Opinion
DOCKET NO. A-5240-13T3
08-31-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ELI R. DENNIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Espinosa. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 13-08-1483. Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After his suppression motion was denied, defendant pled guilty to second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), pursuant to a plea agreement. In his appeal, he argues the trial court erred in denying his suppression motion. He also challenges his sentence of ten years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 and the Graves Act, N.J.S.A. 2C:43-6(c), as excessive. We affirm.
I.
Defendant filed a motion to suppress a handgun seized from a backpack carried by N.D. in Neptune on March 26, 2013. The sole witness at the suppression hearing was Thomas Blewitt, an officer with the Neptune Township Police Department.
Blewitt was assigned to the quality of life unit, which targets gang violence, shootings and other quality of life issues. On March 26, 2013, Blewitt and his partner, Marcus Alston, were assigned to patrol an area where a shooting had occurred two days earlier. At the briefing prior to their shift, they were advised the shooting "stemmed from possibly an argument involving two females, [N.C.] and [N.D.]." The victim, K.B., had been found lying on the ground near dumpsters, suffering from multiple gunshot wounds. K.B. was hospitalized and had identified defendant as the person who shot him. The officers were also advised that the weapon had not been recovered. Blewitt described the area to be patrolled as a high crime area, known to have a lot of gang activity and drug distribution activity. There had been several shootings and firearms recovered in that area.
Both Blewitt and Alston knew N.D. prior to this evening. Alston had gone to high school with N.D. Blewitt knew N.D. was a Blood gang member who had been incarcerated on an assault with a weapon charge. He also knew N.C. was a member of the Crips gang.
Alston was the first to notice N.D. and N.C. in the rear parking lot of the apartment building where they resided. Blewitt testified that they watched N.D. and N.C. because they knew the detectives would want to talk to them. He stated, "[t]heir behavior seemed unusual." They looked at the officers and walked "further back into the parking lot," continuing to look back, over their shoulders, at the officers. As the officers got closer to them, N.D. "started cinching [a backpack] back closer to her back" and N.C. "began to walk away from her." Blewitt and Alston did not split up when N.D. and N.C. went in different directions because they were in a high crime area; the two partners were not to separate unless they had to "due to safety concerns."
Blewitt was familiar with the car N.D. and N.C. typically drove, a bluish-green Nissan Altima, and where they typically parked, on the street or at nearby senior apartments. He found it strange they were hanging out in the back of the parking lot, which was small and could only accommodate a few cars. Blewitt also thought it unusual for N.D. to be carrying a backpack because he knew that she did not attend school.
Blewitt testified that N.D. and N.C. appeared suspicious in the way they split apart, were monitoring the officers and seemed to be avoiding them. He described their stop of N.D.:
We stopped [N.D.] and we immediately, I took the bag from her as a safety precaution. We began to do a patdown for any weapons. I asked her if she had any weapons on her and she replied something to the effect of she wasn't sure or "I don't know," which made me nervous and [seemed like] a strange response.
So as I had took [sic] the backpack away, I could feel a hard item on the bottom. I specifically asked her if she had a gun and she said it wasn't hers, a boy gave it to her to hold. Something to that effect.
Blewitt explained his "nerves were heightened" by what he considered unusual activity by N.D. and that he initially asked N.D. if she had any weapons because "[he] was familiar with her. [He] knew that she was violent in the past. So [he] specifically asked for that, for my own safety and my suspicions."
He also found her reply, "I don't know," to be strange. Blewitt had never received that answer to that question before. He "immediately had a sense that something was wrong and that she more than likely had a weapon with her." He explained why he took the back pack when he initiated the stop:
Because I felt that there could be a weapon in there. If she did have a weapon in there, she would have access to it. So I wanted to, in this area which is a tough neighborhood and high crime, I wanted to make myself safe and my partner safe as well as the
public safe. And that's why I took the backpack away from her.
He did not open the bag until after N.D. told him there was a weapon in it. He recovered the weapon and placed N.D. under arrest. He knew that, because of her criminal history, N.D. fell within the category of "certain persons" who were not permitted to carry a gun.
Ballistics tests confirmed that the weapon seized was the one used in the March 24 shooting.
At the suppression hearing, defense counsel did not challenge the officers' approach of N.D. under the circumstances or Blewitt's opening the bag after N.D.'s response to his question as to whether she had a weapon. He argued that the focus of the suppression motion was Blewitt's seizure of the backpack. The prosecutor argued that the permissible scope of the patdown when the officers initiated the investigatory stop would include separating N.D. from the bag so that she would not have access to anything in the bag or use it as a weapon against the officer.
Although defense counsel argued it was "disingenuous" for Blewitt to testify that N.D. and N.C. "looked suspicious," because "[t]here was nothing criminal about what [N.D. and N.C.] did whatsoever," he acknowledged that the officers' observation of N.D. wearing the backpack and "cinch[ing] [it] up on her back and continu[ing] to walk" could have been considered "suspicious activity." He also conceded that the officers would "[a]bsolutely" have had the right to approach someone who they believed were witnesses to the shooting and had knowledge of what had occurred. --------
In denying defendant's motion, the trial judge made factual findings that relied upon an acceptance of Blewitt's testimony as credible. He described the circumstances in which the officers were assigned to make observations in a high crime area in which a shooting had recently occurred. He noted the officers had been apprised prior to their shift that the shooting was related to an argument between N.D. and N.C., whom the officers knew to be members of the Bloods and Crips, respectively, and that the firearm used had not been recovered.
The judge credited Blewitt's testimony that he was concerned for his safety and that of his partner and approached N.D. "with a heightened sense of awareness and caution" to ask her questions about the shooting. He found that Blewitt took possession of the backpack when he approached N.D., who did not protest or say anything. The judge found that Blewitt conducted a patdown of N.D. and, because there was no weapon on her person, "the only place where the weapon could be would be in the backpack itself." The judge found that Blewitt was "simply holding the bag" when he asked N.D. if she had a weapon. Her non-committal answer "heightened the officer's awareness of perhaps potential danger, because at that point when he asked that question he had already felt the gun in the bag." The judge concluded that the officers were concerned about their own safety as they approached N.D.; that there were exigent circumstances as a result of the location and N.D.'s prior criminal history and that the officer "had the right to separate [N.D.] from the bag to make sure there were no weapons present."
After his suppression motion was denied, defendant pled guilty to the amended charge of second-degree aggravated assault, N.J.S.A. 2C:12-1B(1), pursuant to a plea agreement. Consistent with that agreement, the judge imposed a sentence of ten years subject to NERA with a three-year term of parole supervision.
In his appeal, defendant presents the following issues for our consideration:
POINT I
THE ITEMS SEIZED FROM [N.D.'S] BACKPACK SHOULD HAVE BEEN SUPPRESSED AS FRUITS OF AN ILLEGAL WARRANTLESS SEIZURE AND SEARCH. BECAUSE NO EXIGENT CIRCUMSTANCES EXISTED THAT COULD JUSTIFY NOT OBTAINING A WARRANT, THE ENTRY INTO AND SEARCH OF THE BACKPACK AND ITS CONTENTS WAS UNCONSTITUTIONAL.
POINT II
THE 10-YEAR SENTENCE THAT DEFENDANT RECEIVED CANNOT LEGALLY BE CONSIDERED A FIRST DEGREE EXTENDED TERM GRAVES ACT SENTENCE BECAUSE DEFENDANT DID NOT QUALIFY FOR SUCH AN EXTENDED TERM. ALTHOUGH THE SENTENCE IS A LEGAL SECOND DEGREE TERM, IT IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
We are unpersuaded by these arguments.
II.
In reviewing the disposition of a suppression motion, we apply a deferential standard to the "findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Thompson, 224 N.J. 324, 345 (2016) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We "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." Elders, supra, 192 N.J. at 243 (citation omitted). We owe no deference in our review of the motion judge's legal conclusions. State v. Gregory, 220 N.J. 413, 419-20 (2015).
In his appeal, defendant argues that the seizure followed by the officer's "immediate" and "aggressive manipulation" of the backpack amounted to a "full-blown search," exceeding the bounds of the stop and frisk permitted under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The State counters that the police actions were justified under the totality of the circumstances.
At the outset, we are constrained to observe that defendant's contention that the police conduct here amounted to a full blown search rests upon a characterization of the officers' conduct as the "immediate" and "aggressive manipulation of the backpack," a description that conflicts with the trial judge's findings. Defendant has provided no citation to the record to support this characterization. As we have noted, the trial judge found Blewitt was "simply holding the bag" when he asked N.D. if she had a weapon and recognized the heavy object in the backpack to be a gun. Defendant has not argued that we should reject this finding as one that is "so clearly mistaken that the interests of justice demand intervention and correction." Elders, supra, 192 N.J. at 244 (citation omitted). We therefore evaluate the facts in light of the findings of the trial judge, which are fully supported by credible evidence in the record.
The police encounter here began as an investigatory stop, which is justified when the stop 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. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906).
The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and
knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.
[State v. Nishina, 175 N.J. 502, 511 (2003) (alterations in original) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).]
What is required is "some minimal level of objective justification for making the stop." Ibid. (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989)). "Facts that might seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate, so long as the officer maintains an objectively reasonable belief that the collective circumstances are consistent with criminal conduct." Ibid.
Blewitt's perceptions here were informed by his personal knowledge regarding N.D., the briefing regarding the March 24 shooting that he received prior to his shift and his observations of N.D. He knew that both N.D. and N.C. were associated with a shooting just two days earlier in which the weapon had not been recovered. N.D.'s movements in the parking lot behind her residence might be considered innocent if viewed in isolation. However, because Blewitt had personal knowledge regarding N.D.'s customary movements and where she parked the car she used, her clutching of the backpack and the divergence of N.C. and N.D. upon the officers' arrival warranted additional suspicion. The totality of the facts and the reasonable inferences Blewitt could draw provided the necessary "level of objective justification for making the stop."
We therefore turn to the question of whether Blewitt's seizure and subsequent search of the backpack are sustainable, bearing in mind that a warrantless search and seizure is presumed to be invalid unless it falls within a recognized exception. See Rodriguez, supra, 172 N.J. at 125. In Terry, the United States Supreme Court recognized "a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909; see State v. Roach, 172 N.J. 19, 27 (2002) ("The protective search exception to the warrant requirement was created to protect an officer's safety where there is reason to believe that a suspect is armed and dangerous."); compare State v. Arthur, 149 N.J. 1, 14 (1997) (stating search of bag possessed by a co-defendant was not justified as a protective search because the officers did not believe she was armed and dangerous), with State v. Johnson, 274 N.J. Super. 137, 154-56 (App. Div.) (concluding that trooper's observations of front passenger justified a reasonable suspicion that a weapon was in her pocketbook and that it was reasonable for him to grab her pocketbook and look inside), certif. denied, 138 N.J. 265 (1994).
To determine the existence of an objectively reasonable suspicion, we apply a totality of the circumstances test, "balancing the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions." State v. Valentine, 134 N.J. 536, 546 (1994) (citation omitted). The standard governing protective searches 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." Id. at 543 (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909).
In addition to the facts we have cited that provided justification for the investigatory stop, Blewitt was aware N.D. was a gang member who had a history of violence that included a conviction for assault with a weapon. The shooting occurred recently in the high crime area where the officers encountered N.D. and N.C. and the firearm had not been recovered. When Blewitt asked if she had a weapon, N.D.'s non-committal response added to his safety concerns. We therefore conclude that the facts known to Blewitt and the inferences that could be drawn in light of his experience supported a reasonable belief that N.D. was armed and dangerous. Therefore, Blewitt was permitted "to take necessary measures to determine whether [N.D. was] in fact carrying a weapon and to neutralize the threat of physical harm." Terry, supra, 392 U.S. at 24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 908.
An objective test is applied to "determine whether, under the totality of the circumstances, a police officer's actions in conducting a Terry frisk are reasonable." Arthur, supra, 149 N.J. at 7-8. Because "[t]he sole justification of the search . . . is the protection of the police officer and others nearby, . . . it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Terry, supra, 392 U.S. at 29, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911; see also Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325-26, 75 L. Ed. 2d 229, 238 (1983) (stating the officer should employ "the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time"); State v. Privott, 203 N.J. 16, 31 (2010).
A Terry protective search generally consists of a patdown of exterior clothing. Id. at 30-31. However, as our Supreme Court made clear in Privott, officers are not restricted to "a limited pat-down search" under Terry. Id. at 32, n.2 Citing the example of Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972), the Court stated, "under certain circumstances searches beyond a pat-down frisk may be reasonable to insure the safety of the policeman." 203 N.J. at 32.
It is worth noting the facts in Adams that the Privott Court found justified more than a pat-down frisk. After receiving a tip from a known informant that a man seated in a vehicle had a gun concealed at his waist and had narcotics, the officer told the suspect to open the door and step out of the vehicle. Adams, supra, 407 U.S. at 144-45, 92 S. Ct. at 1922-23, 32 L. Ed. 2d at 616. The suspect rolled down the window instead. Id. at 145, 92 S. Ct. at 1923, 32 L. Ed. 2d at 616. This failure to comply with the officer's instruction was considered to enhance the threat posed by the revolver allegedly at the suspect's waist. Id. at 148, 92 S. Ct. at 1924, 32 L. Ed. 2d at 618. The Supreme Court stated, "Under these circumstances the policeman's action in reaching to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety, and we conclude that it was reasonable." Id. at 148, 92 S. Ct. at 1924, 32 L. Ed. 2d at 618.
As we have stated, the facts here provided Blewitt with grounds for reasonable suspicion that N.D. was armed and dangerous when he first stopped her and, further, that a weapon might be concealed in the backpack she clutched to her when she observed the officers. His response to that situation was to take the backpack from her and conduct a patdown of her person. This action afforded him a measure of protection from the weapon he suspected was in the backpack and imposed only a limited intrusion upon N.D. He then asked if she had any weapons on her. Blewitt found her reply, that she did not know, to be strange, one he had never heard before, and made him more nervous. At this point, additional factors were presented for Blewitt to digest. When he took the backpack, he said he "could feel a hard item on the bottom." At that point, he asked N.D. if she had a gun. Her response, that it was not hers, supported the conclusion that a gun was present.
The developing facts buttressed Blewitt's reasonable belief that N.D. was armed and dangerous. His response to the circumstances was measured and only escalated to the point of searching the backpack when additional factors were revealed that confirmed his suspicion that a gun was in the backpack. Moreover, his recognition of the hard object in the backpack as a gun is not materially different from what occurs when an officer conducting a patdown perceives a weapon in the outer clothing of a suspect and removes it. We therefore conclude that Blewitt's actions were reasonably limited to conduct that would "neutralize the threat of physical harm," Terry, supra, 392 U.S. at 24, 88 S.Ct. at 1881, 20 L. Ed. 2d at 908, and constitutionally permissible in the totality of the circumstances.
III.
In Point II, defendant challenges his sentence as excessive. This argument lacks sufficient merit to warrant discussion in a written opinion beyond the following brief comments. R. 2:11-3(e)(2).
Defendant raises two arguments in this point. The first argument he makes is that the ten-year term imposed cannot be considered a mandatory minimum sentence under the repeat offender provision of the Graves Act because he does not qualify as a repeat offender under that provision. See N.J.S.A. 2C:43-6(c); N.J.S.A. 2C:44-3(d). Although, as the State concedes, it is true defendant does not qualify as a repeat offender, this is of no moment because he was not sentenced as a repeat offender under the Graves Act. The other argument is that the trial judge abused his discretion in failing to find mitigating factors argued by the defense. We discern no abuse of discretion in the findings made by the trial judge or in the sentence imposed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION