April 7, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BERNARD MONELL DICKENS, JR., A/K/A BERNARD DINKINS, BARRY JACKSON, BERNARD JACKSON, SHANKO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-12-0780.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 15, 2011
Before Judges Carchman and Waugh.
Following an unsuccessful motion to suppress, defendant Bernard Monell Dickens, Jr., entered a plea of guilty to second-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5b; third-degree receiving stolen property, N.J.S.A. 2C:20-7; and second-degree possession of a firearm by a person prohibited from possessing weapons, N.J.S.A. 2C:39-7. The trial judge sentenced defendant to an aggregate term of five years imprisonment with a five-year period of parole ineligibility together with mandated fines, penalties and assessments. Defendant now appeals from the denial of the motion to suppress, and we affirm.
These are the facts adduced at the hearing on the motion. On November 4, 2003, at approximately 10:50 p.m., Officer Keith A. Reynolds and several other officers of the Somerville Police Department were dispatched to the area of Hamilton Street following a 9-1-1 report of a disturbance involving a possible handgun. The report also indicated that the individuals involved in the disturbance were driving a tan Ford Focus heading towards Mechanic Street.
When he received the report concerning the disturbance, Officer Reynolds, who was in his marked patrol car one block away from the scene, turned onto Mechanic Street where he observed a brown Ford Escort with a shattered rear window parked illegally on the east side of the street. The officer observed defendant and three other men cleaning shattered glass out of the rear of the car.
Because the brown Ford Escort was similar in style to a Ford Focus, was parked illegally on Mechanic Street and because its rear window appeared to have been shattered by a gunshot, Reynolds concluded that the vehicle was the one that had been the subject of the radio dispatch. After informing police headquarters of his observations, and with a "heightened sense of safety," the officer exited his vehicle, drew his service weapon, ordered the four men to move onto the sidewalk and required them to get down on their knees.
Three of the men on Mechanic Street complied with the officer's orders, but defendant failed to do so and began walking away. Although the officer ordered defendant to stop, he kept walking away while simultaneously putting his hand in his right coat pocket. Defendant also yelled back to the officer that he lived a few houses down the street. This proved to be false as defendant resided in North Plainfield.
While another officer covered the three men kneeling on the sidewalk, Reynolds pursued defendant. He caught up to defendant on the front lawn of a nearby house, grabbed defendant by the collar and the arm and informed him that he was under arrest. Defendant struggled, attempting to put his right hand into his right coat pocket. As a result, the officer, with his weapon still out and still in a stage of "very heightened alert," told defendant that he would be forced to shoot him if he did not take his hand out of his pocket. After hearing this, defendant finally stopped struggling, allowing the officer to start leading him back towards the brown Ford.
As the two men neared the Ford, defendant began struggling again. Another officer came to Reynolds' aid, and the two officers were able to wrestle defendant to the ground. Once on the ground, however, defendant was still able to get his right hand into his right coat pocket. Concerned about what might have been in this pocket, one officer grabbed defendant's right arm and forcibly removed his hand from the pocket, making sure that the hand stayed empty.
Defendant was finally subdued, and a pat-down led to the discovery defendant had a loaded nine millimeter semi-automatic handgun in his right coat pocket. This handgun proved to have been stolen.
On appeal, defendant asserts that the search and seizure were in violation of both the United States and State Constitution. U.S. Const., amends. IV, XIV; N.J. Const., art. 1 ¶ 7. More specifically, he claims that the "tip" "failed to provide the police with 'an objective, articulable, and reasonable basis to believe the subject of the stop was armed and dangerous.'" State v. Matthews, 398 N.J. Super. 551, 557 (App. Div.), certif. denied, 196 N.J. 344 (2008) (citing State v. Roach, 172 N.J. 19, 27 (2002)).
A motion to suppress is a mixed issue of fact and law. Our review of a motion to suppress requires us to "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). However, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then the appellate court should review 'the record as if it were deciding the matter at inception and make its own findings and conclusions.'" Mann, supra, 203 N.J. at 337 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Nevertheless, "[i]t is a well-established principle of appellate review that a reviewing court is neither bound by, nor required to defer to, the legal conclusions of a trial or intermediate appellate court." State v. Gandhi, 201 N.J. 161, 176 (2010) (citing Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).
We commence our analysis with consideration of the initial encounter with defendant. We first note that Reynolds had a legitimate right to conduct a field inquiry based on his reasonable inference from the tip that an incident took place (or was taking place) that may involve a weapon. State v. Padilla, 321 N.J. Super. 96, 107 (App. Div.) (stating that "police had the right, if not the obligation, to proceed to the scene in order to investigate the report [of] a person with a gun"), certif. denied, 162 N.J. 198 (1999).
We recognize that a "tip" standing alone may not be sufficient to establish the elements necessary to satisfy the need to have an "reasonable, articulable suspicion of criminal activity," State v. Rodriguez, 172 N.J. 117, 127 (2002), yet the tip was only the first element in the totality of circumstances justifying the officer's conduct. See also State v. Golatta, 178 N.J. 205 (2003) (holding that when a citizen informant placed a 9-1-1 call describing the color, model and license plate number of a vehicle driving erratically, the 9-1-1 call carried sufficient reliability to sustain a motor vehicle stop when the purpose of that stop was to prevent imminent harm to the vehicle's driver or to the public); and see State v. Amelio, 197 N.J. 207 (2008) (holding that a telephone call to a police dispatcher by a seventeen-year-old reporting that her father was drunk and driving provided a reasonable and articulable suspicion of an offense to support a constitutional motor vehicle stop by the police). The officer observed the described vehicle and observed a rear window that he concluded was consistent with being "shot out." In effect, the "tip" was corroborated by the subsequent observed facts. As the motion judge noted:
However, an anonymous tip, standing alone, is rarely sufficient to establish a reasonable, articulable suspicion of criminal activity. This is the direction of State v. Rod- Rodriguez, 172 N.J. 117, 127 (2002), citing Alabama v. White, 496 U.S. 325, 329 (1990), and see also, Florida v. J.L., 529 U.S. 266 (2000), where a stop was unjustified when all police had to go - -had to go on was material provided by an unknown informant whose source of information was unspecified and who provided no information except a physical description of a man standing in a particular place and where the police observed nothing else suspicious.
The United States Supreme Court has warned that, "the veracity of persons supplying anonymous - - anonymous is by hypothesis largely unknown and unknowable," ibid., quoting Illinois v. Gates, 462 U.S. 213, 237 (1983).
That Court also has instructed that an informant's, "veracity, reliability, and basis of knowledge are relevant to determining the value of his report." Id. at 328.
To justify action based on an anonymous tip, the police, in the typical case, must verify that the tip is reliable by some independent corroborative effort. Id. at 329, 330.
Generally if the tip has a relatively low degree of reliability more information will be required to establish the requisite quantum - - quantum of suspicion than would be required if the tip were more reliable. Again, id. at 330.
Stated differently, courts have found no constitutional violation when there has been, "independent correlation by the police of significant aspects of the informant's predictions." Id. at 332. The analysis in any given case turns ultimately on the totality of the circumstances. Id. at 330. The judge then noted:
When an officer possesses sufficient, articulable suspicion to conduct an investigatory stop, a defendant has a concomitant or correspondent duty to obey the officer's lawful commands in furtherance of that stop. This is the direction of State v. Doss, 254 N.J. Super. 122 (App. Div.), cert. denied, by the New Jersey Supreme Court at 130 N.J. 17 (1992).
A failure to do so can constitute a violation of N.J.S.A. 2C:29-1 which makes it an offense to prevent or attempt to prevent a public servant from lawfully perform - -performing an official function through physical interference or obstacle. State v. Hernandez, 338 N.J. Super. 317, 320, 324 (App. Div. 2001); State v. Camillo, 382 N.J. Super. 113 (App. Div. 2001); State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985), and State v. Perlstein, 206 N.J. Super. 246, 253-54 (App. Div. 1985).
This is what happened here. Reynolds' commands of "Stop" to defendant suggests a transforming of the field inquiry into an investigatory stop, a Terry stop,*fn1 which triggered the Fourth Amendment. State v. Rodriguez, supra, 172 N.J. at 126 ("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."); State v. Williams, 410 N.J. Super. 549, 554-55 (App. Div. 2009) ("It is undisputed that defendant was subjected to [an investigatory stop] when [the officer] ordered him to stop . . . ."), certif. denied, 201 N.J. 440 (2010).
An officer does not need a warrant to make such a stop if it is based on "'specific and articulable facts which, taken together with rational inferences from those facts,' create a reasonable suspicion of criminal activity." State v. Nishina, 175 N.J. 502, 510-11 (2003) (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906)). "The standard of reasonable suspicion required to uphold an investigative detention is lower than the standard of probable cause necessary to justify an arrest." Id. at 511 (citing State v. Stovall, 170 N.J. 346, 356 (2002)). Our Supreme Court has explained:
An investigatory stop is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom. [Ibid. (citing State v. Davis, 104 N.J. 490, 504 (1986) (alteration in original).]
The United States Supreme Court has explained that a reasonable suspicion requires "some minimal level of objective justification for making the stop." United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989) (internal citation and quotation marks omitted). Its application is highly fact sensitive and, therefore, not "readily, or even usefully, reduced to a neat set of legal rules." Ibid. (internal citation and quotation marks omitted).
Although defendant challenges whether the investigatory stop was supported by reasonable suspicion that criminal activity was afoot, we conclude that the investigatory stop was warranted. See Rodriquez, supra, 172 N.J. at 126 (An investigatory stop is lawful "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") (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). We need not dwell on the bona fides of whether this was a proper Terry stop given the tip as well as defendant's subsequent furtive conduct with his hands, as defendant's failure to yield to Reynolds' "Stop" requests created probable cause to arrest for obstruction, N.J.S.A. 2C:29-1,*fn2 even if the investigatory stop was unconstitutional. State v. Williams, 192 N.J. 1, 11 (2007) ("Under New Jersey's obstruction statute, when a police officer commands a person to stop . . . that person has no right to take flight or otherwise obstruct the officer in the performance of his duty."); State v. Crawley, 187 N.J. 440, 460 ("We hold that a defendant may be convicted of obstruction under N.J.S.A. 2C:29-1 when he flees from an investigatory stop, despite a later finding that the police action was unconstitutional."), cert. denied, 549 U.S. 1078; 127 S. Ct. 740; 166 L. Ed. 2d 563 (2006). Moreover, the record supports the court's determination that the officers' investigation and pursuit occurred in good faith. See id. at 461 n.8 (stating that "a prerequisite for a conviction under N.J.S.A. 2C:29-1 is that the police officer acted in good faith").
We conclude that both the stop and the arrest were lawful. The tip, the subsequent observations of the vehicle corroborating the tip and field inquiry and defendant's refusal to comply with the officer's mandate to stop all generate the totality of circumstances supporting both the arrest and search.
We conclude that the judge correctly denied the motion and we affirm substantially for the reasons set forth in Judge Armstrong's oral opinion of June 18, 2008.