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State of New Jersey v. Kai Mark Bowman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 24, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KAI MARK BOWMAN, JR., A/K/A KYLE BROWNING, KIA BOWMAN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-10-1142.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 16, 2010 - Decided

Before Judges Wefing and Koblitz.

Defendant was charged with resisting arrest, N.J.S.A. 2C:29-2a(2); possession of a controlled dangerous substance ("CDS"), cocaine, N.J.S.A. 2C:35-10a(1); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(3); possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; and possession of CDS with intent to distribute within 500 feet of a public facility, N.J.S.A. 2C:35-7.1. After the trial court denied his motion to suppress, defendant entered a conditional plea of guilty to one count of possession of CDS and was sentenced to three years on probation.

R. 3:9-3(f). Defendant has appealed, contending the trial court improperly denied his motion to suppress. After reviewing the record in light of the contention advanced on appeal, we affirm.

Defendant was arrested in Trenton in the late afternoon of August 27, 2009. Detective Miguel Acosta, assigned to the Tactical Anti-Crime Unit of the Trenton Police Department was on patrol with his partner in an unmarked car. He was dressed in black cargo pants, a black shirt and a carrier for his ballistic plates that had police identifiers on the front and back. He also had his police badge hanging on a chain around his neck. Dispatch notified the two officers that it had received a report of a narcotics transaction in the vicinity of 165 South Logan Avenue involving three black males and one black female. The only description provided was that one of the males was wearing a black shirt and blue jeans.

Acosta and his partner drove to the area, which they knew to be a high-crime area, with drug trafficking and gang violence. Another patrol car responded as well, and went to the front of the identified site while Acosta and his partner drove to the rear, where they knew there was an alleyway. They drove up the alleyway, and no one was within it. At the end of the alley, where it intersected with Walnut Avenue, they saw a black male, later identified as defendant, wearing blue jeans and a black shirt on a bicycle. The officers pulled their car alongside and Acosta, who was in the front passenger seat, rolled down his window and told defendant to stop, that Acosta wanted to talk to him. Defendant did not stop but rather increased his speed. Acosta continued to tell defendant to stop, that he wanted to speak to him; he identified himself as a police officer. Acosta's partner tried to maneuver their car so as to stop defendant but defendant jumped off his bicycle and began to run away on foot. Acosta jumped out of the car and followed him, continuing to tell him to stop. Defendant paid no heed. Other police were in the vicinity and joined the pursuit. Acosta saw defendant climb over a fence topped with barbed wire, drop to the ground and continue to run. Defendant was eventually apprehended by another officer, Sergeant Luddie Austin, who told Acosta that he had seen defendant discard something during the chase. When defendant was apprehended, one of his hands was bleeding profusely from a laceration he received from the barbed wire. Acosta went to the spot identified by Luddie and found a quantity of CDS defendant had tossed aside.

Defendant raises one argument on appeal:

POINT I BECAUSE THE POLICE DID NOT ACT IN GOOD FAITH AND THE ARREST OF DEFENDANT WAS NOT ATTENUATED FROM THE ORIGINAL ILLEGAL STOP, THE EVIDENCE DROPPED BY DEFENDANT DURING HIS FLIGHT FROM THE POLICE SHOULD HAVE BEEN SUPPRESSED We consider this matter to fit squarely within the principles enunciated by the Supreme Court in State v. Williams, 192 N.J. 1 (2007). In that matter, two members of the Elizabeth Police Department received a dispatch around 2:00 a.m. of narcotics activity in an area known for its high crime rate; the dispatch related only that a black man wearing a black jacket was possibly dealing drugs from a specified address. Id. at 4-5. Arriving at the address, they saw two men, both of whom fit that general description and one walked away; the police did not attempt to stop him from leaving the scene. The other man appeared surprised to see the police and, as the officers approached him, they were conscious of the association of guns and the drug trade and asked him to put his hands on his head so they could safely frisk him. Id. at 5. Defendant did not comply but pushed one of the officers aside and started to run; he tripped and fell after a short distance. Ibid. The officers placed him under arrest and put him in handcuffs; in patting him down the officers found a handgun in the waistband of his pants. Ibid. The trial court denied defendant's motion to suppress, but this court reversed. Id. at 6. The Supreme Court granted certification and reversed this court and reinstated the original conclusion of the trial court. Id. at 18.

In doing so, the Court echoed the safety concerns it had originally expressed in State v. Crawley, 187 N.J. 440, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006), in the context of a defendant not complying with a police directive to stop. The Court noted:

[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. Had defendant merely stood his ground and resorted to the court for his constitutional remedy, then the unlawful stop would have led to the suppression of the handgun. [Williams, supra, 192 N.J. at 17 (citations omitted).]

We can see no distinction in the present matter that would justify a contrary result.

The order under review is affirmed.

20110224

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