November 25, 2013
STATE OF NEW JERSEY, Plaintiff-Appellant,
DANIEL WALKER, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-05-0477.
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for appellant (Michael A. Nardelli, Assistant Prosecutor, of counsel and on the brief).
Rogers and Krajewski, attorneys for respondent (Robert Rogers, on the brief).
Before Judges Alvarez and Ostrer.
On leave granted, the State appeals the March 21, 2013 order suppressing evidence seized during a warrantless search of the person of defendant Daniel Walker. The testimony presented at the hearing centered on the most consequential item, a black semi-automatic handgun loaded with ten rounds of ammunition. For the reasons that follow, we affirm.
The State's principal witness was Matthew Przemieniecki,  a thirteen-year veteran of the Trenton Police Department, and one of the two officers who conducted the stop of defendant. Przemieniecki stated that at approximately 9:00 p.m. on January 19, 2011, he and Detective George Wilson were on patrol in an unmarked white Crown Victoria. As the officers traveled towards Montgomery Street on East Hanover Street, in an area Przemieniecki described as not only high drug and high crime, but violent, he saw a man standing in front of 232 East Hanover. He recognized defendant from prior contacts, and knew him to be a member of the Bloods gang.
Przemieniecki testified that once defendant "became aware" of the officers' presence, he placed his right hand at his waistband and ducked down an alley between two buildings. The officer incorrectly identified the buildings adjoining the alley as 230 and 232. No number 230 exists; rather, the structures are designated as 228 and 232/234.
Przemieniecki did not recall any obstruction across the alley. Once the officers saw defendant leave, they backed up around the corner to Wood Street, knowing that if defendant continued walking to the far end of the alley, he would exit on Wood Street. As they approached, they saw defendant coming out of the alley, and Przemieniecki told him to raise his hands. Before defendant did so, he "checked his right side again." Even when pressed on cross-examination, Przemieniecki insisted the alley had no obstructions, including any fencing.
When defendant raised his hands, the officer saw a bulge on the right side of his waistband. The officers put defendant in a "pat frisk position." Przemieniecki felt the bulge and discerned the shape of a handgun. He lifted defendant's shirt and removed the gun. Defendant then attempted to flee.
The ensuing indictment charged defendant with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count one); third-degree theft by receiving stolen property, N.J.S.A. 2C:20-7(a) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a) (count three); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count four); and second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b) (count five).
Defendant's sole witness was the owner of 228 East Hanover, David Thompson. Thompson had been at the premises on January 29, 2011, ten days after the arrest, because he wanted to clear the snow off the sidewalk in front of his building, even though it was unoccupied. He took photos of the property on that date, which were time-stamped January 29, 2011. The photos depict an ungated six-foot chain-link metal fence, lined with barbed wire along the top, which had been installed by the City of Trenton across the alley between 228 and 232/234 in an effort to curb criminal activity in the area. Thompson did not recall going to the property in December or earlier in the month of January. He did not recall when the fence was erected, but estimated it had been installed by the City approximately a year and a half prior to January 2011, as he remembered being assessed a charge he considered excessive for the cost of installation.
The trial judge found Thompson, but not Przemieniecki, credible. To the judge, the crucial evidence was the testimony regarding the fence. He said:
If  Przemieniecki was focused on defendant as he testified that he was, certainly he would have noticed whether defendant had to climb or maneuver through [a] fence to proceed through the alley or whether defendant was able to walk through the alley without incident.
In addition,  Przemieniecki testified that he could not recall if he ever arrested defendant. However,  Przemieniecki's police report indicates that defendant's actions "heightened my suspicion and the fact that I know [defendant] . . . from previous arrests."
The judge found the State had not shown by a preponderance of the evidence that the officers had a reasonable and articulable suspicion to stop and frisk defendant. The officers were on regular patrol duty, travelling through the City in their vehicle. That defendant was walking down the street in a high crime area, and walked away when he noticed the police presence, he found to be an insufficient basis for a Terry stop and frisk.
On appeal, the State claims the court erred in granting the motion to suppress because the detective's stop was lawful, his search necessary to protect the officers' safety, and was otherwise reasonable. The State characterizes the officers' conduct as a "pat down."
We review the trial judge's factfinding on a motion to suppress, mindful that we sustain the factual findings when they are "supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal citations omitted). We ask whether the findings made by the judge could "reasonably have been reached on sufficient credible evidence present in the record." State v. Alvarez, 238 N.J.Super. 560, 564 (App. Div. 1990). We defer to the judge's factfinding because his or her conclusions are substantially influenced by the opportunity to hear and see the witnesses, and to develop a feel for the case which is never present on the cold record supplied to an appellate court. State v. Johnson, 42 N.J. 146, 161 (1964).
This deference is particularly appropriate when the court's conclusions are anchored in its assessment of the credibility of witnesses. "We sometimes tend to forget that the testimony of a witness, presented to us in a cold record, may make an impression upon us directly contrary to that which we would have received had we seen and heard that witness." State v. King, 44 N.J. 346, 354 (1965) (internal citations omitted). Only those findings of fact that are clearly mistaken warrant intervention and correction. Johnson, supra, 42 N.J. at 162. Our review of the trial judge's legal conclusions, however, is plenary. State v. Handy, 206 N.J. 39, 45 (2011).
Under the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). Warrantless seizures of a person or property are also presumed invalid absent exigencies. Terry, supra, 392 U.S. at 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (seizure of a person); State v. Hempele, 120 N.J. 182, 218-19 (1990) (seizure of property). The State bears the burden of proving that the search falls within such an exception. State v. Pineiro, 181 N.J. 13, 19 (2004).
We are satisfied that sufficient credible evidence in the record supports the trial judge's factual findings. No known connection existed between Thompson and defendant. The photograph Thompson had taken of his property was time-stamped. His disgruntlement at the assessment that the City imposed for the construction of the fence many months prior, was a detail that gave his conclusion that the fence was there when this arrest occurred, a ring of truth. Thus we see no reason to disturb the trial judge's factual conclusions. Based on those factual findings, the judge's legal conclusions are unassailable.
The standard of proof on a motion to suppress is by a preponderance of the evidence. State v. Mann, 203 N.J. 328, 337-38 (2010). Even measured against that low standard, in light of the judge's factual findings, the State's proofs fell far short of establishing the particularized, objectively-based suspicion of criminal activity needed to justify a Terry stop.