Opinion
DOCKET NO. A-4832-12T2
01-07-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SCOTT C. DUNCAN, a/k/a SCOTT DUNCAN, a/k/a SCOTT C. DUCAN, a/k/a COREY HILL, a/k/a COREY DUNCAN, and a/k/a KENNETH SYMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Leone. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-10-2279 and 12-07-1732. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Scott C. Duncan appeals the denial of his motion to suppress the gun that was the basis for his conviction. We affirm.
I.
The sole witness at the suppression hearing was Detective William Frampton, who had fifteen years' experience policing the streets of Camden. He testified as follows. At approximately 10:17 p.m. on February 20, 2012, the plainclothes detective and his partners were patrolling in an unmarked car in a particularly violent area of Camden where he had investigated robberies, assaults, homicides, and drug offenses.
The detective saw defendant approach a parked vehicle and open the driver's door. As the detective drove by, he saw a scuffle inside the car between defendant and another person. The detective described the scuffle as fighting, and possibly a robbery.
Defendant started walking away. The officers drove back around the block and spotted defendant near the scene of the incident. The detective exited the vehicle, identified himself, and asked defendant to stop and show his hands, which were in his pockets. Defendant ignored the detective, who repeated the order several times. Defendant then stopped and showed his hands, but put them back in his pockets as the detective approached. The detective again ordered defendant to remove his hands from his pockets. Defendant did so, but he appeared to be nervous and looking for a way to run away. The detective "grounded" defendant, patted him down, and felt a handgun in his waist area. The detective seized the gun and arrested him.
Judge Irvin J. Snyder found Detective Frampton to be credible. Citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and State v. Maryland, 167 N.J. 471 (2001), the court found that the stop and frisk was justified by the totality of circumstances. The court emphasized the detective's extensive experience patrolling Camden, his knowledge of the violent nature of the area, and his observation of defendant engaging in what appeared to be fighting or a robbery. The court also stressed that defendant initially refused to stop and remove his hands from his pockets despite repeated orders, that he nonetheless put his hands back in his pockets, and that he was nervous. The court found those facts gave particularized suspicion, and noted "the dire consequences of failure to take such precautions [as] the pat down."
Defendant subsequently pled guilty to second-degree possession of a weapon by a previously-convicted person, N.J.S.A. 2C:39-7(a), in return for dismissal of the charge of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and a sentence of five years of prison with five years of parole ineligibility, concurrent with his sentence for the resulting violation of his probation. Defendant reserved his right to appeal the denial of the motion to suppress but waived appeal of his sentence. Then-Judge Lee A. Solomon imposed the negotiated sentence.
Defendant appeals from the April 15, 2013 judgment of conviction, arguing:
THE MOTION TO SUPPRESS THE GUN FOUND IN DEFENDANT'S WAISTBAND SHOULD HAVE BEEN GRANTED. THE STOP WAS UNSUPPORTED BY THE REQUISITE SUSPICION THAT DEFENDANT HAD COMMITTED A CRIME; A FRISK FOR WEAPONS WAS ALSO PERFORMED COMPLETELY WITHOUT JUSTIFICATION, AND THE MATTER IN WHICH THE DETECTIVE CONDUCTED THE STOP WAS SO BEYOND WHAT WAS NECESSARY TO DO SO THAT HE CLEARLY EXCEEDED THE BOUNDS OF THE STATE AND FEDERAL CONSTITUTION IN THAT MANNER AS WELL.
II.
We must hew to our "deferential standard of review." State v. Rockford, 213 N.J. 424, 440 (2013). "[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." Ibid. (internal quotation marks omitted). "Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (alteration in original; internal quotation marks omitted).
At a suppression hearing, "'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.'" State v. Mann, 203 N.J. 328, 337-38 (2010). "One such exception is denominated an investigatory stop or a Terry stop." Id. at 338 (footnote omitted). The United States and New Jersey Constitutions allow an investigatory stop "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot." Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911; State v. Davis, 104 N.J. 490, 503 (1986). An investigatory stop "'is valid if it 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.'" Mann, supra, 203 N.J. at 338.
Defendant first challenges whether the detective had reasonable suspicion to stop him. We agree with Judge Snyder that "the totality of the circumstances," including the factors he cited, gave reasonable suspicion that defendant was engaged in criminal activity. Id. at 338. First, the detective testified that he saw a scuffle he suspected was part of a robbery. Defendant claims that testimony was neutered on cross- examination, when the detective agreed with defense counsel's assertion that "if you'd [seen] what you thought was an armed robbery you guys would have stopped the car and run out[.]" However, the detective testified he suspected a robbery, not an armed robbery. Thus, his agreement, and driving around the block, do not undermine his testimony.
In any event, the detective saw defendant fighting. Simple assault is a disorderly persons offense, and a petty disorderly persons offense if it is "committed in a fight or scuffle entered into by mutual consent." N.J.S.A. 2C:12-1(a). The detective had reasonable suspicion to believe that defendant had committed such an offense. Thus, he could conduct an investigatory stop and "'conduct a pat-down search for weapons in circumstances where such a search would be authorized under the Terry line of cases.'" State v. Dangerfield, 339 N.J. Super. 229, 243 (App. Div. 2001), aff'd as modified, 171 N.J. 446 (2002).
If the investigatory stop uncovered probable cause for such an assault, committed in the detective's presence, he could arrest defendant for such an offense. State v. Dangerfield, 171 N.J. 446, 459-60 (2002). As it happened, the parked car had driven off, and defendant was prosecuted instead solely for the more serious gun offenses.
Defendant next challenges the pat-down search. To conduct a pat down, an "officer must have a 'specific and particularized basis for an objectively reasonable suspicion that defendant was armed and dangerous.'" State v. Roach, 172 N.J. 19, 27 (2002). "'The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.'" State v. Valentine, 134 N.J. 536, 543 (1994) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909).
Here, the detective had "'an articulable suspicion of a crime of violence,'" namely robbery or assault, which gave reasonable suspicion that defendant was dangerous and raised the concern he might be armed. Id. at 544 (quoting Terry, supra, 392 U.S. at 33, 88 S. Ct. at 1886, 20 L. Ed. 2d at 913 (Harlan, J., concurring)). "[T]hat defendant initially had his hands in his pockets" contributed to that concern. Id. at 553-54. More importantly, by initially ignoring the detective's repeated commands to halt and remove his hands from his pockets, and then sticking his hands back in his pockets, defendant provided an additional basis for suspicion "that defendant in fact possessed a weapon." State v. Sharpless, 314 N.J. Super. 440, 452 (App. Div.), certif. denied, 157 N.J. 542 (1998). A suspect's refusal to obey police commands to keep his hands visible is a relevant circumstance justifying a frisk. Roach, supra, 172 N.J. at 28; State v. Otero, 245 N.J. Super. 83, 92 (App. Div. 1990).
We have subsequently declined to follow Sharpless to the extent it could be read to hold that an anonymous tip that a person is armed is sufficient on its own to justify a stop and frisk. State v. Richards, 351 N.J. Super. 289, 303 (App. Div. 2002). Here, by contrast, the detective himself saw defendant engage in violence.
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Defendant's "[n]ervousness and furtive gestures may, in conjunction with other objective facts, justify a Terry search." State v. Gamble, 218 N.J. 412, 430 (2014) (internal quotation marks omitted). Moreover, the detective was attempting to conduct this stop at night in a particularly violent part of Camden. Thus, "the high-crime nature of the area, and the time of the night" elevated that suspicion. Valentine, supra, 134 N.J. at 553-54.
The existence of reasonable suspicion to frisk "is based on the totality of the circumstances." Roach, supra, 172 N.J. at 27. Importantly, "'due weight must be given'" to the detective's fifteen years of experience policing the streets of Camden. See Valentine, supra, 134 N.J. at 543 (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). Further, "'courts should not set the test of sufficient suspicion that the individual is "armed and presently dangerous" too high when protection of the investigating officer is at stake.'" Id. at 545. Considering all the circumstances, the detective had an objectively reasonable suspicion that defendant was armed and dangerous, and a pat down was justified.
Defendant argues that he put his hands in his pockets due to the cold weather. We acknowledge that "[p]utting a hand in a pocket is fairly common human conduct that does not generally involve the commission of a crime." State v. Williams, 410 N.J. Super. 549, 556-57 (App. Div. 2009), certif. denied, 201 N.J. 440 (2010). Here, however, defendant kept putting his hands in his pockets in defiance of police orders. Moreover, the detective was not required to assume that an apparently violent suspect's defiant actions were innocent. "'Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.'" Valentine, supra, 134 N.J. at 542-43 (quoting Terry, supra, 392 U.S. at 23-24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 907).
Next, for the first time on appeal, defendant cites the detective's comment that he "grounded" defendant, and claims this shows the detective exceeded the scope of a Terry stop and frisk. Defense counsel assumes that "grounded" meant forcing defendant to the ground, but concedes that the detective's testimony does not provide any information. The State argues the detective merely ordered defendant to the ground. Defendant's failure to raise and develop this claim at the suppression hearing is reason enough to refuse to consider it on appeal. State v. Robinson, 200 N.J. 1, 18-22 (2009).
In any event, the detective testified that he "grounded" defendant because defendant was nervously looking "for a way to run off." "[A] person has no constitutional right to endanger the lives of the police and public by fleeing or resisting a stop[.]" State v. Crawley, 187 N.J. 440, 458, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006). "Further, the authority to conduct an investigative stop must necessarily carry with it some ability to effectuate such a stop, including the use of force, if necessary." State v. Branch, 301 N.J. Super. 307, 319 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998). In Branch, we found an officer's tackling of a defendant fleeing from a Terry stop was not an unreasonable seizure. Id. at 318. Contrary to defendant's claim, there was "nothing 'unreasonably extended, or . . . more intrusive than necessary' in this stop." State v. Baum, 199 N.J. 407, 425 (2009).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION