State ex rel. R.J.

Full title: STATE OF NEW JERSEY IN THE INTEREST OF R.J., a minor.

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Jun 7, 2012

DOCKET NO. A-3829-09T3 (App. Div. Jun. 7, 2012)

Opinion

DOCKET NO. A-3829-09T3

06-07-2012

STATE OF NEW JERSEY IN THE INTEREST OF R.J., a minor.

Joseph E. Krakora, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Messano and Kennedy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-645-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief). PER CURIAM

Following the denial of his motion to suppress evidence, juvenile R.J. entered guilty pleas to possession of a controlled dangerous substance (CDS) with intent to distribute within 500 feet of a public housing complex, N.J.S.A. 2C:35-7.1; unlawful possession of a weapon, N.J.S.A. 2C:39-5(a); and possession of a weapon while committing a drug offense, N.J.S.A. 2C:39-4.1.¹ R.J. raises the following point on appeal:

1 The complaint erroneously cites N.J.S.A. 2C:35-4.1, maintenance of a fortified structure for the distribution of controlled dangerous substances, as the statutory violation. R.J. also entered guilty pleas to single counts in two other juvenile complaints.

POINT I
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE POLICE ENCOUNTER WITH DEFENDANT CONSTITUTED AN IMPERMISSIBLE INVESTIGATORY STOP AND FRISK THAT WAS WITHOUT A REASONABLE AND ARTICULABLE SUSPICION THAT DEFENDANT WAS ENGAGED IN CRIMINALITY OR WAS ARMED AND DANGEROUS

We have considered this argument in light of the record and applicable legal principles. We affirm.

At the evidentiary hearing on the motion to suppress, Plainfield police detective Troy Alston testified that he and detective Black were on patrol in an unmarked vehicle on the evening of October 10, 2009.² The officers received a radio transmission that a "black" male "with a handgun wearing a black hoodie" was in the area of Liberty Street and "the bridge." Alston described the area as one of "[h]igh narcotic [activity], assaults, attempted murder, shootings," and with "high" gang activity.

2 Detective Black's first name does not appear in the record.

The officers then received another radio transmission from Detective Kalina. He had stopped one individual, but advised that he saw another person fitting the description "crossing the open field of . . . the playground area." Alston and Black proceeded to that area and saw a person fitting the description standing next to a car.

After exiting their vehicle and as they approached this person, later identified as R.J., Alston noticed he was "look[ing] around in every direction as if [he was] about to run." R.J. had his hand in his pocket, and Alston observed him make "a furtive movement as if he was adjusting something in his waistband area of his pants." R.J. was "extremely nervous." Alston testified that his past experience included "four" occasions where similar movements revealed that the individual had a weapon in his waistband.

Alston detained R.J. and "pat[ted] him down in the front area where [he] observed [R.J.] reaching." The officer felt "the butt end of a handgun." Alston seized a .22 caliber Browning handgun, placed R.J. under arrest, and later seized from him "a plastic knot of suspected CDS."

Noting the "high crime area" where the encounter occurred, as well as the nature of the information received from the radio transmissions, the judge concluded that the officers had a "reasonable suspicion to believe the individual was armed and dangerous." The pat-down of R.J. was therefore justified, and the "recovery of [the] handgun was proper." The judge then concluded that the CDS was properly seized pursuant to a valid arrest supported by "probable cause." He denied the motion to suppress.

R.J. argues, as he did below, that detectives Alston and Black stopped him "[b]ased only on the vague description" provided by the radio dispatch; and "[w]hat might arguably have been a permissible field enquiry escalated immediately into an impermissible investigatory detention that was without a reasonable and articulable suspicion that [R.J.] was engaged in criminality or was armed and dangerous." The State counters by arguing the totality of circumstances -- the radio transmission, including a description that fit R.J.; the high-crime nature of the area; and the actions of R.J. when the police approached him -- provided a reasonable and articulable suspicion that permitted the frisk leading to the seizure of the gun.

We begin our analysis with some basic principles. "'[A]n appellate court reviewing a motion to suppress 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. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). "A trial court's findings should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Instead, "an appellate court must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 336-37 (alteration in original) (quoting Johnson, supra, 42 N.J. at 161). Nevertheless, "[i]t is a well-established principle of appellate review that a reviewing court is neither bound by, nor required to defer to, the legal conclusions of a trial . . . court." State v. Gandhi, 201 N.J. 161, 176 (2010) (citing Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).

"A field inquiry 'is a limited form of police investigation that, except for impermissible reasons such as race, may be conducted without grounds for suspicion.'" State v. Nishina, 175 N.J. 502, 510 (2003) (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002) (internal quotation marks omitted)). An investigatory stop is "[a]nother type of encounter . . . sometimes referred to as a 'Terry'³ stop or a 'stop and frisk.'" State v. Privott, 203 N.J. 16, 25 (2010).

3 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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An investigatory stop is valid only if 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.
[Rodriguez, supra, 172 N.J. at 127 (quoting State v. Davis, 104 N.J. 490, 504 (1986)).]

See also Privott, supra, 203 N.J. at 25-26 ("Our Court has emphasized that in 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.'") (quoting Davis, supra, 104 N.J. at 504).

"A police officer must be able 'to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant' the intrusion." State v. Thomas, 110 N.J. 673, 678 (1988) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1879, 20 L. Ed. 2d at 906). Specific and articulable facts are not a police officer's "'inchoate and unparticularized suspicion or 'hunch.'" Privott, supra, 203 N.J. at 29 (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909)).

In this case, the totality of circumstances facing detectives Alston and Black were strikingly similar to those facing the police in Privott. There, the Court held

[W]hen [the] defendant walked away and placed his hands near his waistband, a reasonable officer with the background knowledge of the conditions in that area, and who had received an anonymous tip of a man with a gun, would have an objectively reasonable concern for his or her safety. Thus, we conclude that the totality of circumstances justified the officer's decision to frisk [the] defendant.
[Privott, supra, 203 N.J. at 30.]

Unlike Privott, id. at 28, where the officers knew the defendant from prior narcotics arrests, detectives Alston and Black apparently had no personal knowledge of R.J. Nonetheless, like the officers in Privott, detectives Alston and Black had information "well-beyond an isolated anonymous tip of a man with a gun at a particular location." Ibid. For example, R.J. fully-matched the description provided by the tip, appeared nervous, and, as the officers approached, moved his hand toward the waistband of his pants, a movement which, based upon his prior experience, Alston associated with possible possession of a firearm. Id. at 28-29. In short, assessing the totality of circumstances presented, Alston possessed "an objectively reasonable concern for his . . . safety." Id. at 30.

The Privott court noted that only "the least intrusive maneuver needed to protect the safety of the officer against a possible weapon," such as "the traditional pat-down search of [the] defendant's outer clothing," is permissible. Id. at 31. Because the officers in Privott exceeded "the reasonable intrusion . . . permit[ted] as part of a Terry stop," id. at 32, the Court suppressed the evidence seized.

However, in this case, it is undisputed that Alston limited his intrusion to a permissible frisk of R.J.'s clothing in the area where the officer saw R.J. place his hand. Alston took further action only after he felt the butt of the .22 caliber handgun in R.J.'s waistband. Thus, the scope of the pat-and-frisk was appropriate.

Affirmed.

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

CLERK OF THE APPELLATE DIVISION