Opinion
DOCKET NO. A-6174-10T1
03-22-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDREW PHILLIPS, a/k/a C. PHILLIPS, a/k/a ANDREW MICHAEL PHILLIPS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the letter brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Yannotti.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-04-0731.
Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the letter brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Andrew Phillips pled guilty to unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b). Defendant was sentenced in accordance with the plea agreement to three years of incarceration, with three years of parole ineligibility. He appeals from the judgment of conviction entered on June 13, 2011, and argues that the trial court erred by denying his motion to suppress. For the reasons that follow, we affirm.
At the hearing on defendant's motion to suppress, Trooper Miguel Holguin of the New Jersey State Police testified that on July 28, 2010, at approximately 9:00 p.m., he and Trooper Kazan were on duty patrolling the Newark-Irvington border. Holguin and Kazan were in a marked State Police vehicle. They were at the intersection of South 20th Street and Clinton Avenue in Newark.
Trooper Holguin described that location as "a high crime area." He said it was known for frequent drug activity, prostitution, and weapons activity. He said there had been "a lot of shootings" in that area. Holguin noted that he had made twenty to thirty arrests there.
Holguin and Kazan were traveling westbound on Clinton Avenue and they turned on to South 20th Street, heading northbound. Holguin observed a white sedan parked at the intersection. Two black males were in the vehicle. Their seats were reclined back and the passenger, who was later identified as defendant, appeared to be affixing a bandana to his face. The driver of the car was later identified as co-defendant Kenneth Hills (Hills).
In order to get a better look at its occupants, Holguin directed a spotlight towards the interior of the car. According to Holguin, defendant and Hills became "very startled" and sat up in their seats. Defendant took the bandana off of his face and started to reach down. Holguin could not see defendant's hands.
Trooper Holguin drove his vehicle up to the white car and stopped. The left bumper of Holguin's vehicle was about ten feet in front of the left bumper of the white sedan. Holguin and Kazan exited their vehicle. Holguin approached on the driver's side of the white car, and Kazan approached on the passenger side.
Holguin looked at defendant and noticed that he kept reaching underneath towards the seat area. He directed the light from his flashlight through the windshield and observed a silver handgun on the floor, sticking out from beneath the passenger seat, between defendant's legs. Holguin said Hills was "just sitting there" but defendant "was very frantic and kept moving his hand attempting to reach" to the floorboard.
Holguin called out "gun" to Kazan and he drew his weapon. He told Hills to let him see his hands and Hills complied. Holguin reached into the car and unlocked the driver's door. He opened the door, removed Hills from the car and placed him under arrest. Kazan yelled to defendant that he should not move. Kazan removed defendant from the car and arrested him.
After defendant and Hills were handcuffed and placed in the rear of the police vehicle, Holguin returned to the white car and retrieved the gun from the floor on the passenger side. The gun was a 380 Beretta and it was loaded with four .38 caliber bullets. Holguin also found a black bandana on the passenger side floorboard.
Holguin then proceeded to secure the vehicle so that the towing company could remove it. He went to close the door on the driver's side. Holguin observed a black, high point nine millimeter handgun in the pouch on the driver's side door. The gun was loaded with eight, nine millimeter bullets. Holguin found another bandana and gloves in the pouch.
After hearing Holguin's testimony, and the arguments of counsel, the motion judge placed his decision on the record. The judge found that the Troopers had reasonable cause to approach the car and investigate, after seeing the car parked in a high crime area, at nine o'clock in the evening, with one of the occupants placing a bandana on his face. The judge noted that Holguin observed the gun on the floor of the car, when he approached the car and illuminated the interior with his flashlight.
The judge also found that the Troopers had probable cause to arrest defendant and Hills. The judge noted that after the arrests, Holguin observed the second gun in the pouch on the door of the driver's side of the car, when he went to secure the car for towing.
The judge determined that the investigative stop was valid and the evidence lawfully seized. The judge accordingly denied defendant's motion to suppress. This appeal followed.
Defendant argues that the trial court erred by denying his motion to suppress. Defendant contends that the Troopers did not have reasonable suspicion of any criminal activity. He therefore argues that the Troopers' investigatory stop of the car and the subsequent seizure of the weapons violated his constitutional rights. We disagree.
The Constitution of the United States and the New Jersey Constitution "'protect citizens against unreasonable searches and seizures.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting State v. Amelio, 197 N.J. 207, 211 (2008)). A warrantless search is presumptively invalid unless it falls within one of the recognized exceptions to the warrant requirement. Id. at 337-38 (citing State v. Elders, 192 N.J. 224, 246 (2007)). One such exception is an investigative stop. Id. at 338 (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).
An investigatory stop is valid if "'based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to reasonable suspicion of criminal activity.'" Ibid. (citing State v. Pineiro, 181 N.J. 13, 20 (2004)). In assessing the actions of the law enforcement officers, we consider "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.'" Ibid. (quoting Pineiro, supra, 181 N.J. at 20).
The determination of whether the officer had reasonable and articulable suspicion of criminal activity is "'fact-sensitive'" and "'a careful review of the totality of the circumstances surrounding each case is required.'" Ibid. (citing Pineiro, supra, 181 N.J. at 22). "Unless the totality of circumstances satisfies the reasonable and articulable suspicion standard, the investigatory stop 'is an illegal seizure, and evidence discovered during the course of an unconstitutional detention is subject to the exclusionary rule.'" Id. at 339 (citing Elders, supra, 192 N.J. at 247)).
We note that, when reviewing a trial court's decision on a motion to suppress, we are required to defer to the court's factual findings if they are supported by sufficient credible evidence in the record. Mann, supra, 203 N.J. at 336 (citing Elders, supra, 192 N.J. at 243). However, we owe no deference to the trial court's rulings on questions of law. Id. at 337 (citing State v. Gandhi, 201 N.J. 161, 176 (2010)).
We are satisfied that there is sufficient credible evidence to support the motion judge's findings of fact. We are also satisfied that the motion judge correctly determined that, based on the totality of circumstances, Holguin had reasonable articulable suspicion that defendant was engaged in, or about to engage in, criminal activity.
As Trooper Holguin's testimony indicated, defendant and Hills were parked at night on a street in an area known to law enforcement as one in which there is frequent criminal activity, including crimes involving the use of weapons. It is an area in which Holguin had personally made twenty to thirty arrests. Holguin observed defendant attempt to conceal his identity by placing a black bandana over his face, and reach down in the car so that his hands could not be seen. Furthermore, defendant and Hills were startled when Holguin directed a spotlight at their car. Holguin saw defendant remove the bandana from his face, and again reach down toward the floorboard of the car.
This was not, as defendant argues, a situation in which individuals were merely parked legally on the street, engaging in unsuspicious conduct. As we have explained, defendant and Hills were parked at night in a high-crime area, a factor that may give the police "greater latitude to subject a citizen to an investigatory stop." State v. Tucker, 136 N.J. 158, 168 (1994).
Moreover, defendant was seen attempting to conceal his identity with a black bandana, a fact that could reasonably be of concern in a high-crime area. In addition, defendant and Hills were startled and sat up in their seats when the police directed a spotlight on them, and defendant was seen reaching down to the floor. These actions, even if individually susceptible of an innocent explanation, considered in the aggregate support a finding of reasonable suspicion. State v. Stovall, 170 N.J. 346, 367 (2002).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION