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State v. Jones

February 4, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THOMAS JONES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-10-3864-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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