Opinion
DOCKET NO. A-0641-14T3
06-24-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HASAN A. SINGLETON, Defendant-Appellant.
John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief). William Kyle Meighan, Senior Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Chief Appellate Attorney, of counsel; Mr. Meighan, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 12-08-1608. John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief). William Kyle Meighan, Senior Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Chief Appellate Attorney, of counsel; Mr. Meighan, on the brief). PER CURIAM
Defendant Hasan Singleton appeals his conviction for third-degree possession of heroin with intent to distribute. In particular, defendant contests the Law Division judge's decision to deny a motion to suppress evidence based on an illegal search of his person. We affirm.
On August 9, 2012, defendant was indicted by an Ocean County Grand Jury and charged with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); and third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two). Defendant filed a motion to suppress the evidence uncovered during a search of his person. The hearing on the motion to suppress took place on April 10, 2013. The judge denied the motion in a written opinion on April 15, 2013. After defendant's application for entry into drug court was denied, he pled guilty to count two on May 27, 2014. On August 8, 2014, defendant was subsequently sentenced in accordance with the plea agreement to a five-year prison term with a thirty-month period of parole ineligibility, plus additional fines and penalties. This appeal followed.
We derive the relevant facts from the testimony elicited at the motion to suppress. On February 4, 2012, Brick Township Police Detective Jason Shepherd, a member of the department's Drug Enforcement Unit (DEU), received information from the Toms River Police Department to be on the lookout for Hakim Singleton (Hakim) in connection with a domestic violence incident involving a handgun. Hakim is defendant's brother. Shepherd was familiar with the Singleton family, and had been briefed regarding a gang or drug-related homicide within the family and the potential for retaliation. Shepherd proceeded to a shopping plaza near the Singleton trailer home to set up surveillance.
Within a few minutes of surveillance, a man who appeared to match the description of Hakim (later confirmed as defendant) left the trailer and began driving away in a Chevrolet vehicle. As he followed the car, Shepherd learned from dispatch that the vehicle was a rental. Shepherd requested that a marked police car pull over the vehicle in order to avoid revealing the identity of the unmarked car as a DEU vehicle. A marked car effected a motor vehicle stop in a shopping plaza. Shepherd parked his vehicle in a separate location and proceeded to the location of the stop.
Shepherd approached defendant's vehicle. Defendant produced a valid driver's license as well as the rental paperwork. Shepherd knew from prior experience that Hakim previously attempted to use a fake name during a police investigation, and was purportedly involved in gang-related drug distribution. For that reason, despite the production by defendant of the driver's license and rental agreement, Shepherd was unsure that defendant was not actually Hakim. Given his uncertainty and mindful that Hakim was a suspected drug distributor wanted in connection with a domestic violence incident involving a handgun, Shepherd requested that defendant exit the vehicle. After defendant exited the vehicle, Shepherd conducted a protective pat-down of defendant.
Brick Township Police Officer Brian Williams also received information to be on the lookout for Hakim. Williams, who was also familiar with the Singleton family, responded to the scene. When Shepherd received a telephone call from his supervisor during the pat-down, Williams resumed and completed the search. As Williams began to run his hands across the outer clothing of defendant's chest, defendant twice "pulled away" and asked why he was being patted down. Williams advised that he was checking for weapons. As defendant pulled away, Williams felt a "hard rectangular object" and inquired about the object. Defendant did not respond. Williams continued to pat down defendant's chest and with the palm of his hand felt "hard, [rectangular-shaped] objects" that were "approximately four to five inches[.]" Williams believed the object to be a weapon and unzipped the pocket of defendant's winter vest to retrieve it. The object retrieved from defendant's person was "rectangular in shape, hard packaging [in] what appeared to be pornographic material. It turned out to be heroin."
Defendant was placed under arrest. A search incident to arrest led to the recovery of another bundle of heroin in the same pocket, as well as "two more bricks" in an adjacent pocket, and $3780 in defendant's jeans.
Following his arrest, defendant was placed in the patrol car to await verification of his identity. Two officers from the Toms River Police Department arrived with a photograph of Hakim. Shepherd and the Toms River police officers attempted to compare the photograph with defendant's driver's license. Shepherd testified they could not tell the difference. Defendant's identity was not confirmed until Hakim was arrested later in the day. Williams also received identifiers from dispatch regarding Hakim, which included reference to a tattoo on Hakim's right hand. He observed that defendant did not have the referenced tattoo.
Williams testified that he was present when Hakim was being processed in connection with another arrest, where the tattoo on Hakim's right hand was noted. He denied any recollection of the tattoo at the time of defendant's arrest. He also initially wrote in his report of the February 4, 2012 incident that Hakim had previously attempted to use defendant's name as an alias, which was incorrect. In a supplemental report Williams noted that Hakim had previously attempted to use the name "David Lee" during an investigation.
In addition to Shepherd and Williams, both defendant and Hakim testified at the hearing. Hakim testified that he had never used defendant's name as an alias, never had a driver's license, and had never before been confused with defendant. Defendant testified that Shepherd performed a complete search of his person and found nothing suspicious, and that Williams never inquired whether defendant had a weapon. Defendant claimed that Shepherd asked defendant to show his tattoos before the heroin was found, and instructed Williams to perform another search but Williams began immediately removing objects from defendant's pockets rather than patting defendant down. Defendant also testified that the heroin did not feel like a weapon from outside his vest. Defense counsel elicited testimony from defendant and Hakim that they were not similar in appearance at the time of defendant's arrest.
Defendant raises the following argument on appeal:
THE COURT ERRED IN FAILING TO SUPPRESS THE HEROIN SEIZED FROM [DEFENDANT'S] POCKET BECAUSE THE COURT'S FINDING THAT [SHEPHERD] AND WILLIAMS HAD A REASONABLE BASIS TO INITIATE A PAT-DOWN FAILED TO ACCORD WITH THE RECORD. MOREOVER, THE SUBSEQUENT PAT-DOWN AND REMOVAL OF THE PACKAGE OF DRUGS FROM [DEFENDANT'S] POCKET FAILED TO MEET THE STANDARD OF A LIMITED SEARCH PURSUANT TO [TERRY V. OHIO, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)], AND THE ADDITIONAL DRUGS SUBSEQUENTLY DISCOVERED ON [DEFENDANT'S] PERSON AND IN THE RENTAL CAR MUST BE SUPPRESSED AS FRUIT OF THE INITIAL UNLAWFUL SEARCH. U.S. CONST. AMEND. IV AND XIV; [N.J. CONST. ART. I, ¶ 7].
A. THE OFFICERS LACKED A REASONABLE, ARTICULABLE BASIS TO BELIEVE THAT HASAN SINGLETON WAS ARMED AND DANGEROUS.
B. THE STATE FAILED TO DEMONSTRATE THAT WILLIAMS REMOVED THE PACKAGE ON THE BASIS OF ANYTHING BUT A MERE HUNCH, AND THAT HE HAD DISPELLED THE POSSIBILITY THAT THE PACKAGE WAS A WEAPON. THEREFORE, ALL EVIDENCE SUBSEQUENTLY DISCOVERED MUST BE SUPPRESSED AS FRUIT OF THE POISONOUS TREE.
There is nothing in the record indicating that contraband was recovered from defendant's rental car.
Our Supreme Court has recited the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress:
[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 the 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))).
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by
his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it 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" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.
[State v. Elders, 192 N.J. 224, 243-44 (2007).]
An appellate court need not give deference to a trial judge's interpretation of the law. State v. Vargas, 213 N.J. 301, 327 (2013); State v. Gandhi, 201 N.J. 161, 176 (2010); State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010) (stating that our review of the judge's legal conclusions is plenary), aff'd, 206 N.J. 39 (2011). Legal issues are reviewed de novo. Ibid. "A trial court's interpretation of the law . . . and the consequences that flow from established facts are not entitled to any special deference." State v. Lamb, 218 N.J. 300, 313 (2014).
At the conclusion of the hearing on the motion to suppress, the judge made factual findings which included that from his viewing the photographs of defendant and Hakim, they exhibited similar hair styles, facial features, and complexion. The judge also noted that while, when viewed in person, defendant and Hakim differed slightly in height and weight, in the photographs defendant and Hakim "resemble each other quite significantly[.]" The judge also observed that the tattoo on Hakim's hand was "faded" and "not . . . very visible."
