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State of New Jersey v. Henry Michael Love


January 12, 2011


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-03-0617.

Per curiam.


Submitted: December 15, 2010 - Decided: Before Judges Fisher and Fasciale.

This case involves an attempt by defendant to flee from an investigatory stop. After the judge denied his motion to suppress heroin, defendant pled guilty to third-degree possession of a controlled dangerous substance (CDS) with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7. He argues that the stop was illegal and the judge erred by denying his motion to suppress. We affirm because any taint from the initial stop was significantly attenuated by defendant's flight that caused the heroin's seizure.

On November 22, 2008, at approximately 12:20 a.m., Officer Ishmael Cortez received a call on the radio in his unmarked police car that "a male wearing a black do-rag, black jacket, just placed a handgun on the . . . bottom [outside] steps of [a multi-family apartment building]." Officer Cortez and his partner proceeded to the location, observed defendant -- who fit the description from the radio -- standing at the bottom of the steps leading to a basement apartment, approached him, and conducted an investigatory stop.

Officer Cortez displayed his badge, identified himself as a police officer, and advised defendant that "we had a call [there was a] man with a gun." The officer repeatedly requested defendant to "do me a favor and remove your hands from your [front] pocket." There were no lights where defendant was standing and the lighting conditions in the general area were "very dim." Officer Cortez was concerned for his safety and the safety of others because he did not know if defendant possessed the gun. After the third request, defendant removed his hands, gripped an object, and ran into an apartment. Officer Cortez was unable to identify what defendant was gripping because it was too dark. To protect himself and others, the officer drew his weapon, "fearing that [defendant] possibly could have [a gun]," and followed him into the apartment.

Defendant ran into the rear of the apartment filled with six or seven people, including three or four children. Officer Cortez followed defendant into a rear bedroom and observed him throw packaged heroin onto the floor. Defendant then ran directly towards the officer and pushed him to exit the bedroom. A struggle ensued and, with the help of his partner, the officers apprehended defendant. Officer Cortez recovered fifty glassine bags of heroin wrapped in groups of ten. The words "road test" were stamped on the bags.

Officer Cortez learned from the owner of the apartment that defendant had no permission to enter her home and that she did not know who he was. Cortez spoke to the other occupants of the apartment and they "all stated to us, the police, that [defendant] had no permission to be inside the apartment."

Defendant testified at the suppression hearing that his half-brother lived in the apartment and that he would go over there "maybe once or twice a week."

Defendant was indicted and charged with obstructing the administration of law, N.J.S.A. 2C:29-1; third-degree resisting arrest, N.J.S.A. 2C:29-2; third-degree possession of CDS, N.J.S.A. 2C:35-10a(1); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, and second-degree possession of CDS with intent to distribute within 500 feet of a public housing/park.

The judge found "the officer's testimony was extremely credible," and denied the motion to suppress. Defendant then pled guilty to the 1000 foot charge and the judge sentenced him to six years in state prison with three years of parole ineligibility. The judge imposed the appropriate fines and penalties.

On appeal, defendant raises the following point:

THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS DRUGS WHERE THE DRUGS WERE INVOLUNTARILY ABANDONED DURING THE COURSE OF AN ILLEGAL STOP In reviewing an order disposing of a motion to suppress evidence we must defer to the trial court's factual findings, "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted). "'That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); see also State v. Robinson, 200 N.J. 1, 15 (2009); Elders, supra, 192 N.J. at 244. "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474; State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L.

Ed. 2d 1022 (1966). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). However, we need not defer to any legal conclusions reached from established facts. See State v. Brown, 118 N.J. 595, 604 (1990) (holding that "[i]f the trial court acts under a misconception of the applicable law," we need not defer to its ruling). The trial court's application of the law is subject to plenary review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

"Consistent with the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, police officers must obtain a warrant . . . before searching a person's property, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'" State v. DeLuca, 168 N.J. 626, 631 (2001) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)); see also Robinson, supra, 200 N.J. at 3 ("[t]he warrant requirement embodied in both" the State and Federal Constitutions "limits the power of the sovereign to enter our homes and seize our persons or our effects"). A warrantless search is presumed invalid. State v. Pineiro, 181 N.J. 13, 19 (2004). The burden is placed on the State to prove that the search "'falls within one of the few well delineated exceptions to the warrant requirement.'" Ibid. (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).

Here, the State contends that the heroin was found in plain view. Generally, evidence left in plain view may be seized without a warrant. See State v. Bruzzese, 94 N.J. 210, 235-36 (1983) (adopting the plain view warrant exception set forth in Texas v. Brown, 460 U.S. 730, 743, 103 S. Ct. 1535, 1544, 75 L. Ed. 2d 502, 514 (1983) (plurality opinion)), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). The "plain view" doctrine requires that the police "inadvertently" discover the evidence, meaning the officers "did not know in advance where evidence was located or intend beforehand to seize it." Bruzzese, supra, 94 N.J. at 236. Additionally, the officers must have recognized the objects immediately as "evidence of a crime, contraband, nor otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 207 (2002); Brown, supra, 460 U.S. at 737, 103 S. Ct. at 1541, 75 L. Ed. 2d at 510. Finally, the police must "lawfully be in the viewing area." Johnson, supra, 171 N.J. at 206.

Defendant contends that the judge erred by not suppressing the heroin because the investigatory stop was invalid. 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." State v. Pineiro, 181 N.J. 13, 20 (2004) (quoting State v. Nishina, 175 N.J. 502, 510-11 (2003) (citation and internal quotation marks omitted)). Defendant argues that there are no specific articulable facts that give rise to a reasonable suspicion of criminal activity.

We need not address, however, whether the stop was valid because "a person has no constitutional right to endanger the lives of the police and public by fleeing or resisting a stop, even though a judge may later determine that the stop was unsupported by reasonable and articulable suspicion." State v. Crawley, 187 N.J. 440, 458, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006). "[A] person must obey the officer's order to stop and may not take flight without violating N.J.S.A. 2C:29-1." Id. at 451-52.

"In evaluating whether evidence is sufficiently attenuated from the taint of a constitutional violation, we look to three factors: '(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct.'" State v. Williams, 192 N.J. 1, 15 (2007) (quoting State v. Johnson, 118 N.J. 639, 653 (1990)).

Officer Cortez arrived at the scene, displayed his badge, identified himself as a police officer, and advised defendant that he was there to investigate a call about a man with a gun. He asked him several times to remove his hands from his front pocket. Rather than cooperate with the officer who acted in good faith under color of his authority, defendant fled, which caused a dangerous pursuit into a crowded apartment. "[T]he law should deter and give no incentive to suspects who would endanger the police and themselves by not submitting to official authority." Id. at 17. We have stated that "[a] person has no constitutional right to use an improper stop as justification to commit the new and distinct offense of resisting arrest, eluding, escape, or obstruction, thus precipitating a dangerous chase that could have deadly consequences." Crawley, supra, 187 N.J. at 459.

Under the totality of the circumstances of this case, defendant's flight from the officer's attempt to investigate constituted sufficient attenuation from the alleged stop.



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