February 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RABBIL FORD, A/K/A KEVIN FORD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-0550.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2009
Before Judges Wefing and Yannotti.
Defendant Rabbil Ford was charged under Union County Indictment No. 06-06-0550 with possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a(1) (count one); possession of a weapon without a permit, N.J.S.A. 2C:39-5b (count two); and terroristic threats, N.J.S.A. 2C:12-3a (count three). After his motion to suppress evidence was denied, defendant entered a plea of guilty to count two and, in exchange, the State agreed to recommend dismissal of the other two counts. Defendant was sentenced to five years of incarceration. Defendant appeals and challenges the denial of his motion to suppress. We affirm.
The facts relevant to our decision are essentially undisputed. At approximately 6:20 a.m. on January 22, 2006, Pierre Foster (Foster) called the Elizabeth Police Department and reported that he had been threatened by a man with a handgun while waiting for a bus at 1101 East Jersey Street. Shortly thereafter, Lieutenant James Mooney (Mooney) and Officers Brian McDonough (McDonough) and Christopher McMahon (McMahon) of the City's Police Department received a radio transmission indicating that a black male had threatened another man with a handgun in the area of 1101 East Jersey Street. The officers were told that the suspect was accompanied by a black female, both parties were wearing dark clothing, and they were last seen walking on East Jersey Street towards Jefferson Avenue.
McDonough, McMahon and Mooney responded in two police vehicles from the area near police headquarters. The officers turned south onto Jefferson Avenue from East Grand Street. On Jefferson Avenue, the officers immediately observed defendant and a female, who was later identified as Barbara Jean Pryor (Pryor). They were wearing dark clothing and walking in front of 151 Jefferson Avenue, which is less than two blocks from the location of the threat reported to the police. According to the officers, defendant and Pryor were the only pedestrians in the area at the time.
Upon observing defendant and Pryor, the officers exited their vehicles and drew their firearms. They ordered defendant and Pryor to show their hands. Pryor immediately complied but defendant kept both of his hands in the pockets of his jacket, and he did not comply until after he had been ordered several times to show his hands. The officers then ordered defendant and Pryor to place their hands on the wall of a building at 151 Jefferson Avenue.
Mooney conducted a pat-down search of defendant. Mooney found a loaded .45 caliber handgun in the left, front pocket of defendant's jacket. A bullet was in the chamber of the gun. The gun was cocked and ready to be fired. Mooney seized the gun. McDonough handcuffed defendant and placed him under arrest. McMahon then searched defendant and seized a black leather holster from the right side of defendant's waist area. Police Officer Mayella Aryola, who responded to the scene, searched Pryor but found no weapons. Other officers brought Foster to the scene and he identified defendant as the person who threatened him earlier while he was waiting for the bus.
In denying the motion to suppress, the trial court made the following findings:
In this situation[,] the information provided by the citizen included his name so that we [did not] have an anonymous tip here. We had someone who was willing to come forward, present his name and presumably be a witness at any time in the future. He provided a location. There was a time. He said [the] number of persons, their race, their location, their gender[s] and the fact that they were wearing dark clothing.
Now, the fact of the matter is that at 6:20 in the morning there [are not] going to be a lot of people on the street and it just so happened that the police were able to arrive shortly after this information was communicated to the police and . . . they found two people who . . . matched [the description given to the police] exactly and matched also the location . . . that was given by the victim since the victim indicated that the perpetrator and his companion were walking in the direction of Jefferson Avenue. This was a place where the defendant was found and was consistent . . . with the description that had been given by the victim.
So under those circumstances I think that the police were actually obligated, not just permitted, but obligated to investigate this particular defendant . . . at this particular location under these particular circumstances, particularly in light of the fact that there was no relationship between the victim and the perpetrator. There was just a . . . person on the street who happened to . . . look at [defendant's girlfriend] the wrong way and that was enough to prompt a threat of gunfire.
So under those circumstances . . . I think [the police] acted completely reasonably and [therefore] the motion to suppress is denied.
In this appeal, defendant raises the following argument for our consideration:
AS THE POLICE LACKED PROBABLE CAUSE, THE ARREST OF DEFENDANT WAS VIOLATIVE OF HIS FOURTH AMENDMENT RIGHTS AND THE GUN AND HOLSTER SEIZED MUST BE SUPPRESSED.
We are convinced that this argument is entirely without merit.
The Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution "protect a person's right to be free from unreasonable searches and seizures." State v. Stovall, 170 N.J. 346, 355 (2002). The police do not violate the right against unreasonable searches and seizures if they approach a person on a street or in a public place and ask whether the individual will answer some questions. Id. at 356 (citing State v. Davis, 104 N.J. 490, 497 (1986)). "A police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." Ibid. (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968)).
As the trial court found, Foster reported to the police that he had been threatened by a man with a handgun. The information provided by Foster and the officers' subsequent observations provided the officers with reasonable and particularized suspicion to believe that defendant was the person who threatened Foster with a gun. The police were therefore permitted to stop defendant and question him. Ibid.
Furthermore, Mooney was justified in undertaking a pat-down of defendant because Foster had reported that the alleged perpetrator was in possession of a gun. In Terry, the Court stated that, during an investigatory stop, a police officer may conduct a protective pat-down for weapons if the officer has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. [Terry, supra, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed. 2d at 909.]
See also State v. Diloreto, 180 N.J. 264, 276 (2004) (noting that under Terry, a police officer may conduct a pat-down of a citizen's outer clothing if the officer perceives that there is a risk to his safety).
As we stated previously, the pat-down of defendant revealed that he was in possession of handgun. At that point, the officers had probable cause to arrest defendant and seize the weapon. The officers were then authorized to conduct a warrantless search of his person, incident to that arrest. United States v. Robinson, 414 U.S. 218, 225, 94 S.Ct. 467, 472, 38 L.Ed. 2d 427, 435 (1973); State v. Henry, 133 N.J. 104, 118, cert. denied sub. nom., Henry v. New Jersey, 510 U.S. 984, 114 S.Ct. 486, 126 L.Ed. 2d 436 (1993). The holster found in the search was validly seized.
Even if we assume that defendant was arrested when he was first stopped by the police, we are convinced that the officers had probable cause to make the arrest. Probable cause exists when the police have a well-grounded suspicion that a crime has been or is being committed. State v. Moore, 181 N.J. 40, 45-46 (2004).
Because Foster is an "ordinary citizen," the information he provided to the police is presumed to be reliable. Stovall, supra, 170 N.J. at 362. Furthermore, the information was obtained "in a reliable way." Ibid. (citing State v. Smith, 155 N.J. 83, 94, cert. denied, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed. 2d 480 (1998)). Moreover, the reliability of Foster's report was confirmed when the officers arrived on the scene and observed defendant and Pryor. As noted, defendant and Pryor were the only pedestrians on the street at the time and they fit the descriptions provided by Foster. We are therefore convinced that based on Foster's report and their own observations, the police officers had probable cause to arrest defendant.
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