On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-03-0991.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Yannotti.
In January 2009, following the denial of his motion to suppress evidence, defendant Steven Ibarra, entered a negotiated plea of guilty to second degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. Defendant also agreed to forfeit the handgun. In exchange, the State agreed to recommend a three-year term with a three-year parole disqualifier. In accordance with the plea agreement, Judge Lee A. Solomon imposed a three-year term with a three-year parole disqualifier to run concurrent to a term imposed on a violation of probation (VOP). We affirm.
The sole witness at a hearing on the motion to suppress was Camden Police Officer Kevin Lutz. He testified that on February 7, 2008 he was working with his partner Officer Jose Gonzalez, as part of a tactical force engaged in protective patrol. The officers were in a marked vehicle. At the intersection of Morton and Newport Streets, Lutz saw defendant and two other men standing on the sidewalk talking. Defendant was holding currency in his hand. The officers stopped in front of the three men, shining their patrol vehicle's spotlight on them. Defendant walked away with his hands in the pockets of his jacket.
The officers followed him, ordering defendant to stop. Defendant did not stop until ordered to do so the second time. Defendant then turned and walked towards the officers, keeping his hands inside his jacket pockets. When defendant came within reach, Lutz grabbed defendant's hands and placed them on top of his head. Lutz asked defendant if he was carrying anything sharp that "would poke or stick me." Defendant responded that he was carrying a gun. Defendant was handcuffed and searched. A loaded handgun was found inside his jacket pocket. The other two men were patted down as well. No contraband was found on them or in the immediate area. They were released.
The judge made the following findings and reached the conclusion that the search was justified as a pat down search pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968). First, the judge found Officer Lutz to be credible. According to the judge, "[Lutz's] demeanor, his tone, his willingness to explain what was or what was not in the report, his spontaneity of his answers, I find them to be very frank."
Second, the judge found that Lutz had a "reasonable and articulable suspicion that criminal activity [was] afoot based on the objective observations and the totality of the circumstances." According to the judge:
The officer described in credible terms based upon his experience, what are some of the indicia, not only of a drug transaction, but that of the conduct of individuals in the position the defendant was in. Walking away, blading of the body, hands in the pockets, that sends the antenna up that there may be a weapon or that there may be criminal [activity] [in] instances where individuals have weapons. They will walk away when the police arrive, they'll blade their body, they'll have their hands in their pockets. It doesn't say that they're all indicia, but those are some of the things that they look for.
[Office Lutz] has articulated a reasonable suspicion. And I find him to have met that burden under Terry. And as a result of that, he issued the command to stop and he testified credibly that defendant did not. He commanded him again. He finally turned and began walking toward him with his hands in his pockets. . . . And so [Lutz] pulled [defendant's hands] when the young man came closer to him, he took [defendant's] hands out of his pockets and put them on his head. At that point, after asking if he had any sharp objects, the young man said I have a weapon. I have a gun.
The stop was made in the evening in a well known drug area. Three men were standing on the sidewalk after dark in February, one with money in his right hand.
The Terry frisk requires separate and apart from a Terry stop that the officer objectively suspects an individual is presently armed and dangerous to effectuate his frisk. No frisk ...