Opinion
DOCKET NO. A-5731-12T3
05-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY COLEMAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa A. Aiello, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 12-04-00285. Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa A. Aiello, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief). PER CURIAM
After the denial of his motion to suppress evidence, defendant Gregory Coleman pled guilty to second-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b)(1). On appeal, defendant contends that the stop and pat- down search of his person was not supported by reasonable and articulable suspicion that he was armed with a gun. We have considered the argument in light of the record and the applicable law. We affirm.
According to the police report, sometime prior to 5:00 p.m. on December 31, 2011, Paterson Police Officers Condon and Borrero were dispatched to the area of Rosa Parks Boulevard and Warren Street in response to an anonymous caller reporting a black male wearing a beige jacket, red scarf on his head, and blue jeans, shooting a gun into the air.
For purposes of the suppression motion below, the parties stipulated to the facts contained in Officers Condon's and Borrero's police report written the night of the incident. No witnesses testified.
The officers canvassed the area for a suspect matching the description, and observed defendant standing in front of a building about three blocks away. As the officers approached defendant, he turned to walk away and moved his right hand toward his waistband area to press or hold an unidentified item. At this point, the officers stopped defendant, and informed him that he matched the description of a man with a handgun. As the officers spoke to defendant, they detected a strong odor of alcohol coming from defendant, and noticed that he appeared very nervous. The officers conducted a pat-down search of defendant and felt a hard object located in the front waistband, consistent with the location of a handgun. The officers removed the item, which was in fact a handgun, rendered the gun safe, and arrested defendant. Later, different officers conducted a search of the area for empty shell casings or potential victims; none were found. Defendant later admitted that he did not have a permit to carry the firearm.
A grand jury subsequently indicted defendant for second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b)(1), and second degree possession of a firearm by persons not to have a firearm, N.J.S.A. 2C:39-7(b). In a pre-trial motion, defendant moved to suppress the handgun obtained during the stop. After a hearing, the court denied the motion to suppress, finding that the totality of the circumstances created reasonable articulable suspicion supporting a stop of defendant. The judge emphasized that the area was known as a high crime area, and also that defendant walked away, used his hand to press or hold something in his waistband, and acted nervously during the stop.
As previously stated, after the denial of the motion to suppress, defendant pled guilty to unlawful possession of a firearm. The trial court sentenced defendant to five years in prison with three years of parole ineligibility. This appeal followed.
We begin with our standard of review. Our review of a trial judge's decision on a suppression motion is deferential. State v. Robinson, 200 N.J. 1, 15 (2009). We "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. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks and citations omitted). On the other hand, appellate review of the trial court's legal conclusions is plenary; we need not defer to the trial court's decisions when a question of law is at stake. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). Additionally, where the trial court's sole basis for its findings and conclusions is its evaluation of a written police report that is not dependent on testimony or credibility evaluations, deference to the trial court is not required. State v. Diaz-Bridges, 208 N.J. 544, 565 (2012).
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV. "Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004). An investigative stop or detention of a person is a seizure that "implicates our constitutional protections." State v. Mann, 203 N.J. 328, 337 (2010). The State bears the burden of establishing that a search "'falls within one of the few well-delineated exceptions to the warrant requirement.'" Pineiro, supra, 181 N.J. at 19 (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).
One such narrowly-drawn exception to the warrant requirement is an investigatory stop as recognized in Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 905-06 (1968). "An investigatory police stop, sometimes referred to as a Terry stop, is permissible '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.'" State v. Shaw, 213 N.J. 398, 410 (2012) (quoting Pineiro, supra, 181 N.J. at 20). The standard for a brief investigatory stop "is less than the probable cause showing necessary to justify an arrest." Ibid.
During an investigatory stop, a police officer may conduct a protective search, also known as a pat-down or frisk, "where he has reason to believe that he is dealing with an armed and dangerous individual . . . ." Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909. The test is an objective one: would "a reasonably prudent man [or woman] in the circumstances . . . be warranted in the belief that his [or her] safety or that of others was in danger[?]" Ibid. "[W]hether there is good cause under Terry for an officer to make a protective search incident to an investigatory stop is a question separate from whether it is permissible to stop the suspect in the first place." State v. Lund, 119 N.J. 35, 45 (1990).
