On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-08-1766.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2010
Before Judges Carchman and Ashrafi.
Defendant Ronnie Boykin appeals from his conviction for possession of a firearm by a convicted person, in violation of N.J.S.A. 2C:39-7. He contends that the trial court erroneously denied his motion to suppress the gun found on his person by a police officer. We affirm.
On March 23, 2007, shortly after 11:00 p.m., Officer Brian Hurley of the Atlantic City Police Department was dispatched to the 800 block of Maryland Avenue to investigate an anonymous 911 call reporting that shots had been fired. That block is in a high crime area known for assaults, shootings, drug related offenses, and similar crimes.
As he approached the area in his patrol car, the officer saw a group of men and decided to question them about the reported shooting. Defendant was among the men, seated in the driver's seat of a Chevrolet Tahoe with the door open. Officer Hurley stopped his vehicle and walked toward the men on foot. Another officer also arrived and approached the men.
Officer Hurley noticed that defendant appeared nervous and was reaching with his hand down his left side. As the officer observed defendant's movements, he saw a bulge in defendant's jacket pocket. Fearing that defendant may be armed, the officer ordered him to get out of the vehicle and to put his hands on his head. Defendant initially complied, but his hand dropped to his left side again. Officer Hurley ordered defendant a second time to raise his hands, at which point defendant took flight.
The officer chased defendant into a residence, not defendant's, and subdued him in the hallway near the door. Inside his left pocket, the officer recovered a loaded nine-millimeter handgun.
Defendant was arrested and charged with weapons and other offenses. After indictment, defendant moved to suppress evidence obtained at the time of his arrest. The trial court held a suppression hearing; testimony was given by the two officers and a friend of defendant who was present at the scene. Defendant's friend did not significantly contradict the officers' version of the events, but differed in minor ways with respect to the officers' arrival and the distances from which Officer Hurley would have allegedly observed a bulge in defendant's pocket.
In its oral decision, the trial court made findings of fact as described here and concluded that the police had not violated defendant's constitutional rights by any of their actions. The court said that "Hurley had a reasonable suspicion to investigate" after responding to the scene, observing defendant's nervousness and movements toward his pocket, and noticing a bulge in that pocket. The court said further that the "investigatory stop quickly escalated to something much more definitive because Mr. Boykins... took off running."
Describing the officer's actions after defendant's flight as a "clear case of pursuit and seizure[,]" the court concluded that the police acted lawfully in seizing and searching defendant.
On appeal, defendant contends that the police did not have enough information to suspect him and the other men on the street of involvement in any criminal activity and, therefore, had no constitutionally permissible basis to detain them. Additionally, defendant cites State v. Tucker, 136 N.J. 158, 169 (1994), in support of his contention that his flight did not give the police probable cause to arrest and search him. Neither contention has merit.
"[A]n 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.... [A] trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243-44 ...