June 19, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ISHMAEL JAMES, A/K/A ISHMAEL DWAYNE JAMES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-01-0099.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 25, 2012 -
Before Judges Sapp-Peterson and Ostrer.
After the court denied his suppression motion, defendant entered a plea of guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). He was sentenced in accordance with the plea agreement to a five-year term subject to a mandatory three-year period of parole ineligibility on the weapons charge, concurrent with an eighteen month sentence on the resisting arrest charge. Defendant now appeals from the denial of his suppression motion, and also argues his sentence was excessive. We affirm.
Defendant did not dispute the facts as presented in a September 17, 2008 police incident report included in the State's brief. We discern the following facts from that report.*fn1
Irvington Police Patrolman K.R. Boykins was dispatched to the area of Lenox and Madison Avenues in Irvington, along with his partner, after the report of a robbery "that had just taken place." According to a fair reading of the report, more than one suspect was sought for the robbery, although only one suspect was described. The report states:
On this date Unit 706 (Boykins & Haley) and Unit 704 (Sims & Ewell) were dispatched to the area of Lenox Ave & Madison Ave on a report of a robbery of a citizen that had just taken place. When this unit arrived on scene Unit 704 were interviewing the victims. The description obtained from the victim of the suspects was, a black male wearing a white shirt with blue jeans and something black (possibly a hat) on his head. This unit proceeded to search the perimeter while Unit 704 stayed with the victim. [(emphasis added).]
We note it is unclear whether there was one victim or more, since the report alternately refers to the robbery of a singular "citizen," multiple "victims," a singular "victim," and uses the plural pronoun "they" to refer to the victims.
After touring the immediate area of the robbery, the officers located a person who matched the description they received and who was walking with another individual. The two persons were defendant and a man later identified as Lance Yarbough. The report does not expressly state whether defendant or Yarbough was the one who matched the description. But, we infer that Yarbough was the man in the blue jeans, white t-shirt and head covering, because defendant was described as "Suspect #2." After police commanded them both to stop, Yarbough obeyed, and defendant did not. The report states:
This unit searched the length of Lenox Ave (northbound) while viewing the side streets. Then North on Carolina Ave, East on 18th Ave, South on Melrose Ave to Delmar Pl. West on Delmar Pl. to Orange Ave then North on Orange Ave. As we drove North on Orange Ave the undersigned noticed an individual fitting the description walking South on Orange Ave with another individual. As we drove pass [sic] the two they seemed to hide their face [sic] from us by looking down and away. Due to my experience and training on this job and there [sic] action made me suspicious of them.
After seeing this I instructed my partner, who was driving to make a u-turn and interview the two individuals. I exited the patrol car and walked behind the individuals as my partner drove ahead and stopped in front of same. As Officer Haley advised the two to stop, suspect #2 now known as Ishmael James, turned away and attempt[ed] to run in the opposite direction (North on Orange Ave). As he saw the undersigned approaching he opened the gate of 255 Orange Ave and ran through their yard eastbound. The other suspect, now known as Lance Yarbough made no attempt to flee and was detained by Officer Haley.
As he fled, defendant discarded a handgun in a yard near Bachman Place. Police recovered the handgun, as well as defendant's cellphone, backpack, and jacket, which he also discarded as he fled. Police arrested defendant shortly afterwards, hiding in another rear yard, near a garage on Bachman Place.
The trial court denied defendant's motion to suppress the seized handgun. Defendant argued the police's contact, which defendant characterized as a stop, was unjustified because the description of the suspect lacked specificity, and defendant did not closely match the description, as he wore a jacket and backpack. The court rejected the argument and reasoned that police officers had commenced a valid field inquiry when defendant fled, and they were entitled to pursue defendant and seize the handgun he discarded.
On appeal defendant argues:
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE HANDGUN RECOVERED AS THE RESULT OF AN INVESTIGATORY STOP FOR WHICH THE OFFICERS LACKED AN ARTICULABLE SUSPICION OF CRIMINAL ACTIVITY.
DEFENDANT'S SENTENCE WAS EXCESSIVE.
We exercise plenary review of the trial court's application of the law to undisputed facts on a motion to suppress. State
v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999). We conclude the police had a reasonable and articulable suspicion that defendant and Yarbough had participated in a robbery, which justified their attempt to stop them to investigate.
We are guided by well-established principles governing police encounters with citizens. A police officer does not violate a citizen's right to be free from unreasonable searches and seizures by "'merely approaching . . . [him] on the street . . . , by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen. . . .'" State v. Davis, 104 N.J. 490, 497 (1986) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)). Such encounters are known as field inquiries and require no well-grounded suspicion of criminal activity. State v. Elders, 192 N.J. 224, 246 (2007).
However, we part company with the trial court's characterization of the police officers' contact with Yarbough and defendant as a field inquiry. When the police encounter results in a reasonable person's belief that he was not free to leave, the encounter rises to an investigatory stop. Id. at 246-47. An investigatory stop or detention is constitutional only "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." Id. at 247 (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)). Such facts and inferences are present here. We therefore sustain the police encounter, but on different grounds from that relied upon by the trial court. See State v. Maples, 346 N.J. Super. 408, 416-17 (App. Div. 2002) (appellate court may uphold trial court's denial of suppression motion for different legal reasons).
We balance "the State's interest in effective law enforcement against the individual's right to be protected from unwanted and/or overbearing police intrusions." Davis, supra, 104 N.J. at 504.
An investigatory stop is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been 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 officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonably warrant the limited intrusion upon the individual's freedom. [Ibid.]
The investigatory stop may not be predicated on "unparticularized suspicion or 'hunch[.]'" Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968).
In concluding that the totality of circumstances supported the police officers' intrusion, we rely on several compelling facts, including most significantly that one of the two persons stopped, apparently within minutes of the robbery, and in the neighborhood where the reported crime occurred, matched the description given by an identified robbery victim.*fn2 State v. Reynolds, 124 N.J. 559, 569 (1991) ("[D]efendant's proximity to the crime in both time and space and . . . his similarity to the general description of the suspect were sufficient to generate a reasonable suspicion."); State v. Gavazzi, 332 N.J. Super. 348, 362 (Law Div. 2000). Although the general description of an African-American man in blue jeans, t-shirt and head covering could fit many people, the police suspicion was heightened by the fact that the encounter occurred in such temporal and geographical proximity to the robbery. Reynolds, supra, 124 N.J. at 569; State v. Todd, 355 N.J. Super. 132, 138 (App. Div. 2002); Gavazzi, supra, 332 N.J. Super. at 361-62.
Although the men's apparent attempt to avoid eye contact with police was not alone sufficient to justify a stop, when viewed in the totality of circumstances, it was a permissible factor that heightened the officers' suspicion. See Elders, supra, 192 N.J. at 250 ("[N]ervousness and conflicting statements, along with indicia of wrongdoing, can be cumulative factors in a totality of the circumstances analysis that leads to a finding of reasonable and articulable suspicion of ongoing criminality."); State v. Stovall, 170 N.J. 346, 370 (2002) (sustaining stop, nervousness considered, along with various other factors); State v. Abreu, 257 N.J. Super. 549, 552-556 (App. Div. 1992) (sustaining stop, nervousness considered, along with other factors).
We are unpersuaded by defendant's argument that the stop was unjustified because he did not closely match the description of the suspect; he carried a backpack, wore a jacket, and apparently had no head covering. The police report indicates that defendant's companion was the one who matched the described suspect. Contrary to defendant's assertion that "[t]here was no mention of a second suspect[,]" the police report referred to "suspects," although only one was described. Moreover, even if there were only one reported suspect, under the circumstances, the police would have been authorized to stop not only the man who fit the description of the robber, but the person accompanying him so soon after the reported robbery, and so near to where it occurred. Cf. State v. Wanczyk, 201 N.J. Super. 258, 262-64 (App. Div. 1985) and Gavazzi, supra, 332 N.J. Super. at 362-63 (police justified in stopping vehicles near a reported crime scene shortly after the incident occurred when passenger resembled the description given, but driver did not).
As the police stop was authorized, we reject defendant's argument that the discovery of the weapon he discarded as police pursued him was fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415-16, 9 L. Ed. 2d 441, 453 (1963). The police officers were authorized to pursue defendant after he disobeyed the justified order to stop and they were authorized to recover the handgun as abandoned property. "For purposes of search-and-seizure analysis, a defendant abandons property 'when he voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question so that he can no longer retain a reasonable expectation of privacy with regard to it at the time of the search.'" State v. Carroll, 386 N.J. Super. 143, 160 (App. Div. 2006) (defendant abandons stolen Buick and plastic bag inside after fleeing from accident scene) (quoting State v. Farinich, 179 N.J. Super. 1, 6 (App. Div. 1981), aff'd o.b., 89 N.J. 378 (1982)). See also State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999) (defendant who dropped item as police approached abandons it); State v. Hughes, 296 N.J. Super. 291, 296 (App. Div.) (defendant abandoned cocaine he threw to the curb as police approached), certif. denied, 149 N.J. 410 (1997); Farinich, supra, 179 N.J. Super. at 7 (defendant abandoned suitcase at airport while police pursued him).
In sum, we are satisfied that the stop was lawful. Consequently, the motion to suppress was properly denied.
Turning to defendant's sentence, we find no merit to defendant's argument that it was excessive. The plea agreement authorized the prosecutor to seek an aggregate sentence of five years imprisonment with a three-year parole disqualifier. At the sentencing hearing, defendant's counsel urged the court to sentence defendant in accord with the plea agreement. The court accepted defendant's position and imposed the aggregate sentence defendant had bargained for in his plea agreement and requested at the sentencing hearing.
We are satisfied that the judge's findings regarding aggravating and mitigating factors were based upon competent and credible evidence in the record, that the judge correctly applied the sentencing guidelines set forth in the Code of Criminal Justice, and that the sentence imposed is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393-94 (1989); State v. Roth, 95 N.J. 334, 364-66 (1984).