April 29, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY K. BELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-08-1838.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 9, 2009
Before Judges Carchman and Simonelli.
Following an unsuccessful motion to suppress, defendant Anthony K. Bell pled guilty to second-degree possession of a handgun by persons not to possess a gun, N.J.S.A. 2C:39-7. He was sentenced to a term of six years in prison with a five-year period of parole ineligibility.*fn1 On appeal, defendant raises the following issues:
BECAUSE THIS STOP AND SEIZURE WAS NOT SUPPORTED BY A "REASONABLE AND ARTICULABLE" SUSPICION OF CRIMINAL ACTIVITY, NO LESS PROBABLE CAUSE, THE MOTION TO SUPPRESS EVIDENCE WAS ERRONEOUSLY DENIED. U.S. CONST. AMEND. IV, XIV; N.J. CONST. (1947) ART. I, PAR. 7.
IF THE DENIAL OF THE MOTION TO SUPPRESS IS REVERSED, THE PLEAS ON THE OTHER INDICTMENTS MUST BE VACATED.
We reject defendant's arguments and affirm. Because we affirm the denial of the motion to suppress, we need not address defendant's arguments regarding the other pleas and unrelated charges.
The facts are not in significant dispute. On July 20, 2005, at approximately 3:00 p.m., Officer Roderick Gaines of the Atlantic City Police Department was investigating an attempted burglary call in the area of the 500 block of N. South Carolina. At this time, Officer Gaines was approached by a New Jersey Department of Transportation (DOT) employee who indicated that he was painting the traffic control boxes in the area and witnessed two males involved in a verbal exchange, and one of the men fired shots at the other. The DOT worker advised the officer that the shooter took off on a bicycle heading south on Haddon Avenue, which is in the rear of the 500 block of N. South Carolina Avenue.
The witness was also able to provide a physical description of the shooter. According to the information Officer Gaines had radioed to police communications, the shooter was a black male, wearing a white tee shirt and blue jeans, and riding a blue bicycle. Officer Gaines estimated that no more than ten minutes had passed from the time shots were fired until the information was radioed to the police dispatcher.
Sergeant James Shellen was one of the officers on duty to receive the "shots fired" call over the radio. Sergeant Shellen related that he received a transmission that a DOT worker had witnessed a shooting, and the shooter was a black male on a blue bicycle wearing a white tee shirt and blue jeans. Sergeant Shellen responded to the area within three to five minutes.
Approximately five minutes into searching the area, Sergeant Shellen located defendant at Route 30 and Virginia Avenue, about two blocks south of the location where the shots were fired. The sergeant observed defendant on a bicycle wearing a white tee shirt and blue jeans, matching the description given over the radio transmission.
Sergeant Shellen asked the bicycle rider, defendant, to stop, and he complied. Defendant then placed his hands in the air. After advising defendant there was a shooting in the area, the sergeant asked if defendant had anything on him he should not have. Defendant replied in the negative and told the sergeant he could check him.
Sergeant Shellen then conducted a pat-down search for weapons and felt an object in defendant's waistband. When he asked defendant what it was, the response was "a gun." Sergeant Shellen arrested the defendant, handcuffing him and then retrieving a loaded .38 caliber handgun from his waistband. The sergeant indicated that during the time he was searching for the shooter, defendant was the only individual who matched the description given over the radio.
After defendant was taken into custody, the DOT employee was brought to the scene but did not identify defendant as the person who had fired the shots.
Defendant testified at the suppression motion that he was wearing a white tee shirt, but it had a twelve inch by fourteen inch slogan on the front. He also said that he was wearing black shorts, although the property report from his admission to the jail apparently stated they were black trousers. Defendant further noted that the bicycle he was riding was green. Following the presentation of evidence, the motion judge denied the motion to suppress. Defendant appeals that denial.
We first address our standard of review. When considering the issue of the credibility of a witness, we must defer to the findings of the trial judge because as the finder of fact he "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; [he] has a feel of the case that can never be realized by a review of the cold record." New Jersey Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (internal quotations and citation omitted). We will intervene "[o]nly when the trial court's conclusions are so clearly mistaken or wide of the mark [that they result in a] denial of justice." Ibid. (internal quotations and citations omitted). See also State v. Adams, 194 N.J. 186, 203 (2008) (holding that the trial court's findings "should not be disturbed if there is sufficient credible evidence in the record to support the findings").
When the issue on appeal involves the trial judge's interpretation of the law, we conduct a de novo review. See Finderne Mgmt. Co. v. Barrett, 402 N.J. Super. 546, 573 (App. Div. 2008) (noting that an appellate court does not owe any special deference to a trial court's legal conclusion). See also Shaler v. Toms River Obstetrics & Gynecology Assocs., 383 N.J. Super. 650, 657 (App. Div.) (noting "we owe no special deference to the trial court's analysis and ultimate legal conclusions"), certif. denied, 187 N.J. 82 (2006).
The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protects citizens against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7.
Generally, there are three different types of encounters between the police and a citizen, "but only two require constitutional justification." State v. Harris, 384 N.J. Super. 29, 44 (App. Div.), certif. denied, 188 N.J. 357 (2006). "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." Id. at 44-45 (quoting State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div.) (internal quotations and citation omitted), certif. denied, 172 N.J. 178 (2002); Florida v. Royer, 460 U.S. 491, 497-99, 103 S.Ct. 1319, 1323-25, 75 L.Ed. 2d 229, 236-37 (1983) (plurality opinion); see also State v. Rodriguez, 336 N.J. Super. 550, 558-59 (App. Div. 2001), rev'd, 172 N.J. 117 (2002).
Mere inquiries do not violate the constitution. Harris, supra, 384 N.J. Super. at 45. However, an inquiry "is only constitutionally legitimate if the individual's movement or ability to leave are not restricted." State v. Williams, 381 N.J. Super. 572, 582 (App. Div. 2005), rev'd, 192 N.J. 1 (2007).
If the person's ability to leave is restricted, the stop rises to the level of an investigatory detention, often referred to as a Terry stop. State v. Pineiro, 181 N.J. 13, 20 (2004). See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968). 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.'" Pineiro, supra, 181 N.J. at 20 (quoting State v. Nishina, 175 N.J. 502, 510-11 (2003)). See also State v. Amelio, 197 N.J. 207, 212 (2008) (internal quotations and citations omitted) (holding that an officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion"). However, "inarticulate hunches" or "an arresting officer's subjective good faith" are not enough to find a constitutional stop. Ibid. (quoting State v. Arthur, 149 N.J. 1, 8 (1997)).
In Pineiro, an officer saw the defendant give a person a pack of cigarettes. Pineiro, supra, 181 N.J. at 18. The officer was aware that both defendant and the other person were suspected of being involved with drugs. Based on his experience, the officer was aware that drugs are sometimes transported in cigarette packs. The officer did not see either man smoking and when they saw the officer, both men immediately departed the area. The Court held that "even though standing alone each factor may not have been sufficient, the totality of the circumstances, as viewed by a reasonable officer with [the officer's] knowledge and experience, established a reasonable and articulable suspicion of criminal activity, justifying an investigatory stop." Id. at 25. The Court reasoned, that prior case law supported the notion that "the police may rely on behavior that is consistent with innocence as well as guilt in finding reasonable and articulable suspicion to conduct an investigatory stop." Ibid. Further, it stated that "[t]he 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." Ibid. (internal quotations and citations omitted). See also State v. Citarella, 154 N.J. 272, 275-76 (finding a reasonable suspicion to stop after police observed the defendant, who he recognized from a previous arrest of drug offenses, riding a bicycle on a bridge walkway. The officer had knowledge that drug traffickers frequently used bicycles to ride into New York and buy drugs.); Arthur, supra, 149 N.J. 1 (1997) (finding reasonable suspicion when the police observed a woman in a high drug traffic area get into the defendant's car, remain with the defendant for about five minutes, leave with a brown paper bag under her arm, and look around in a suspicious manner).
In Terry, the Supreme Court created the protective search exception to the warrant requirement. This exception "was created to protect an officer's safety where there is reason to believe that a suspect is armed and dangerous." State v. Roach, 172 N.J. 19, 27 (2002) (citing Terry, supra, 392 U.S. at 26-27, 88 S.Ct. at 1882-83, 20 L.Ed. 2d at 909). When claiming the protective search exception, "the State must demonstrate that the police had an objective, articulable, and reasonable basis to believe the subject of the stop was armed and dangerous." State v. Matthews, 398 N.J. Super. 551, 557 (App. Div.), (citing Roach, supra, 172 N.J. at 27), certif. denied, 196 N.J. 344 (2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1037, ___ L.Ed. 2d. ___ (2009). Under this exception, "the officer may conduct a carefully limited search of the outer clothing . . . in an attempt to discover weapons which might be used to assault him." Roach, supra, 172 N.J. at 27 (internal quotations and citation omitted). A limited search means that the search must be "confined in scope to an intrusion reasonably designed to discover" weapons that might be used to assault the police officer. Ibid. (internal quotations and citation omitted).
Whether an officer has an "objectively reasonable suspicion is based on the totality of the circumstances." Ibid. Because the purpose of the protective search exception is to protect the officer's safety, the standard is "whether a reasonably prudent man in the circumstances would be warranted in his belief that his safety or that of others was in danger." Ibid. (internal quotations and citations omitted).
Here, the totality of the circumstances supports both the stop and the search of defendant. The stop of defendant was within minutes of the notification of the shooting, defendant was observed two blocks from the scene on a bicycle and wearing, as defendant describes it, a "white tee shirt with a slogan on it." Although defendant claims he was wearing black shorts, the property report apparently refers to long pants. We do not deem the variances in the color of clothing or the bicycle to be critical elements in overturning the findings of the motion judge. We are mindful that the events in question involved a shooting on a public street during the mid-afternoon. While such facts do not diminish the constitutional protections afforded any individual, we are reluctant to impose on an investigating officer the need to make fine distinctions such as whether a white shirt contained a logo or not. As the Court has articulated on a number of occasions, an officer is not dealing "with hard certainties, but with probabilities and common-sense conclusions about human behavior." Id. at 27-28 (internal quotations and citations omitted).
We are satisfied that the motion judge's factual findings and legal conclusions were supported by the record.