February 23, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN W. MARSHALL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-10-1047.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2011
Before Judges Yannotti and Espinosa.
After his motion to suppress was denied, defendant John Marshall pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute the same on or near school property, contrary to N.J.S.A. 2C:35-7. He was sentenced to five years of imprisonment with a parole ineligibility period of two and one-half years. Defendant appeals from the judgment of conviction entered on March 25, 2009. We affirm.
At about 7:25 p.m. on July 25, 2007, Detectives Michael Turner (Turner), Waldemar Garcia (Garcia), and Miguel Acosta (Acosta) were in the area of West End Avenue and West State Street in Trenton. The officers received information that a concerned citizen had observed a man operating a bicycle and selling drugs in the area of Hermitage Avenue and Boudinot Street. The person was described as a black male, approximately five feet, nine inches, wearing a green raincoat, a black shirt with a red collar, grey shorts, and a black baseball cap with "NY" on the front.
The officers went to the corner of Edgewood Avenue and West End Street, where they observed a black male, later identified as defendant. Defendant was riding a bicycle. He was wearing a green raincoat and fit the description provided by the concerned citizen. According to the detectives, defendant's bicycle was not equipped with an audible device or lamp.
Turner attempted to stop defendant to question him based on the information the concerned citizen had provided and his operation of a bicycle without an audible device or lamp. Acosta ordered defendant to stop but he continued to pedal away. Defendant yelled to the officers, "Why are you stopping me?" He continued to pedal down West End Avenue toward West State Street. Acosta followed defendant on foot and told him of the investigation and the bicycle violations. Defendant started pedaling faster.
Acosta ran after him and yelled at him to stop. Acosta told defendant that he was under arrest for obstructing the investigation. Defendant was still on his bicycle and turned right onto Montgomery Place. Acosta was running about ten feet behind defendant when he observed defendant reach into the right pocket of his coat and throw a white object to the ground. The object was identified as a matchbook.
Turner and Garcia continued to follow defendant in their police vehicle while Acosta followed defendant on foot. As he approached the intersection of Fisher Place and West State Street, Acosta saw defendant take another object from his right coat pocket and toss it to the street. Garcia retrieved the object and found a small package that contained suspected heroin. Turner apprehended defendant on West State Street. Defendant had $351 in his right pants pocket, and Garcia recovered twenty-six glassine packets, each containing suspected heroin. Summons were issued for violating N.J.S.A. 39:4-10 and N.J.S.A. 39:4-11.
Defendant was charged with fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 35-5(b)(3); possession of a CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7, N.J.S.A. 35-5(a)(1) and N.J.S.A. 35-5(b)(3); and possession of a CDS with intent to distribute on or near a public facility, N.J.S.A. 2C:35-7.1, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(3).
Thereafter, defendant filed a motion to suppress the evidence recovered in the incident. The court heard oral argument on the motion and, on March 18, 2008, placed its decision on the record.
The court found that the detectives were authorized to stop defendant because they had reasonable and articulable suspicion that he was driving his bicycle without an audible signal, in violation of N.J.S.A. 39:4-11. The court also found that, based on the information and description provided by the concerned citizen, and the fact that defendant took flight when he saw the police, the police had reasonable and articulable suspicion that defendant was violating the law. In addition, the court found that the police were authorized to stop defendant and properly seized the drugs after defendant had abandoned them.
Thereafter, defendant pled guilty to third-degree possession of CDS with intent to distribute the same on or near a school property, contrary to N.J.S.A. 2C:35-7. The court sentenced defendant to five years, with a two-and-one-half-year period of parole ineligibility. The court ordered the forfeiture of the $351 found at the time of the incident; the suspension of defendant's driving privileges for six months; imposed statutory fees and assessments; and dismissed the other charges, including the motor vehicle charges.
On appeal, defendant raises the following arguments for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED THROUGH AN UNLAWFUL STOP BECAUSE THERE WAS NO SHOWING THAT THE POLICE HAD REASONABLE SUSPICION TO CONDUCT THE STOP AND THERE WAS NO SIGNIFICANT [ATTENUATION] TO REMOVE THE TAINT OF THE POLICE MISCONDUCT.
A. Without an evidentiary hearing, the trial court erred in finding the police had reasonable suspicion to stop the defendant for a bicycle violation.
B. Absent a finding that the police had reasonable suspicion to believe defendant had committed a bicycle violation, the police did not have reasonable suspicion that defendant was involved in any criminal activity.
C. The evidence acquired following the police's unlawful stop of defendant must be suppressed because the taint of the unlawful stop had not been significantly attenuated by the defendant's actions.
D. Because the defendant's conduct did not significantly attenuate the police's taint, the defendant did not abandon the evidence that was obtained.
We are convinced that these contentions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). However, we add the following.
"A police officer may conduct an investigatory stop if, based on the totality of circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). Reasonable suspicion exists when there is "'a particularized and objective basis for suspecting the person stopped of criminal activity.'" Ibid. (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996)). In determining whether reasonable suspicion exists, the court must consider the totality of circumstances. Id. at 361 (citing United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)).
Here, the court found that, based on the totality of circumstances, the law enforcement officers were justified in stopping defendant. The court noted that the officers reported that they observed defendant operating a bicycle without an audible device, contrary to N.J.S.A. 39:4-11. Moreover, the officers were informed that a concerned citizen had reported that an individual was riding a bicycle and selling drugs in the area of Hermitage Avenue and Boudinot Street. Defendant was seen in the area riding a bicycle and he matched the description provided by the concerned citizen. Furthermore, when defendant saw the police, he took flight. We are convinced that the trial court correctly found that the officers had reasonable suspicion that defendant was violating the law.
Defendant argues, however, that the trial court erred by deciding his motion to suppress without an evidentiary hearing. He says that there was a genuine issue of fact as to whether the officers observed him riding a bicycle without an audible device, in violation of N.J.S.A. 39:4-11. He says that if a hearing had been held, the officers' observations could have been challenged.
An evidentiary hearing is not required on a suppression motion unless there is a genuine issue of material fact. R. 3:5-7(c); State v. Kadonsky, 288 N.J. Super. 41, 45-46 (App. Div.), certif. denied, 144 N.J. 589 (1996). In this case, defendant's challenge to the statements in the police report were based entirely on conjecture and suspicion and did not create a genuine issue of whether the officers observed him riding a bicycle without an audible device, as required by N.J.S.A. 39:4-11. We are satisfied that an evidentiary hearing was not required in this case.
Defendant also argues that the information provided by the concerned citizen was insufficient to give the officers reasonable suspicion that he was engaged in criminal activity. In support of this contention, defendant relies upon Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000).
In J.L., the law enforcement officers received a tip from an anonymous caller that a person was carrying a gun. Id. at 268, 120 S. Ct. at 1377, 146 L. Ed. 2d at 258. The caller indicated that the person was at a particular bus stop and was wearing a plaid shirt. Id. at 268, 120 S. Ct. at 1377, 146 L. Ed. 2d at 259.
The Supreme Court held that the police did not have sufficient information to establish reasonable suspicion that the individual was engaged in criminal activity. Id. at 271, 120 S. Ct. at 1379, 146 L. Ed. 2d at 260. The Court noted that there are situations in which an anonymous tip that is "suitably corroborated" can provide a sufficient indicia or reliability to justify an investigative stop. Id. at 270, 120 S. Ct. at 1378, 146 L. Ed. 2d at 260.
The Court stated that confirming the location and description provided by an anonymous tipster is not sufficient. Id. at 271-72, 120 S. Ct. at 1379, 146 L. Ed. 2d at 261.
An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse.
Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. [Id. at 272, 120 S. Ct. at 1379, 146 L. Ed. 2d at 261].
Defendant's reliance upon J.L. is misplaced. Here, the law enforcement officers did not stop defendant solely on the basis of the tip received. As we have indicated, the officers observed defendant operating a bicycle without an audible device, contrary to law. They noted that defendant was in the area, riding a bicycle and met the description provided by the tipster. Furthermore, defendant took flight when the detective attempted to stop him, thereby confirming the reliability of the tipster's statement that defendant was engaged in the sale of drugs. Thus, J.L. does not apply here.
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