Opinion
DOCKET NO. A-1080-11T2
03-21-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JASPER MOSS, III, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nicols, Assistant Deputy Public Defender, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Harris.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-09-0848.
Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nicols, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief). PER CURIAM
After losing a motion to suppress evidence of a handgun that he tossed from the waistband area of his trousers while a police officer was approaching him, defendant Jasper Moss, III pled guilty to second-degree possession of weapon, N.J.S.A. 2C:39-5(b). After being sentenced to the terms of the plea arrangement — five years of imprisonment with a three-year parole disqualifier — Moss appeals from the April 21, 2011 judgment of conviction. We affirm.
I.
A.
We glean the following facts from the record of the motion to suppress. On May 9, 2009, Plainfield Police Officer Shayne Lugo and Detective Joseph Mulligan were traveling in an unmarked police car in, as Lugo described it, "[t]he 1300 block of West Third Street[, which] is a high crime, high narcotic area where we receive numerous calls for service from citizens reporting narcotics activities, weapons, shots fired, fights, gang activity." Lugo and Mulligan were each attired in "a modified police uniform" consisting of "[j]eans and tee shirt with police markings and badge hanging around my neck."
At approximately 6:24 p.m., while daylight persisted, Lugo observed three individuals "walking from the east westbound on the south side of West Third Street." One of the individuals was Moss, who Lugo knew from prior contact, and who had "prior arrests in Plainfield." As the police vehicle approached, "Moss stopped in his tracks as if he [were] startled. He then — his right hand then went directly to his waistband." Lugo testified, "[b]ased on my training, education, and experience it's normal for individuals who are attempting to conceal contraband and/or weapons they usually indicate on their body when they're very nervous of where the item is."
From a distance of approximately five to ten feet, Lugo conversationally asked Moss if he would speak with him. Moss replied that he did not want to speak with the police officer. Lugo asked the same question again, while Moss "began backing . . . up towards the door" of a single family residence "with his . . . right hand still on the waist area."
Lugo exited his vehicle just as Moss reached the door. Lugo observed that Moss "still had his right hand on his waist area, and grabbed the door handle of the enclosed porch door and began opening the door on the porch." Lugo walked after Moss, and "as [Moss] noticed [Lugo] coming towards him he slammed the door open and because . . . the door was broken and it had no spring for it to retract [so] the door remained open."
As Moss entered the porch, Lugo ran up to the open door and observed Moss "reaching to his waistband area. He retrieved a handgun and threw the handgun on the floor." Lugo "then entered the porch [and] detained [Moss] because [Lugo] knew it was a weapon." Placing Moss under arrest, Lugo "retrieved the firearm which had ten live rounds of ammunition in it with a chambered round." According to Lugo, the entire event took approximately one minute from start to finish.
B.
After completing the testimonial phase of the motion to suppress, the motion judge heard the arguments of counsel. Several weeks later, the judge rendered an oral opinion denying Moss's motion. The judge initially found that Lugo "is one of the most honest witnesses this court has ever evaluated. He was straightforward. His demeanor was such that there was no way that there was any spread of untruth in his testimony."
The judge concluded that Lugo's initial conversation with Moss was merely a "field inquiry," which escalated to a "Terry[] stop." The judge found the following:
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
The action of the startled defendant who was walking in a crime-ridden area to abruptly come to a dead stop and leave his companions after seeing the police vehicle and walked in the opposite direction from that in which he had been walking and grab his waistband was suspicious.
[Lugo], an experienced officer, has responded to calls in that area over 200 times was justified in feeling the heightened suspicion under those circumstances to justify his desire . . . for further investigation.
The judge reasoned that once Moss saw Lugo running toward him, "[s]uch action constituted a stop." The judge found that Lugo had "a reasonable, articulable basis for stopping [Moss]." This was the product of Lugo's contemporaneous observations of Moss, together with his past contact with Moss, which presented the officer "with a specific and particularized reason to believe that the suspect is armed." According to the judge, "[t]he most telling action was [Moss's] reaching for his waistband." He further relied upon "[Lugo's] statement that he found his training and education and experience that [such conduct] was 'normal for individual[s] who are attempting to conceal contraband and/or weapons.'"
Lastly, the judge determined that the recovery of the handgun was proper. He concluded that Moss had either (1) abandoned the weapon when it was dropped or flung to the floor of the porch, or (2) Lugo was justified in seizing it when he observed it in plain view. Although not a basis for the judge's decision, he also remarked that even if the handgun had not been discarded by Moss, it "would have inevitably been found by [Lugo] once he frisked [Moss]." Consequently, the motion was denied.
On appeal, Moss presents the following issues for our consideration:
POINT I: BECAUSE THE POLICE LACKED REASONABLE ARTICULABLE SUSPICION TO STOP DEFENDANT, THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS EVIDENCE SUBSEQUENTLY DROPPED BY DEFENDANT IN HIS HOME.We do not consider these arguments persuasive, and accordingly, we affirm.
POINT II: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED FROM DEFENDANT'S HOME WITHOUT A WARRANT AS THE FACTS OF THIS CASE DO NOT MEET ANY EXCEPTIONS TO THE WARRANT REQUIREMENT.
POINT III: THE TRIAL COURT ERRED IN ITS ASSESSMENT OF AGGRAVATING FACTORS AND ITS FAILURE TO FIND MITIGATING FACTORS IN THE RECORD AND THEREFORE THE MATTER MUST BE REMANDED FOR RESENTENCING.