The determination of whether an officer had reasonable suspicion to conduct a brief investigatory stop is fact-sensitive and requires an evaluation of the "totality of the circumstances[.]" Pineiro, supra, 181 N.J. at 22. "Unless the totality of the circumstances satisfies the reasonable and articulable suspicion standard, the investigatory stop 'is an unlawful seizure, and evidence discovered during the course of an unconstitutional detention is subject to the exclusionary rule.'" Mann, supra, 203 N.J. at 339 (quoting Elders, supra, 192 N.J. at 247).
"An officer's experience and knowledge are factors courts should consider in applying the totality of the circumstances test." Pineiro, supra, 181 N.J. at 22 (citing State v. Davis, 104 N.J. 490, 504 (1986)). "However, an officer's hunch or subjective good faith — even if correct in the end — cannot justify an investigatory stop or detention." Shaw, supra, 213 N.J. at 411 (citing State v. Arthur, 149 N.J. 1, 8 (1997)). Courts can consider, as one of a number of suspicious circumstances, a defendant's presence in a high crime area. Pineiro, supra, 181 N.J. at 26. Flight may also be considered as evidence of consciousness of guilt. Ibid. See also State v. Tucker, 136 N.J. 158, 169 (1994). Moreover, "the fact that a suspect's behavior may be consistent with innocent behavior does not control the analysis." Mann, supra, 203 N.J. at 338.
An officer is permitted to use information that he or she did not obtain first hand in determining whether to restrict an individual's liberty. Illinois v. Gates, 462 U.S. 213, 237, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). When evaluating information from a non-police source, information on veracity and reliability is part of the totality of the circumstances analysis of the overall determination of probable cause or reasonable suspicion. Id. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548; State v. Zutic, 155 N.J. 103, 110 (1998) (applying Gates to a warrantless search).
Anonymous tips are given less weight in establishing suspicion than tips given by an individual who provides his or her name. State v. Rodriguez, 172 N.J. 117, 127 (2002). "To justify action based on an anonymous tip, the police in the typical case must verify that the tip is reliable by some independent corroborative effort." Ibid. This is true even in the case of tips that someone is carrying a firearm, as there is no "man with a gun" exception to the corroboration requirement. Florida v. J.L., 529 U.S. 266, 271-72, 120 S. Ct. 1375, 1379, 146 L. Ed. 2d 254, 260 (2000); State v. Richards, 351 N.J. Super. 289, 300-01 (App. Div. 2002).
We note that while recent cases have given enhanced credibility to calls placed on the "9-1-1" system, State v. Gamble, 218, N.J. 412, 429 (2014), the police report says that the police received a "dispatch" about the shooter and the State did not produce evidence that this information came through the "9-1-1" system. Consequently, we will assume that the call was not placed on the "9-1-1" system.
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That said, we are mindful that law enforcement officers must make split decisions that are fraught with serious consequences. Richards, supra, 351 N.J. Super. at 306 (2002). "[A]nonymous-tip gun and drug cases, especially gun cases, are close and difficult, waffling about in a 'no-man's land' of nuances." Ibid. (quoting State v. Goree, 327 N.J. Super. 227, 244 (App. Div. 2000)) (internal quotations omitted).
We are convinced that under the totality of the circumstances here, the stop and frisk of defendant was reasonable. Police were responding to a call about a man firing a gun in the air in a high crime area. When they arrived, they found a man matching the reported physical description, standing in front of a building about three blocks away from the described location. As they approached, he walked away and moved his hand toward his waistband, appearing to press and hold an object. Here, the nearby location, defendant's appearance matching the dispatch report, and defendant's conduct upon police arrival sufficiently corroborated the anonymous report about a man firing a gun into the air. Consequently, the officers had a reasonable articulable suspicion that they were dealing with an armed and dangerous individual and the weapon was seized during a permissible investigatory stop and frisk. See Shaw, supra, 213 N.J. at 410.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION