Opinion
DOCKET NO. A-4528-11T4
01-09-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WENDELL HARRIS, a/k/a MARCUS CLEMENS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fasciale and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-02-0194.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief). PER CURIAM
After the trial court denied his motion to suppress evidence in connection with Union County Indictment No. 10-02-0194, defendant Wendell Harris pled guilty to third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1). In accordance with the negotiated plea, the judge sentenced defendant to five years in prison, with a two-year period of parole ineligibility. The remaining two counts of the indictment were dismissed. Appropriate fines and penalties were also assessed. We affirm.
Defendant had also been charged with third-degree CDS possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); and third-degree CDS possession with intent to distribute on or within 1000 feet of school property, N.J.S.A. 2C:35-7.
The suppression hearing revealed the following facts. On the morning of December 29, 2009, Elizabeth Police Detective Lawrence Smith and his partner were conducting surveillance in the area near a street corner that had been "the subject of citizen complaints and arrests by the police almost on a daily basis for narcotics[-]related offenses." From his vantage point, Detective Smith observed a man, later identified as defendant, and an unidentified woman "engage[] in some type of hand-to-hand transaction of small items." The detective "could not see what they were handing each other[.]" After the exchange was made, the woman "left the area" and defendant was "just kind of loitering or . . . wandering around." Detective Smith suspected that he had just observed "a drug transaction." For the next ten minutes, Detective Smith continued to observe defendant standing on the corner. Defendant did not interact with anyone else during that time period.
Detective Smith then saw defendant leave the street and enter a small grocery store. Detective Smith and his partner entered the store, approached defendant, and asked him his name. Defendant identified himself. Detective Smith then "radioed to headquarters and asked that they check [defendant] for warrants[.]" The detective testified that defendant was not prohibited from leaving the store while the warrant check was being conducted. If defendant had left, the detective stated he would have simply "stood outside the store to see where he went until the warrant check was done."
The warrant check revealed that defendant had "several outstanding bench warrants for his arrest." Detective Smith then arrested defendant. After the arrest, the detective searched defendant and "found [twenty-six] small wax envelopes of what [he] immediately suspected was heroin" and $30 in cash.
Defendant testified that he was only in the area that day because he was waiting for his father to pick him up for work on "a roofing job." He stated that, as he was going into the store, he met "with this young lady[.]" However, he later stated that he had no recollection of encountering a "young lady" on the street before he went into the store.
Defendant testified that, after entering the store, he ordered "two buttered rolls from the guy that was working." Defendant then went "to the coffee machine to make my coffee." As he did so, defendant claimed that Detective Smith and three other officers pulled up in a "black SUV," got out, and began "searching people outside the store." Defendant stated that Detective Smith then "came straight to me, told me to put my coffee down and put my hands in the air[.]" According to defendant, the detective then patted him down, unzipped his coat, went through all of his pockets, and "took everything out." Defendant denied that Detective Smith ever asked him for his name or conducted a warrant check prior to the search.
After hearing oral argument, the judge found that Detective Smith "was credible in establishing events that occurred on December 29th, 2009." On the other hand, the judge determined that defendant's testimony was "contradictory," "not credible[,] . . . lack[ed] consistency at points and was not presented in a straightforward manner." The judge found that Detective Smith conducted an appropriate investigatory stop when he temporarily stopped and questioned defendant in the store. The judge determined that defendant's observed conduct, through the lens of the detective's training and experience, amounted to "specific and articulable facts as well as rational inferences" that a drug transaction occurred. This appeal followed.
On appeal, defendant raises the following contention:
THE POLICE CONDUCTED AN INVALID INVESTIGATORY STOP WHEN THEY DETAINED [DEFENDANT] TO DETERMINE WHETHER THERE WERE ANY WARRANTS FOR HIS ARREST.We reject this contention and affirm.
Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, "so long as those findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting Robinson, supra, 200 N.J. at 15). Additionally, we defer to a trial judge's findings that 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) (quoting Robinson, supra, 200 N.J. at 15). We do not, however, defer to a trial judge's legal conclusions, which we review de novo. Ibid.
Defendant contends that Detective Smith should not have been permitted to detain and search him inside the store. He points out that the detective did not see what defendant had exchanged with the woman outside the store. Because the detective could not point to any specific facts which would give rise to a reasonable suspicion that defendant was engaged in criminal activity, defendant argues that Detective Smith unlawfully conducted an investigatory stop. We disagree.
Under the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). The same is true of the warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 904-06 (1968) (seizure of a person); cf. State v. Hempele, 120 N.J. 182, 216-17 (1990) (seizure of property).
The seizure of a person occurs in a police encounter if the facts objectively indicate that "'the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)). In applying that test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects . . . .'" Id. at 165 (quoting N.J. Const. art. I, ¶ 7).
The Supreme Court has defined a field inquiry as "the least intrusive" form of police encounter, occurring "when a police officer approaches an individual and asks 'if [the person] is willing to answer some questions.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (alteration in original) (quoting Nishina, supra, 175 N.J. at 510). During such an inquiry, "the individual approached 'need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)).
In contrast to a field inquiry, an investigatory stop, also known as a Terry stop, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry, supra, 392 U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904. The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, if that 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). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).
Applying these principles here, we discern no basis for disturbing the judge's determination that the search was valid. Detective Smith conducted a field inquiry, rather than a full Terry stop. Thus, it was not necessary that Detective Smith have a reasonable suspicion that defendant had engaged in criminal activity before speaking to defendant. The detective approached defendant after he voluntarily entered the store to purchase buttered rolls and coffee. While defendant was conducting his business in the store, the detective merely asked him for his name, which was obviously a permissible inquiry. Pineiro, supra, 181 N.J. at 20. Defendant was always free to leave the store. Once the warrant check indicated that defendant had outstanding bench warrants, the detective had probable cause to arrest him and the search that revealed that defendant had heroin was conducted incident to that arrest. Under those circumstances, the judge correctly denied defendant's motion to suppress.
Contrary to defendant's contention, the Supreme Court's recent decision in State v. Shaw, 213 N.J. 398 (2012), does not support his position because that case is clearly distinguishable from the present matter. In Shaw, the police were attempting to execute a warrant for a fugitive at an apartment complex where the defendant lived. Id. at 402-03. The defendant was not the fugitive but was the same race and gender as the fugitive. Id. at 403. The police did not see the defendant do anything to suggest he might be involved in criminal activity. Ibid. When an officer asked for his name, the defendant refused to identify himself and attempted to walk away. Id. at 404. The police then detained him to determine his identity. Ibid. After a few minutes, other officers arrived and confirmed that the defendant was not the fugitive they were seeking, but they also revealed that an arrest warrant existed for the defendant for an unrelated parole violation. Ibid. Incident to the defendant's arrest on the parole warrant, drugs were found on his person. Id. at 405. In his prosecution on drug charges, the Court held that the police did not have the reasonable suspicion of criminal activity necessary to stop and detain the defendant "against his will" after he stated he did not wish to answer their questions and wanted to leave the area. Id. at 412. Therefore, the Court ruled that the defendant "was the subject of an impermissible investigatory detention[.]" Ibid.
In this case, however, defendant did not refuse to answer the detective's question and he voluntarily provided his name during the limited field inquiry. Defendant did not attempt to leave the store while the detective contacted police headquarters to make the warrant check. Thus, unlike in Shaw, defendant was not unlawfully detained and the evidence found during the search incident to his arrest was appropriately seized.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION