August 3, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JERRY MONTGOMERY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL TOKYO GATSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-04-0934.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted (A-0705-06T4): April 29, 2009
Argued (A-1926-06T4): April 29, 2009
Before Judges Cuff, C.L. Miniman and Baxter.
In January 2002, a home in Upper Saddle River was broken into by defendants Jerry Montgomery and Daniel Gatson. A third person, who drove the getaway van, pled guilty and testified against defendants. Defendants cut the telephone and burglar alarm wires, broke down the front door, forced the nanny to the floor to search for her cell phone, and then herded the nanny and three children into a basement bathroom and locked the door.
A jury found both defendants guilty of third degree burglary, N.J.S.A. 2C:18-2 (Count One); second degree robbery, N.J.S.A. 2C:15-1 (Count Two); four counts of false imprisonment, N.J.S.A. 2C:13-1 (Counts Three, Five, Six and Seven); and hindering one's prosecution, N.J.S.A. 2C:29-3b(4) (Count Eight). Both defendants were acquitted of kidnapping and terroristic threats.
Gatson is serving an aggregate term of thirty years and six months imprisonment. The twenty-year term of imprisonment imposed on Count Two is subject to the eighty-five percent parole ineligibility term of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The sentence is also to be served consecutive to any other term Gatson was serving at the time of sentence.
Defendant Montgomery is serving an eight-year term of imprisonment on Count Two. This term is subject to the NERA parole ineligibility term. The judge imposed five-year terms on Counts One and Eight and six-month terms on Counts Three, Five, Six and Seven to be served concurrently to Count Two. The appropriate fines, penalties, and assessments were imposed on both defendants.
On appeal, defendant Gatson raises the following points:
POINT I - DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HIS MOTION TO SUPPRESS THE EVIDENCE SHOULD HAVE BEEN GRANTED.
POINT II - DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE GUILTY VERDICT AS TO THE ROBBERY CONVICTION SHOULD HAVE BEEN GRANTED.
POINT III - DEFENDANT'S SENTENCE WAS EXCESSIVE AND THEREFORE MUST BE MODIFIED.
A. The Lower Court Abused Its Discretion By Imposing An Extended Term; In The Alternative, This Matter Must be Remanded For Resentencing Pursuant To State v. Pierce.
B. Consecutive Terms Should Not Have Been Imposed.
In a supplemental brief, Gatson raises the following issues:
THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED
THE POLICE WERE NOT JUSTIFIED IN STOPPING THE MOTOR VEHICLE UNDER THE COMMUNITY CARETAKER DOCTRINE
EVEN IF THE POLICE WERE JUSTIFIED IN INITIALLY STOPPING THE MOTOR VEHICLE UNDER THE COMMUNITY CARETAKER DOCTRINE, THE INITIAL RATIONALE FOR THE STOP IMMEDIATELY DISSIPATED; POLICE ACTIVITY BECAME AN INVESTIGATORY SEIZURE WITHOUT ARTICULABLE REASONABLE SUSPICION
WITHOUT OBTAINING A WARRANT TO SEARCH THE MOTOR VEHICLE, POLICE SEARCHED THE VEHICLE AFTER THE OCCUPANTS WERE ARRESTED AND PLACED IN THE PATROL CAR.
DEFENDANT'S CONVICTION MUST BE REVERSED AND DEFENDANT IS ENTITLED TO A NEW TRIAL DUE TO THE IMPERMISSIBLE ADMISSION OF OTHER CRIMES EVIDENCE. Defendant Montgomery raises the following arguments:
POINT I -THE TRIAL COURT ABUSED ITS DISCRETION AND
MISAPPLIED THE "OPENING THE DOOR DOCTRINE" BY ALLOWING LIEUTENANT FANNING AND SERGEANT DONOFRIO TO TESTIFY THAT THE DEFENDANT'S NAME WAS ON THE LIST OF BURGLARY SUSPECTS.
POINT II -THE TRIAL COURT'S JURY INSTRUCTIONS WERE
INADEQUATE, INCOMPLETE, AND CONSTITUTED PLAIN ERROR (NOT RAISED BELOW).
THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY THAT JARON CARROLL'S PLEA OF GUILTY MAY NOT BE CONSIDERED AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT (NOT RAISED BELOW).
THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY ON OTHER CRIMES EVIDENCE (NOT RAISED BELOW).
POINT III -CHRISTINE ESGUERRA'S TESTIMONY THAT THE VOICES OF THE ACTORS "SOUNDED BLACK" CONSTITUTED AN IMPROPER NET OPINION AND SHOULD HAVE BEEN EXCLUDED UNDER N.[J].R.E. 403 BECAUSE IT INVOLVED BIASED STEREOTYPIC NOTIONS OF WHAT "BLACK" PEOPLE SOUND LIKE.
POINT IV -THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE M.M.'S AND CHRISTINE ESGUERRA'S IRRELEVANT AND HIGHLY EMOTIONAL VICTIM IMPACT TESTIMONY DEPRIVED THE DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).
POINT V -IN SUMMATION, THE PROSECUTOR IMPROPERLY ACCUSED THE DEFENDANT OF TAILORING HIS TRIAL TESTIMONY (NOT RAISED BELOW).
POINT VI -TESTIMONY THAT "JUDGE MEEHAN" SIGNED THE SEARCH WARRANT DEPRIVED THE DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).
POINT VII -THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.
THE STOP OF THE VEHICLE WAS "PRETEXTUAL" AND THE TRIAL COURT ERRED IN APPLYING A "COMMUNITY CARETAKING" JUSTIFICATION.
THE INITIAL ENCOUNTER WITH LIEUTENANT FANNING CONSTITUTED A DE FACTO ARREST THAT WAS NOT SUPPORTED BY PROBABLE CAUSE.
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO REOPEN THE SUPPRESSION HEARING.
POINT VIII-THE 8 YEAR BASE CUSTODIAL SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR SECOND DEGREE ROBBERY ON COUNT TWO WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.
The threshold issue is whether the police properly invoked its community caretaking function to justify the stop of the white van in which defendants and Jaron Carroll, the van driver, were found. If not, their motion to suppress should have been granted. The judge denied their motion to suppress.
At 2 or 2:30 p.m. on January 30, 2002, Carroll, who had known Montgomery for about three and one-half years, was at home in Teaneck when he received a telephone call from Montgomery. Montgomery asked Carroll if he wanted to "go out" later. Knowing "go out" meant commit a burglary, Carroll readily agreed. Montgomery said he would call back and did so around 6 p.m. In response to that call, Carroll boarded a gypsy van to the 179th Street Port Authority Bus Terminal in Manhattan. There he met Gatson and Montgomery, who was driving a white mini-van. With Montgomery in the front seat and Gatson seated in the second row of seats, Carroll drove the van across the George Washington Bridge to New Jersey where he entered the Palisades Parkway. At further instruction from Gatson, Carroll exited onto Route 17 south and then exited toward Upper Saddle River. Upon exiting Route 17, Montgomery climbed over the passenger seat into the van's second row. Gatson, after further directing Carroll to make a number of turns, told Carroll to pull over and stop near some bushes in a residential area.
Gatson further instructed Carroll not to go too far, not to get lost, and to stay in range of a walkie-talkie that Carroll had been given. Montgomery also gave Carroll his cell phone. Gatson and Montgomery left the second row seat of the van and went through the bushes toward a house, after which Carroll lost sight of them.
Defendants entered the house. While they were inside the house, Carroll was driving around the area and unsuccessfully attempted to contact Gatson and Montgomery by walkie-talkie and cell phone. Within twenty to twenty-five minutes Carroll saw a "little flashing light from the bushes." Encountering Montgomery, Carroll said that they had been in the area too long; Montgomery replied that Gatson was still in the house and Carroll should return in ten minutes. Ten minutes later, the van began to hesitate "like it wanted to stop" as he approached the house. Carroll turned off the van, raised the hood, and activated the hazard lights.
Just then, Christina Lenihan, a motorist, drove by, backed up, and asked Carroll if he needed her to call for assistance. Politely declining, Carroll said he had a cell phone. Lenihan proceeded on her way. A short distance away, Lenihan saw a police car. She told the officer that there was "a young teenager, young man stopped or stuck in a disabled white mini van about a quarter of a mile in on Carlo*fn2 Road." She did not describe the young man in any other way.
Continuing in his attempt to diagnose the problem with the van, Carroll heard rustling, and Montgomery and Gatson ran into the rear seat. Carroll lowered the hood and began to drive off.
On that night, Sergeant Fanning*fn3 was the patrol supervisor for the 7 p.m. to 7 a.m. shift. The weather was misty and cool. At 7:32 p.m. he received a report from a female driver that there was a young man with a disabled white van about a quarter of a mile north on Carlo Road. She only described the individual as a "young man." Lenihan told Fanning that the young man declined assistance and said he had a cell phone.
Fanning responded to the area to see if he could render assistance. According to Fanning, that area experienced poor cell service. When Fanning first saw the van, it was stationary, but as he approached, it began to move. He observed the van pull away from the curb and proceed down the street. At 7:34 p.m. Fanning activated the patrol car's overhead warning lights to stop the van. He did so because it is not uncommon for a vehicle to break down again after it has malfunctioned, although he observed no malfunction prior to the stop.
The van had Georgia license plates. The driver was a black male. Fanning eventually observed two other black males slouching in the middle rear seat in what Fanning opined was an attempt to conceal themselves. In response to Fanning's inquiry, the driver told Fanning that everything was all right. Fanning told the driver about the passing motorist who had advised him of a broken down van.
Fanning asked the driver for his license, registration and insurance card. Placing a cell phone on the dashboard, the driver produced a valid Florida license in the name of Jaron Carroll. An Enterprise rental car agreement in the name of Alexis Lee was also produced. Carroll identified Lee as his sister.
Carroll appeared very nervous. In response to Fanning's inquiry, Carroll said he was going to Ramapo College to play basketball. Carroll produced an expired Ramapo College I.D. card. The area where the van was stopped was not on a route to Ramapo College.
Without asking any of the men to exit the van, Fanning returned to the police car to check the validity of Carroll's license and the van's registration. Fanning recalled information previously received by the Upper Saddle River Police from the Allendale Police Department about a white van being possibly involved in a burglary in Allendale Borough. Fanning radioed Upper Saddle River Police Sergeant Andrew D'Onofrio to inquire if Carroll's name appeared on burglary information intelligence sheets received from the Bergen County Prosecutor's Office (BCPO). D'Onofrio advised Fanning that Carroll's name appeared on that list.
When back-up officers arrived, Fanning asked Carroll to exit the van. As Carroll left the van, Fanning saw a walkie-talkie radio on the driver's side floor. In response to Fanning's question about the identity of the van's two occupants, Carroll named one as Jerry Montgomery and stated that he did not know the name of the other. Carroll further stated that the unknown person was Montgomery's friend and that they were going to play basketball.
At trial, Carroll testified that he identified Gatson to the police as Jamal White. On cross-examination he admitted that was a lie, as was his story that he and defendants were going to Ramapo College to play basketball.
Using his flashlight to illuminate the van's interior, Fanning then spoke to the occupants who appeared fidgety and nervous. One passenger, later identified as Gatson, was wearing a white tank-top and was sweating profusely. Gatson was talking on a cell phone. In response to Fanning's question, both stated that they were going to play basketball.
At Fanning's request, Gatson identified himself as Jamal White and Montgomery identified himself as John Thomas. At first Montgomery had difficulty remembering his date of birth. Upon illuminating the passenger area, Fanning observed knit caps, gloves and a jacket at the passengers' feet. He also saw two pair of wire cutters, which Gatson attempted to conceal with his feet.
Speaking again to Carroll, Fanning once again asked the identities of the passengers. Carroll repeated the same information--one was Jerry Montgomery and the other was a friend of Montgomery's whose name Carroll did not know. Carroll volunteered to Fanning that there had been a major accident on Route 17 in Paramus and that they had been diverted onto side streets. At the hearing, Fanning testified that the location where the van was initially seen and the men stopped was six or seven miles from Paramus. Upon checking with the Paramus Police Department, Fanning was told that they were not investigating any accidents that would have them diverting traffic off the highway.
In response to Fanning's further radio inquiry, D'Onofrio stated that Montgomery's name also appeared on the BCPO's list. At 7:41 p.m. Fanning asked dispatch to contact the Bergen County and Mahwah Police K-9 units and the Saddle River Police to set up a perimeter at his location. Fanning suspected that there might have been additional occupants of the van committing burglaries in the area. When Mahwah Detective Steve Jaffe arrived, he identified "Jamal White" as Gatson. Fanning already knew that Gatson's name was on the BCPO's list.
Between 7:45 and 8:05 p.m., Fanning briefed and deployed arriving officers and set up a perimeter. Carroll, Gatson, and Montgomery were formally arrested at 8:05 p.m. and charged with possession of burglar's tools and giving false information to a police officer. As of 7:45 p.m., the van's three occupants were not free to leave the scene. Another walkie-talkie was found in the pocket of a jacket located on the van's middle seat floor.
At 8:24 p.m. Carroll and defendants were taken to police headquarters. The van was impounded and transported by tow truck to headquarters. From the van, Fanning recovered and turned over to D'Onofrio, cell phones, walkie-talkies, two pairs of gloves, two ski masks and two pairs of wire cutters. One wire cutter with blue handles had what appeared to be wire insulation extending from it. D'Onofrio also seized boots worn by defendants and Carroll.
The motion judge ruled that the facts supported a community caretaking stop. In doing so, he relied on State v. Diloreto, 180 N.J. 264 (2004). He concluded that the stop was "very non-intrusive."
In reviewing the disposition of a motion to suppress, "an appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007). Relying upon State v. Johnson, 42 N.J. 146 (1964), the Elders Court wrote:
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.
[Id. at 244.]
The State justifies the stop of the car under the "community caretaking" function or role of the police. In this context police are engaged in "functions [which are] totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed. 2d 706, 715 (1973); accord State v. Bogan, ___ N.J. ___, ___ (2009) (slip op. at 15-16); Diloreto, supra, 180 N.J. at 275-76; State v. Cassidy, 179 N.J. 150, 161 n.4 (2004); State v. Cryan, 320 N.J. Super. 325, 328-31 (App. Div. 1999); State v. Navarro, 310 N.J. Super. 104, 108 (App. Div.), certif. denied, 156 N.J. 382 (1998). In appropriate situations, police need not have probable cause or an articulable suspicion to believe that evidence of a crime will be found to stop and make an inquiry. Diloreto, supra, 180 N.J. at 276. On the other hand, use of the community caretaking police function to stop a motorist is limited.
In Cryan, this court reviewed the use of the community caretaking function. Each of the cases reviewed, State v. Goetaski, 209 N.J. Super. 362 (App. Div.), certif. denied, 104 N.J. 458 (1986); State v. Martinez, 260 N.J. Super. 75 (App. Div. 1992); and State v. Washington, 296 N.J. Super. 569 (App. Div. 1997), involved motorists traveling at markedly slow speeds at night or in the very early hours of the morning and in two instances in a manner suggestive of vehicular malfunction or driver impairment. For example, in Goetaski, the defendant was observed driving slowly on the shoulder of a rural state highway at 4 a.m. 209 N.J. Super. at 363. In Martinez, the defendant drove through a residential area at less than ten miles per hour at 2 a.m. 260 N.J. Super. at 77. In Washington, police observed the defendant at 12:20 a.m. traveling at thirty-six miles an hour in a forty-five mile per hour area and weaving within his lane of travel. 296 N.J. Super. at 571. In each case, the stop was sustained because there were objective and readily observable reasons to suggest a problem with the driver or the vehicle. Washington, supra, 296 N.J. Super. at 572-73; Martinez, supra, 260 N.J. Super. at 78; Goetaski, supra, 209 N.J. Super. at 366.
The decision by the police to stop and inquire about the driver's welfare was not even questioned in Diloreto. There, the defendant had been reported missing and the report had been entered on the National Crime Information Center (NCIC) system. Diloreto, supra, 180 N.J. at 269. Although the alert was cancelled, attempts to remove his name from the NCIC alert database were frustrated by the name used in the original entry. Id. at 270. A couple of weeks later, a passing police officer noticed the defendant's car parked at an angle between two other cars in the parking lot of a hotel. Ibid. The car was running, exhaust was visible and the windows were fogged. Ibid. Moreover, there was a history of vehicle thefts and attempted suicides at this location. Ibid. The officer checked the license plate and received information that the car was registered to a missing person. Id. at 270-71. When the officer approached the car, he observed the driver asleep or unconscious with his head resting against the frame of the car. Id. at 271. The Court upheld the constitutionality of taking the defendant into custody and frisking him pursuant to the community caretaking role assumed by police. Id. at 278-81.
Similarly, the Court held recently that the community caretaking function extends to the protection of children. Bogan, supra, ___ N.J. at ___ (slip op. at 18). It was immaterial that police were at the apartment where the defendant was arrested in response to a report of a sexual assault of a fourteen-year-old girl. Id. at ___ (slip op. at 20-21). In Bogan, when police entered the apartment to speak on the telephone to one of the juvenile's absent parents, they found a nervous, uneasy, and possibly unattended juvenile. Id. at ___ (slip op. at 22-23). In that context, the Court held that the police officer, who entered the apartment and found the defendant there, "had a right to step into the apartment to take the receiver from [the child]; he did not need a warrant from a judge to do so." Id. at ___ (slip op. at 23).
On the other hand, in Cryan, we held that the failure of the defendant to react for about five seconds after a red light at which he was stopped turned green and a slowly executed left-hand turn did not justify the stop under the community caretaking doctrine. 320 N.J. Super. at 331. We held that the circumstances were "not objectively reasonable" and the stop unconstitutional. Ibid. In doing so, we also reiterated the observation of this court in Goetaski that the stop in that case was "'about as close to the constitutional line as we can condone.'" Id. at 329 (quoting Goetaski, supra, 209 N.J. Super. at 366). Accord State v. O'Loughlin, 270 N.J. Super. 472, 487 (App. Div. 1994).
Similarly, in State v. Hill, 115 N.J. 169 (1989), the Court held that the community caretaking function did not support the warrantless search of "an unattended automobile parked not parallel to the curb." Id. at 171 In Hill, police received a call to investigate a report of a suspicious automobile. Ibid. The officer arrived at the designated spot and observed a blue Volkswagen parked "with its nose about six inches from the curb and with the rear extending one or two feet from the curb." Ibid. The office radioed police headquarters for information about the car. Ibid. Without waiting for a reply, the officer returned to the car, illuminated the interior of the car with his flashlight, observed an unzippered bag on the front seat, entered the vehicle through the unlocked driver's side door and retrieved the bag. Id. at 171-72. Then he pulled the bag open to check for identification and discovered plastic bags containing what he suspected to be narcotics. Id. at 172.
The Court held that the officer was confronted with nothing more than a parking violation and that situation did not invoke the community caretaking function except for the need to issue a parking ticket. Id. at 176-77. The Court stated:
The police officer was confronted with nothing more than a small car parked in an area that allowed for parking on both sides of a normally-illuminated twenty-five-foot wide street, with the rear wheel a foot or two from the edge of the roadway....
In short, there was no "caretaking" required. This parking violation obviously did not "jeopardize... the public safety and the efficient movement of vehicular traffic," [South Dakota v.] Opperman, 428 U.S. , 368-69, 96 S.Ct. , 3096-97, 49 L.Ed. 2d , 1005 [(1976)],... Nor,... was there any damage to the vehicle, any sign of forced entry, any indication of violence in or about the vehicle, or anything else unusual in the vehicle's appearance save for the way it was parked. [Ibid.]
Here, the officer had no objectively reasonable facts to stop the white van driven by Carroll. When the officer encountered the van, it was not disabled. The hood had been lowered, the engine engaged, and the van was pulling away from the curb and proceeded down the street. The van did not sputter, stutter, or emit any fumes or smoke. Thus, when the officer encountered the van, the reported facts that may have supported a response to provide assistance had vanished. Moreover, measured by the circumstances in Goetaski, supra, which were considered "about as close to the constitutional line as we can condone," 209 N.J. Super. at 366, this stop crossed the constitutional line. It is also immaterial that once stopped, the facts rapidly escalated from an investigatory stop to exigent circumstances for a warrantless search of the van. The stop was not supported by objective and reasonable facts to invoke the community caretaking doctrine, the fruits of the search should have been suppressed, and the use of that evidence at trial requires a new trial.
Having held that the motion to suppress should have been granted and the evidence seized as a result of that search was inadmissible, we reverse and remand for a new trial. Due to this disposition, we need not address the remaining issues raised by defendants on appeal. This includes the evidence that Montgomery appeared on a county-wide burglary watchlist. Although we are troubled by this testimony, we also recognize that it was elicited by the State to refute the allegation inserted in the case as early as opening statements that the stop and continued inquiry was racially motivated. Because we hold that the stop was constitutionally impermissible, we need not address an issue unlikely to recur in a new trial.
Reversed and remanded for a new trial.