April 11, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RACOLE T. MULDROW, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-12-02007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 28, 2012 -
Before Judges Fuentes and J. N. Harris.
Defendant Racole T. Muldrow pled guilty to three crimes -- third-degree possession of a controlled dangerous substance with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; second-degree possession of a firearm while committing a drug offense, N.J.S.A. 2C:39-4.1(a); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b) -- after his motion to suppress was denied. At sentencing, the court imposed an aggregate nine-year prison sentence with five years of parole ineligibility. Muldrow appeals, arguing the following:
POINT I: SINCE THE INITIAL ENCOUNTERS BETWEEN THE POLICE AND THE DEFENDANT WAS A DE FACTO ARREST NOT SUPPORTED BY PROBABLE CAUSE AND SINCE THE DEFENDANT'S FLIGHT DID NOT SUFFICIENTLY ATTENUATE THE TAINT OF THE INITIAL ILLEGALITY, THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS.
Lakewood Police Officer Leroy Marshall was the sole witness at the suppression motion. At the conclusion of the hearing, the motion court rendered an oral decision denying Muldrow's motion. It found, among other things, that (1) Marshall's testimony was credible; (2) the police "did witness [Muldrow] committing a crime, that is, the unlawful possession of a weapon"; (3) Muldrow's flight constituted an intervening factor validating the police chase, apprehension, and his consequent arrest; and (4) the evidence seized from Muldrow's person was incident to a lawful arrest.
On August 18, 2007, Marshall was assigned to the Lakewood Street Crimes Unit along with Detective Sergeant Vandazilva. Marshall and Vandazilva knew Muldrow from previous encounters. At approximately 8:39 a.m., the police officers drove an unmarked police vehicle near the intersection of Martin Luther King Drive and Lois Lane in Lakewood, described as a "[h]igh crime, high drug area," "almost [an] open air drug distribution area." They were in the vicinity after "receiving information from reliable informants . . . that Mr. Muldrow was responsible or a suspect in a couple of shootings that had occurred." Marshall recounted that he learned from a detective that "Mr. Muldrow would be in the area with a weapon and an unknown amount of [controlled dangerous substances]."
From their vehicle, the officers observed Muldrow alight from a taxicab, which was only thirty feet away. Marshall testified that as Vandazilva turned the vehicle into Lois Lane, Vandazilva yelled, "[g]un." Later, Marshall learned that Vandazilva "saw a firearm protruding from under [Muldrow's] T-shirt."
The two officers then "exit[ed] the vehicle, [their] weapons holstered to [their] sides, badges clearly displayed around [their] necks, handcuffs on [their] belts, and radios attached to [their persons]." Vandazilva then yelled, "[p]olice." Muldrow looked stunned "for a second"; "[h]e appeared to be shocked. And then he started running towards Martin Luther King Drive."
Marshall and Vandazilva took off in hot pursuit. In less than a minute, while trying to scale a fence, Muldrow stumbled and fell. Marshall observed Muldrow toss something to the ground. Vandazilva reached Muldrow first, "[falling] on top of him, advis[ing] him he was under arrest." The object that Muldrow discarded was found to be a fully-armed "Intratec 9 automatic firearm," described by Marshall as a "[m]achine gun or assault rifle." After being handcuffed, Muldrow was searched, and approximately two grams of cocaine were recovered from his pocket.
The motion court found that when the police officers first came upon Muldrow, they "observed [him] committing a crime, that is, the unlawful possession of a weapon. Additionally, the defendant committed obstruction and resisting arrest when he fled from the officers upon their identification and instructions to stop." Consequently, the court held that "the evidence [was] admissible [because] it was seized pursuant to a lawful arrest." After pleading guilty and being sentenced, this appeal followed.
Our scope of review of the motion court's factual findings and credibility determinations in a suppression hearing is limited. We uphold the court's factual findings when they are "'supported by sufficient credible evidence in the record.'" State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007) (further citation omitted)). We "give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161-62 (1964). Appellate review of the motion court's legal conclusions, however, remains plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010) (citing Handy, 412 N.J. Super. 492, 498 (App. Div. 2010), aff'd, 206 N.J. 39 (2011)), certif. denied, 205 N.J. 78 (2011).
The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect against "unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "A seizure occurs if, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.'" State v. Sloane, 193 N.J. 423, 429 (2008) (quoting State v. Stovall, 170 N.J. 346, 355 (2002)).
"An investigatory stop, sometimes referred to as a Terry[*fn1 ] 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)). The suspicion necessary to conduct a lawful Terry stop "need not rise to the probable cause necessary to justify an arrest." Ibid. (internal quotation marks and citation omitted). However, "[u]nless the totality of the circumstances satisfies the reasonable and articulable suspicion standard, the investigatory stop 'is an unlawful seizure, and evidence discovered during the course of an unconstitutional detention is subject to the exclusionary rule.'" State v. Mann, 203 N.J. 328, 339 (2010) (quoting Elders, supra, 192 N.J. at 247). Notwithstanding the absence of information concerning Marshall's "reliable informants," we are satisfied that the police had sufficient grounds to initiate an investigatory encounter with Muldrow after he exited the taxicab.
Whether Marshall and Vandazilva acted reasonably depends upon "'the specific reasonable inferences which [they are] entitled to draw from the facts in light of his experience.'" State v. Arthur, 149 N.J. 1, 8 (1997) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). "'[I]narticulate hunches'" and "subjective good faith" will not justify infringing a citizen's constitutional rights. Ibid. (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). In this case, both Marshall and Vandazilva possessed much more than the aforementioned intangibles.
Probable cause for an arrest is "'a well-grounded suspicion that a crime has been or is being committed.'" State v. O'Neal, 190 N.J. 601, 612 (2007) (quoting State v. Moore, 181 N.J. 40, 45 (2004)). The facts and circumstances must show a "'reasonable ground for belief of guilt.'" Ibid. (quoting Moore, supra, 181 N.J. at 46). Here ample probable cause for arrest arose once Muldrow was observed with a concealed firearm.
A defendant is obliged to submit to an officer's command even if he believes the stop is unlawful. State v. Crawley, 187 N.J. 440, 454 (2006). Accordingly, the initial attempt to detain Muldrow, and the seizure of him that followed, were well within the parameters of the Fourth Amendment.
A search incident to arrest is a well-established exception to the general warrant requirement because it prevents a suspect from "accessing a weapon or destroying evidence." State v. Pena-Flores, 198 N.J. 6, 19 (2009) (citations omitted). Hence, the subsequent search and seizure of the firearm and controlled dangerous substance were lawful and there were no violations of Muldrow's Fourth Amendment rights.
We discern no reason to disturb the motion court's findings, which are supported by sufficient credible evidence in the record and not at all "clearly mistaken." Elders, supra, 192 N.J. at 243-44. We conclude that under the totality of the circumstances, the police officers not only had a well-grounded reasonable articulable suspicion to justify an investigatory stop but they had tangible probable cause to arrest Muldrow before he fled.