Opinion
DOCKET NO. A-3093-12T2
01-15-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDRE J. WEST, a/k/a JAMLA JAMES THOMPSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Accurso. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-04-0410. Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief). PER CURIAM
A jury convicted defendant Andre J. West of resisting arrest, N.J.S.A. 2C:29-2a(3)(a); aggravated assault of a police officer, N.J.S.A. 2C:12-1b(5)(a); and possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). He appeals from the denial of his pretrial motions to suppress evidence seized in a warrantless search and to dismiss the indictment. Finding no basis to disturb the judge's factual findings or legal conclusions on those motions, we affirm.
The Trenton police officer who arrested defendant testified at the suppression hearing. After receiving a dispatch advising them to be on the lookout (BOLO) for a silver or gold Malibu driven by individuals bent on retaliation for a shooting in the area earlier in the evening, the officer and his partner activated their emergency lights and pulled their unmarked car behind the silver Acura defendant had just parked. Seeing both defendant and a back seat passenger appear to reach into their pockets, the officers ordered both out of the car. According to the officer, he ordered defendant from the car, directed him to place his hands on the roof and asked permission to pat him down for weapons. Defendant responded by stating the officer had no right to touch him and pushing back against the officer.
Defendant quickly calmed and allowed the officer to pat him down. When the officer felt an item he thought was a pill bottle in defendant's pocket, however, defendant pushed the officer's hand away, saying the prescription belonged to his wife and the officer should not touch it. Defendant again pushed back against the officer and the officer responded by telling defendant he was under arrest for obstruction of justice. As defendant tried to push past the officer, the officer grabbed defendant's arm to handcuff him. Defendant resisted and a struggle ensued. The officer's partner pepper-sprayed defendant and he struck his face on the edge of the car door frame, causing it to bleed. Both defendant and the officer's partner were taken to the hospital for treatment. A search incident to the arrest revealed eight small bags of crack inside the pill bottle.
Defendant did not testify at the hearing but another occupant of the car did. He claimed that defendant was simply parking his car when the officers pulled up, jumped out of their car and dragged defendant from the car and beat him. Although the witness claimed defendant did not resist, he testified that the officers punched and sprayed defendant with mace.
After hearing the testimony, the judge denied defendant's motion to suppress the drugs found in the pill bottle. Finding the testifying officer "extremely credible," the judge found the officers had reasonable suspicion to stop the car after the BOLO, and that their pat down of defendant was appropriate in light of their concerns for their safety based on their observations. The judge found that defendant's efforts to obstruct the officer's efforts to pat him down justified his arrest, and that the drugs were recovered in a lawful search incident to that arrest.
The judge also denied defendant's motion to dismiss the indictment based on the officer's answers to two questions before the grand jury. When asked whether his partner had sought treatment at the hospital for blood exposure as well as for pain in his right wrist, the officer answered in the affirmative. The prosecutor then asked the officer about the treatment an officer normally receives for blood exposure. The officer described the treatment, terming it "hellacious." Defendant claimed the testimony was false as the officer's partner was not treated for blood exposure. The judge rejected the argument, finding that the officer had only answered the prosecutor's general questions about the treatment protocol. We note that the prosecutor later clarified that the other officer had not suffered any type of infection, to his knowledge.
Defendant raises two issues on appeal.
POINT I
THE WARRANTLESS SEARCH AND SEIZURE OF DEFENDANT DURING AN ILLEGAL MOTOR VEHICLE STOP VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES.
POINT II
THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BASED UPON FALSE TESTIMONY BEFORE THE GRAND JURY SHOULD HAVE BEEN GRANTED BY THE COURT.
We must accept a trial court's factual findings on a motion to suppress, so long as they are supported by sufficient credible evidence in the record. State v. Smith, 212 N.J. 365, 387 (2012). Our review of the trial court's application of the law to the facts, however, is plenary. State v. Rockford, 213 N.J. 424, 440 (2013). Applying those standards here, we affirm Judge Fleming's denial of defendant's motion to suppress substantially for the reasons stated in the judge's oral opinion from the bench on September 11, 2012.
Even were we to doubt the constitutionality of the stop or seizure here, the judge found, after hearing testimony, that defendant resisted arrest. That finding, which is supported by sufficient credible evidence, means the case is squarely controlled by the Supreme Court's holding in State v. Williams, 192 N.J. 1, 4 (2007), that the exclusionary rule will not support suppression of evidence seized incident to defendant's lawful arrest for resisting or obstruction, regardless of whether the initial stop or seizure was lawful. "[D]efendants have 'no right' to resist arrest, elude or obstruct the police, or escape 'in response to an unconstitutional stop or detention.'" State v. Herrerra, 211 N.J. 308, 335 (2012) (quoting State v. Crawley, 187 N.J. 440, 455, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006)). Accordingly, because defendant's resistance to the pat down and his ensuing struggle with the officers was an intervening act that would, in any event, have purged the taint from an unlawful stop or seizure under the circumstances, we agree that the handgun seized incident to defendant's arrest was properly admitted into evidence at trial. See Williams, supra, at 15-16 (discussing test for evaluating whether evidence is sufficiently attenuated from taint of constitutional violation).
Defendant's argument that the indictment should have been dismissed is without 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