July 22, 2009
STATE OF NEW JERSEY IN THE INTEREST OF T.C.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1774-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 28, 2009
Before Judges Lihotz and Messano.
T.C. appeals from an adjudication of delinquency for conduct if committed by an adult would constitute the disorderly person's offense of possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(4). Following the denial of his motion to suppress evidence, T.C. entered into a plea agreement with the State. The agreement required T.C. to enter a guilty plea resulting in an adjudication of juvenile delinquency. The court entered a twelve-month deferred disposition, required a drug evaluation and compliance with any treatment deemed necessary, and imposed all mandatory fines and penalties. In a single point on appeal, defendant argues:
THE COURT BELOW ERRONEOUSLY DENIED THE MOTION TO SUPPRESS EVIDENCE AS THE CONDUCT OF THE POLICE VIOLATED THE JUVENILE'S RIGHT TO BE FREE OF ILLEGAL SEARCHES AND SEIZURES. BOTH THE SEIZURE OF T.C. [AND] THE SEARCH OF HIS CLOTHING WERE THE "FRUITS" OF AN ILLEGAL ARREST. THEREFORE, THE ORDER DENYING THE MOTION TO SUPPRESS EVIDENCE MUST BE REVERSED. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. ART. I, PAR. 7.
The facts are taken from testimony presented at the suppression hearing. While off duty on November 19, 2007, Officer George Ruth received a telephone call from a "citizen informant" who reported "suspicious activity" in the parking lot of Katz's convenience store at 208 Bay Avenue. Ruth recalled past dealings with the informant, as he previously provided reliable information disclosing illegal drug activity. The informant told Ruth a group of juveniles were "leaning in and out of the [parked] vehicle, which is . . . indicative of drug transactions." Ruth did not recall receiving information about the make, model or year of the vehicle or the appearance of the juveniles. Ruth's experience as a narcotics officer confirmed the juveniles' conduct was aligned with a possible drug transaction. Ruth contacted the Highlands Police Department to alert them to the reported activity.
A report was prepared by Detective Robert Burton, who was working at police headquarters when Ruth phoned. Burton thought the information warranted further investigation. He alerted Sergeant Rogers, the shift commander, and the two went in separate patrol cars to the parking lot at 208 Bay Avenue. Burton parked his car on Bay Avenue, adjacent to the lot. He observed a vehicle on the right side of the parking lot, away from most of the vehicles, with what appeared to be  juvenile[s] outside the vehicle, one on the passenger side, one on the driver's side, and there w[ere] occupants inside the vehicle. No one else was in the parking lot . . . at the time.
Both officers exited their vehicles and approached the juveniles. Burton told the juveniles to take their hands out of their pockets, which he explained was a standard safety procedure. Rogers went to the driver's side window while Burton went to the passenger's side window. As he approached the vehicle, Burton stated he did not "believe the individuals were engaged in criminal activity." His intent was to investigate the information relayed by Officer Ruth and at this point, in his mind, the juveniles were "free to leave."
Burton spoke to the occupants of the vehicle. He noticed "blunt guts," which are "the inside of [a] cigar that's commonly hollowed out, and then filled with marijuana," strewn throughout the vehicle. This heightened Burton's suspicion that drug activity was underfoot.
Burton asked one of the two juveniles, J.V., who was standing outside the vehicle, "where was the . . . weed." J.V. raised his hands and said, "I have nothing. You can check." Burton patted down the outside of J.V.'s pockets and felt nothing. Burton then turned to T.C. and began to walk toward him. T.C. "immediately shoved his hand into his pockets, in a very aggressive manner." Burton became "concerned for [his] safety, and the safety of Officer Rogers[,]" so he grabbed T.C.'s hand and "told him to take his hand out of his pocket slowly." T.C. became aggressive and physically resisted, telling Burton, "you can't touch me, you can't search me[.]" Burton restrained T.C. by grabbing his hand and taking it slowly out of his pocket, putting his arm behind his back and walking him over to the front of the vehicle. T.C. continued to struggle, and Rogers grabbed T.C.'s other hand, "placed it behind his back, and handcuff[ed] . . . him." Burton acknowledged that at that point, T.C. was under arrest. T.C. was searched prior to being placed in the patrol car. Burton found "a small bag of marijuana" in T.C.'s shirt pocket and "seven small yellow colored pills" in his pant's pocket.
After crediting the officer's testimony, Judge McGann evaluated the evidence and denied T.C.'s motion to suppress. The judge determined the police properly investigated the tip provided by a previously reliable citizen informant. He noted, although the facts were "somewhat general," they were verified by Burton's observations at the scene. Rejecting T.C.'s argument that he was subject to an arrest without probable cause, the court made these findings: the officers' approach was a field inquiry, and the request to the juveniles to show their hands was nothing more than a necessary safety precaution; the totality of the circumstances, including Burton's observation of tobacco covering the floor and seats of the vehicle, provided a reasonable suspicion of drug activity and probable cause for an investigatory stop; T.C.'s furtive actions, coupled with his resistance, were sufficient "probable cause to arrest him for obstruction and disorderly conduct"; and the marijuana was lawfully found in a search incident to arrest.
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). Here, the judge's findings and the legal conclusions drawn therefrom are supported by the record. Locurto, supra, 157 N.J. at 470-71.
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. Id. 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. U.S.],  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.
On appeal, T.C. alleges the court erred in upholding the warrantless search and seizure. He argues the officers' command to the juveniles to remove their hands from their pockets constituted a "full blown arrest" unsupported by probable cause, as the information from the citizen informant was not reliable. We are not persuaded.
We reject the suggestion T.C. believed he was under arrest when Burton requested the juveniles to remove their hands from their pockets. The use of non-intrusive safety procedures such as this one is not constitutionally violative. As the two officers approached the group of at least four juveniles, it would be unreasonable to require them to take unnecessary risks as they performed their duties. Terry, supra, 392 U.S. at 23-24, 88 S.Ct. at 1881, 20 L.Ed. 2d at 907-08. "The Constitution does not require an officer to wager his physical safety against the odds that a suspected assailant is actually unarmed." State v. Dennis, 113 N.J. Super. 292, 297 (App. Div.), certif. denied, 58 N.J. 337 (1971). We conclude, as did Judge McGann, the police conduct was reasonable, if not necessary, given the circumstances.
T.C.'s argument that the informant's tip failed to provide probable cause for the search misconstrues the police use of the citizen informant's information. The tip was used by police only to investigate the activities then occurring in the convenience store parking lot.
When the group of juveniles was spotted, police took no immediate action, except to initiate a reasonable inquiry. Contrary to the inference suggested by T.C., the informant's tip was not the basis of T.C.'s arrest or the subsequent search. Burton conducted his own observations when he arrived. He and Rogers then commenced a routine field inquiry, which did not trigger constitutional protections. The officers' initial questions were not overbearing or harassing, but were made in a conversational tone and a non-confrontational manner. Rodriguez, supra, 172 N.J. at 126. Nothing suggests the officers' actions were pretextual in nature or design.
Events changed upon the observation of blunt guts throughout the vehicle. Given the officers' experience and knowledge, suspicion of illegal activity became justifiably aroused. Suspicion of criminal activity was further heightened by T.C.'s furtive actions of "shoving his hands" in his pockets in an "aggressive manner" and his refusal to withdraw his hands from his pockets when commanded to do so. The officers' reasonable belief T.C. had a weapon in his pocket and was about to use it entitled them to act to prevent a compromise to their safety. The totality of the facts available to the officers supported a well-grounded suspicion that T.C. had committed, or was committing, a criminal offense. State v. Waltz, 61 N.J. 83, 87 (1972) (quoting State v. Burnett, 42 N.J. 377, 387 (1964)).
T.C.'s failure to otherwise cooperate and his physical resistance provided probable cause for his arrest for obstruction and disorderly conduct. See State v. Crawley, 187 N.J. 440, 453, cert. denied, 549 U.S. 1078, 127 S.Ct. 740, 166 L.Ed. 2d 563 (2006). (A "person has no right to resist arrest by flight or any other means, even if the arrest constitutes an unreasonable seizure under the [C]onstitution."). Once the police successfully removed T.C.'s hand from his pocket and arrested him, a search incident to that arrest was proper. See Daniels, supra, 393 N.J. Super. at 490 ("incident to a custodial arrest, an officer can, . . . remove an object from a suspect's pocket that is believed to be a dangerous weapon[.]").
We conclude there is no basis to support T.C.'s assertion that a constitutional violation occurred. Judge McGann correctly denied T.C.'s motion to suppress.
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