II.
A.
Our consideration of the Law Division's fact-finding on a motion to suppress as follows:
[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. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of theOur review of the motion judge's legal conclusions is plenary. State v. Mann, 203 N.J. 328, 337 (2010).
motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, [164] (1964))).
[State v. Elders, 192 N.J. 224, 243-44 (2007).]
B.
The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect against "unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "A seizure occurs if, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.'" State v. Sloane, 193 N.J. 423, 429 (2008) (quoting State v. Stovall, 170 N.J. 346, 355 (2002) (alteration in the original)).
The least intrusive police encounter is a field inquiry, and occurs when a police officer approaches an individual and asks if the person is willing to answer questions. State v. Pineiro, 181 N.J. 13, 20 (2004). A field inquiry may be conducted with grounds for suspicion without violating either the federal or the state constitution. State v. Rodriguez, 172 N.J. 117, 126 (2002). If the officers do not prohibit an individual's right to move, the inquiry does not amount to detention. State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973).
On the other hand, an investigatory stop, often referred to as a Terry stop, or a stop-and-frisk, is more intrusive and valid only 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. Pineiro, supra, 181 N.J. at 20. The suspicion necessary to conduct a lawful Terry stop "need not rise to the probable cause necessary to justify an arrest." Ibid. (internal quotation marks omitted). However, "[u]nless 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).
Moss argues that no combination of the facts in this case satisfies the Terry test, which would have permitted Lugo to attempt to engage in a narrowly drawn, reasonably limited search for weapons for the police officer's protection. We disagree.
After Moss refused to speak with Lugo, continued to clutch his waistband, and began nervously retreating, Lugo was justified in acting upon a reasonable and articulable suspicion that Moss was engaged in criminal activity. The encounter occurred in dangerous surroundings. Moss acted startled, and separated himself from his companions. Lugo was trained to pay close attention to persons unusually clutching parts of their body or locations in their garments where contraband or weapons are secreted. By continuing his grasp on his waistband, Moss invited the heightened attention that Lugo was giving to him, which culminated in Lugo's attempt to detain Moss. As in State v. Privott, 203 N.J. 16, 28 (2010), "[d]efendant appeared nervous, walked away from the officer, and moved one hand towards his waistband. From his extensive experience in the field, the officer was aware that the waistband is an area commonly used by armed persons to conceal a weapon." Ibid. Based on the totality of the circumstances, we conclude that there were specific and particularized reasons for Lugo to conduct an investigatory stop-and-frisk.
C.
We next turn to Moss's claim that the Law Division's analysis of the actual seizure of the weapon was flawed. Specifically, Moss argues that his "divest[ment] . . . of the evidence [while he was in his own home], . . . in no way suggested a desire not to retrieve the evidence." He also contends that any exigency was police-created, and "[b]ecause Lugo had no excuse for detaining or pursuing [Moss], the State cannot rely on the 'plain view' exception to the warrant rule to justify the seizure of the gun on the porch." We cannot agree with any of Moss's arguments.
Seconds before the handgun actually appeared, Lugo was attempting to conduct an investigatory stop. He was neither attempting to arrest Moss nor do anything beyond the restricted contours of such a stop-and-frisk. He was legitimately approaching Moss's porch when Moss did something unexpected: he discarded the handgun in plain view of Lugo. That this may have occurred within the confines of Moss's home does not defeat the plain view doctrine. Even if, arguably, Lugo may have needed a warrant to actually step across the threshold absent any tangible sign of the handgun, Moss's tossing of the handgun to the floor of the exposed porch was not something that Lugo could ignore.
A police officer may seize evidence in plain view without a warrant if the officer is "lawfully . . . in the viewing area," he discovers the evidence inadvertently, and it is immediately apparent the object viewed is "evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002). Applying these principles, we conclude that Lugo was authorized to seize the handgun. There is no contest that the weapon was visible (in plain view) to Lugo and it was immediately apparent that it was evidence of a crime and subject to his seizure. Moreover, Lugo was lawfully in the viewing area and discovered the handgun inadvertently, that is, he had no advance knowledge of its specific location. See State v. Damplias, 282 N.J. Super. 471, 478-79 (App. Div. 1995) (stating that inadvertence requirement is intended "to prevent the police from engaging in planned warrantless searches, where they know in advance the location of certain evidence and intend to seize it, relying on the 'plain view' exception as a pretext"), certif. denied, 154 N.J. 607 (1998). Moss's lack-of-abandonment and absence-of-exigency arguments are moot in light of the superseding validity of Lugo's seizure of the handgun pursuant to the plain view exception to the warrant requirement.
D.
Moss's final contention relates to the sentence imposed by the Law Division. For the crime of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), the court sentenced Moss to five years incarceration with three years of parole ineligibility in accordance with the plea arrangement. We discern no basis to intervene.
Appellate review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the Law Division are supported by competent, credible evidence in the record. State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).
The record supports aggravating factors three, six, and nine, as well as the conclusion that those aggravating factors "outweigh[ed] the non-existent mitigating factors." The Law Division applied the correct legal principles in sentencing Moss, and the low-range sentence for a second-degree crime does not shock our judicial conscience.
N.J.S.A. 2C:44-1(a)(3) (the risk defendant will commit another offense); -1(a)(6) (the extent of defendant's prior criminal history); -1(a)(9) (the need to deter defendant and others from violating the law).
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION