutions" unless that warrantless seizure "falls within one of the few well-delineated exceptions to the warrant requirement." State v. Mann, 203 N.J. 328, 337-38 (2010) (quoting State v. Pineiro, 181 N.J. 13, 19 (2004), and State v. Elders, 192 N.J. 224, 246 (2007), respectively). An investigatory stop of a person - sometimes referred to as a Terry stop - is one such exception. State v. Rodriguez, 172 N.J. 117, 126-27 (2002). It is the State's burden to establish by a preponderance of the evidence that the challenged stop and seizure falls within an exception to the Fourth Amendment's warrant requirement. Elders, supra, 192 N.J. at 246.
Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a decision on a motion to suppress evidence, we must uphold the judge's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting Robinson, supra, 200 N.J. at 15). Additionally, we defer to a trial judge's findings that 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. (quoting Robinson, supra, 200 N.J. at 15). No such deference is accorded to the court's conclusions of law; such issues are addressed de novo. State v. Gandhi, 201 N.J. 161, 176 (2010).
It is clear that the officers chased after defendant and ordered him to stop, thereby instituting an "investigatory stop." See State v. Tucker, 136 N.J. 158, 166 (1994) (holding that an investigatory stop occurs when police officers chase a suspect and, under the totality of the circumstances, "the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.") (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)). A Terry stop "is valid 'if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" State v. Williams (Williams II), 410 N.J. Super. 549, 555 (App. Div. 2009) (quoting State v. Williams (Williams I), 192 N.J. 1, 9 (2007)), certif. denied, 201 N.J. 440 (2010). "In making this determination, a court must consider '[t]he totality of circumstances.'" Ibid. (quoting Pineiro, supra, 181 N.J. at 22). The suspicion necessary to conduct a lawful Terry stop "need not rise to the 'probable cause necessary to justify an arrest.'" Pineiro, supra, 181 N.J. at 20 (quoting State v. Nishina, 175 N.J. 502, 511 (2003)).
When evaluating whether a police officer had a reasonable suspicion that criminal activity had taken place or was about to take place, a court must "ascribe 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 (1997). "[S]imply because a defendant's actions might have some speculative innocent explanation does not mean that [officers] cannot support articulable suspicions if a reasonable person would find the actions are consistent with guilt." Id. at 11.
Our courts have held that "flight alone does not create reasonable suspicion for a stop[.]" Williams II, supra, 410 N.J. Super. at 555 (quoting State v. Dangerfield, 171 N.J. 446, 457 (2002)). "However, flight 'in combination with other circumstances . . . may support [the] reasonable and articulable suspicion' required to justify a stop." Ibid. (quoting Pineiro, supra, 181 N.J. at 26).
Of importance here, our Supreme Court has noted that an ordinary citizen reporting crime to the police, which the citizen purports to have observed, is assumed to be reliable, and courts assume that a further demonstration of reliability is not necessary to justify a stop of the person identified in the citizen's report. State v. Basil, 202 N.J. 570, 586 (2010). "There is an assumption grounded in common experience that such a person is motivated by factors that are consistent with law enforcement goals." State v. Davis, 104 N.J. 490, 506 (1986).
Defendant's startled appearance alone would not have been sufficient to justify the investigatory stop, as opposed to a field inquiry, that resulted when the officers instructed defendant to halt. See State v. De Lorenzo, 166 N.J. Super. 483, 488 (App. Div. 1979) (explaining that an investigatory stop, as opposed to a field inquiry, was not reasonable where the only factor was defendant's nervousness).
On the other hand, being startled, immediately grabbing his waistband, completely turning around and changing the direction he was walking, may be considered in conjunction with other factors to establish reasonable and articulable suspicion. See, e.g., Elders, supra, 192 N.J. at 250 ("To be sure, nervousness and conflicting statements, along with indicia of wrongdoing, can be cumulative factors in a totality of circumstances analysis that leads to a finding of reasonable and articulable suspicion of ongoing criminality."); State v. Todd, 355 N.J. Super. 132, 138 (App. Div. 2002) (finding reasonable and articulable suspicion where defendant was "the only person then walking on [the] street" near where a crime was committed and was "sweating and appeared nervous").
Here, "defendant's headlong flight" resulted in the very type of potentially dangerous situation that the statutory scheme requiring citizens to comply with police orders was intended to prevent. See State v. Crawley, 187 N.J. 440, 451, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006).
These officers had reason to fear defendant might be armed. This street encounter occurred within two minutes of receipt of the call from the CC. Further, defendant was alone, wearing clothes fitting the description provided by the CC, and he immediately grabbed his waistband, indicating to the officers, based on their experience, that he may be armed.
Therefore, the facts fit precisely into the language of Terry, which defines when an investigative stop is lawful. Such street detentions are warranted "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous." Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911. Here, the officers reasonably concluded, while investigating a report from a reliable CC of a man with a gun, that defendant's conduct meant "criminal activity may be afoot." Ibid. The totality of the circumstances combined to create reasonable and articulable suspicion justifying the investigatory stop of defendant, making seizure of the discarded handgun seen by Fiabane in defendant's possession, and defendant's arrest, lawful.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).