April 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER FELIX, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 07-09-0583.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 10, 2010
Before Judges Cuff and Waugh.
Defendant Christopher Felix appeals his conviction, following a guilty plea, for possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10(a)(1), as well as the resulting sentence of imprisonment for five years with a period of parole ineligibility of one year and five days. We reverse.
The applicable facts, developed at the hearing on Felix's motion to suppress evidence, can be briefly stated. On May 26, 2007, at approximately 10:15 a.m., Wildwood Police Officer David Holman was dispatched to investigate a report from a real estate office that there were trespassers at a house located on West 26th Street in Wildwood that had been listed for sale and was under contract. When he arrived at the house, Felix was on the sidewalk. Holman began questioning Felix about his reasons for being at the property.
Shortly thereafter, Sergeant James Nanos arrived as backup. He was familiar with the house because he lived across the street and had been called there several times with respect to drug activity. He testified as follows with respect to his role:
Q: Upon observing that individual engaged in conversation with Officer Holman what did you do?
A: I walked up to the two of them and began to listen as Officer Holman was asking the subject for his name. There was a short conversation as to whether the subject lived there or was visiting friends there. And then I interjected myself into the conversation.
Q: Being somebody who actually lives in that area had you even seen Mr. Felix around that residence before?
A: Not Mr. Felix, no.
Q: What did you ask him, if anything, and at what time?
A: I initially confirmed that he was supposed to be on the property. Pretty much asked the same questions as Officer Holman did. And at one point I asked him if he had anything illegal on his person.
Q: How did he respond, if at all?
A: He said he did and handed me a package, a cigarette package.
Q: And what did you do with that cigarette package?
A: Well, he told me there was a crack pipe in it. I opened it up and there was a glass pipe inside the cigarette pack.
Q: Was there anything else located inside that cigarette pack upon opening it?
A: A little silver wrapper, cellophane type wrapper with a green substance in it that I believed was marijuana at the time.
Q: Was the defendant arrested at some point in time after those items were revealed to you?
A: At that point he was arrested, yes.
Q: Was his person ultimately searched in accordance or associated with that arrest?
A: Yes, he was.
Q: Was anything found on his person?
A: Yes. A white substance that was consistent with and believed to be cocaine.
Q: And was that found in his pants pocket?
After arresting Felix, Nanos entered the house and found another individual inside, who was arrested on an outstanding warrant.
Loretta Sacerdote, who had resided in the house and was the daughter of the sellers, verified that she had asked Felix to look after the house while she was incarcerated. Sacerdote admitted to convictions involving drug offenses.
Felix was indicted on September 11, 2007. He moved to suppress the evidence seized by Nanos, arguing that there was no lawful basis at the time for Nanos to ask him if he had anything illegal on his person. Following the testimony of the two witnesses described above, the motion judge denied the motion to suppress, finding:
Certainly Nanos had a reasonable articulable suspicion to ask that question as he was leaving Holman and Felix on the sidewalk.
He was conducting a basic and general investigation. So for these reasons the Court concludes based upon the totality of those circumstances that the question posed by Nanos to Felix was rather innocuous,... certainly did not contain what might be otherwise described as inculpatory language or any trick-like vocabulary. And for those reasons is constitutional[ly] consistent with Terry. And of course the pat down search was incident to what this Court finds lawful, a lawful arrest. There was at the very least reasonable and articulable suspicion to conduct that stop, although the stop, to the extent that a stop occurred it was not a physical stop or logistical stop so much as a nonmoving interaction between Sergeant Nanos and the defendant. So for those reasons the motion to suppress is and must be denied. And on this record to this Court that's not a close call.
Felix accepted the State's plea offer on March 26, 2008, reserving his right to appeal the denial of the suppression motion. On July 11, 2008, he was sentenced to imprisonment for five years. Although the judge imposed a period of parole ineligibility of one year and five days at the sentencing hearing, it is not reflected on the judgment of conviction. This appeal followed.
On appeal, Felix raises the following arguments:
POINT I: BECAUSE THE ARRESTING OFFICER WAS NOT PERMITTED TO ASK FELIX: "DO YOU HAVE ANYTHING ILLEGAL ON YOU?" AFTER HE ESTABLISHED THAT FELIX WAS NOT TRESPASSING, THE EVIDENCE FOUND ON FELIX MUST BE SUPPRESSED.
POINT II: BECAUSE FELIX'S DRUG OFFENSE WAS MERELY POSSESSORY AND NONVIOLENT, THE COURT ERRED IN FAILING TO WEIGH IN MITIGATION THAT FELIX DID NOT CAUSE OR CONTEMPLATE CAUSING SERIOUS HARM, AND HIS SENTENCE SHOULD BE REDUCED TO NO MORE THAN FOUR YEARS.
The Supreme Court has explained the standard of review applicable to a trial court's decision on a motion to suppress, as follows:
Our analysis must begin with an understanding of the standard of appellate review that applies to a motion judge's findings in a suppression hearing. As the Appellate Division in this case clearly recognized, 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, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the... investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
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. [State v. Elders, 192 N.J. 224, 243-44 (2007).]
Under the Fourth Amendment of the United States Constitution and under Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); see also State v. Alston, 88 N.J. 211, 230 (1981). The same is true of the warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879-80, 20 L.Ed. 2d 889, 905-06 (1968) (seizure of a person); State v. Hempele, 120 N.J. 182, 218-19 (1990) (seizure of property).
The seizure of a person occurs in a police encounter if the facts objectively indicate that "'the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2389, 115 L.Ed. 2d 389, 402 (1991)). In applying this test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects.'" Id. at 165 (quoting N.J. Const. art. I, ¶ 7).
Initially, the encounter with Felix amounted to only a field inquiry, as Holman and then Nanos approached him and began asking him questions. See State v. Pineiro, 181 N.J. 13, 20 (2004) (defining a field inquiry as "the least intrusive encounter," which occurs when a police officer approaches a person and asks if he or she is willing to answer some questions). We discern no illegality or bad faith in the field inquiry here, at least in its initial phases. "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). During such a field inquiry, "'the person approached... need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" State v. Maryland, 167 N.J. 471, 483 (2001) (quoting Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324, 75 L.Ed. 2d 229, 236 (1983)).
However, the initial field inquiry in this case progressed into an investigatory stop under Terry. An investigatory stop, unlike a field inquiry, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355 (2002); see also Terry, supra, 392 U.S. at 19, 88 S.Ct. at 1878-79, 20 L.Ed. 2d at 904.
Nanos's specific question, asking whether Felix "had anything illegal on his person," escalated the field inquiry into a Terry investigatory stop, by insinuating that Felix might have contraband in his possession. See, e.g., State v. Costa, 327 N.J. Super. 22, 31 (App. Div. 1999) (officer's questions asking "what are you doing" and "[a]re you doing something that you're not supposed to be doing out here" converted field inquiry into a Terry stop); State v. Contreras, 326 N.J. Super. 528, 540 (App. Div. 1999) (asking defendants whether they had contraband on them escalated field inquiry into an investigative detention); State ex rel. J.G., 320 N.J. Super. 21, 31-32 (App. Div. 1999) (asking juvenile if there was "anything on him that he shouldn't have" converted field inquiry into a Terry stop). A person in Felix's shoes reasonably would believe that "he was the subject of a particularized investigation by the question presupposing the suspicion of criminal conduct." J.G., supra, 320 N.J. Super. at 31. Consequently, the motion judge's determination that Nanos's question to Felix about whether he had anything illegal in his possession was "innocuous" and consistent with Terry was incorrect as a matter of law.
We note in particular that Nanos asked the question after he had "confirmed that [Felix] was supposed to be on the property," according to Nanos's own testimony. The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, and to pat him down for the officer's safety, if that stop 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." State v. Rodriquez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed. 2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).
Having satisfied himself that Felix was not trespassing, Nanos offered nothing amounting to a "particularized suspicion" that would warrant the specific question asked. While it is apparently true that the house was a known "crack house," that alone cannot be the basis for the Terry stop of someone who is there with the permission of an owner or resident. He did not know Felix, so there was no testimony that he was a known drug dealer or user.
The motion judge's "sense" that the "question [was] most likely related to a weapon, or the officer's concern about a weapon" is utterly unsupported by the record. Nanos never expressed any concern about a weapon, nor was that the purport of his question.
While we are certainly cognizant of our obligation to 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, we do not owe that deference when, as here, the facts are simply not supported by the record. Elders, supra, 192 N.J. at 243-44. In addition, our review of the judge's legal conclusion is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
For the reasons stated above, we conclude that the motion judge erred in denying the motion to suppress. Consequently, we reverse the denial and vacate Felix's conviction. In light of our determination on the merits, the issues raised with respect to the sentence are moot.
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