June 20, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ISMAIL A. MOSS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-10-1865.
Joseph E. Krakora, Public Defender, attorney for appellant (Linda Mehling, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).
Before Judges Parrillo and Maven.
Following the denial of his motion to suppress evidence, defendant Ismail A. Moss entered a guilty plea to unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b). Defendant raises a single claim on appeal:
I. THE POLICE LACKED THE ARTICULABLE AND REASONABLE SUSPICION THAT [DEFENDANT] WAS ENGAGED IN CRIMINAL ACTIVITY REQUIRED TO JUSTIFY THE STOP OF HIS CAR.
Having considered this argument in light of the record and applicable legal principles, we affirm.
At the evidentiary hearing on the motion to suppress, the court heard the testimony of Jersey City Police Officer John Boamah and defendant. The court found the following facts.
Sometime shortly after 2:00 a.m. on April 19, 2008, the Jersey City Police Department received a telephone call from a male who informed the police that "he was outside smoking a [cigarette] when he noticed a male put a [black] gun in the trunk of a car[.]" The caller stated that the actor was sitting in a vehicle described as a green Chevrolet Cavalier with a specific New Jersey registration number. He further described the actor as a Black male, who was five feet, ten inches tall, and wearing a white jacket, blue jeans and white sneakers. The caller advised the police that the actor was at the corner of Ocean Avenue and Sheffield Street at the time. The caller declined to give his name but provided his phone number.
Shortly after receiving this information, police units were dispatched to the area of Ocean Avenue and Sheffield Street. Officers Boamah and Congelton were the first to arrive at the scene. Although they did not initially observe the vehicle at the location, they eventually observed a vehicle that matched the information received parked illegally in the crosswalk. They pulled behind the vehicle with their emergency lights activated. They observed a Black male matching the description occupying the driver's seat.
The officers immediately ordered the male, later identified as defendant, to place his hands on the vehicle and then conducted a pat-down of defendant. No weapon was found. The police then explained why they had stopped him. Defendant advised the officers that he had borrowed the car and was waiting for its owner, who was a short distance away.
Congelton then requested permission to search the trunk and advised defendant of his right to refuse consent. Defendant consented to the search. Upon opening the trunk, the officers found a loaded 380 handgun and arrested defendant. Defendant advised the police that the vehicle's owner had nothing to do with the gun and that it was his weapon. The vehicle was released to the owner who had arrived at the scene.
The judge denied defendant's motion to suppress the evidence. Specifically, the judge found Boamah's version of the events to be credible and rejected defendant's testimony that he did not sign the consent-to-search form at the scene. The judge concluded that the information in the anonymous tip was sufficiently reliable to justify the investigatory stop and request for consent.
We begin our analysis with some basic principles. "'[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.'" State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). "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.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Instead, "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.'" Id. at 336-37 (alteration in original) (quoting Johnson, supra, 42 N.J. at 161). Nevertheless, "[i]t is a well-established principle of appellate review that a reviewing court is neither bound by, nor required to defer to, the legal conclusions of a trial . . . court." State v. Gandhi, 201 N.J. 161, 176 (2010) (citing Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).
An investigatory stop is a "type of encounter . . . sometimes referred to as a 'Terry' stop." State v. Privott, 203 N.J. 16, 25 (2010). An investigatory stop of a motor vehicle is lawful if the authorities have a reasonable and articulable suspicion that violations of motor vehicle or other laws have been or are being committed. State v. Carty, 170 N.J. 632, 639-40, modified on other grounds, 174 N.J. 351, 806 (2002) (citations omitted). The basis for making the stop requires "some minimal level of objective justification." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989); State v. Golotta, 178 N.J. 205, 213 (2003). It must be based on more than an officer's suspicion or hunch. Sokolow, supra, 490 U.S. at 7, 109 S.Ct. at 1585, 104 L.Ed.2d at 10. Accordingly, judicial review is highly fact-sensitive. State v. Nishina, 175 N.J. 502, 511 (2003). "Our Court has emphasized that 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.'" Privott, supra, 203 N.J. at 25-26 (quoting State v. Davis, 104 N.J. 490, 504 (1986)).
In this case, the initial information was provided by an anonymous caller. Our Supreme Court has noted that an ordinary citizen reporting crime to the police is not viewed with suspicion, and courts assume that a further demonstration of reliability is not necessary. State v. Amelio, 197 N.J. 207, 212-13 (2008), cert. denied, 556 U.S. 1237, 129 S.Ct. 2402, 173 L.Ed.2d 1297 (2009); State v. Stovall, 170 N.J. 346, 362. "There is an assumption grounded in a common experience that such a person is motivated by factors that are consistent with law enforcement goals." Davis, supra, 104 N.J. at 506.
With those tenets in minds, we turn to the case at hand. The judge found that the caller not only provided clear and specific details of defendant, the vehicle and the location, he also provided his telephone number as indicated on the police report. The judge determined that the reliability of the informant was bolstered by the giving of his telephone number, which the judge opined, "indicated his readiness to be held accountable for the information provided." The Jersey City Police Department could have traced and verified the caller's identity using his telephone number, thus enhancing the reliability of the information. We conclude that the judge did not err in reaching this conclusion.
We are aware, however, that "[a]n anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 127 (2002) (citing Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2415, 110 L.Ed.2d 301, 308 (1990)). As the Supreme Court noted in Florida v. J.L., the tip also must "be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." 529 U.S. 266, 272, 120 S.Ct. 1375, 1380, 146 L.Ed.2d 254, 261 (2000). "To justify action based on an anonymous tip, the police . . . must verify that the tip is reliable by some independent corroborative effort." Rodriguez, supra, 172 N.J. at 127. Whether the police corroboration suffices to justify an investigatory stop "turns ultimately on the totality of the circumstances." Id. at 128 (citing White, supra, 496 U.S. at 330, 110 S.Ct. at 2416, 110 L.Ed.2d at 309).
Here, while the information provided clearly described the vehicle and defendant, the officers did not immediately act on the tip information. Rather, the officers resumed patrol and searched the surrounding areas before locating the vehicle parked illegally in the designated location. According to Boamah, the officers then "lit up the vehicle [and] initiated a motor vehicle stop." "As a seizure, a traffic stop is lawful if it is reasonable. That requirement may be met where the police have probable cause to believe that a traffic violation has occurred." State v. Sloane, 193 N.J. 423, 432 (2008) (citations omitted) (internal quotation marks omitted). In this case, the trial judge credited Boamah's testimony that the vehicle was parked illegally in a crosswalk at the designated location. Independent of the informant's tip, the police had probable cause to stop the car at least for a motor vehicle violation. See N.J.S.A. 39:4-138(b) (parking is prohibited in a crosswalk). Once they approached the vehicle, the officers were able to determine the veracity of the dispatched information.
We conclude that the information relayed by the Jersey City police dispatcher and the independent observations of the officers constituted sufficient reasonable and articulable suspicion justifying an investigatory stop of the green Chevrolet. In particular, we also conclude that the veracity and reliability of the informant was sufficiently established by the information provided and the circumstances including: (a) a Black male wearing a white jacket, blue jeans and white sneakers; (b) the individual had placed a black handgun in the trunk of a green, four-door Chevrolet; (c) the vehicle with a specified registration number was located at Ocean Avenue and Sheffield Street; and (c) the stop occurred within three to five minutes after the dispatch transmission, according to Boamah's testimony, after they observed the car parked illegally.
Finally, we address the search of the vehicle's trunk. Given our conclusion that the officers had a reasonable and articulable suspicion to stop his vehicle, we find no reason to disturb the judge's factual determination that the consent-to-search form was signed by defendant at the scene, authorizing the search of the trunk. We defer to the trial judge's credibility findings because they are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. See, e.g., State v. Locurto, 157 N.J. 463, 475 (1999).