On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-02-0133.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Skillman.
Defendant Edward S. Brown pled guilty to possessing a firearm and having a prior conviction for possession of a controlled dangerous substance with intent to distribute, making his possession a crime. N.J.S.A. 2C:39-7b. Brown was sentenced to a five-year term of imprisonment with a statutorily mandated five-year period of parole ineligibility. N.J.S.A. 2C:43-7.2(c). He entered that plea following the denial of his motion to suppress the critical evidence, and he now appeals challenging that determination. See R. 3:5-7(d).*fn1 The central question on this appeal is whether the link between Brown's unlawful investigatory detention and the seizure of the handgun was sufficiently attenuated to dissipate the taint and permit the State's use of that evidence against Brown. We conclude that it was not.
Because the parties agreed that the facts were not disputed, the State did not present testimony on the circumstances leading to the search at issue. R. 3:5-7(b)-(c). The motion was decided on the facts stated in an investigation report prepared by Patrol Officer Timothy Long of the Trenton Police Department on the day he and his partner stopped, searched and arrested defendant.*fn2
At about 7:30 p.m. on September 21, 2008, Long and his partner were on routine patrol in a marked police car. They saw Brown walking. Upon seeing the officers, Brown "immediately became startled," appeared "noticeably nervous" and "attempted to hide his face." The officers turned their car around to speak to Brown. Long approached Brown first. Brown "immediately stated, '[O]fficer I ain't doin[g] nothin[g]' and had his hands up."
Long asked Brown where he was going, and Brown said he was going to his girlfriend's house. He did not know her address, however, and "appeared . . . nervous"; he was "sweating profusely" and "shaking his leg." Long asked Brown "why he was so nervous and then placed him in a Terry Frisk position to check for weapons or other contraband." Brown "then" said, "[O]fficer I might have a warrant."*fn3 The trial court subsequently found that "[v]iewed objectively under the circumstances," this "obvious understatement effectively conveyed to the officer that a warrant did exist."
"At this point," Long "felt what [he] believed to be an automatic handgun in the waistband of Brown." Long "immediately recovered same handgun, handed it to [his] partner to clear, and handcuffed Brown taking [him] into custody without further incident." After reaching headquarters, the officers confirmed that Brown had an outstanding warrant and signed a criminal complaint charging Brown with possession of the handgun.
On that evidence, the trial court concluded that the officers' initial approach and questioning of Brown amounted to no more than a non-intrusive field inquiry, which is constitutionally permissible whether or not supported by particularized suspicion. Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983); State v. Elders, 192 N.J. 224, 246 (2007); State v. Davis, 104 N.J. 490, 497 (1986). The court determined that the nature of the encounter changed when Long placed Brown in a position to conduct a frisk, because that police action gave Brown reason to believe he was not free to leave and took the encounter beyond a field inquiry to the point of an investigatory detention. Elders, supra, 192 N.J. at 246-47; State v. Rodriguez, 172 N.J. 117, 126 (2002). Assessing the totality of the circumstances and giving the officers the benefit of inferences that they could draw based on their training and experience, the trial court concluded that the investigatory detention was not constitutionally reasonable because it was not based on specific and articulable facts necessary to give rise to a reasonable suspicion of criminal activity. Elders, supra, 192 N.J. at 247, 249-50.
Recognizing that the factual findings underlying the foregoing determinations are based on the trial court's review of a written report of the police investigation that is equally available to us and not dependent upon the court's credibility determinations or feel of the case, we see no basis for disturbing them. Compare State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2012), with State v. Locurto, 157 N.J. 463, 470-72 (1999). The court's findings are supported, not contradicted, by the record, and there is no crucial evidence relevant to the foregoing findings that the court overlooked or undervalued. See Diaz-Bridges, supra, 208 N.J. at 566; Locurto, supra, 157 N.J. at 471; State v. Johnson, 42 N.J. 146, 162 (1964). Moreover, in concluding that the detention was not constitutionally reasonable, the judge did not err in determining the legal consequence flowing from the facts.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The standards governing the constitutionality of field inquiries, investigatory detentions or stops and protective frisks for weapons are well-settled. For purposes of this case, a brief summary suffices. "The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures." State v. Privott, 203 N.J. 16, 24 (2010). Based on the minimal nature of the intrusions involved, these encounters are permissibly conducted without a warrant or probable cause.
A field inquiry unaccompanied by compulsion to respond to questions or limitation on the person's freedom to move is not an intrusion sufficient to implicate the constitutional protection. Id. at 24; Elders, supra, 192 N.J. at 246. Thus, no justification is required. Nevertheless, when an officer conducting a field inquiry acts in a manner that would lead a reasonable person to believe he is not free to leave, there is a seizure, albeit brief and minimally intrusive. Elders, supra, 192 N.J. at 246-47; State v. Nishina, 175 N.J. 502, 510-11 (2003). Such a seizure is unreasonable unless "it is based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give ...