April 1, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ARNALDO LOPEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-08-1929.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2009
Before Judges Lihotz and Messano.
Defendant Arnaldo Lopez appeals from a March 8, 2007 Law Division order denying his motion to suppress evidence found following his detainer and arrest for the petty disorderly offense of defiant trespass, N.J.S.A. 2C:18-3(b).*fn1 Following a suppression hearing, Judge Mellaci denied defendant's motion. Thereafter, pursuant to the terms of a plea agreement with the State, defendant entered a guilty plea to third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The State agreed to dismiss both the remaining count of the indictment charging fourth-degree acquiring a handgun without a permit to purchase, N.J.S.A. 2C:39-10(a), and the summons alleging defiant trespass. Defendant received a two-year probationary sentence and was required to attend substance abuse counseling, obtain a GED, and pay applicable fines and penalties.
Defendant's guilty plea preserved his right to appeal the denial of his motion to suppress. R. 3:5-7. In a single point on appeal, defendant argues:
THE POLICE LACKED THE REQUISITE CONSTIT[UT]IONAL BASIS TO SEIZE DEFENDANT AND THE RESULTING SEIZURE OF THE GUN WAS THE FRUIT OF AN UNCONSTITUTIONAL INVESTIGATIVE STOP AND SHOULD HAVE BEEN SUPPRESSED (U.S. Const. Amend. IV, XIV; N.J. Const., Art. I, Par. 7).
We disagree and affirm.
The facts are taken from testimony presented at the suppression hearing. The State called Asbury Park Police Officer John Sosdian who was patrolling the 600 block of Second Avenue on April 8, 2006. Sosdian knew the block had a history of criminal activity complaints and the police department had made arrests for "open-air drug trafficking," weapons, and trespassing offenses.
On the night in question, Sosdian noticed defendant and co-defendant Adrian Miller standing on the front porch of a six-unit apartment building located at 610 Second Avenue (the property). In the past, Sosdian had been dispatched to investigate citizen complaints regarding trespassers selling drugs on the porch of the property. Additionally, Sosdian observed a "no trespassing" sign posted on the front door of the building. Sosdian exited his patrol car and approached the men to inquire why they were standing outside the property at 1:42 a.m.
In response to the officer's questions, defendant stated he was visiting a resident named Cruz. Miller suggested he was just "hanging-out" with defendant. Defendant could not answer Sosdian's follow-up questions seeking Cruz's full name or his apartment number. As defendant spoke, Miller turned his back to Sosdian to face the building, placing his hands out of sight. Sosdian instructed Miller to turn around, but he refused. Sosdian interrupted his questioning to again direct Miller to face him. This time Miller angled himself turning partially towards Sosdian, but his hands and the front of his body remained out of view.
Because Miller acted as if he was "hiding something," Sosdian's suspicions were raised and he believed Miller might have a weapon. Sosdian continued to question both men to determine their purpose at the property at such an early hour. Miller again turned his body away from Sosdian and looked at the officer over his shoulder. Although repeatedly told to turn around, Miller continually refused.
Sosdian ordered Miller to place his hands on his head, told defendant to sit on the porch landing, and placed Miller under arrest for trespassing. While Sosdian handcuffed Miller, defendant "stood up, backed against the rail, and . . . drop[ped] a silver object" he was holding behind his back over a metal railing onto the ground below. Sosdian then arrested defendant for trespassing.
A backup officer arrived on the scene and examined the area beneath the railing where defendant discarded the silver object. The officer retrieved a loaded, semi-automatic, silver Smith & Wesson 9mm handgun (the handgun). When Sosdian patted Miller down, he found a loaded Colt 45 handgun in his front sweat-shirt pocket.
Raymond Lopez, defendant's father, testified that until September 2006, he was the maintenance superintendent for 610 Second Avenue. The property was undergoing renovations and defendant was employed to paint the hallways and remove the trash and recycling. Mr. Lopez had instructed defendant to be certain to remove the trash and recycling from a rear detached garage to avoid receipt of a citation. Mr. Lopez also insisted the building did not have a "no trespassing" sign on its door or near the front entrance.
