August 31, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAHAMEEN GARTRELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 07-08-1256 and 07-08-1258.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 11, 2010
Before Judges Messano and LeWinn.
Defendant was indicted for third-degree unlawful possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b) and 2C:58-4; receiving stolen property, in violation of N.J.S.A. 2C:20-7; and, in a separate indictment, with second- degree possession of a weapon by a person not permitted to possess one, in violation of N.J.S.A. 2C:39-7(b). Defendant filed a motion to suppress evidence which was heard by the trial judge on December 12, 2007; on January 2, 2008, the judge issued a decision from the bench denying the motion.
Defendant then pled guilty to the charge under N.J.S.A. 2C:39-7(b); all other charges were dismissed pursuant to the plea negotiations. On May 2, 2008, defendant was sentenced to a term of five years subject to a five-year parole ineligibility period as mandated by the statute.
Defendant now appeals from the denial of his motion to suppress; he also contends that his sentence is manifestly excessive. We affirm.
Detective Rodney Blount, a sixteen-year veteran of the New Brunswick Police Department, testified that on June 21, 2007, he, along with Police Officer Yurkovic and Sheriff's Officer Powers, was at a multi-building complex at 17 Hampton Road, an area which he described as "[w]ell-known by the Police Department as a very busy area for high crimes and drug raids." The officers were there "on an ongoing investigation" regarding the April 7 homicide of Jahwan Barnes. This was their "second or third time" going to that location "to look for suspects."
As of June 21, Blount testified, defendant was a suspect in the Barnes homicide. The detective had encountered defendant approximately one month earlier when defendant was "lodged in the New Brunswick Police Department" having been arrested on "a probationary warrant . . . ." Blount spoke to him at that time and defendant admitted that he was a member of the Neighborhood Bloods gang and that he had prior weapons offenses. Blount observed a tattoo, "N.B.," in "script writing" under defendant's eye which indicated membership in the Neighborhood Bloods. Blount was familiar with that gang from "approximately six years of investigation and intelligence gathering of gangs[.]" He described its "primary thrust . . . [as] gang-related activity, as well as homicides, drug transactions, . . . violent crimes, street robberies, as well as robberies of stores, bodegas, just violent crime natures [sic]."
The homicide that the officers were investigating had occurred "in front of 17 Hampton Road, Building E, the front door." The officers drove to that location in an unmarked vehicle. Blount was not in uniform but wore his police detective shield on a chain hanging from his shirt.
As the officers' vehicle approached Building E, Blount "observed [defendant] standing on the sidewalk approximately two to three feet from the parking lot." Defendant "made eye contact with" Blount, who was driving. Blount stated that, "at this point, [defendant] placed his right hand in his pocket, and he turned and he walked away. Walked towards the building."
When Blount observed defendant put his hand in his pocket, the officer opened the car door, stepped out of the vehicle, called defendant by his known nickname of "Bully[,]" and told him to stop. Defendant "continued to walk[,]" and Blount said, "Rahameen stop." Defendant walked "straight to the front door of 17 Hampton Road, Building E[,]" with his hand "[s]till in his front pocket." Blount described defendant's pace as a "swift walk."
Blount testified that he was concerned about defendant's hand being in his pocket because he "didn't know what he had in his pocket. If he had [drugs] in his pocket. If he had a knife or any type of weapon in his pocket at this point." Blount stated that the "mere fact" that defendant did not stop when asked and "never" took his hand out of the pocket, made him feel "that [he] needed to stop [defendant] at that point."
Blount stopped defendant "[a]t the front door of Building E. [Defendant] grabbed the . . . handle of the door in an attempt to pull it open . . . to go in the door." Defendant pulled the door "open slightly." Blount stated: "[A]t this point, I was standing right behind him. I placed my left hand.
I think I grabbed his wrist. I said, 'take your hand off of the door.' I pulled him back . . . ."
When Blount had defendant by the wrist, he pulled him back from the door to Building E and turned him over to Powers and Yurkovic, because Blount's "initial reaction" was to go into the building to speak to a resident about the Barnes homicide. Blount testified that he "was going to speak to [defendant] as well." Blount told the other two officers, "'take him.' He had his hands in his pocket. He's not going anywhere. Those officers took him, and [Blount] continued into the building."
Blount stated that he turned defendant over to the other officers because "at this point, [defendant], in [his] mind, was a suspect in a homicide, as well as, given the nature of the area that we were in, . . . [and Blount's] first, initial, dealing with [defendant], in reference to this homicide. [He] felt, for the safety of [him]self, as well as the others, that [defendant] would need to be . . . stopped and checked."
Blount testified that he arrested defendant for obstruction, because defendant "failed to comply[,] . . . he did not stop and he was told to stop twice; he added that defendant "knew who [he] was. . . . [They] had a couple of hours together prior. So, there was prior knowledge. The two of [them] were not strangers to each other."
The next time Blount saw defendant was at police headquarters. He learned from Yurkovic that defendant "had a weapon on his person[.]"
At the conclusion of Blount's testimony, the prosecutor stated that he did not intend to call Officer Yurkovic, but the officer was available if defendant wanted to call him as a witness. Defense counsel stated: "I don't see the need for Officer Yurkovic." The State moved into evidence several police reports by Yurkovic and others with no objection by defendant.
The judge denied the motion to suppress on two alternative bases, namely that: (1) "the search and seizure in this case was [sic] pursuant to a search incident to an arrest for . . . obstructing the administration of law"; and/or (2) Blount conducted a proper investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The judge made the following findings of fact in her decision:
[W]hen they get to that area where they saw [defendant], [Blount] clearly testified that he saw [defendant] and that . . . [defendant] saw him, that they actually made eye contact. Again he knew [defendant] to be an admitted gang member. He knew the defendant to have possessed weapons previously; number one, . . . from the defendant's own admissions, and, number two, from information . . . that indicated he had been in possession of weapons previously.
A very compelling aspect of this factual scenario was that this is a high- crime area, that it was known for drug dealing, that it was known for gang activities, that it was known for shootings, that there had been reports previously of shots fired. His experience himself as an officer in drug and gang activity also I think plays an important role in the suspicions of the detective, the fact that he is in this particular location[,] had stated there had been a homicide just previously and it has been a location of previous stabbings. Also Detective Blount testified that he had information on this defendant that there's no question that he was a potential suspect because he had been spoken to at the [sic] time earlier than this date, but that they wished to speak with him again regarding this matter. . . . Also I think it's important to know that the location where they saw [defendant] was approximately five feet away from . . . where the shooting had occurred. Also there was information known by the police that they knew this area to be not only where . . . drug deals occurred, gang activity, but where weapons had been stashed and the information was all over the area of Building E.
Detective Blount then stated that he saw [defendant] place his right hand into his front pocket and started to walk swiftly away to get to the door after seeing him. He turned toward the door, and it's important to note I believe as well that he never took his hand out of his front pocket. Detective Blount indicated that he yelled stop on two occasions. It was . . . clear that he knew that [defendant] should know that he was police officer, . . . there was no question . . . that [defendant] was attempting to get away from him, was walking toward a door with his hand in his pocket and was doing so in a swift manner. He ultimately was able to reach [defendant] who did not adhere to those two orders to stop . . . . Detective Blount stated that [defendant] failed . . . to comply with two direct orders to stop. . . . [A]t a later point he was in fact charged with obstruction.
On these facts, the trial judge found that Blount "did in fact have a reasonable and articulable suspicion in this matter that's required under Terry[,] . . . because an investigatory stop is valid if it's based on specific and articulable facts which taken together with rational inferences from those facts give rise to a reasonable suspicion of criminal activity." The judge also found from the police reports in evidence that a "pat-down search" was conducted by the other officers who "found a .25 caliber handgun in [defendant's] front pocket . . . ."
Relying on State v. Williams, 192 N.J. 1 (2007), the trial judge further concluded that, even if the judge "were to find that the Terry pat-down was not constitutional, there is a secondary issue here and that is that the defendant was obliged to submit to the investigatory stop regardless of its constitutionality." The judge held that defendant's conduct in "not adhering to the order on two different occasions to stop by the police under the analysis in Williams indicates that" defendant could be arrested for obstructing the administration of justice, and, therefore, "a warrantless search could occur under the search incident to a lawful arrest."
The judge continued:
The absolute touchstone of the warrant exception for any search incident to the arrest is that the arrest itself must be lawful; therefore, before making an arrest an officer must have probable cause to believe that the arrestee has committed a crime or offense. I find that [Blount] did have that in this particular case and that it was an obstruction based on the circumstance presented to this [c]court.
We turn to the contentions raised by defendant on appeal:
THE DETENTION OF DEFENDANT AND THE CONSEQUENT SEARCH WHICH LED TO THE SEIZURE OF THE HANDGUN IN HIS POCKET VIOLATED THE FEDERAL AND STATE CONSTITUTIONAL PROHIBITIONS AGAINST UNREASONABLE SEARCH AND SEIZURES
A. Search Incident to Arrest
B. Pat-down search for weapons
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We reject defendant's arguments that the trial judge erred in denying his motion to suppress. We affirm substantially for the reasons stated by Judge Barbara C. Stolte in her oral decision rendered from the bench on January 22, 2008, with respect to the investigatory stop exception to the warrant requirement. We add the following comments.
The Supreme Court very recently revisited the standards governing consideration of the so-called "Terry stop" exception to the search warrant requirement. In State v. Mann, __ N.J. __, __ (2010), the Court reiterated that "'[b]oth the United States and the New Jersey Constitutions protect citizens against unreasonable searches and seizures[,]" (slip op. at 8) (quoting State v. Amelio, 197 N.J. 207, 211 (2008)), and observed that "whether the investigatory stop by the police is of a person or am automobile, such a seizure implicates our constitutional protections." Id. at 8-9.
The Court noted that "an investigatory stop . . . 'is valid if it 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.'" Id. at 9-10 (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)). The Court stated:
Specifically, a reviewing court must assess whether "the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate." . . .
Because the "determination of reasonable [and articulable] suspicion is fact-sensitive," a careful review of the totality of the circumstances surrounding each case is required. . . . Further, the fact that a suspect's behavior may be consistent with innocent behavior does not control the analysis. . . . "Police officers should consider whether a defendant's actions are more consistent with innocence than guilt . . . ." [Id. at 10-11 (citations omitted).]
"[I]n determining whether the officer acted reasonably in [the] circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Terry, supra, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909.
Moreover, a police officer's knowledge of a suspect's criminal history, especially where that history involves weapons offenses, is a relevant factor in judging the reasonableness of a Terry frisk. . . . [A]n officer's knowledge of a suspect's prior criminal activity in combination with other factors may lead to a reasonable suspicion that the suspect is armed and dangerous. Terry itself acknowledges that police officers must be permitted to use their knowledge and experience in deciding whether to frisk a suspect. [State v. Valentine, 134 N.J. 536, 547 (1994).]
See State v. Privott, __ N.J. __, __ (2010), holding that "in determining the lawfulness of an investigatory stop, a reviewing court must 'evaluate the totality of the circumstances surrounding the police-citizen encounter, balancing the State's interest in effective law enforcement against the individual's right to be protected from unwarranted . . . police intrusions.'" (Slip op. at 10) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).
Applying these standards to the facts here, we are satisfied that the trial judge's conclusion that the police conducted a proper investigatory stop is supported by the record. As the judge noted, the police were in a high-crime area well known as the site of violent and drug-related crimes generally and, specifically, an as-yet unsolved homicide of a resident of the particular building where defendant was found. Detective Blount knew defendant from having interviewed him at police headquarters about one month earlier; the detective knew defendant was a member of the Neighborhood Bloods, a gang involved in homicides and other violent crimes, and that defendant had a prior weapons offense. In addition, Blount considered defendant a suspect in the unsolved homicide on the date in question. When ordered to stop, defendant proceeded to the door of Building E where the homicide had occurred; during this time, he kept his hand in his pants pocket.
In sum, we conclude that the trial court fairly determined that "the totality of the circumstances gave rise to a reasonable and articulable suspicion that defendant was engaged in criminal activity[,]" sufficient to warrant the investigatory stop. Mann, supra, slip op. at 13. "[T]he record evidences the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so." Terry, supra, 392 U.S. at 28, 88 S.Ct. at 1883, 20 L.Ed.2d at 910.
Because we conclude that the evidence in issue was seized pursuant to a pat-down search resulting from a proper investigatory stop, we need not address defendant's contentions related to the alternative theory on which the judge upheld the search, namely that it was incidental to defendant's arrest for obstructing the administration of justice.
We turn, therefore, to defendant's argument relating to his sentence. As noted, defendant has a prior conviction for possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(d). Defendant was sentenced here pursuant to his guilty plea for a violation of N.J.S.A. 2C:39-7(b), which provides that a person having been convicted of a crime pursuant to the provisions of . . . N.J.S.A. 2C:39-4 . . . who purchases, owns, possesses or controls a firearm is guilty of a crime of the second degree and upon conviction thereof, the person shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term, which shall be fixed at five years, during which the defendant shall be ineligible for parole.
Defendant received the minimum sentence for a second-degree offense. N.J.S.A. 2C:43-6(a)(2). The five-year parole ineligibility term is mandatory under N.J.S.A. 2C:39-7(b).
Defendant contends that the trial judge erred in failing to consider certain mitigating factors. Ordinarily, when presented with an excessive sentence claim, we will review the trial judge's factfindings to determine if they are "'supported by substantial evidence in the record.'" State v. Cassady, 198 N.J. 165, 181 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)). Here, however, pursuant to the express terms of N.J.S.A. 2C:39-76(b), defendant was not eligible for any sentence less than five years of imprisonment. Therefore, we are not reviewing a discretionary assessment of aggravating and mitigating factors. Rather, we are presented with a statutorily mandated minimum sentence. We, therefore, affirm that sentence.
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