September 9, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAHEEM WILLIAMS A/K/A RAHEEM WATSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-06-2202.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 31, 2010
Before Judges LeWinn and J.N. Harris.
Defendant was indicted on the following charges: third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of over one-half ounce but less than five ounces of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of cocaine within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count four); and third-degree resisting arrest, N.J.S.A. 2C:29-2 (count five).
Defendant brought a motion to suppress the evidence, which was denied. He then entered into a negotiated plea agreement whereby he pled guilty to counts two, three and five, in exchange for a recommendation that he be sentenced to a five-year term of imprisonment with a three-year period of parole ineligibility. On April 14, 2008, defendant was sentenced in accordance with the plea agreement. He now appeals the denial of his motion to suppress.
The factual background pertinent to our decision is summarized from the testimony of Newark Police Officer Hal Simkins, the only witness to testify at the hearing on the motion to suppress.
On December 27, 2006, Simkins, a thirteen-year veteran of the police force, was patrolling an area known as Georgia King Village, along with officers employed by the University of Medicine and Dentistry of New Jersey (UMDNJ). The joint patrol had been ongoing and was "for the sake of both departments to try to combat the crime" in the area surrounding UMDNJ.
At approximately 10:00 a.m., Simkins was patrolling in a UMDNJ police car in full uniform, accompanied by Officer Guttierrez. While traveling westbound on 15th Avenue, the officers observed defendant walking eastbound. Both officers were familiar with defendant; Guttierrez had previously arrested defendant and Simkins had previously observed defendant "at another location[,]" when he "suspected [defendant was] engaging in narcotics transactions." Simkins had attempted to arrest defendant on that occasion; however, defendant "fled. He got away and that was that."
The area in which the officers observed defendant "had a roadblock... due to narcotic [sic] activity.... It's a high narcotic [sic] area and that's part of the New Community Housing." Both officers had previously made arrests "in that immediate area" for narcotics-related offenses.
When defendant observed the police vehicle, the officers "looked at him, made eye contact... and [defendant]... look[ed] back at [them] and started to pick up his pace, walking faster." Simkins stated that as defendant was walking, he looked back "several times... more than three while he was walking. He was looking back again and [Simkins was] looking back at him...."
At that point the officers "decide[d] to make a U-turn...." Because "[defendant] was looking back constantly... [and] started walking faster, [they] felt it to be a little suspicious, especially [because they] had an encounter with him before due to narcotics.... So at this time [they] felt him to be suspicious. [They] decided to stop him."
By the time the officers made a U-turn, defendant had walked "about [a] good fifty yards[,]" and "had a white bag in his hand." The officers knew that defendant did not "live in that area[,]" based on their "prior encounter" with him. They considered it "unusual that defendant would be approaching that housing complex[.]"
Simkins described what happened next:
[B]y the time we got to the apartment... parking lot, he had to be walking very, very fast at this time so we told him to stop and as soon as we told him to stop he took off running.
....... [W]e wanted to effect an investigative stop because of his suspicious behavior;
[t]he fact that he was constantly looking back at us; [t]he fact that he picked up his pace and walked and also the fact that... he didn't live in the area so there was... that totality, we decided to... effect an investigative stop.
Both officers exited the vehicle and pursued defendant on foot. As Guttierrez pursued defendant, the officer observed him "throw [a]... white bag[,]" which "heightened [their] susp[icion] that there was something wrong."
Defendant reached a dead end; when Simkins approached him Guttierrez was "struggling with him." The officers "had to mace him and once [they] got him under control, [they] handcuffed him and secured him." Defendant was not placed under arrest at that time; Simkins explained that they placed defendant in handcuffs because "he was struggling with [them], fighting with [them]. [They] needed to secure him and detain him."
Simkins retrieved the white bag that defendant had thrown, and described it as containing "[s]maller plastic bags and a brown paper bag." The bag contained "several vials of suspected cocaine."
Defendant was then placed under arrest for possession of cocaine and transported to UMDNJ Police Headquarters. After removing defendant from the police vehicle at headquarters, the officers searched the vehicle and found "another number of clear white vials in the car... with suspected cocaine inside."
In denying the motion to suppress, the trial judge found that the "circumstances supported the officers' articulable suspicion to stop and interrogate the defendant." Those "circumstances" included:
(1) the defendant's known history of drug involvement; (2) the area is a known narcotics area; (3)... defendant did not live in the area; (4)... defendant upon seeing the marked vehicle started to walk faster; (5) [u]pon seeing the marked vehicle [defendant] kept looking back at the officer and was acting nervous.
The judge concluded that Simkins "had sufficient suspicion to stop... defendant."
On appeal, defendant raises the following contention for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE WARRANTLESS SEARCH AND SEIZURE CONDUCTED BY OFFICERS SIMKINS AND GUTTERIERZ [sic] SINCE A REASONABLE AND ARTICULABLE BASIS TO SUSPECT CRIMINAL WRONGDOING DID NOT EXIST.
Having reviewed this contention in light of record and the controlling legal principles, we disagree and affirm.
Initially, we note our standard of review in this matter.
"[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 not be disturbed simply because an appellate court "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."
Rather an appellate court must defer to the trial court's findings that "are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy."... When a question of law is at stake, the appellate court must apply the law as it understands it. [State v. Mann, __ N.J. __, __ (2010) (slip op. at 7-8) (citations omitted).
The trial judge relied upon State v. Tucker, 136 N.J. 158 (1994), to support her decision. There, the Court upheld suppression of evidence obtained under the following "stipulated... facts[:]"
This appeal arises from an encounter between police and a young man sitting on a curb who fled after seeing the approach of a marked police car. The patrolling officers pursued the young man and radioed for assistance. A second police car on a nearby street responded to the call and traveled toward [the] defendant. [The d]efendant, on seeing the second car, reversed course, and was caught by the initial officers. He dropped a packet, which was shown to contain cocaine. [Id. at 161.]
The Court noted that "[t]he issues are presented in somewhat of a vacuum because we sense that the record does not disclose all of the facts that that the officers possessed at the time of the encounter." Ibid.
In holding "that there was an unreasonable seizure," id. at 172, the Court nonetheless emphasized the need for police to engage in investigative processes to gather evidence of crime. New Jersey has long recognized that a temporary street detention based on less than probable cause may be constitutional.
"A police officer charged with the duty of crime prevention and detection and protection of the public safety must deal with a rich diversity of street encounters with citizens. In a given situation, even though a citizen's behavior does not reach the level of 'highly suspicious activities,' the officer's experience may indicate that some investigation is in order. Depending on the circumstances, street interrogation may be most reasonable and proper." [Id. at 167 (quoting State v. Sheffield, 62 N.J. 441, 446, cert. denied, 414 U.S. 876, 94 S.Ct. 83, 38 L.Ed.2d 121 (1973)).]
In denying suppression here, the trial judge found "this case... parallel [sic] if not on all fours with" Tucker. We understand that finding to be an endorsement not of the result but of the dictum in Tucker, which recognized the role that a police officer's "experience" plays in these situations. Ibid.
In Tucker, the Court was "certain that had th[e] record been made more complete, it would more fully disclose the rationale that led the police to pursue the youth." Id. at 169.
By contrast, in this case, the record does "fully disclose the rationale that led the police to pursue" defendant. Ibid. As the trial judge noted, the "totality of circumstances" upon which Simkins based his decision to "investigate" defendant comprised the five factors previously identified in her decision from the bench.
The Supreme Court very recently reviewed the standards governing challenges to investigatory stops, such as occurred here. Noting that "an investigatory stop or a Terry*fn1 stop is an "exception" to "'the warrant requirement'", Mann, supra, __ N.J. at __, slip op. at 9, the Court stated that 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 circumstances surrounding each case is required. Unfortunately, "[n]o mathematical formula exists for deciding whether the totality of circumstances provided the officer with an articulable or particularized suspicion that the individual in question was involved in a criminal activity." 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; however, simply because a defendant's actions might have some speculative innocent explanation does not mean that they cannot support articulable suspicions if a reasonable person would find the actions are consistent with guilt." Unless the totality of the circumstances satisfies the reasonable and articulable suspicion standard, the investigatory stop "is an unlawful seizure and evidence discovered during the course of an unconstitutional detention is subject to the exclusionary rule." [Id. at 10-11, (quotations omitted).]
We are satisfied that the trial court's findings are supported by the record. Simkins was able to "'point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant[ed]'" his pursuit and seizure of defendant. State v. Davis, 104 N.J. 490, 500 (1986) (quoting Terry supra, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906).