Defendant's testimony varied from that of Sosdian. Defendant confirmed he was working for A.R. Enterprises earlier the prior afternoon, painting the property. He returned to discard the trash. When Sosdian approached him and Miller, defendant told the officer he worked in the building. However, defendant stated Sosdian was not listening. The officer "had his gun cocked at both [men]" and told Miller to turn around. A second officer arrived. Prior to handcuffing Miller, Sosdian patted him down, located a gun and said, "look what we found on you." Defendant then described Miller prone on the porch floor as one officer held his foot on Miller's neck while the other handcuffed Miller to the floor. Defendant also was ordered to lie down and handcuffed. Other officers arrived and one produced a silver gun. Defendant stated another officer named William "punched me in my face while I was handcuffed just because I said the gun wasn't mine."
On cross-examination, defendant was questioned about an unsworn statement he made to police when arrested. At that time, defendant said he and Miller were walking along the sidewalk to visit defendant's sister at 608 Second Avenue. The two stopped at 610 Second Avenue to remove the recyclables when a neighborhood man, Just Born, approached defendant. To avoid Just Born, and because the police car was approaching, defendant and Miller ran onto the porch of the property and knocked on the door.
Miller also testified. He said he was following defendant around and they ended up at the property. Miller waited on the porch while defendant was "running around doing something." Miller stood on the porch and defendant "went behind the building" and retrieved bags. Miller saw the police car stop, then Sosdian approached with his gun drawn and told the two to raise their hands. Defendant explained he was visiting Cruz. The officer patted down Miller and found a gun.
In an oral opinion, Judge Mellaci found Sosdian's testimony was "truthful and accurate," and in weighing credibility, he found credibility to "lie solely with the police officer." Further, "in weighing the credibility of the testimony of the two [defendants]," the judge found defendant "was not there to see a Mr. Cruz" and did not believe he was on the property "to take out the recyclables." Based on the substantial credible evidence presented, the judge concluded the seizure was valid and denied defendant's motion to suppress.
On appeal, defendant argues Sosdian's command to sit on the porch constituted an unlawful stop and, therefore, the fruits of the subsequent search, which revealed the handgun, should have been suppressed. When reviewing a motion to suppress, we give deference to the trial court's findings, which will not be disturbed unless we determine "the judge went so wide of the mark, a mistake must have been made." State v. Johnson, 42 N.J. 146, 162 (1964). If the court's factual findings and legal conclusions are supported by competent, relevant and credible evidence in the record, they will not be disturbed. State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting Johnson, supra, 42 N.J. at 161-62).
Both 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. However, "police do not violate the [F]ourth [A]mendment 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 as evidence in a criminal prosecution his voluntary answers to such questions.'" State v. Davis, 104 N.J. 490, 497 (1986) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed. 2d 229, 236 (1983)). This limited field inquiry "may be conducted 'without grounds for suspicion.'" State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)). A field interrogation is constitutional "so long as the officer does not deny the individual the right to move." State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S.Ct. 83, 38 L.Ed. 2d 121 (1973).
If the nature of a field inquiry changes such that "considering the totality of the circumstances, a reasonable person would feel that the police had encroached on his or her freedom to leave" the encounter becomes an investigative stop subject to constitutional protection. State v. Daniels, 393 N.J. Super. 476, 484 (App. Div. 2007); Maryland, supra, 167 N.J. at 483). "Even a brief detention can constitute a seizure." State v. Stovall, 170 N.J. 346, 356 (2002) (citing Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed. 2d 889, 903 (1968)).
An investigatory stop is constitutionally justified when a police officer has a reasonable and "particularized suspicion" based upon an objective observation that the person stopped has just engaged in or is about to engage in criminal wrongdoing. Stovall, supra, 170 N.J. at 356 (citing Terry, supra, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed. 2d at 906); State v. Caldwell, 158 N.J. 452, 458 (1999).