In the subsequent written opinion, the judge found Shepherd and Williams to be credible witnesses, citing specifically to the consistency in their factual descriptions. Finding that Williams's testimony as to "how and why he felt defendant had a possible weapon" was "plausible, [well-founded] and trustworthy[,]" the judge concluded that the pat-down search was reasonable under the totality of the circumstances. Specifically, the judge found that "defendant was reasonably thought to be the actual suspect" because Hakim "resembled the defendant in age, weight, complexion, hair style and facial hair." Finally, the judge held that the search of defendant was "of a limited scope and the [pat-down] was carried out in a professional manner." With respect to the retrieval of the heroin, the judge held that when Williams "felt the compacted, hard[,] four to five inch object that had an edge to it[,] he thought and was justified in thinking it was a gun."
The judge found that defendant's testimony lacked credibility. No finding was made as to Hakim's credibility. --------
The Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution guarantee the right "of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures[.]" U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. The Fourth Amendment and Article 1, paragraph 7 of the New Jersey Constitution both "require[] the approval of an impartial judicial officer based on probable cause before most searches may be undertaken." State v. Patino, 83 N.J. 1, 7 (1980).
Warrantless searches are presumed invalid. State v. Gamble, 218 N.J. 412, 425 (2014); State v. Cooke, 163 N.J. 657, 664 (2000). "Any warrantless search is prima facie invalid, and the invalidity may be overcome only if the search falls within one of the specific exceptions created by the United States Supreme Court." State v. Hill, 115 N.J. 169, 173 (1989) (citing Patino, supra, 83 N.J. at 7). The State carries the burden of proving the existence of an exception by a preponderance of the evidence. State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009).
One exception, based upon Terry, is "the right of a police officer to conduct a brief, investigatory stop . . . ." State v. Morrison, 322 N.J. Super. 147, 151-52 (1999). "There must be 'some objective manifestation that the suspect was or is involved in criminal activity'" in order for a Terry stop to be considered valid. State v. Arthur, 149 N.J. 1, 8 (1997) (quoting State v. Thomas, 110 N.J. 673, 678 (1988)). In determining whether the investigative detention was justified under this reasonable suspicion standard, "a court must consider the 'totality of the circumstances - the whole picture.'" State v. Stovall, 170 N.J. 346, 361 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)).
Once stopped, the "officer may conduct a reasonable search for weapons if he [or she] is 'justified in believing that the individual whose suspicious behavior he [or she] is investigating at close range is armed and presently dangerous to the officer or to others.'" State v. Richards, 351 N.J. Super. 289, 299 (App. Div. 2002) (quoting Terry, supra, 392 U.S. at 24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 908).
A Terry stop and frisk are two separate constitutional events. Thomas, supra, 110 N.J. at 678-79 (explaining that "[u]nder the Terry rule, whether there is good cause for an officer to make a protective search incident to an investigatory stop is a question separate from whether it was permissible to stop the suspect in the first place."). A Terry search allows an officer "to pat down a citizen's outer clothing when the officer 'has reason to believe that he [or she] is dealing with an armed and dangerous individual, regardless of whether he [or she] has probable cause to arrest the individual for a crime.'" State v. Nishina, 175 N.J. 502, 514-15 (2003) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909).
The reasonableness of a Terry search is measured objectively. Thomas, supra, 110 N.J. at 679. The officer conducting the search must "point to particular facts from which he [or she] reasonably inferred that the individual was armed and dangerous." Ibid. (quoting Sibron v. New York, 392 U.S. 40, 64, 88 S. Ct. 1889, 1903, 20 L. Ed. 2d 917, 935 (1968)). "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger." Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909. Like reasonable suspicion to stop, the existence of reasonable suspicion to frisk "is based on the totality of the circumstances." State v. Roach, 172 N.J. 19, 27 (2002); see also State v. Bard, ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 10). "[D]ue weight must be given" to the detective's experience. See State v. Valentine, 134 N.J. 536, 543, 547-48 (1994) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909).
In the context of searching for narcotics, the United States Supreme Court explained that "[n]othing in Terry can be understood to allow a generalized 'cursory search for weapons' or, indeed, any search whatever for anything but weapons." Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S. Ct. 338, 343, 62 L. Ed. 2d 238, 247 (1979).
We conclude that the pat-down search of defendant was justified. Shepherd credibly testified that based upon his knowledge of Hakim's previous use of a fictitious name, he was uncertain of the true identity of defendant at the time of the stop. Williams testified that he had little interaction with Hakim when Hakim was previously detained. Moreover, the judge concluded that defendant and Hakim had similar physical characteristics, and that the distinguishing tattoo on Hakim's hand was faded. We defer to the judge's factual and credibility findings. State v. Handy, 206 N.J. 39, 44 (2011). In light of that deference, we conclude the pat-down of defendant was reasonable under the totality of the circumstances.
Hakim was wanted in connection with a domestic violence incident involving a handgun. Hakim was also known by the investigating officers for his involvement in gang-related drug activity. Shepherd was aware that a Singleton family member had recently been murdered and there was potential for additional violence. The officers also had a familiarity with Hakim's past attempt to use a fictitious alias during a criminal investigation. Given the above, when combined with defendant's resemblance to his brother, the police reasonably believed defendant might have been Hakim, a potentially armed and dangerous individual, and that a pat-down was necessary to ensure officer safety. Thus, we conclude the totality of the factors relied upon by Shepherd "reasonably" led him to "[infer] that" defendant "was armed and dangerous." Thomas, supra, 110 N.J. at 679. Although Shepherd and Williams were mistaken in their suspicion that defendant was Hakim, "the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger." Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909.
With respect to Williams's recovery of the heroin, we have upheld a search and seizure on "plain feel" grounds in the context of a lawful pat-down search. State v. Toth, 321 N.J. Super. 609, 614-16 (App. Div. 1999), certif. denied, 165 N.J. 531 (2000). The seizure is justified for the same reasons that support a plain view seizure. Id. at 615. "The protective search 'must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.'" State v. Jackson, 276 N.J. Super. 626, 629 (App. Div. 1994) (quoting Terry, supra, 392 U.S. at 29, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911).
Accordingly, if a police officer conducts a pat-down search of an individual and determines an object in the clothing of the individual that the officer does not recognize as a weapon, nor identify as contraband, any nonthreatening contraband seized may not be used against the individual in a criminal prosecution. Jackson, supra, 276 N.J. Super. at 630. However:
"If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical consideration that inhere in the plain view context."
[Jackson, supra, 276 N.J. Super. at 630-31 (emphasis omitted) (quoting Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 2137, 124 L. Ed. 2d 334, 346 (1993)).]
Here, in conducting the pat-down, which defendant twice attempted to evade, Williams identified a "hard" and "rectangular" object in defendant's vest. Williams testified on direct examination by the State that he suspected the object might have been a weapon:
Q: During this [pat-down] did you feel any objects or anything?It is also noteworthy that Williams's suspicion that the "sleeve" or "bundle" of heroin he recovered was a weapon was corroborated by Shepherd's testimony on direct examination:
A: I did, in that general vicinity what I touched as he pulled away, I felt a hard rectangular object.
Q: Can you describe what you felt?
A: Using the palm of my hand as I patted him down on this area, it was approximately four to five inches, roughly, give or take, hard, rectangular shape objects.
Q: Did you manipulate this object?
A: No, I did not.
Q: Once you felt the objects did you — what did you fear that it could be or that it was?
A: With his demeanor, his nervousness, and the fact that he pulled away, and the fact that we were looking for a weapon, I reasonably believed that it was indeed a weapon.
Q: And were you able to handle the object?
A: I was.
Q: And can you explain how it felt?
A: Bricks are fairly hard, not as hard as wood, but again they're compacted heroin bags. They're tightly wound in tape, elastic bands, and then wrapped again usually. So they are fairly hard. They're not very soft due to the tightness of the packaging, how they're packaged. So —
Q: And was this package tightly taped and wrapped, as well?
A: It was. It was wrapped like bricks are normally wrapped. I've seen bricks, I've seen sleeves, and this packaging was similar to the bricks and sleeves I've seen in the past.
The judge held that Williams's testimony was credible in that he reasonably believed, given the attendant circumstances, that the object was a weapon; a holding to which we defer absent a clear mistake in the record. Handy, supra, 206 N.J. at 44; Johnson, supra, 42 N.J. at 161. While the contraband turned out to be heroin rather than a weapon, the police were authorized to seize any contraband they discovered during the course of a protective frisk. Toth, supra, 321 N.J. Super. at 614; Dickerson, supra, 508 U.S. at 375-76, 113 S. Ct. at 2137, 124 L. Ed. 2d at 346.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION