Opinion
DOCKET NO. A-0799-13T4
04-01-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DORJAN BROWN, a/k/a DORJAN A. BROWN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Natalie A. Schmid Drummond, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-07-1799. Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Natalie A. Schmid Drummond, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Dorjan Brown pled guilty to second-degree unlawful possession of a handgun and he was sentenced to five years of imprisonment with a three-year period of parole ineligibility. Defendant appeals from a judgment of conviction signed by the judge on June 18, 2013. We affirm.
I.
A Camden County grand jury charged defendant with second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count one); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d (count two); fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f (count three); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (count four).
Defendant filed a motion to suppress evidence obtained when he was searched by State Trooper Bryan Burke ("Burke"). At the suppression hearing, Burke testified that on December 13, 2011, he was working with the State Police's Teams Unit, which assists federal, state, and local agencies in the investigation and apprehension of violent criminals. At about 8:20 p.m., Burke was assigned to support patrol units in the suppression of crime in the City of Camden (the "City").
Burke was on duty with another member of the State Police, and they were assigned to patrol areas in the City in search of any criminal activity. They were in the City's Whitman Park neighborhood. He said that this is an area with a lot of violent crimes and drug activity, and frequent calls to the City's police department and the State Police for "service." Burke and his partner were patrolling in a black, unmarked Chevy Tahoe. Burke was wearing a full State Police Class B uniform, with a black vest over the top, which states in "very large" letters on the front and the back, "State Police."
Burke was driving on Browning Street, headed toward Mount Ephraim Avenue. He approached the intersection of Browning and Norris Streets. He looked to his right and saw an individual later identified as defendant. It was dark but the intersection was well lit. Burke saw defendant walking on Norris towards Browning Street. Burke made eye contact with defendant. Immediately thereafter, defendant "quickly and abruptly" made a right-hand turn into the rear yard of a residence on Browning Street.
Burke said it appeared that defendant was "guarding a heavy object on the right-hand side of his body." Defendant was wearing some bulky clothing that made it more obvious that defendant had "something heavy on the right side of his waistband." Burke observed a "sag" on the right-hand side of the waistband. Defendant also was holding the right side of his waistband with his right arm. It appeared "obvious" to Burke that defendant wanted to get out of his sight "as quickly as he possibly could."
Burke said that the bulge he saw under defendant's clothing "was approximately the size of a weapon." Burke is familiar with weapons. He noted that his duties with the State Police bring him in contact with people who are concealing weapons "almost on a daily basis[.]" In addition, Burke is qualified to carry a firearm, and the State Police has assigned eight firearms to him.
Burke stated that he immediately stopped his vehicle. He and his partner exited the vehicle and ran down the block to the area where defendant entered the rear yard. They had lost sight of defendant. A short time later, Burke and his partner made contact with defendant in the yard. Burke saw defendant "violently pulling" on the rear door of the residence. The door was locked.
Burke identified himself as a State Trooper. He ordered defendant to stop and show his hands. Burke said he was in fear of his safety and the safety of his partner. Defendant did not initially show his hands. He continued to pull violently on the door with his left hand, and still was not showing his right hand. Burke said "[t]his only furthered [his] belief that [defendant] was guarding a weapon."
Eventually, defendant complied and said, "I have a gun. I have a gun." Burke ordered defendant to the ground. He handcuffed defendant and removed the gun from the right side of his waistband. Burke said the weapon was a .40 caliber handgun. Burke took possession of the weapon, found that it was loaded, and handed it to his partner for safekeeping. They arrested defendant, informed him of his rights, and searched him "at the scene[.]" They transported defendant to the City's police administration building.
The judge denied defendant's motion to suppress, in an oral decision placed on the record on February 22, 2013. The judge found Burke's testimony to be credible. The judge determined that, based on his observations of defendant and his training and experience, Burke had a reasonable basis to believe that defendant was in possession of a weapon and to conduct an investigative stop of defendant.
The judge further found that, after defendant refused to comply with the Troopers' commands, failed to show his hands, and tried to enter the residence on Browning Street, there was probable cause to arrest defendant. The judge entered an order dated February 22, 2013, denying the motion to suppress.
On March 8, 2013, defendant pled guilty to count one of the indictment, charging second-degree unlawful possession of a handgun. The plea agreement indicated that the State would recommend a sentence of five years of incarceration with three years of parole ineligibility, and the dismissal of the other charges. On June 14, 2013, the judge imposed the recommended sentence. The judge signed the judgment of conviction on June 18, 2013.
On appeal, defendant argues:
POINT ONE
DESPITE THE TESTIFYING OFFICER'S ATTEMPT TO JUSTIFY HIS ACTIONS BY COUCHING HIS HUNCHES AS "EXPERT" TESTIMONY, THE POLICE CLEARLY LACKED THE REQUISITE REASONABLE AND ARTICULABLE SUSPICION TO PURSUE AND SEIZE THE DEFENDANT. THEREFORE, ALL SUBSEQUENT EVENTS WERE THE FRUIT OF THAT ILLEGAL ACTIVITY AND THE JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE. (U.S. CONST., AMENDS. IV AND XIV; N.J. CONST. (1947), ART. I, PAR. 7).
II.
Defendant argues that Burke did not have reasonable, articulable suspicion that he was committing or about to commit a criminal offense. According to defendant, Burke only observed him from a distance on a dark evening in what Burke called a high-crime area. Defendant says that he was wearing bulky clothes and holding the side of his pants. He argues that this was an insufficient basis for Burke to conclude he was concealing a heavy object or weapon. Moreover, Burke indicated that defendant knew he was a police officer. Defendant maintains that Burke decided to pursue him simply because he turned and walked away quickly.
Defendant further argues that the judge improperly accepted all of Burke's "pronouncements without question." Defendant contends that the judge erred by treating Burke as an expert, and "reflexively deferring" to his account of the incident as well as his interpretation of it. He argues that the judge failed to conduct an evaluation to determine whether Burke had any special or particularized expertise. According to defendant, the judge merely accepted Burke's "expert opinions" which were "nothing more than hunches."
When reviewing an order on a suppression motion, we must uphold a trial court's factual findings if "'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). We are required to "'give deference to those findings of the trial judge which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
We are convinced that the judge's findings are supported by sufficient credible evidence. As we have noted, the judge specifically found, based on her own observation of Burke's testimony, that he was a credible witness. Defendant suggests that Burke's observations were not credible because they were made on a "dark evening" but defendant fails to acknowledge Burke's testimony that the area where he observed defendant was well-lit.
Moreover, Burke said he made eye contact with defendant, who immediately reacted by turning and quickly walking away. Burke reasonably assumed that defendant had identified him as a police officer, an assumption the judge was able to evaluate when observing the testimony. In addition, Burke explained his special expertise, particularly with regard to weapons and the concealment of weapons. Burke noted that the bulge in defendant's clothing was approximately the size of a weapon.
Defendant suggests that Burke improperly offered "expert testimony" but, as the State argues, based on his training and experience, the judge could have qualified Burke as an expert, if the State had asked the judge to do so. Burke explained that he had been a State Trooper for eight years, and assigned to the Teams Unit for five years. Burke noted that he has had responsibility for assisting other law enforcement agencies with the apprehension of violent criminals. He also was familiar with the area in which defendant was apprehended, and was qualified to describe it as an area with a great deal of violent crime and illegal drug activity.
We also conclude that the judge correctly determined that the evidence obtained in the search and seizure of defendant was lawful. It is well established that a police officer may conduct an investigatory stop if the officer has a reasonable suspicion of criminal activity, based on specific and articulable facts, and the rational inferences that can be drawn from those facts. State v. Rodriguez, 172 N.J. 117, 126-27 (2002) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). The standard for "reasonable suspicion" is lower than the standard for probable cause. State v. Nishina, 175 N.J. 502, 511 (2003) (citing State v. Stovall, 170 N.J. 346, 356 (2002)).
As our Supreme Court has explained, an investigative stop "is valid only if the officer has a 'particularized suspicion' based upon an objective observation" that an individual is engaged, or is about to engage, in a crime. Ibid. (quoting State v. Davis, 104 N.J. 490, 504 (1986)) (internal quotation marks omitted). The determination of whether the officer has articulable reasons and a particularized suspicion must be based on the totality of circumstances with which the officer was faced. Ibid. (citing Davis, supra, 104 N.J. at 504). The court must consider the officer's knowledge and experience, as well as the inferences that can be rationally drawn from the relevant facts. Ibid. (citing Davis, supra, 104 N.J. at 504).
Here, the judge properly determined that, based on the totality of the circumstances, Burke had reasonable and articulable reasons to believe that defendant was concealing a weapon. In making that decision, the judge weighed Burke's training and experience, properly noted that the incident had taken place in a high-crime area, and considered defendant's reaction when Burke made eye contact with him. Burke's assessment of the situation was not based solely upon the fact that defendant turned quickly and tried to get away, but rather upon his assessment of the totality of circumstances.
Thus, the judge correctly found that Burke had valid reasons to make an investigative stop. The judge also correctly determined that Burke had probable cause to arrest defendant after he refused to comply with the directions to stop and show his hands, and to undertake a search incident to that arrest in order to protect his and his partner's safety.
Defendant also argues that his statement to the police should have been suppressed. However, defendant did not challenge the admissibility of his statement as part of his motion to suppress, or preserve the right to raise this issue on appeal, as permitted by Rule 3:9-3(f).
In State v. Knight, 183 N.J. 449, 470-71 (2005), the Court noted that, without a specific reservation of the right to challenge the constitutionality of the admission of an oral statement, the issue is not preserved for appeal. The Court stated that, under Rules 3:5-7(d) and 7:5-2(c)(2), "'only motions for suppression on the grounds of unlawful search and seizure automatically survive the entry of a guilty plea.'" Ibid. (quoting State v. Greeley, 178 N.J. 38, 50-51 (2003)). Therefore, we decline to consider whether defendant's statement was admissible.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION