January 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STEWART D. PARKER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-01-0085-E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2011
Before Judges A. A. Rodriguez and Fasciale.
After defendant's motion to suppress evidence was denied, defendant pleaded guilty to second-degree possession of a handgun by a convicted felon, N.J.S.A. 2C:39-7. In exchange, the State agreed to recommend less than the maximum potential sentence and dismissal of all related charges. We affirm.
The following proofs were presented by the state at a hearing on the motion to suppress. At approximately 10:00 p.m. on October 9, 2007, three plainclothes detectives, Alexus Smith, Paul Petinga, and a third detective, were conducting surveillance in an unmarked patrol vehicle in an area known for high levels of drug trafficking. They observed a Toyota Camry with a driver and front seat passenger traveling with a disabled taillight. After the Camry swerved into the detectives' lane and nearly struck their vehicle, the detectives requested a marked patrol car to conduct a traffic stop. Atlantic City Police Officer Brennan responded, activated his lights and siren, and pulled the vehicle over. The detectives then pulled up behind Officer Brennan's patrol car.
The detectives observed defendant, who was in the front passenger seat wearing his seatbelt, slowly lean over "so far that his head [was] now almost touching an open glove box compartment." At the suppression hearing, Detective Smith testified that she could only see defendant's back and that he was "making some kind of movement with his upper body." She further testified: "[Defendant's] movements were very uncommon [and] there was no reason that the passenger should've been doing this. I found his movements very odd and they were very suspicious and heightened, you know, they really alerted my senses."
At that point, Detective Smith asked defendant to "sit up straight" and defendant "sat up very, very slowly." Detective Smith testified:
[Defendant's] body was positioned [so] he was sitting up very rigidly, but he was sitting to the side of the door, almost pressing and wedging his body against the door. And as he's doing this, he takes his [right] elbow and he puts his elbow very, very close to his body.
And as he was wedging his body, he takes his left hand and his left hand is tight around his waist and he's making stuffing motions in the area of his waistband and the seat and the door.
Detective Smith then asked defendant to stop the movement but defendant "did not immediately comply." She testified that he "modified the movement. He didn't make the movement so pronounced, but he still did it slightly and, again, he was asked to stop." After the second request, defendant responded, "Who me?" Detective Smith testified that "[e]ventually there was a compliance; he did eventually stop making the stuffing motions." However, defendant "still had his body wedged against the door, so you couldn't completely see the right side of his body."
Detective Smith testified that after she ordered defendant from the vehicle:
He opens the door and he just basically, with his body still wedged against the door of the car, he exits and he keeps his body in contact with the seat and the side of the seat and he basically rolls his body, almost bringing his left side across himself to exit the vehicle. When he exits the vehicle, part of his body is still shielded . . . by the door frame of the car. He stands up very slowly with . . . his right arm, still wedged against his waistband . .., still keeping his body kind of shielded with the opening of the door.
Detective Smith further testified that defendant was still not completely out of the vehicle and that she "thought his actions were to conceal something." She observed that after being asked to step away from the car, defendant's "hand[s] were loose as if he was trying to be casual . . ., but his upper arms and his elbows were wedged very tight against his body."
Detective Petinga began a pat-down search, and defendant admitted that he had a gun. Detective Petinga retrieved a defaced 9mm handgun from the right side of defendant's waistband and arrested him.
Defendant moved to suppress the gun, and on October 9, 2008, the court conducted the suppression hearing. Detectives Smith and Petinga testified for the State. Defendant called no witnesses. The judge denied defendant's motion and issued an oral opinion. On October 17, 2008, the court entered an order to the same effect.
Defendant then pled guilty, requested that sentencing occur in March 2009, and adamantly opposed revocation of bail, even though he was already serving a sentence for the parole violation. On August 21, 2009, following denial of defendant's motion to withdraw his guilty plea,*fn1 the judge sentenced defendant to five years imprisonment with five years parole ineligibility, concurrent to a parole violation. This appeal followed.
On appeal, defendant raises two points:
THE SEARCH AND SEIZURE OF THE HANDGUN IN DEFENDANT'S POSSESSION WAS CONTRARY TO THE FEDERAL AND STATE CONSTITUTIONAL PROSCRIPTIONS OF UNREASONABLE SEARCHES AND SEIZURES.
A. Defendant's removal from vehicle.
B. Pat-down search.
POINT II DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We begin by addressing defendant's contention that the detectives wrongly ordered him from the car, thereby invalidating the subsequent discovery of the gun. He asserts
that Detective Smith ordered him from the vehicle on a "generalized 'hunch,'" rather than "specific and articulable facts." He further argues that even if the command to alight was valid, Detective Petinga conducted an illegal pat-down search.
The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution require police officers to obtain a warrant before searching a person's property. State v. DeLuca, 168 N.J. 626, 631 (2001); State v. Cooke, 163 N.J. 657, 664 (2000). This requirement "limits the power of the sovereign to enter our homes and seize our persons or our effects." State v. Robinson, 200 N.J. 1, 3 (2009). Warrantless searches are presumptively invalid, unless the State proves the search "'falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Pineiro, 181 N.J. 13, 19-20 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).
"Ordering a person out of a car constitutes a seizure under the Fourth Amendment because the person's liberty has been restricted." State v. Smith, 134 N.J. 599, 609 (1994) (citing State v. Davis, 104 N.J. 490, 498 (1986)); Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889, 903 (1968). "Whether such a seizure is constitutional depends on the reasonableness of the order." Smith, supra, 134 N.J. at 609. "[A]n officer must be able to point to specific and articulable facts that would warrant heightened caution to justify ordering the occupants to step out of a vehicle detained for a traffic violation." Id. at 618. Moreover, ordering a person from a vehicle requires more than a "hunch." Id. at 619. Rather, "'the officer must be able to articulate specific reasons why the person's gestures or other circumstances caused the officer to expect more danger from this traffic stop than from other routine traffic stops.'" State v. Mai, 202 N.J. 12, 22 (2010) (quoting Smith, supra, 134 N.J. at 619).
Furthermore, "to justify a pat-down of an occupant once alighted from a vehicle, specific, articulable facts must demonstrate that a 'reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger.'" Smith, supra, 134 N.J. at 619 (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). Again, a "'hunch' forms an insufficient basis on which to conduct the uncomfortable and often embarrassing invasion of privacy that occurs in a pat-down of a person's body." Ibid. (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909).
Our review of denial of a motion to suppress is limited. Robinson, supra, 200 N.J. at 15. We defer to the judge's factual findings if "supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted). The judge is in a better position to determine credibility because he can observe the character and demeanor of the witness. State v. Locurto, 157 N.J. 463, 474 (1999); Elders, supra, 192 N.J. at 244. We will not, therefore, disturb his findings unless "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Nonetheless, we need not defer to his legal conclusions. State v. Brown, 118 N.J. 595, 604 (1990); State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).
Here, the judge found that Detectives Smith and Petinga had "observed similar behaviors by the defendant." The judge found that Detective Smith "credibly testified that she had concern for her own safety and the safety of the other officers based on these unusual and uncommon movements that she associated with [defendant] trying to hide something and perhaps to hide a weapon." The judge further found:
[D]uring this traffic stop, the officers noticed that the defendant sitting in the passenger seat appeared to be hiding something on the right side of his body and that he was making other movements and concealing in an odd and unusual and uncommon manner. The officer[s] also observed that he was not immediately responsive and then when he was responsive, he was slow and not very quick in order to respond to what he was told to do.
The officers, based on their vast training and experience, the time of the day, the place, which was a high-crime and drug area, . . . gave them heightened concern for their own safety based on the behavior of this defendant and the totality of the circumstances.
Like the officers in Smith, [supra, 134 N.J. 599,] the officers here noticed these suspicious movements by this passenger defendant, could not see his hands for a period of time even after they ordered him to stop the movement. These circumstances warranted the officers removing him from the car for their own protection.
Furthermore, the judge found that Detective Petinga's "extensive training and experience" led him to "believe that the defendant's motions of pressing his arms close against his body and blading his body were indicative of weapons possession." Based on these movements, the judge found that the detectives became "more concerned for their own safety and the safety of the other officers," and they "ordered [defendant] out of the car on the strength of that concern."
The judge concluded that "the patdown was also similarly justified by the circumstances." He found:
[D]efendant was ordered out of the vehicle.
He did not exit right away and when he exited, he exited with a[n] unusual rolling movement that the officers, again, associated with a concealing movement of some kind. The defendant was given additional [commands to] exit[.] Based on this behavior, when he was ordered away from the car, the detectives noticed this pushing-down movement again . . . that [Detective Petinga] associated with an unknown object inside the waistband that he associated with weapons possession. . . . . Defendant again was ordered to put his hands on his head. At that point, [defendant] indicated that he had a weapon, certainly giving the officer in the . . . very precipitous moments there on the side of the road a real concern for his safety. . . . .
Under all the facts and circumstances, the officers were justified in having [defendant] removed from the car and [performing] the patdown search. In the totality of the circumstances, I conclude that they had a[n] articulable and reasonable suspicion and basis for acting as they did. As such, the evidence . . . shall be admitted at trial.
We discern no reason to disturb the judge's factual findings. He identified specific articulable reasons for the detectives to order defendant from the vehicle and conduct the pat-down search, and our review of the record reveals sufficient credible evidence to support those findings. In the totality of the circumstances, we conclude that the State presented sufficient facts at the suppression hearing to "'create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car[.]'" Mai, supra, 202 N.J. at 15 (quoting Smith, supra, 134 N.J. at 618). Furthermore, a reasonably prudent person under the circumstances would have believed that the subsequent pat-down for weapons was necessary based on defendant's repeated surreptitious movements, apparent efforts to conceal something at his right side, and slow or non-responsive compliance with the detectives' instructions and questions.
Next, defendant argues that he was entitled to and did not receive jail credit for the period from the entry of the plea, or at least from the March following the plea, to the time of sentencing and therefore his sentence is manifestly excessive requiring us to vacate and remand for resentencing. We disagree.
Our review of a sentence is limited. State v. Roth, 95 N.J. 334, 364 (1984). We will not substitute our judgment for that of the sentencing judge or impose our view of an appropriate sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Evers, 175 N.J. 355, 386 (2003). If the judge follows the sentencing guidelines, we do not second-guess the sentencing. State v. Jabbour, 118 N.J. 1, 5 (1990).
A defendant is entitled to "receive credit on the term of a custodial sentence for any time served in custody in jail . . . between arrest and the imposition of sentence." Rule 3:21-8.
The credit is only permissible for a period of incarceration attributable to the crime for which the sentence is imposed. The credit is given for time served between the date of arrest and the imposition of sentence. When the rule applies, the credit is mandatory. Where the rule does not apply, the credit may nevertheless be awarded based on considerations of fairness, justice and fair dealings. [State v. Hemphill, 391 N.J. Super. 67, 70 (App. Div. 2007) (citations omitted.]
Furthermore, "'when a parolee is taken into custody on a parole warrant, the confinement is attributable to the original offense on which the parole was granted and not to any offense or offenses committed during the parolee's release.'" State v. Hernandez, 208 N.J. 24, 43 (2011) (quoting State v. Black, 153 N.J. 438, 461 (1998)).
Applying these standards, we discern no reason to disturb the sentence. Our review of the record shows that defendant understood the consequences of his plea, Rule 3:9-2, and nothing in the record shows that he was uninformed of the consequences of delaying his sentencing and not revoking bail. In fact, the judge expressed repeated concern for defendant's decision:
If you want to be sentenced in March, I'll do that. I don't know that that's in your best interest, sir. I would think you'd want to be sentenced [sooner].
Look, Mr. Parker, I'm trying to be straight with you here on what's going on. I'm not being punitive.
You would probably want to be sentenced in December, sir, or as soon as I can sentence you because you're serving a parole hit now[.]
I don't want to do anything that diminishes your credit, sir.
However, defendant stated: "I don't want to revoke my bail, man. . . . . I want to be sentenced in . . . March, that's it." We therefore conclude that the judge did not abuse his discretion.
Moreover, we perceive no manifest injustice in the length of defendant's five-year sentence and five-year parole ineligibility period, Bieniek, supra, 200 N.J. at 612; Roth, supra, 95 N.J. at 363-65, and we reject any contention that the sentence was imposed with "unreasonable delay." R. 3:21-4(a). Because the sentence is not "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), and does not "shock the judicial conscience," Roth, supra, 95 N.J. at 365, we must affirm.