June 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALLEN JORDAN, A/K/A ALLEN JORDON, ALLEN JAMES JORDAN, DEFENDANT-APPELLANT.
On Appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-08-2244.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2011
Before Judges Espinosa and Kennedy.
Defendant appeals from the denial of his motion to suppress evidence. We affirm.
The only witness at the suppression hearing was Officer Michael Scottbey of the Irvington Police Department. At approximately 3:30 a.m. on the morning of March 21, 2009, Scottbey and Officer Walter Williams were dispatched to the area of 25 Cummings Street in response to an anonymous tip that there were "two individuals in a white Honda Accord with a handgun." Scottbey described the area of 25 Cummings as a high-crime, residential area where he had made prior arrests for robbery and drug offenses.
Scottbey testified that it took them no more than a minute to get to the location. They proceeded north on Cummings Street with their headlights out to avoid detection. Scottbey observed a white vehicle that matched the description of the vehicle given in the tip in front of 25 Cummings Street. When the officers were approximately two vehicle lengths away from the white vehicle, the headlights were turned on and the police vehicle pulled in front of the white vehicle. Scottbey saw two occupants in the vehicle. Both officers exited their own vehicle with guns drawn and asked the occupants not to move. He stated the driver "was doing nothing." The passenger, defendant Allen Jordan, "just became real active, real frantic. . . . The closer we got to the vehicle, the more frantic and panicky he started to get." Scottbey explained what he meant by "panicky," stating, "he just started moving around the car, reaching - -like he was reaching for something or trying to put something away. You know, the whole time we were standing there, he did that until we reached the car." He ordered the occupants to show their hands and they complied. The officers ordered the two out of the car. Scottbey removed the driver, placed him on the ground and "handcuffed him for officer safety." There were no other members of the public on the street at the time.
Scottbey was positioned on the driver's side, outside the vehicle. He described what occurred next,
When I started looking inside his car with my flashlight, I'm scanning the car, looking around. The first time I came across the area, the only thing caught me was a gleam. When I put my flashlight back on the area, that's when I observed the gun in full.
Scottbey told everybody there was a gun in the back of the car. Officer Coates, who had arrived on the scene with another officer, retrieved the handgun, a Five Star .40 caliber semi-automatic handgun. In addition, six .40 caliber bullets and a semi-automatic magazine were recovered.
There was some inconsistency between Scottbey's testimony at the suppression hearing and his police report and grand jury testimony as to which officer discovered the handgun. Still, the motion judge found Scottbey's testimony "generally credible and reliable." He stated, In every respect I find that Officer Scottbey was confident, consistent, and unwavering in his testimony, not only on direct but, more importantly, on cross-examination.
I find that overall he displayed a good recollection of the facts, did not attempt to avoid answering, notwithstanding the apparent discrepancy or inconsistency, but rather answered questions directly without equivocation and in a non-argumentative fashion.
The motion judge summarized his findings of fact:
An anonymous caller provided specific details about the make and color of a car occupied by two black males, who possessed a handgun, and were present in such automobile while parked on a residential block without street lights at approximately 3:30 in the middle of the night or morning in front of 25 Cummings Street, which as previously noted, pursuant to the testimony of Officer Scottbey, was in a high crime area.
I will further note that when the officers arrived on the scene they not only were able to corroborate all of the aforementioned details and/or information provided by the call, but more importantly, observed the defendant specifically make more than furtive . . . movements. Pursuant to the testimony of Officer [Scottbey] he moved erratically reaching for the floor, as if attempting to recover and/or hide something, and/or if he was attempting to exit the automobile.
I would further note the defendant's failure to comply with at least the one order or demand of the police officers to stop moving, while continuing to make the same motions. I find that it was these very moments, coupled with the information from the informant, together with the fact that the two men were actually sitting in their car in the middle of the night on a street with no lights, which prompted the officers to exit their vehicle with their guns drawn.
And again, notwithstanding the [commands of the] police officers to stop moving and to raise their hands, the occupants failed to comply.
The court concluded that the facts gave rise to a reasonable suspicion of criminal activity and denied the motion to suppress evidence. Defendant then entered a guilty plea to unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), pursuant to a plea agreement. He was sentenced to five years imprisonment with a three-year period of parole ineligibility and appropriate fines and penalties.
In this appeal, defendant argues that the court erred because the evidence was the product of an illegal search and seizure. We disagree.
The Supreme Court recently reiterated the principles applicable to our review:
[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record. A trial court's findings should not be disturbed simply because an appellate court might have reached a different conclusion were it the trial tribunal or because the trial court decided all evidence or inference conflicts in favor of one side. Rather an appellate court must defer to the trial court's findings that are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy. Despite that deference, 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. Of course, a reviewing court owes no deference to the trial court in deciding matters of law. [State v. Mann, 203 N.J. 328, 336-337 (2010) (citations and internal quotation marks omitted).]
The police conduct subject to review here was the officers' "investigatory stop" of defendant. An investigatory stop is a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry v. Ohio, 392 U.S. 1, 19, 88, S. Ct. 1868, 1878-79, 20 L. Ed. 2d 889, 904 (1968).
An officer may conduct an investigatory stop without a warrant if the stop 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. 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); State v. Adubato, 420 N.J. Super. 167, 177-78 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012).
Because an investigatory stop is less intrusive than an arrest, the "[r]easonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest." Stovall, supra, 170 N.J. at 356. The "reasonable suspicion of criminal activity" must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Ibid. "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." State v. Davis, 104 N.J. 490, 504 (1986). Similarly, in determining the lawfulness of an investigatory stop, a reviewing court must "evaluate the totality of circumstances surrounding the police-citizen encounter, balancing the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions." State v. Privott, 203 N.J. 16, 25-26 (2010) (internal quotation marks omitted).
"An anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity." Rodriguez, supra, 172 N.J. at 127 (citing Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990)). Additional information will generally be required "to establish the requisite quantum of suspicion[.]" Id. at 127 (quoting Alabama, supra, 496 U.S. at 330, 110 S. Ct. at 2416, 110 L. Ed. 2d at 309). Moreover, the additional information must not just corroborate the identification of the person reported to the police; it must support the allegation of illegal conduct. The United States Supreme Court explained:
An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse.
Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. [Florida v. J.L., 529 U.S. 266, 272, 120 S. Ct. 1375, 1379, 146 L. Ed. 2d 254, 261 (2000); see also Rodriguez, supra, 172 N.J. at 130-31.]
In this case the anonymous tip identified the number of individuals and a description and location of the automobile they were in. All those facts were corroborated by the officers' observations upon arriving at the scene and, as in Rodriguez, had the effect of identifying the two determinate persons seated in the car. Additional information was required, however, to show that the tip was "reliable in its assertion of illegality."
Although a stop in a high-crime area by itself will not be sufficient to establish reasonable suspicion, "the location of the investigatory stop can reasonably elevate a police officer's suspicion that a suspect is armed." Privott, supra, 203 N.J. at 26 (quoting State v. Valentine, 134 N.J. 536, 547 (1994)) (internal quotation marks omitted). In addition, Scottbey testified that when the officers made their presence known, defendant's reaction was to engage in frantic behavior, "like he was reaching for something or trying to put something away." The rational inference to be drawn from these facts was that defendant attempted to conceal something he did not want the police to see, an inference consistent with the allegation that he possessed a handgun.
We are satisfied that these additional facts and the rational inferences to be drawn from them supported the conclusion that the tip reliably predicted that defendant was engaged in the unlawful activity described by the informant. The motion judge correctly concluded that, under the totality of the circumstances, there was reasonable suspicion, justifying the investigatory stop.
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