In justifying an investigatory detention based on reasonable suspicion, a police officer must "be able to articulate something more than an 'inchoate and unparticularized suspicion or hunch.'" United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed. 2d 1, 10 (1989) (quoting Terry, supra, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed. 2d at 909). "The principal components of a determination of reasonable suspicion . . . [are] the events which occurred leading up to the stop . . ., and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion . . . ." Ornelas [v. United States],  517 U.S. [690,] 696, 116 S.Ct. [1657,] 1661-62, 134 L.Ed. 2d [911,] 919 [(1996)]. [Stovall, supra, 170 N.J. at 357.]
It is a less demanding standard than the probable cause requirement needed for an arrest. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 698, 66 L.Ed. 2d 621, 629 (1981); Davis, supra, 104 N.J. at 503.
That defendant was "seized" when Sosdian told him to sit down on the porch is not disputed. Defendant's argument is that Sosdian lacked the necessary reasonable articulable suspicion of criminal activity to justify detaining him for trespassing. Defendant suggests he was cooperative, responsive and "performed no other unusual remarks or behaviors." Further, Miller's furtive conduct did not involve defendant. Therefore, the objective evidence cannot support his seizure.
In making the totality of the circumstances analysis to determine whether Sosdian had reasonable suspicion to seize defendant, the judge identified several specific facts. First, he recited the officer's knowledge of the neighborhood for criminal activity and his specific experience with illicit drug activity at the property. See State v. Moore, 181 N.J. 40, 46-47 (2004) (knowledge and experience are indicators of a reasonable officer's suspicion). This fact is also supported by Mr. Lopez's testimony, which related past drug trafficking occurred in the building requiring the eviction of certain tenants.
Second, the observation occurred after 1:40 a.m. The time of night an activity occurs can elevate the suspicion of a reasonable officer. State v. Nishina, 175 N.J. 502, 511-12 (2003).
Third, Sosdian observed a "no trespassing" sign affixed to the building and saw defendant standing on the porch. As described by Sosdian, defendants' actions did not depict that they were waiting for someone to answer the door. Defendant himself stated the two ran onto the porch to escape confrontation with Just Born and because the police squad car was approaching.
Fourth, Sosdian initially approached to make an inquiry designed to ascertain whether defendants had a legitimate purpose to be on the property. The record fully supports the constitutionality of the officer's questioning, as it was made in a non-confrontational or harassing manner. Rodriguez, supra, 172 N.J. at 126. Defendant failed to adequately respond and was unable to identify the individual or the apartment he purportedly was visiting; Miller admitted he was "hanging-out" with defendant. These vague answers do not insulate defendant from suspicion.*fn2 Daniels, supra, 393 N.J. Super. at 485. Also, in light of the other facts recited above, defendant's "response" to the officer's inquiry was "highly questionable, if not inherently unreliable." Nishina, supra, 175 N.J. at 512.
Finally, the two men were at the property together, not independently. On this point, defendant's reliance on State v. Dolly, 255 N.J. Super. 278, 282 (App. Div. 1991), is inapposite. In Dolly, the defendant was observed near others who were independently suspected of criminal activity. Ibid. He was not accompanied by or "hanging out" with them as were defendant and Miller. Miller's actions were part of the calculus of events when evaluating the existence of Sosdian's reasonable suspicion. Sosdian was well aware he was alone confronting two men, one of whom turned away from him, shielded his hands from view, and was possibly armed with a weapon. Coupled with Miller's refusal to face the officer and show his hands was defendant's act of standing in defiance of the officer's demand to sit down and discarding an object.
"It may be, as [defendant] points out, that no one of those factors alone constitutes reasonable suspicion." Stovall, supra, 170 N.J. 346, 368 (2002). "Even if all of the factors were susceptible of 'purely innocent' explanations, a group of innocent circumstances in the aggregate can support a finding of reasonable suspicion." Ibid. Here, the officer's observations, "in view of the officer's experience and knowledge, taken together with rational inferences drawn from those facts" support a limited intrusion upon the defendant's freedom. Id. at 361 (internal quotations and citations omitted); Davis, supra, 104 N.J. at 504.
Based on the totality of the circumstances, we are satisfied these facts sufficiently support Judge Mellaci's determination that Sosdian properly detained then arrested defendant for defiant trespass. Daniels, supra, 393 N.J. Super. at 486. As a result, the seizure of the gun dropped by defendant was valid.