Opinion
DOCKET NO. A-4009-11T2
04-17-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LARRY WEATHERS, JR., Defendant-Appellant.
Susan Remis Silver, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Remis, of counsel and on the brief). Frank Muroski, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Muroski, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-03-0448.
Susan Remis Silver, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Remis, of counsel and on the brief).
Frank Muroski, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Muroski, of counsel and on the brief). PER CURIAM
After his motion to suppress was denied, defendant Larry Weathers pled guilty to five counts of Essex County Indictment No. 11-03-0448, charging him with third-degree receiving a stolen handgun, N.J.S.A. 2C:20-7; third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth—degree resisting arrest, N.J.S.A. 2C:29-2(a); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). Defendant reserved his right to appeal the denial of his motion to suppress. See R. 3:9-3(f). Defendant was sentenced in accordance with the plea agreement to an aggregate term of seven years' imprisonment, with a three-year period of parole ineligibility.
Defendant now appeals from the denial of his motion to suppress and raises the following arguments for our consideration:
POINT IWe have considered these arguments in light of the record and applicable legal standards. We affirm.
THE STATE TROOPERS' WARRANTLESS SEARCH AND SEIZURE OF THE GUN FAILED TO COMPLY WITH CONSTITUTIONAL REQUIREMENTS
A. The Investigative Police Stop was Not Based on Specific and Articulable Facts To Support a Reasonable Suspicion of Criminal Activity
B. The Search and Seizure of the Gun Was Not "Sufficiently Attenuated" From the Taint of Unlawful Police Conduct to Avoid an Application of the Exclusionary Rule
I
New Jersey State Trooper Hugo Ribeiro was the sole witness produced at the pre-trial hearing on defendant's motion to suppress. Ribeiro testified that on the evening of July 18, 2010, at approximately 8:00 or 8:30 p.m., he was in plain clothes patrolling Irvington in an unmarked police vehicle with two other officers. He wore an "exterior tactical vest marked State Police . . . and a badge displayed around [his] neck." The area was known for "street robberies and shootings."
Ribeiro observed a male, later identified as defendant, "wearing heavy clothing -- some sweatpants . . . a hooded sweatshirt -- walking from" an alleyway toward the street. Ribeiro parked his vehicle and observed defendant with "his hands . . . in his waistband, out of view . . . ." Ribiero opened the door of his car as defendant crossed the street, displayed his badge, and said, "State Police. Stop." Defendant "responded by saying, "Fuck[,]" and started to run.
Defendant ran through a gas station, keeping his hands in front of him and out of view. As defendant ran next to a parked car, Ribiero saw defendant's hand go "like slightly towards [the] inside [of] the vehicle," a Toyota 4Runner, and Ribiero saw an "object disappear[] into the vehicle." Defendant continued to run until he fell. Ribiero "caught up to him" and attempted to handcuff him with the aid of another officer. Defendant continued to struggle until the officers were finally able to subdue him.
As Ribeiro walked back in the direction of defendant's flight, he was approached by a man with a large gash over his eye and blood running down his face. The man claimed to have been sitting in the Toyota in the gas station parking lot when he was hit in the face by an object. Ribeiro obtained consent to search the Toyota from its owner and found a handgun on the floor in the rear of the passenger compartment. The gun contained one spent shell casing and five live rounds.
During cross-examination, Ribeiro recalled that it was "eighty-some odd degrees that day," and "it was unusual to see anyone" wearing heavy clothing because of the heat. Ribeiro also stated that defendant was in the middle of the street when he first confronted him intending to conduct a "field inquiry."
In a comprehensive written opinion, the motion judge rejected the State's argument that Ribeiro was conducting a field inquiry. The judge concluded Ribeiro's command -- "Stop" -- was the equivalent of an "'investigatory stop.'" Nonetheless, the judge determined that the facts "were sufficient to create a reasonable and particular suspicion that Defendant was engaged in or was about to engage in criminal activity." In this regard, the judge noted defendant was "dressed in clothing that was inappropriate for the summer . . . . [His] sweatshirt was fully zipped, and the hood covered his head." The judge also credited Ribeiro's testimony that defendant's hands were "inserted into his waistband . . . ." In sum, the judge concluded "[i]t was reasonable for . . . Ribeiro to be alerted by . . . defendant's unseasonable attire for an 80 degree day, . . . holding his hands in his waistband, . . . [and] shouting expletives upon being approached by the Trooper." The judge further determined that the seizure of the gun was appropriate under the "plain view doctrine."
II
We first note that our standard of review requires us to defer to the factual findings made by the motion judge. See e.g., State v. Elders, 192 N.J. 224, 243 (2007) ("[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." (citations omitted)). This is so because "'those findings of the trial judge . . . are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "Of course, a reviewing court owes no deference to the trial court in deciding matters of law." State v. Mann, 203 N.J. 328, 337 (2010) (citing State v. Gandhi, 201 N.J. 161, 176 (2010)).
We initially agree with the motion judge that Riberio's command to defendant, "State Police. Stop[,]" amounted to an investigatory stop. See, e.g., State v. Williams, 410 N.J. Super. 549, 554 (App. Div. 2009) ("A police encounter with a person constitutes an investigatory stop . . . 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.'") (quoting State v. Tucker, 136 N.J. 158, 166 (1994)), certif. denied, 201 N.J. 440 (2010)). However, we also agree with the motion judge that Ribeiro's investigatory stop was based upon a reasonable and articulable suspicion that criminal activity was afoot.
An investigatory stop or a Terry stop is a well-recognized exception to the warrant requirement. Mann, supra, 203 N.J. at 338. "Such a 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.'" Ibid. (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)). "[A] reviewing court must assess whether 'the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate.'" Ibid. (quoting Piniero, supra, 181 N.J. at 21). The officer's actions cannot be based upon "inarticulate hunches . . . ." Ibid. (citation omitted). "Because the 'determination of reasonable [and articulable] suspicion is fact-sensitive,' a careful review of the totality of the circumstances surrounding each case is required." Ibid. (quoting Pineiro, supra, 181 N.J. at 22).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
In this case, the totality of the circumstances as found by the motion judge warranted action by Ribeiro, even if that amounted only to his initial command to have defendant stop. It was a warm July evening, yet defendant was dressed in attire entirely inappropriate for the weather; Ribeiro identified the area as one known for "street robberies and shootings"; and defendant had the hood of his sweatshirt over his head and maintained his hands in his waistband, out of view of the officers and the public at large. We add as part of the calculus, even though it occurred in response to Riberio's first command but before defendant fled, defendant's expletive in response. All these circumstances support a reasonable and articulable suspicion of criminal activity.
Even if we were incorrect in our assessment, however, we reject defendant's alternative argument, i.e., that there was insufficient attenuation between the improper police investigatory stop and the ultimate seizure of the weapon. As our Supreme Court has noted, "[T]he exclusionary rule will not apply when the connection between the unconstitutional police action and the secured evidence becomes so attenuated as to dissipate the taint from the unlawful conduct." State v. Shaw, _ N.J. _, _ (2012) (citations omitted).
In State v. Williams, 192 N.J. 1, 5 (2007), the defendant fled when officers issued a presumptively improper command to place his hands on his head. In doing so, the defendant pushed an officer and ran approximately one hundred feet before falling to the ground. Ibid. Once subdued, the officers patted defendant down and found a gun in his waistband. Ibid.
The Court initially noted that a "defendant [i]s obliged to submit to [an] investigatory stop, regardless of its constitutionality." Id. at 10. The Court concluded that the defendant's actions amounted to a criminal offense and reasoned:
Obstructing the police constituted a break in the chain from the investigatory stop, which we will presume was unconstitutional. The taint from that initial stop was
significantly attenuated by defendant's criminal flight that caused the handgun's later seizure, and accordingly the application of the exclusionary rule is unwarranted in this case.
[Id. at 10-11.]
The Court went on to explain, "[i]n evaluating whether evidence is sufficiently attenuated from the taint of a constitutional violation, we look to three factors: (1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct." Id. at 15 (citations omitted).
In this case, the attenuation between any impropriety in the investigative stop and the seizure of the gun was even more pronounced that the circumstances presented to the Williams Court. The temporal proximity weighs in favor of defendant, because the chase occurred as a seamless consequence of Ribeiro's command to stop. However, temporal proximity "is the least determinative" factor. Id. at 16 (quoting State v. Warlock, 117 N.J. 596, 622-23 (1990)). There was no finding that Ribeiro's conduct was in flagrant disregard of defendant's rights, so that factor weighs in favor of the State. Thus, the second factor, intervening events, becomes most significant to the analysis. See ibid.
After surveying the existing case law, the Williams Court noted, "[t]he point to all of those cases is that the law should deter and give no incentive to suspects who would endanger the police and themselves by not submitting to official authority." Id. at 17. Here, defendant's flight and his decision to throw the gun into a parked vehicle resulted in the commission of another crime, the aggravated assault to which defendant pled guilty, and actual injury to a disinterested member of the public. As a result, assuming arguendo the initial investigatory stop was unconstitutional, defendant's actions served to purge any taint that resulted, making the ultimate seizure of the gun reasonable and justifiable.
Defendant does not, nor could he, challenge the actual seizure of the gun from the floor of the car. That was permitted under either the plain view doctrine, as noted by the motion judge, or pursuant to the valid consent Ribeiro obtained from the owner of the vehicle.
Because we affirm the denial of defendant's motion to suppress for the foregoing reasons, we do not address the State's alternative argument that defendant had abandoned the gun and thus lacked standing to challenge the seizure.
--------
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION