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State v. Faulkner

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Apr 24, 2015
DOCKET NO. A-4733-12T2 (App. Div. Apr. 24, 2015)

Opinion

DOCKET NO. A-4733-12T2

04-24-2015

STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRIAN W. FAULKNER, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale.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. 12-04-0995. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). PER CURIAM

Defendant appeals from his conviction for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. We affirm.

I.

We discern the following facts adduced at the suppression hearing. A State Police Trooper (the "Trooper"), along with other Troopers, were patrolling a high-violence area when they observed defendant engaging in behavior suggesting that defendant had a concealed firearm. According to the Trooper's testimony, defendant engaged in actions that

are very indicative of an individual carrying a concealed firearm, such as a retention check. [Defendant] would . . . either hit his elbow against his side, or reach his hand toward his waistband, check his clothing. He was putting his jacket over . . . what possibly could be a concealed firearm. . . . He would constantly tap at his waistband with his hand to check to see if his firearm was still in his waistband. He was also blading his body away from [the Trooper's] vehicle. . . . [B]lading your body away from someone typically is turning away from them so that [an] individual can't see what's towards that side and/or if there's something that's concealed in the waistband.

The Trooper identified himself and asked defendant to show his hands. The Trooper observed defendant remove a handgun from his waistband and then defendant fled on foot. The Trooper gave chase and witnessed defendant throw the handgun into an open yard. The Trooper apprehended defendant, arrested him, and recovered the discarded handgun.

A grand jury indicted defendant charging him with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Count One); fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a(2) (Count Two); and second-degree possession of a handgun by a person not to have weapons, N.J.S.A. 2C:39-7b (Count Three).

The Trooper was the only individual to testify at the suppression hearing. At the conclusion of the testimony, the judge credited the Trooper's testimony as believable, found that there was a "reasonable and articulable suspicion to justify the Terry stop[,]" and denied defendant's motion. The State dismissed Counts Two and Three, and defendant pled guilty to Count One.

Defendant received a sentence one degree lower pursuant to the plea agreement.
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Defendant raises the following point on appeal:

POINT I
THE MOTION TO SUPPRESS THE GUN SHOULD HAVE BEEN GRANTED. THE STOP OF DEFENDANT WAS UNSUPPORTED BY THE REQUISITE SUSPICION THAT DEFENDANT HAD COMMITTED A CRIME.

II.

In reviewing a motion to suppress, we "uphold the factual findings underlying the trial court's decision so long as those findings are supported by substantial credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). This deference is owed because "those findings are substantially influenced by [an] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Id. at 424-25 (alteration in original) (citation and internal quotation marks omitted). We only reverse if the decision was "so clearly mistaken that the interests of justice demand intervention and correction." Id. at 425 (citation and internal quotations omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

It is well-established that "[b]oth the United States and the New Jersey Constitutions protect citizens against unreasonable searches and seizures[,]" and that an investigatory stop by the police "implicates our constitutional protections." State v. Mann, 203 N.J. 328, 337 (2010). Warrantless searches and seizures are "presumptively invalid" and the State bears the burden of proving "by a preponderance of the evidence that a warrantless search or seizure falls within one of the few well-delineated exceptions to the warrant requirement." Id. at 337-38 (citations and internal quotation marks omitted).

One exception to the warrant requirement is a particular type of investigatory stop, the Terry stop, which can occur when "'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, 126-27 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Our Supreme Court has explained that a Terry stop is valid when

the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing. 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.



[Id. at 127 (alterations in original) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).]

Here, there is sufficient evidence in the record to support the judge's finding that the Trooper conducted a valid Terry stop at the moment he identified himself and asked to see defendant's hands. The judge credited the Trooper's testimony and concluded that he was

perfectly satisfied that [the Trooper] saw what he said . . . . [H]e saw these maneuvers made by the defendant in regard to blading and the retention check, that to him and his training . . . make it suspicious . . . that the individual may be carrying a concealed weapon, and it justifie[d] a Terry stop.
We see no error. The Trooper, a seasoned law-enforcement officer, was in a high-violence area and observed defendant acting in a suspicious manner which, based upon the totality of the circumstances, suggested that defendant was concealing a firearm.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

State v. Faulkner

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Apr 24, 2015
DOCKET NO. A-4733-12T2 (App. Div. Apr. 24, 2015)
Case details for

State v. Faulkner

Case Details

Full title:STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRIAN W. FAULKNER…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Apr 24, 2015

Citations

DOCKET NO. A-4733-12T2 (App. Div. Apr. 24, 2015)