January 6, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEMITRIUS WRIGHT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-09-1604.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2010 - Decided Before Judges Grall and LeWinn.
Defendant Demitrius Wright pled guilty to second-degree possession of a firearm with an unlawful purpose, N.J.S.A. 2C:39-4a. In accordance with a plea agreement, the judge sentenced defendant to a five-year term of imprisonment with a mandatory three-year period of parole ineligibility, imposed the mandatory assessment and penalties and dismissed the remaining counts of the indictment. As authorized by Rule 3:5-7(d), defendant appeals from an order entered prior to his plea denying his motion to suppress the handgun found on his person. Finding no basis to disturb the trial court's factual findings or legal conclusions, we affirm.
On May 8, 2008, Detective David Smith of the New Brunswick Police Department was contacted by a confidential informant who had given him information that led to arrests and convictions in the past. Smith's informant told him that a person known as "Little Bitty" had a gun and was going to shoot Robert Prince, a member of the "G-Shine Blood" gang, because Prince had given a statement to the police in connection with a homicide investigation. According to Smith, his informant had personal knowledge of Little Bitty's plan. Smith also knew that Prince had given the police a statement, that Prince's statement had been disclosed to the defense in the homicide case and that gang rules call for punishment of members who cooperate with the police.
Smith did not know "Little Bitty," but he learned from officers in the department's Street Crimes Unit that defendant was known by that name. Smith acquired a photograph of defendant to show his informant, and the informant identified defendant as "Little Bitty."
On the night of May 17, 2008, Smith and another officer, dressed in plain clothes and using an unmarked car, went to a parking lot of a school in a high crime area that had been the site of numerous assaults and shootings. There they met with other officers working in the area. As they talked, Smith saw defendant walk by with a woman. The officers left the parking lot and followed.
One of the officers stopped his unmarked car in the street in front of defendant. The car did not block defendant's path; defendant and his companion were on the sidewalk. Smith and the others also parked and got out to speak to defendant. They identified themselves as police officers and displayed their badges. As they approached defendant, he "took a bladed stance towards" them and reached with his right hand toward his waistband.
Smith described defendant's "bladed stance" as a "fighting stance." He demonstrated the position defendant assumed for the court, and the judge described for the record what he saw. Smith had placed his right hand at about the midpoint of his pants and pocket near "the belt line."
According to Smith, after defendant assumed that stance and reached for his waistband, one of the detectives ordered defendant to show his hands three times. Defendant complied on the third demand. Out of concern for their safety, which was based on the information that defendant had a handgun and on the bladed stance he had assumed, the officers ordered defendant to the ground and patted him down. They recovered a .380 caliber handgun from the waistband of his pants. There was one bullet in the gun's chamber and three more in its magazine.
The judge found Smith's testimony candid, direct and honest. He found that Smith had information from a reliable informant that defendant was "looking to sanction" a person who had made a statement in a prior murder case. In the judge's view, the information gave the police sufficient reason to look into the allegations and approach defendant with caution. The judge was "convinced, beyond any doubt," that defendant took a bladed stance which gave the officers reason to suspect they were in sufficient danger to warrant their demand for him to show his hands and the frisk that led to discovery and seizure of the gun.
The applicable law is well-settled. "A field inquiry is not considered a seizure 'in the constitutional sense so long as the officer does not deny the individual the right to move.'"
State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting State v. Sheffield, 62 N.J. 441, 447 (1973)). Consequently, a field inquiry, unlike a detention or an arrest, "may be conducted 'without grounds for suspicion'" or probable cause. Ibid. (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). "An encounter becomes more than a mere field inquiry when an objectively reasonable person feels that his or her right to move has been restricted." Ibid.
We recognize that defendant may have been intimidated by the number of officers that approached. Nonetheless, on this record we cannot conclude that the judge was wide of the mark in finding that the officers did nothing to make a reasonable person in defendant's position feel he could not move until after defendant escalated the encounter by assuming a bladed stance and reaching toward his waistband. See State v. Locurto, 157 N.J. 463, 474-75 (1999) (describing the limits on a reviewing court's authority to reverse a determination made on a motion to suppress). Smith's testimony provided the essential support for those findings. See ibid.
There is no question that the police moved beyond a field inquiry and detained defendant when they ordered him to the ground and conducted a pat-down search. Detention and a frisk for weapons are both police intrusions that require justification. A detention following a field inquiry is impermissible absent "'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity."
Rodriguez, supra, 172 N.J. at 126 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). In order to frisk a suspect detained to confirm or dispel reasonable suspicion of criminal activity, an officer must have "'reason to believe that he is dealing with an armed and dangerous individual[.]'" State v. Privott, 203 N.J. 16, 25 (2010) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). As the trial judge recognized, to determine the lawfulness of police conduct in these "'police-citizen encounter[s],'" courts "evaluate the totality of circumstances" and "'balanc[e] the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions.'" Id. at 25-26 (quoting State v. Davis, 104 N.J. 490, 504 (1986)).
In this case, the judge did not err in considering the information conveyed to Smith by his confidential informant, specifically that defendant had a gun he planned to use to retaliate against Prince for cooperating with a homicide investigation. See generally Rodriguez, supra, 172 N.J. at 127- 28 (discussing the standards governing evaluation of reasonable suspicion based on tips). The veracity of a person providing an anonymous tip is not assumed and does not give rise to articulable suspicion absent independent corroboration. Id. at 127. But according to Smith's testimony, which the judge credited despite the lack of detail Smith provided in describing the informant's base of personal knowledge and former reliability, this tip was not anonymous.
Smith testified that the tip was provided by an informant who had personal knowledge and had proven reliable in the past. The information given included defendant's motive and purpose for having the gun, information that by its nature would be known to an insider. Defendant's motive and purpose were corroborated, at least to the extent that the police knew Prince, a gang member, had given a statement in a homicide investigation that had been released to the defense in the prosecution stemming from the investigation. Moreover, when defendant reached for his waistband and assumed an aggressive stance as the police approached him, his own actions corroborated the informant's tip that he had a gun. This corroborative evidence is far from overwhelming, but less is required when information indicative of the informer's personal knowledge of a criminal plan is given by one who has proven reliable in the past. Id. at 127.
Viewing the informant's tip and defendant's response to the officers along with the location of the encounter, the judge concluded that the detention and the frisk were supported by reasonable suspicion and reasonable given the threat and intrusion. Because the judge's findings "could reasonably have been reached on sufficient credible evidence present in the record," we accept them. Locurto, supra, 157 N.J. at 471 (internal quotations omitted).
Defendant, relying on the fact that the officers directed him to get on the ground before frisking him, characterizes the police conduct prior to the frisk as a full-blown arrest that was not justified by probable cause. The judge did not expressly address Smith's testimony about the order directing defendant to get down, but the judge found that the police conduct was reasonable in view of the danger to them and the public. Our review of the record does not permit us to conclude that he was "so clearly mistaken" that we should substitute our judgment and conclude that this was an arrest. State v. Elders, 192 N.J. 224, 250-51 (2007). Accordingly, we affirm the order denying the motion to suppress the gun taken from defendant.
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