On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 09-02-0337 and 10-02-0123.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2011
Before Judges Fisher and Nugent.
Defendant Terrence Holmes appeals from the order denying his motion to suppress the handgun he discarded while fleeing from a street encounter with police. He argues the police unlawfully seized the gun as the direct result of an unconstitutional investigatory stop. Based on our review of the record and applicable law, we conclude that when the police attempted to stop defendant, their conduct was based on specific and articulable facts that raised a reasonable suspicion of criminal activity. Accordingly, we conclude that the police conduct did not constitute an unreasonable seizure of defendant. We affirm.
For the purpose of the suppression hearing, defendant stipulated to the following facts, as set forth in the police incident report of his arrest and the State's brief.
On September 16, 2008, members of the Newark Police Department's Street Crimes Task Force, including Officers E. Pereira, D. Neives, and C. Alvarado*fn1 , were assigned to two "sectors" where there had been a recent increase in shootings and other criminal activity. The sectors included high crime areas of Newark around North Munn Avenue and Mountainview Avenue. The officers had made "numerous, prior arrests in these sectors for narcotic and weapon offenses."
While patrolling in an unmarked Sport Utility Vehicle on Mountainview Avenue at approximately 9:50 PM, the officers spotted defendant, "who was wearing a white T-shirt and blue jean shorts, holding a large object by his waistband." Conscious of the numerous shootings that had recently occurred in that particular area of Newark, Alvarado asked defendant if he resided in the area. Defendant did not answer, but became very nervous as he stood on Mountainview Avenue. Nieves exited the SUV "to further investigate defendant's actions." Upon seeing Nieves exit the SUV, defendant fled north on North Munn Avenue. The officers ordered defendant to stop but he continued to flee.
The officers chased defendant. Alvarado and Pereira drove north on North Munn Avenue, while Nieves pursued defendant on foot. During the pursuit, Nieves saw defendant grab a gun from his waistband and discard it in front of 35 North Munn Avenue. Nieves retrieved the weapon and continued to pursue defendant. Meanwhile, the officers in the SUV drove "perpendicular to [defendant] who tried to run back south on No[rth] Munn[.]" The officers apprehended him. According to the incident report, the gun was a "colt .38 caliber . . . revolver . . . which contained six, live, ball rounds in the cylinder."
On February 4, 2009, an Essex County grand jury charged defendant in Indictment No. 09-02-337 with second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (first count); and fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1 (second count). The grand jury also charged defendant in Indictment No. 09-02-338 with second-degree possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7b. On March 24, 2009, defendant filed the suppression motion which is the subject of this appeal.
The trial court denied defendant's motion. In a written opinion, the court determined that "there was no seizure until after the defendant was tackled." The court explained that when the officers asked defendant where he lived, they were conducting a valid field inquiry. The court also determined that the police were entitled to conduct an investigatory stop because they had a "particularized suspicion" of criminal activity based upon their assessment of the totality of the circumstances. The totality of circumstances included the officers patrolling at night in a high crime area "which had been home to numerous and recent shootings"; the officers observing defendant holding a large object in his waistband; and defendant becoming nervous upon questioning. The court also cited defendant's flight, suggesting that defendant fled in an effort to avoid an accusation based on his consciousness of guilt. Lastly, the court determined that the defendant abandoned the revolver.
Following the court's denial of his suppression motion, defendant entered into a negotiated plea agreement on February 8, 2010. He had been arrested on new charges. To dispose of all pending charges, defendant pled guilty to the first count of Indictment No. 09-2-337, and to three counts of an accusation that arose from the new charges. Specifically, defendant pled guilty to two counts in the accusation charging him with third-degree possession with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and (b)(1); and one count of third-degree conspiracy to manufacture, distribute or dispense a CDS, N.J.S.A. 2C:5-2a(1), 2C:35-5a(1) and b(1). In exchange, the State agreed to recommend a five-year prison term with three years of parole ineligibility on count one of Indictment No. 09-02-337, and a three-year term of imprisonment on each count in the accusation to which defendant pled guilty. The State also agreed to dismiss the remaining count in Indictment No. 09-02-337, the remaining counts in the accusation, and Indictment No. 09-02-338 in its entirety. Lastly, the State agreed that the prison terms on the CDS offenses would run concurrent to the prison term on the weapons offense.
On March 22, 2010, the court sentenced defendant to a five-year prison term with three years of parole ineligibility on Indictment No. 09-02-337, in accordance with the negotiated plea. As to the accusation, the court merged the conspiracy count and sentenced defendant on each of the two remaining counts to three-year prison terms, to be served concurrently with each other and with the prison term ...