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State v. Kelly


November 21, 2008


On appeal from Superior Court of New Jersey, Law Division, Essex County, I-05-09-02312.

Per curiam.


Argued October 16, 2008

Before Judges Stern and Payne.

Defendant, Hakim Kelly, was found guilty by a jury of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), third-degree possession of cocaine with the intent to distribute it, N.J.S.A. 2C:35-5b(2); third-degree possession of cocaine with the intent to distribute it within 1,000 feet of school property, N.J.S.A. 2C:35-7, second-degree possession of cocaine with the intent to distribute it within 500 feet of public housing, N.J.S.A. 2C:35-7.1, and third-degree resisting arrest, N.J.S.A. 2C:29-2. He was sentenced to an extended term of imprisonment, pursuant to N.J.S.A. 2C:43-6f and 2C:43-7, of ten years with five years of parole ineligibility. He has appealed from his conviction, raising as his sole argument that the trial judge erred in declining to grant his motion to suppress evidence.

The record of the suppression hearing discloses the following: At approximately 3:45 p.m.*fn1 on April 2, 2005, the Irvington police were dispatched to 763 Chancellor Avenue, Irvington, following a report of shots fired. Sergeant Kenneth Hogan, driving a marked police vehicle, was the first to respond to the area, followed in a separate police car by Officer Brian Rice. The area in question adjoins the Garden State Parkway, and the address lies southeast of the Parkway, between it and Cornell Street. Rutgers Street and then Union Avenue lie immediately southeast of Cornell Street. Both bisect Chancellor Avenue.*fn2

According to the testimony of Sergeant Hogan, a later police transmission directed him to the intersection of Rutgers Street and Chancellor Avenue. Hogan described the area as one in which he had made at least one hundred drug arrests, as well as arrests for gun possession and other offenses. As Hogan approached, he saw defendant walking east on Chancellor, sixty to seventy feet from the corner of Rutgers. Defendant was described as looking back over his shoulder at Hogan and being "kind of crouched over, kind of holding his waist area." Hogan testified that his "first thought was that he had been shot." Hogan drove in defendant's direction.

When the police car came close to defendant, he looked back again and started running, while still crouched. Hogan testified: I still believe[d], at this point, he could have been shot, and then my very next thought was he's-he's carrying a weapon." Hogan followed defendant as he continued running along Chancellor Avenue. During this time, Hogan repeatedly ordered defendant to stop. Defendant, instead, proceeded to cross Chancellor and then to run down Union Avenue along a construction fence erected beside a vacant lot. At this point, Hogan tried to intercept defendant by jumping the curb with his car. However, defendant, who had reached the end of the fence, turned into the vacant lot while still fumbling around his waistband. According to Hogan, he was "beginning to believe that [defendant] ha[d] a handgun of some type, or some type of weapon in his waistband."

Hogan left his vehicle and gave chase, catching up to defendant at a fence at the rear of the property. However, defendant escaped by kicking Hogan, and vaulted the fence onto a metal shed, upon which he got "stuck." While Hogan was attempting to get over the fence and defendant was trying to extricate himself from the shed, Hogan observed defendant's "drugs flying though the air, as well as money."

Eventually, defendant was able to proceed, but after vaulting one or two more fences and running down a driveway to Rutgers Street, he was tackled by additional officers who had been summoned to the area and, after being subdued with pepper spray, he was arrested and taken to the hospital. A search conducted at the scene or at the hospital disclosed significant additional amounts of drugs and cash. No gun was found. However, a subsequent search of the area around the shed by Officer Rice and another revealed sixty-five dollars in cash and twenty-seven small packets of cocaine.

Officer Rice, who also testified at the suppression hearing, stated that he arrived as defendant was running down Chancellor Avenue, and he observed him turning onto Union Avenue, and then into the vacant lot and onto the shed, where he fell through the roof. Rice, like Hogan, stated that defendant appeared to be "holding himself" in the stomach or waist area as he ran. Rice also confirmed that defendant discarded money in the vicinity of the shed. Although Rice eventually retrieved both money and drugs from the area, he did not observe defendant to be carrying drugs or money during the pursuit.

A friend of defendant, Edith Quainoo, testified on his behalf that she had observed a number of men, chased by the police, running from behind the houses on the other side of Rutgers Street. At the same time, she observed defendant walking down Rutgers from Chancellor. According to Quainoo, the police without provocation, tackled defendant and threw him to the ground.

At the conclusion of the hearing, defense counsel, relying principally on State v. Tucker, 136 N.J. 158 (1994), a case holding that flight alone could not justify police pursuit, argued that the police lacked a legal basis to pursue defendant, and thus the money and drugs discarded by him during the pursuit and those found on him following arrest must be suppressed. However, the trial judge, distinguishing Tucker, denied defendant's motion to suppress the drugs and money seized from him, finding defendant's conduct, following a report of a possible shooting, raised a reasonable suspicion that defendant was either the victim or carrying a gun, thereby justifying the police's actions.

In Tucker, the Supreme Court held as a matter of state constitutional law that a conviction for drug possession could not be based upon evidence of drugs discarded during the police's pursuit of a young man who had been observed sitting on a curb and who fled after seeing the approach of a marked police car. When reaching this conclusion, the Court reaffirmed the principle that "a police officer has not only the right but also the obligation to question suspicious people on the street when it would be'poor police work' not to investigate further." Id. at 167-68 (quoting Terry v. Ohio, 392 U.S. 1, 23, 88 S.Ct. 1868, 1881, 20 L.Ed. 2d 889, 907 (1968)). However, the Court observed:

The difficulty with this case is that the sole basis asserted for police action was the youth's flight. Although flight is evidence that a fact finder may consider in assessing guilt, our model jury charge requires that it be accompanied by some evidence of criminality. The model jury charge states that "[f]light may * * * be considered as evidence of consciousness of guilt [only] if [the jury] should determine that the defendant's purpose in leaving was to evade accusation or arrest for the offense charged in the indictment." Model Jury Charges (Criminal), Flight (November 18, 1991). Or, put the other way, "for departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." State v. Sullivan, 43 N.J. 209, 238-39 (1964)(emphasis added). [Tucker, supra, 136 N.J. at 168-69.]

The Court found to be absent factors that might have given rise to reasonable suspicion, such as defendant's presence in a high-crime location, in an area known for drug trafficking, or in the late evening or early morning hours. Id. at 168-70. Quoting our opinion in the case, the Court stated:

[W]hat this record does not show is also highly persuasive: no observed criminal activity; no particularized suspicious conduct, such as the possession of suspicious packages or the exchanging of money; no reports of recent nearby crimes; no descriptions of recent crime suspects; no nearby potential or [actual] victims of crimes; no nearby vehicle matching a description of a vehicle involved in a recent crime, or the like. [Id. at 169 (quoting State v. Tucker, 265 N.J. Super. 358, 360 (App. Div. 1993)).]

We find to exist in the present matter the evidence that was found lacking in Tucker. In reaching this conclusion, we start by recognizing that the police were called to the area as the result of a report of shots fired. Although defense counsel argued at the hearing that the location specified was approximately four blocks from where defendant was sighted, that argument does not appear to be factually correct. Rather, the distance was somewhere between one block and one and one-half blocks. Moreover, at the time defendant was first observed. and thereafter, he was bent over, holding his stomach. Thus, the record in the present matter establishes two elements of the evidence that we had found lacking in Tucker: a recent report of a potential nearby crime and a potential victim. We regard these circumstances as sufficient to warrant further inquiry by the police pursuant to its duties as a community caretaker. See State v. Diloreto, 180 N.J. 264 (2004) (holding that the police, regarding defendant as an endangered missing person whose safety should be secured, properly removed him from his car and, before placing him in a police vehicle, conducted a pat-down search resulting in discovery of a gun). As the Court recognized when discussing both field inquiries and community caretaking in Diloreto, "'[n]either a field inquiry nor community caretaker function requires that the police demonstrate probable cause or an articulable suspicion to believe that evidence of a crime will be found.'" Id. at 276 (quoting Kevin G. Byrnes, New Jersey Arrest, Search and Seizure § 14:1-1 at 289 (2003)). "[G]eneral reasonableness" is all that is required. Id. at 277. We find that standard to have been met.

Thereafter, Sergeant Hogan concluded that defendant, rather than being injured, was hiding a handgun. At that point, the pursuit was transformed from attempted caretaking to an attempted Terry stop. "[A] typical Terry encounter must pass muster under a more stringent test than the general reasonableness required to sustain a field inquiry or community caretaker action." Diloreto, supra, 180 N.J. at 277. What is required is evidence of an "objectively reasonable suspicion that a suspect is armed and dangerous." State v. Thomas, 110 N.J. 673, 679 (1988).

We have held:

The level of reasonable suspicion necessary to justify an investigatory stop is less than the probable cause standard needed to support an arrest. In measuring the reasonableness of the police conduct in conducting an investigatory stop, the need to search or seize must be balanced against the invasion which the search or seizure entails. "The facts used in that balancing test are to be judged objectively:'would 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?

[State v. Arthur, 149 N.J. 1,] 7-8 [(1997)]. In determining whether the officer's actions are reasonable, consideration must be given to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. [State v. Morrison, 322 N.J. Super. 147, 153 (App. Div. 1999) (citations omitted).]

"The fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as'a reasonable person would find the actions are consistent with guilt.'" State v. Citarella, 154 N.J. 272, 279-80 (1998) (quoting Arthur, supra, 149 N.J. at 11).

We find the standard that we have articulated to have been met in this case by evidence of the report of nearby shots fired, Sergeant Hogan's knowledge that the area was one in which he had made numerous arrests for drug-and weapons-related crimes,*fn3 and defendant's otherwise inexplicable flight, while crouching over and holding his mid-section-an area where a gun could reasonably be hidden. We recognize that defendant's flight upon seeing Hogan in a marked police car, without more, could not justify his seizure. "However, flight is a factor to consider with all the other surrounding circumstances to determine whether the officer[] had a reasonably and articulable suspicion that defendant[] w[as] engaged in illegal activity." Id. at 153-54 (citing Citarella, supra, 154 N.J. at 281; State In Interest of C.B., 315 N.J. Super. 567, 575 (App. Div. 1998); and State v. Doss, 254 N.J. Super. 122, 130 (App. Div.), certif. denied, 130 N.J. 17 (1992)); see also State v. Pineiro, 181 N.J. 13, 26 (2004). We distinguish the two New York decisions upon which defendant relies, People v. Dickerson, 545 N.Y.S.2d 391 (App. Div. 2d Dept. 1989) and People v. Lawrence, 536 N.Y.S.2d 61 (App. Div. 1st Dept. 1988), since neither of the defendants in those cases provided objective grounds for suspecting that they were carrying weapons as they ran.

Once defendant was observed to be discarding money and drugs, the police had probable cause to believe that he was engaged in criminal activity, and thus had a legal basis for a warrantless arrest. Doss, supra, 254 N.J. Super. at 126.


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