February 4, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS JONES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-10-3864-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges Parrillo and Messano.
Following denial of his motion to suppress, defendant Thomas Jones pled guilty to one count of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). In accordance with the plea agreement, defendant was sentenced to a four-year term of incarceration and the remaining counts of the indictment were dismissed. Appropriate fees and penalties were also imposed. Defendant now appeals from the denial of his suppression motion. We affirm.
These are the salient facts. Camden City Police Officer Odise Carr is a member of the city's High Intensity Drug Trafficking Area (HIDTA) Task Force, a federally funded task force comprised of federal, state and local law enforcement officials whose "mission is to locate, identify, and dismantle drug smuggling/trafficking organizations,"*fn1 "in areas where major drug production, manufacturing, importation, or distribution exists."*fn2 The 4000 block of Westfield Avenue is within the HIDTA identified by the federal government, and Officer Carr had previously made three or four drug arrests on the corner of 41st Street and Westfield Avenue.
On the cold winter evening of February 25, 2004, at around 10:30 p.m., members of the task force, including Carr and his partner, Officer Pleskonko, were patrolling that very area wearing plain clothes with a black vest marked "POLICE." Pleskonko was driving an unmarked patrol car when Carr noticed a group of about two or three people standing on the corner of 41st Street and Westfield Avenue in the cold. Pleskonko stopped the vehicle and Carr exited, intending to inquire only why the group had gathered there.
Carr's attention immediately focused on defendant, who shrank back from the group and conspicuously tried to "blend into . . . the background" as the officers began speaking with the other people on the corner. In fact, when Carr identified himself as a police officer, defendant retreated even further into the shadows, avoiding eye contact while nervously searching for an escape route. His suspicions aroused, Carr continued to approach defendant and when he asked him to "come here," defendant ignored the officer's request. As he walked away, defendant began fumbling with his bulging right pocket, where Carr briefly saw a glinting metallic object, which he believed to be a gun, protruding.
As Carr hastened his advance, defendant broke into a run, refusing to heed Carr's order to stop. A chase ensued on the southbound side of 41st Street during which defendant reached into his waistband, pulled out a plastic bag, and threw it to the ground in a swinging motion. The chase continued until Carr caught up with defendant about three-quarters down the block. Although defendant struggled against Carr's attempt to arrest him, he was eventually subdued and handcuffed with the assistance of two other officers. Carr then searched defendant incident to his arrest and found $49 on his person as well as a can of Coors Light, which Carr had initially mistaken for a gun. Meanwhile, the plastic sandwich bag discarded by defendant during his flight was retrieved and found to have contained 21 smaller heat-sealed sale-ready baggies of crack cocaine.
At the close of evidence, the judge denied the suppression motion, finding Carr's conduct reasonable under the totality of circumstances, from the initial field inquiry, which required no quantum of suspicion; to the attempted Terry*fn3 stop, which was justified by a reasonable suspicion that either a drug or weapons crime was afoot; to the retrieval of the plastic sandwich bag, which was abandoned by defendant; and ultimately to defendant's arrest, which was based on full-blown probable cause. Specifically, the motion judge reasoned:
Several of the factors relevant in [State v.] Valentine, [134 N.J. 536 (1994)] are present here. First, the encounter took place at a late hour and a poorly lit area known for drug and weapons offenses. Upon seeing the officers the defendant moved back, tried to get into the shadows, and was looking around as if searching for an escape route, attempting to conceal something. Most importantly, the officer saw a bulge in his pocket and a metallic object protruding from the same pocket.
Standing alone, it's possible none of these factors would have given rise to a reasonable suspicion. But just as in Valentine, when considering under the totality, the facts and circumstances of this case warranted the officer in suspecting the defendant was armed and dangerous.
In a situation such as this officers must make instantaneous decisions, fraught with life and death consequences. That the metallic object that Officer Carr saw protruding from [defendant's] pocket turned out to be a silver beer can does not change the analysis. In poor lighting, late at night and a known drug or weapons area and with only a limited amount of time in which to act, a prudent officer would be warranted in his belief that the metallic object in the defendant's pocket could be a knife, a gun or some other weapon.
Our Supreme Court has reminded us the test sufficient suspicion should not be set too high against the need to insure the safety of the investigating officers.
A sensitive appraisal of the situation compels the conclusion that Officer Carr had under the totality of the circumstances, a specific and particularized basis for an objectively reasonable suspicion that the defendant was armed and had a weapon and was dangerous. Therefore, the seizure of the defendant was warranted for the purposes of conducting a Terry search.
On appeal, defendant argues there was no constitutional basis for an investigatory stop and therefore all actions thereafter were tainted by the initial illegality. We disagree, and affirm substantially for the reasons stated in Judge Natal's oral opinion of January 17, 2007. We add only the following comments.
Police-citizen encounters generally occur at three distinct levels, but only two require constitutional justification. "It is well-settled that the police may arrest only if they have probable cause; may stop for brief investigatory questioning if they have an articulable, reasonable basis for suspicion; and they may make an inquiry without any grounds or suspicion." State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div.), certif. denied, 172 N.J. 178 (2002). See also Florida v. Royer, 460 U.S. 491, 497-99, 103 S.Ct. 1319, 1324-25, 75 L.Ed. 2d 229, 236-37 (1983) (plurality opinion); State v. Maryland, 167 N.J. 471, 482-84, 486-87 (2001); State v. Alexander, 191 N.J. Super. 573, 576 (App. Div. 1983), certif. denied, 96 N.J. 267 (1984). Mere inquiries require no constitutional justification. State v. Stovall, 170 N.J. 346, 356 (2002); State v. Dangerfield, 339 N.J. Super. 229, 236 (App. Div. 2001), aff'd as modified, 171 N.J. 446 (2002). On-the-spot questioning involves neither detention nor seizure in the constitutional sense. State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S.Ct. 83, 38 L.Ed. 2d 121 (1973); State v. Abreu, 257 N.J. Super. 549, 554-55 (App. Div. 1992). Brief, non-intrusive encounters with individuals on the street or in parked cars implicate none of the privacy or security concerns engendered by discretionary police spot checks of moving vehicles. See Delaware v. Prouse, 440 U.S. 648, 655-57, 99 S.Ct. 1391, 1397-98, 59 L.Ed. 2d 660, 668-70 (1979). As the United States Supreme Court held in Royer:
[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. [460 U.S. at 497, 103 S.Ct. at 1324, 75 L. Ed. 2d at 236.]
To be sure, "a single encounter may escalate from 'inquiry' to 'stop' to 'arrest' so that the criteria for each category must be applied as the situation shades off from one category to the other." Alexander, supra, 191 N.J. Super. at 577 (internal citations omitted). An inquiry may be converted into an investigative detention if, given the totality of the circumstances, a reasonable person were to believe he was not free to leave. U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L.Ed. 2d 497, 509 (1980); Terry, supra, 392 U.S. at 16, 88 S.Ct. at 1877, 20 L.Ed. 2d at 903; State v. Citarella, 154 N.J. 272, 280 (1998); State v. Tucker, 136 N.J. 158, 164 (1994); State v. Davis, 104 N.J. 490, 498 (1986); State v. Costa, 327 N.J. Super. 22, 31 (App. Div. 1999); State v. Contreras, 326 N.J. Super. 528, 538 (App. Div. 1999); State v. Morrison, 322 N.J. Super. 147, 152 (App. Div. 1999). On this score, if the police make demands, issue orders, restrict a person's freedom of movement, or ask overbearing questions, a field inquiry may be converted into an investigatory detention. State v. Elders, 192 N.J. 224, 246 (2007); State v. Rodriguez, 172 N.J. 117, 126 (2002); Davis, supra, 104 N.J. at 497 n.6. Such a temporary stop or street detention is constitutionally permissible even though based on less than probable cause. Terry, supra, 392 U.S. at 26-27, 88 S.Ct. at 1882-83, 20 L.Ed. 2d at 909 (1968); Tucker, supra, 136 N.J. 158, 167 (1994).
In determining whether the encounter passes constitutional muster, a reviewing court must assess and evaluate the totality of the circumstances surrounding the encounter. Maryland, supra, 167 N.J. at 487; Davis, supra, 104 N.J. at 505. As always, the touchstone of the Fourth Amendment of the United States Constitution, as well as Article I, ¶ 7 of the New Jersey Constitution, is reasonableness. State v. Zapata, 297 N.J. Super. 160, 171 (App. Div. 1997), certif. denied, 156 N.J. 405 (1998). Specifically, "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.'" State v. Williams, 192 N.J. 1, 9 (2007) (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)). During an investigatory stop, a police officer who believes that the suspect "'may be armed and presently dangerous'" may conduct a pat-down. Williams, supra, 192 N.J. at 9 (quoting Terry, supra, 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed. 2d at 911).
Here, the motion judge found that the officer's order to stop was based on reasonable suspicion that criminal activity was afoot and we are satisfied that his findings are supported by sufficient credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999). Indeed, the confluence of several factors collectively gave rise to a reasonable suspicion that defendant, at a minimum, possessed a gun, including the notoriety of the neighborhood for drug trafficking; the lateness of the hour and the fact that a group should gather there in the cold with no obvious purpose; defendant's nervousness and evasiveness as police approached; the amplification of this behavior and visible search for an escape route when police identified themselves; the observation of a glinting metallic object protruding from defendant's pocket; and finally Officer Carr's experience and knowledge that guns and drugs are often interrelated.*fn4 Thus, had defendant lawfully obeyed the official order to stop, a protective pat-down search would surely have been justified. Williams, supra, 192 N.J. at 9.
Of course, defendant ignored the officer's command, opting instead to flee and abandon, in plain view, a plastic bag of crack cocaine, giving rise to the probable cause supporting his eventual arrest and search of his person incident thereto. State v. Crawley, 187 N.J. 440, 451-52 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 740, 166 L.Ed. 2d 563 (2006); State v. Carroll, 386 N.J. Super. 143, 160 (App. Div. 2006). But regardless of the legality of the precedent official action, defendant had an obligation to obey the officer's command to stop, see Crawley, supra, 187 N.J. at 451-52; State v. Lashinsky, 81 N.J. 1, 11 (1979), and his failure to do so, combined with his subsequent flight and discarding of contraband in open view, rendered the taint from any alleged prior unconstitutional action sufficiently attenuated so as to independently justify defendant's arrest and the ensuing seizure of evidence. See Crawley, supra, 187 N.J. at 460.