Opinion
DOCKET NO. A-2240-12T3
06-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PHILLIP THOMAS, a/k/a PHILIP M. THOMAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Christopher L. Desimone, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-01-0044. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Christopher L. Desimone, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
On June 8, 2012, a jury convicted defendant Phillip Thomas of second degree unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5(b). On September 28, 2012, he was sentenced under the Graves Act to an eight-year term with a four-year period of parole ineligibility. He appeals both his conviction and sentence. After reviewing the record and applicable legal principles, we affirm.
I
Before trial, defendant filed a motion to suppress a handgun a police officer found in a car defendant was driving. The court denied defendant's motion following a suppression hearing. Except in one area we will discuss in more detail, the trial court found credible the testimony of Detective Michael Kurinzi of the Elizabeth Police Department, the only witness who testified at the suppression hearing. The material evidence adduced at the suppression hearing was as follows.
On July 31, 2009, Kurinzi and another Elizabeth detective named Amil Colon were on patrol in an unmarked car. Shortly after midnight, the dispatcher announced that "several" calls had come in reporting that two black males with handguns were in a white Dodge Intrepid parked in the front lot of the Oakwood Plaza housing complex, located at a specific address on Irvington Avenue. The callers provided a specific license plate number to the car and described one of the men as being light skinned with long dreadlocks and wearing a red baseball hat. The other was described as dark skinned with dreadlocks and wearing a dark baseball hat.
The callers identified a specific address on Irvington Avenue. We have opted not to include the address to protect the privacy of the people who reside at this location. --------
Although Kurinzi testified the callers dialed 9-1-1 to contact the police and report their observations, the trial court determined after reviewing a document created by the dispatcher that the callers had not utilized the 9-1-1 emergency system; all of the calls were made anonymously to the police department's non-emergency telephone line.
The detectives immediately responded to the housing complex, which Kurinzi described as a high crime area. Kurinzi had made approximately one hundred arrests for gun-related incidents at the complex over his eighteen-year career as an Elizabeth police officer and, in the year previous to July 31, 2009, the Elizabeth Police Department recovered over a hundred weapons from the complex. Kurinzi testified he was fired upon by two individuals in 2008 while at the complex.
As they approached the specific address on Irvington Avenue identified by the callers, the detectives saw a white Dodge Intrepid in the parking lot that was backing out of a parking space. When the detectives pulled into the driveway, the Dodge Intrepid was headed toward the exit. Kurinzi saw that the license plate number matched the one reported by the callers. Colon, who was driving the unmarked police car, positioned the vehicle in a manner to block the path of the Dodge Intrepid, causing it to come to a stop "nose-to-nose" to the police car. According to Kurinzi, at this point their only intention was to conduct a limited investigation based on the information reported by the callers.
Kurinzi testified that Colon illuminated the suspects' car with a spotlight that lit the area "as clear as day," enabling them to see into the interior of the car. Kurinzi saw the driver, later identified as defendant, reach down between his legs, straighten back up, lean his head back, and put his hands up. Kurinzi remarked that although he and Colon were in an unmarked patrol car, it was a Crown Victoria and "easily recognizable as a police car." Kurinzi described the driver as a light-skinned African-American male with long dreadlocks wearing a red baseball hat. Seated in the front passenger seat was a dark-skinned African American male, subsequently identified as Terrel Riley; he had dreadlocks and was wearing a dark colored hat.
Defendant's actions before he put his hands up caused Kurinzi to became "a little nervous" because from his vantage point, he could not see what was between defendant's legs. Kurinzi and Colon decided to step out of the police car to conduct a "felony stop." With their guns drawn, the detectives ordered the two men to show their hands and remain in the car. Riley ignored the order to show his hands. Instead, he reached behind the driver's seat and made several attempts to open the front passenger door while also looking around, suggesting he was trying to figure out a way to escape. Riley's behavior, especially his refusal to put his hands up, caused Kurinzi to become even more concerned.
When backup police officers arrived, the detectives approached the suspects' car. Riley then leaned over toward the driver's floorboard. Kurinzi removed defendant from the car. As defendant stepped out of the vehicle, Kurinzi saw part of a handgun lying on the driver's floorboard. Although a part of the barrel of the handgun was obscured by the seat, the trigger, the trigger guard, and handle of the gun were exposed. Kurinzi retrieved the handgun from the car; defendant and Riley were placed under arrest.
II
On appeal, defendant argues:
POINT I: THE TRIAL COURT ERRED BY DENYING MR. THOMAS'S MOTION TO SUPPRESS EVIDENCE.
POINT II: THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN EIGHT YEAR TERM WITH A FOUR YEAR PERIOD OF PAROLE INELIGIBILITY BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING
FACTORS AND PAROLE INELIGIBILITY CONSIDERATIONS DOES NOT SUPPORT SUCH A SENTENCE.
In reviewing a motion to suppress evidence, an appellate court "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.'" State v. Elders, 192 N.J. 224, 243 (2007) (citations omitted). An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). However, an appellate court need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990).
Here, defendant challenges the validity of the investigatory stop. He argues that the detectives did not have a reasonable, articulable suspicion to stop the defendant's car and, therefore, the trial court erred when it failed to suppress the handgun found in the car.
When a police encounter results in a restriction of a person's freedom of movement, the encounter becomes an investigatory stop. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry v. Ohio, 392 U.S. 1, 19, 88 S. Ct. 1868, 1878-79, 20 L. Ed. 2d 889, 904 (1968). However, a warrant is not required to conduct an investigatory stop, as long as 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)).
A "reasonable suspicion of criminal activity" must be based upon the officer's assessment of the totality of circumstances. Stovall, supra, 170 N.J. at 356. "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. Davis, 104 N.J. 490, 504 (1986). "[I]n determining the lawfulness of an investigatory stop, a reviewing court must 'evaluate the totality of circumstances surrounding the police-citizen encounter, 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. Privott, 203 N.J. 16, 25-26 (2010) (citation omitted).
"An anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity." Rodriguez, supra, 172 N.J. at 127 (citing Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990)). This is so even when there is an anonymous report that someone is carrying a gun. See Florida v. J.L., 529 U.S. 266, 271-72, 120 S. Ct. 1375, 1379-80, 146 L. Ed. 2d 254, 261 (2000). Additional information is necessary "'to establish the requisite quantum of suspicion . . . .'" Rodriguez, supra, 172 N.J. at 127 (quoting Alabama, supra, 496 U.S. at 330, 110 S. Ct. at 2416, 110 L. Ed. 2d at 309). Information that merely corroborates the identity of the person reported to the police is insufficient; information is required that supports the allegation of illegal conduct. In J.L., supra, 529 U.S. at 272, 120 S. Ct. at 1379, 146 L. Ed. 2d at 261, the United States Supreme Court explained that
[a]n accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.
Here, the anonymous callers identified the number of individuals who were in possession of handguns, described specific aspects of their physical appearances, and identified the location, model and license plate number of the vehicle they were in. Those facts were corroborated by the detectives' observations after they arrived at the location identified by the callers and before they had any physical contact with the suspects. After confirming these key details, the detectives illuminated the interior of the suspects' car, and saw two men who matched the callers' description.
The probable cause that formed the basis for defendant's arrest came about while the detectives were engaged in this lawful investigatory stop. Defendant and Riley engaged in furtive behavior that provided sufficient cause for the detectives to take limited measures to protect themselves. Based on the information provided by the callers, the detective had a rational basis to infer from the suspects' movements that they were attempting to conceal a weapon. Therefore, under the totality of the circumstances, the trial court correctly found sufficient grounds to deny defendant's motion to suppress the handgun.
Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION