Opinion
DOCKET NO. A-5716-08T1 DOCKET NO. A-0402-09T1
04-10-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ABDUL HAKIM TILLERY, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. JASON TOLEDO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellants Abdul Tillery and Jason Toledo (Alison Perrone, Designated Counsel, on the brief in A-5716-08T1 and Philip Lago, Designated Counsel, on the brief in A-0402-09T1). Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief in A-5716-08T1 and Matheu D. Nunn, Assistant Prosecutor, on the brief in A-0402-09T1).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 07-09-1278.
Joseph E. Krakora, Public Defender, attorney for appellants Abdul Tillery and Jason Toledo (Alison Perrone, Designated Counsel, on the brief in A-5716-08T1 and Philip Lago, Designated Counsel, on the brief in A-0402-09T1).
Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief in A-5716-08T1 and Matheu D. Nunn, Assistant Prosecutor, on the brief in A-0402-09T1). PER CURIAM
These appeals, calendared back-to-back, are consolidated for purposes of our opinion. Codefendants Abdul Tillery and Jason Toledo were charged along with Jessica Hagmeyer and Marshall Downey, in connection with the armed robbery of a gas station. Prior to trial, codefendants jointly moved to suppress the physical evidence obtained during the warrantless search of the vehicle driven by Hagmeyer, in which codefendants were rear seat passengers. Codefendants challenged the legality of the initial stop as well as the subsequent search. Following a two-day hearing, the joint motion to suppress was denied. Thereafter, codefendants separately entered retraxit guilty pleas to armed robbery, Rule 3:5-7(d) (stating denials of motions to suppress may be reviewed on appeal notwithstanding entry of a guilty plea); State v. Greeley, 178 N.J. 38, 50-51 (2003) (holding motions to suppress an unlawful search and seizure survive the entry of a guilty plea), in exchange for the State's recommendation of an eight-year sentence subject to the 85% period of parole ineligibility set forth in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a five-year period of parole supervision upon release. Codefendants were sentenced in accordance with the terms of their respective plea agreements and the court imposed applicable fines, determined respective jail credits, and dismissed the remaining counts of the indictment.
Defendant Tillery was incorrectly designated as "Tillary" throughout the record.
In Indictment No. 07-09-1278, codefendants were charged with armed robbery, N.J.S.A. 2C:15-1(a)(2) (count one), and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(1) (count two). Also, Toledo was charged with fourth-degree unlawful possession of an imitation firearm, N.J.S.A. 2C:39-4(e) (count three), and Tillery was charged with second-degree possession of a weapon for an unlawful purposes, N.J.S.A. 2C:39-4(a) (count four). In a separate indictment, Walter Richard Khal, III, who provided the weapons to Toledo and Tillery, pleaded guilty to possession of an imitation firearm in the fourth-degree.
Tillery appealed from his conviction on July 21, 2009, raising these issues for our consideration:
POINT ONE
THE EVIDENCE RECOVERED FROM THE CAR MUST BE SUPPRESSED BECAUSE THE POLICE DID NOT HAVE REASONABLE ARTICULABLE SUSPICION TO STOP THE CAR.
POINT TWO
EVEN IF THE INITIAL STOP HAD BEEN BASED ON REASONABLE ARTICULABLE SUSPICION, THE STOP QUICKLY TRANSFORMED INTO A DE-FACTO ARREST, REQUIRING PROBABLE CAUSE.
On September 14, 2009, Toledo appealed from his conviction and the sentence imposed, asserting:
POINT IBecause the appeals challenge the trial court's determinations during a common suppression hearing, we calendared the matters back-to-back.
THE TRIAL COURT ERRED IN DENYING THE SUPPRESSION MOTION. THEREFORE, THE JUDGMENT OF CONVICTION MUST BE REVERSED AND THE GUILTY PLEA MUST BE VACATED.
A. THERE WAS NO REASONABLE, ARTICULABLE SUSPICION JUSTIFYING THE STOP OF DEFENDANTS' VEHICLE.
B. THE ACTIONS OF CPL. HILL FOLLOWING THE STOP OF THE VEHICLE AMOUNTED TO AN UNCONSTITUTIONAL ARREST.
C. THE SEIZURE OF THE FIRST IMITATION HANDGUN FROM THE VEHICLE WAS UNCONSTITUTIONAL.
D. THE SEIZURE OF THE SECOND IMITATION HANDGUN AND THE BANDANA FROM THE VEHICLE WAS UNCONSTITUTIONAL.
POINT II
THIS MATTER SHOULD BE REMANDED FOR RE-SENTENCING BECAUSE THE SENTENCE IMPOSED IS EXCESSIVE.
POINT III
THIS MATTER SHOULD BE REMANDED FOR RE-SENTENCING BECAUSE THE SENTENCING COURT IMPOSED DISPARATE SENTENCES ON DEFENDANT AND HIS CODEFENDANTS.
We have reviewed each of the arguments presented on appeal and considered them in light of the record and applicable law. We affirm.
I.
To aid our review of codefendants' individual challenges to the denial of the suppression motion, we recite the facts taken from the State's evidence presented during the August 11 and 12, 2008 suppression hearing.
On Saturday, August 5, 2006, at 4:30 a.m., East Hanover Police Department (EHPD) Patrol Officer Brian Grawehr received a report of an armed robbery and was dispatched to an Exxon gasoline station in East Hanover on the eastbound side of Route 10. Officer Grawehr entered the gas station and encountered customers, a gas station attendant named Wasim, who had called the police, and Downey, who asserted that while a customer in the gas station store he was victimized in the robbery. Downey explained "two black males armed with handguns" had robbed the gas station, ran to the intersection of Mt. Pleasant Avenue (which becomes Route 10) and River Road, heading east toward Livingston. Downey provided a physical description of the alleged perpetrators, which was corroborated by Wasim, stating:
The first suspect was a black male about five-eight, wearing a white tank top, blue jeans, boots, and had some kind of a
printed cloth on his head, and a [bandana] covering his face.
. . . .
The second suspect was a black male about five-eight, a black shirt with some type of writing on it, Air Force One sneakers, a dark [bandana] on his face, and some other type of cloth on his head.
. . . .
The one suspect had a silver handgun and the other one had a black handgun.
Officer Grawehr advised two other EHPD officers who had responded to the dispatch call and the police left the gas station in search of the fleeing suspects. Officer Grawehr radioed Livingston police headquarters, relaying "a description of what happened and the suspects." After circling the immediate area without success, Officer Grawehr returned to the gas station and began to secure evidence and interview victims.
Within "minutes," Officer Grawehr received a call notifying him the Livingston police "had a car stopped on the side of the road . . . [and] the occupants matched the [suspects'] description[s.]" The stop occurred approximately one and one quarter miles from the gas station.
At this time, Downey explained to Grawehr he and his coworkers had stopped at the Exxon gas station to purchase cigarettes and use the restroom. His coworkers, a white female and two black males, one of whom was named "Jason Toledo," left the store while the robbery was in progress.
In Livingston, Corporal Glen Hill, a thirty-two year veteran of the Livingston Police Department, after hearing the radio description that an armed robbery of a nearby gas station was committed by two armed African-American males, headed west toward East Hanover. Within two minutes of receiving the broadcast, he entered the "Livingston Circle," a traffic circle on Route 10, and observed a lone vehicle cross immediately in front of him. The car contained "a female in the driver's seat and two African-American men in the rear seat[.]" Corporal Hill thought the configuration of the vehicle's occupants "didn't make sense," finding it odd "that this woman is driving and there's two men in the back seat[.]" Corporal Hill's suspicions were further raised because there were no other vehicles on the road at the early hour and this particular vehicle was coming from the direction of the gas station, heading toward Interstate Highway 280.
Based upon those facts, Corporal Hill effectuated a motor vehicle stop at approximately 4:35 a.m. He admitted he was not sure if he had pulled over the gas station robbery suspects, but detained the occupants until an EHPD officer arrived.
Corporal Hill's police car video camera recorded the stop, beginning at 3:26 a.m. and ending at 4:04 a.m., a total of thirty eight minutes. Corporal Hill explained the error, as the time stamp on the video recorder had not been reset for daylight savings time, therefore reflecting the time as an hour earlier then the actual time.
Corporal Hill's stop was also broadcast over the police band and police from three surrounding municipalities responded to the scene, including Officer Francis Franco of the EHPD, who brought Wasim to possibly identify the suspects; Officer Nicholas Collins of the Livingston Police Department; and Officer Raymond Boulard of the Roseland Police Department.
Officer Franco testified Wasim was not requested to identify the suspects "due to officer safety," resulting from the unfolding events as "things happened so quickly that the identification wasn't needed[.]"
Once Franco arrived, Corporal Hill approached the driver's side of the vehicle, ordered the driver to turn off the car, drop the keys outside the car window, and told the occupants to keep their hands raised. During the stop, the three suspects were cooperative, compliant, and calm; they made no furtive or suspicious movements. Corporal Hill asked Hagmeyer to exit the vehicle. He then allowed the other officers to remove the two men from the back seat, question them, and effectuate any arrests or searches.
During the stop, Officer Franco was speaking with Officer Grawehr by telephone. He was given the name of "Jason Toledo," which Downey had identified as a coworker, who left the gas station in fear, during the robbery. Officer Franco approached the suspects, inquired as to their identity, and Toledo responded by giving his name. However, when questioned by Officer Franco, Toledo "stated he did not know a Marshall Downey" and insisted he had not been at the gas station. Officer Franco also noticed Toledo's demeanor changed during this exchange as "he became a little more fidgety . . . [a] little nervous." Officer Franco related to Officer Grawehr that Toledo denied knowing Downey. He then requested Toledo exit the vehicle and walk to its rear so he could inquire further. According to the dashboard video recorder, this occurred at 3:45 a.m.
Back at the gas station, Downey overheard Officer Grawehr's conversation with Officer Franco regarding Toledo's denial that he knew Downey. Officer Grawehr observed Downey's "body language totally changed. He got nervous. He got skittish. [Officer Grawehr] thought [Downey] was going to take off." At that point, Officer Grawehr "suspected [Downey] of being one of the perpetrators" of the robbery and arrested him.
While Officer Franco was speaking to Toledo, Officer Collins removed Tillery from the vehicle, with Officer Boulard's assistance. As Tillery stepped from the vehicle, Officer Boulard, who held a flashlight, noticed Tillery's "body motion" included some movement "[m]aybe towards his center of his body, or his legs . . . that would not be consistent with somebody just exiting the rear of a vehicle." Tillery's "body movements" drew Officer Boulard's attention to "what appeared to be a . . . black handle of a handgun, covered with a bunch of debris surrounding it" located under the driver's seat at the foot of the rear driver's side passenger seat. Officer Boulard whispered to Officer Collins that he saw a gun in the vehicle. Officer Boulard then placed Tillery in handcuffs on the ground and Officer Collins yelled "gun." Collins secured the weapon, which turned out to be a silver BB gun with a black handle. Officer Franco ordered Toledo to the ground and, believing this new evidence linked the suspects to the robbery, "instructed the other officers at the scene . . . [to] separate the individuals and begin an investigation[.]"
The three suspects were placed in three separate police cruisers. Officer Boulard returned to the suspects' vehicle, where he "noticed a piece of . . . bandan[]a like material hanging out of the center console of the car." He recalled the description of the suspects included that they were wearing bandanas and he removed the object, which was a black bandana. Collins also looked in the vehicle and saw a black handgun under the front passenger seat; this too was a BB gun.
The trial judge evaluated the testimony of the State's witnesses, Officers Grawehr, Franco, Collins, Boulard, and Corporal Hill, and considered the dashboard video recording and the physical evidence seized by police. In his oral opinion entered on January 13, 2009, he crediting the police officers' testimony, and found events happened "very, very quickly, and the record should be clear that . . . in time sequence, this is not hours taking place. This is rapid minutes."
The trial judge concluded Corporal Hill's initial stop, the discovery of the first gun, the subsequent warrantless search discovering the bandana, and the second search recovering the second handgun were valid. Accordingly, the court denied codefendants' request to suppress the evidence.
II.
Codefendants argue the initial stop of the vehicle and all subsequent stages of the investigation, including the searches, were unconstitutional. Consequently, they maintain the trial court erred in refusing to suppress the evidence.
We first state the well-defined standards governing our review of a trial court's denial of a motion to suppress evidence. We next review the legal principles circumscribing warrantless searches and seizures.
A.
In our limited review of a determination of a motion to suppress evidence, State v. Handy, 206 N.J. 39, 44 (2011), we consider the trial court's underlying factual findings to which we defer "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). Such factual determinations will not be disturbed, even if an opportunity for independent review could lead to a different conclusion. State v. Johnson, 42 N.J. 146, 162 (1964). However, whether established facts warrant the grant or denial of a suppression motion is a legal question subject to de novo review. Handy, supra, 206 N.J. at 45. Moreover, a trial court's legal conclusions are not afforded the same deference. Ibid. "When a question of law is at stake," appellate review is plenary. State v. Mann, 203 N.J. 328, 337 (2010).
B.
The United States and New Jersey Constitutions protect citizens against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "Fourth Amendment issues are complex and are 'peculiarly dependent upon the facts involved.'" State v. Zapata, 297 N.J. Super. 160, 171 (App. Div. 1997) (quoting State v. Anderson, 198 N.J. Super. 340, 348 (App. Div.), certif. denied, 101 N.J. 283 (1985)), certif. denied, 156 N.J. 405 (1988). Constitutional protections prohibiting unreasonable searches and seizures "impose a standard of reasonableness on the exercise of discretion by government officials to protect persons against arbitrary invasions." State v. Marist any, 133 N.J. 299, 304 (1993). "'Indeed the touchstone of the Fourth Amendment is reasonableness.'" State v. Crumb, 307 N.J. Super. 204, 245 (App. Div. 1997) (quoting State v. Buzzes, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)), certif. denied, 153 N.J. 219 (1998).
Generally, all police searches and seizures unsupported by a warrant violate constitutional protections unless the totality of the circumstances fall within a recognized exception to the warrant requirement. See State v. Sullivan, 169 N.J. 204, 210 (2001); State v. Cooke, 163 N.J. 657, 664 (2000); see also Mince v. Arizona, 437 U.S. 385, 390-91, 98 S. Ct. 2408, 2412, 57 L. Ed. 2d 290, 298-99 (1978). The same is true of a warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). The State has the burden of proving the validity of its actions. State v. Moore, 181 N.J. 40, 44-45 (2004).
"It is well established that the investigative stop of an automobile by police constitutes a seizure that implicates the[e]se constitutional protections." State v. Amelia, 197 N.J. 207, 211 (2008) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979), cert. denied, __ U.S. __, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009) "[S]topping an automobile and detaining its occupants constitute[s] a 'seizure' within the meaning of those Amendments, even though the purpose of the stop is limited and the resulting detention quite brief." Prouse, supra, 440 U.S. at 653, 99 S. Ct. at 1396, 59 L. Ed. 2d at 667.
Although stopping a car and detaining its occupants constitute[s] a seizure within the meaning of the Fourth Amendment, the governmental interest in investigating an officer's reasonable suspicion, based on specific and articulable facts, may outweigh the Fourth Amendment interest of the driver and passengers in remaining secure from the intrusion.
[United States v. Hensley, 469 U.S. 221, 226, 105 S. Ct. 675, 679, 83 L. Ed. 2d 604, 610 (1985).]
The seizure of a person occurs in a police encounter if the facts objectively show "'the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)). In applying that test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects[.]'" Id. at 165 (quoting N.J. Const. art. I, ¶ 7).
In State v. Pineiro, the Supreme Court defined a field inquiry as "the least intrusive encounter," occurring when a police officer approaches a person and asks if he or she is "willing to answer some questions." 181 N.J. 13, 20 (2004) (internal quotation marks and citations omitted). "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). During such a field inquiry, "the individual approached 'need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)).
An investigatory stop, unlike a field inquiry, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry, supra, 392 U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904.
In the context of a police-initiated automobile stop, if the investigatory stop is not based on a motor vehicle violation, it must be supported by "a reasonable and particularized suspicion to believe that an individual has just engaged in, or is about to engage in, criminal activity." Maryland, supra, 167 N.J. at 487.
Particularized suspicion is required when "the facts objectively indicate that 'the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" State v. Williams, 410 N.J. Super. 549, 554 (App. Div. 2009) (quoting Tucker, supra, 136 N.J. at 166), certif. denied, 201 N.J. 440 (2010). See also Stovall, supra, 170 N.J. at 355-56 (holding an investigatory stop is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter may fall short of a formal arrest).
Determining whether the totality of the circumstances presented supports a reasonable and articulable suspicion necessary to justify the police stop requires a fact-intensive inquiry of whether "'specific and articulable facts which, taken together with rational inferences from those facts [including an officers' knowledge and experience], give rise to a reasonable suspicion of criminal activity.'" Mann, supra, 203 N.J. at 338 (quoting Pineiro, supra, 181 N.J. at 20). See also State v. Richards, 351 N.J. Super. 289, 299-300 (App. Div. 2002) ("In evaluating the facts giving rise to the officer's suspicion of criminal activity, courts are to give weight to 'the officer's knowledge and experience' as well as 'rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's experience.'" (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997))); Delaware, supra, 40 U.S. at 663, 99 S. Ct. at 1401, 59 L. Ed. 2d at 673. (holding articulable reasonable suspicion standard applies to investigative stops of automobiles).
Suspicion is reasonable when "it is based on 'some objective manifestation that the person [detained] is, or is about to be engaged in criminal activity.'" Williams, supra, 410 N.J. Super. at 555 (alteration in original) (quoting Pineiro, supra, 181 N.J. at 22). See also State v. Kuhn, 213 N.J. Super. 275, 281 (App. Div. 1986) (explaining race is not a factor upon which articulable suspicion may be founded); State v. Davis, 104 N.J. 490, 505 (1986) (explaining the articulable suspicion standard prevents police detentions based on subjective hunches). "[T]he fact that a suspect's behavior may be consistent with innocent behavior does not control the analysis." Mann, supra, 203 N.J. at 338 (citing Arthur, supra, 149 N.J. at 11-12 (finding articulable suspicion for an investigatory stop of a woman who entered a car in a known drug area and exited five minutes later with a brown paper bag)). However, a mere hunch suspecting a person has engaged in criminal activity or may do so in the near future is insufficient and not an articulable suspicion. Ibid.
Guided by these principles, we examine codefendants' arguments on appeal.
III.
A.
Codefendants argue the trial judge erred in denying the motion to suppress the evidence discovered following Corporal Hill's investigative stop. Asserting the stop violated their constitutional rights, codefendants argue Corporal Hill did not have a reasonable and articulable suspicion the occupants of the vehicle had been or were engaging in criminal activity when stopped. Codefendants maintain Corporal Hill "completely lacked any particularized suspicion that defendant[s] had engaged in any criminal activity or violated any motor vehicle laws." Consequently, any evidence was unlawfully seized. We are not persuaded.
The motor-vehicle stop in this case was a Terry stop, rather than a field inquiry. The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period if the stop 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. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." Davis, supra, 104 N.J. at 504.
In our review, we "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 Davis, supra, 104 N.J. at 504)). As the Supreme Court observed in Davis, supra:
[s]uch encounters are justified only if the evidence, when interpreted in an objectively reasonable manner, shows that the encounter was preceded by activity that would lead a reasonable police officer to have an articulable suspicion that criminal activity had occurred or would shortly occur. No mathematical formula exists for deciding whether the totality of circumstances provided the officer with an articulable or particularized suspicion that the individual in question was involved in criminal activity. Such a determination can be made only through a sensitive appraisal of the circumstances in each case.A reasonable and articulable suspicion can be based on facts that, standing alone, would not be sufficient to procure a conviction for the suspected offense or offenses. State v. Heisler, 422 N.J. Super. 399, 413 (App. Div. 2011) (citing State v. Williamson, 138 N.J. 302, 304 (1994)).
[104 N.J. at 505.]
Here, although Corporal Hill had few facts concerning the identity of the robbers, he knew the Exxon gas station was robbed at gunpoint by two African-American males who fled from the scene on Route 10 heading towards Livingston. He was not told the suspects had a vehicle, or that there was a third person involved. At 4:45 a.m., Corporal Hill headed toward the Exxon, which he knew was located further down the highway, and encountered only one vehicle traveling from that direction. The vehicle held two African-American males in the rear seat and a woman at the wheel, a configuration Corporal Hill found "didn't make sense," and which he found suspicious. The encounter took place within minutes of the reported robbery and occurred only a little more than a mile from the gas station. According to
This issue was contested, but the motion judge credited Corporal Hill's testimony.
Corporal Hill, the vehicle was not speeding, he was not aware of any motor vehicle violation, and the occupants were not acting furtively or suspiciously. He elected to conduct a stop of defendants' vehicle because the facts suggested the two men could be the robbery suspects.
In his oral decision denying the motion to suppress, the motion judge made the following findings with respect to the surrounding circumstances for stopping the vehicle:
Why does he pull the vehicle over? He was asked this by a number of attorneys. Again, he saw no other vehicles coming. The information he had basically was that . . . there had been an armed robbery taking place in East Hanover and there were two black males seen running with handguns. He indicates, and he continued to say this over and over again, "I found it highly suspicious and very unusual." He didn't say "in my experience," but that's how I took the testimony, "that I see a vehicle, an isolated vehicle, coming from the direction of the incident with a white female driving
and two black males in the rear seat. There was no other passenger, according to my recollection, in the front seat."
On appeal, defendants maintain the suspicion for the stop was impermissibly based on race, not a reasonable articulable suspicion that criminal activity had occurred. In Maryland, supra, the Supreme Court held that
The Equal Protection Clause of the Fourteenth Amendment requires that the selection of a person for a field inquiry, referred to as a consensual encounter with the police . . . may not be based solely on that person's race absent some compelling justification that pre-existed the police approaching the individual. . . . We reach the same conclusion under Article I, paragraphs 1 and 5 of the New Jersey Constitution. The objective reasonableness standard for deciding the constitutionality of a search articulated in State v. Bruzzese, 94 N.J. 210, 219 (1983), is not satisfied when the only reason for the search is the individual's race. For the same reason, a field inquiry or an investigatory stop predicated solely on race would be equally defective.
[167 N.J. at 485 (internal citations omitted.]
In Kuhn, supra, 213 N.J. Super. at 277, we reversed the denial of the defendant's suppression motion because the articulated facts did not support the officer's suspicion of criminal activity. The police stopped a vehicle, after observing these events:
the car . . . was parked diagonally across more than one parking space. Defendant was standing outside of the driver's side of the car, another person was standing outside of the passenger's side, and there was a third person in the front passenger seat of the car. The officer also testified that this pattern of three individuals, two outside of a car, and one inside, fits the profile of a drug transaction. As the officer drove the van into the driveway of the parking lot, defendant apparently saw the van, appeared to say something, then got into the car and began to drive the car from the lot.In our review, we refused to attach any significance to the racial makeup of the three individuals, explaining:
[Id. at 277.]
It is true that there were two Hispanics and a Caucasian in what the officer considered to be a "high crime" area. These factors, however, may not be considered. No rational inference may be drawn from the race of one to be detained that he may be engaged in criminal activities. See United States v. Brignoni-Ponce, 422 U.S. 873, 886-88, 95 S.Ct. 2574, 2582-83, 45 L.Ed. 2d 607, 619-21 (1975). If defendant as a white person in a predominantly black neighborhood could be stopped and searched, so could any black person seen in a predominantly white neighborhood. This simply is not the law
[Id. at 281.]
In State v. Patterson, 270 N.J. Super. 550, 558-60 (Law Div. 1993), aff'd o.b., 270 N.J. Super. 562 (App. Div. 1994), we affirmed a Law Division opinion finding the police stop of a taxi-cab in which two African Americans were about to become passengers, was not based on reasonable suspicion, despite the fact the passengers and the circumstances "fit the drug courier profile" in that area.
In contrast, we affirmed the trial court's denial of the defendants' suppression motion challenging the constitutional validity of a motor vehicle stop in Anderson, supra, 198 N.J. Super. at 347. According to the State's proofs at the suppression hearing, the police "received a report that three black males armed with handguns had committed an armed robbery" in Hackensack at approximately 1:30 a.m. on May 30, 1981. Ibid. Responding to the scene, an officer observed "a New York registered 1974 Ford occupied by two black males traveling in the opposite direction[,] . . . several blocks away from the robbery scene." Ibid. Because the windows were tinted, the officer was unable to determine whether a third occupant was in the rear, but the officer noted the Ford was the only car on the road. Ibid. The arresting officer "testified that except for another police radio car, the Ford was the only other car on the road." Ibid. "[B]elieving the car's occupants fit the description of the robbery suspects," the officer pulled the vehicle over, "only minutes" after receiving the armed robbery report. Ibid.
After initially approaching the Ford, the officer retreated due to concerns the suspects were armed and called for assistance. Ibid. After backup arrived, "they ordered the suspects out of the car. As the defendants exited the car one of the policemen . . . observed the butt of an automatic handgun sticking out of the back seat. That handgun was seized and the suspects placed under arrest." Ibid.
We concluded the stop was valid based upon the officer's observations and the surrounding circumstances including the time of day, the suspicious nature of the vehicle, and the partial match of the suspects' description. Id. at 351. See also State v. Esteves, 93 N.J. 498, 507 (1983) (stating a report of nearby criminal activity was one factor supporting reasonable suspicion); State v. Davis, 50 N.J. 16, 25 (1967) (stating reasonable suspicion for a stop was supported by the fact defendants fit the description of the suspects of a recent crime), cert. denied, 398 U.S. 1054, 88 S. Ct. 805, 19 L. Ed. 2d 852 (1968).
Here, the motion judge understood Corporal Hill's suspicion to have been premised on the fact that there was "an isolated vehicle . . . coming from the direction of the [armed robbery] incident with a white female driving and two black males in the rear seat." We do not consider differences in the race and gender of the occupants to be an appropriate factor in determining whether there was a legal basis for the stop. The question then becomes whether the facts: (1) that the vehicle contained two males who fit the description of the suspects, in that they were black; (2) that there was a driver in the front and two passengers in the back; and (3) that it was coming from the general direction of the gas station shortly after a reported robbery there, supplied the required "reasonable and articulable suspicion" for the stop.
We conclude these facts align more with Anderson than with Kuhn or Patterson. In Patterson and Kuhn, the police were not aware any crime had occurred, they were not searching for specific suspects and they had not observed any criminal activity. The determinations to stop the defendants in those two cases were based solely on the facts that the encounter took place in a high crime area and a belief the defendants' respective conduct included some typical aspects of those engaged in illicit drug activity. Without more, these facts do not arise to reasonable suspicion and instead illustrate unconstitutional police action based on unsubstantiated hunches that perhaps the suspects may be criminals.
Here, like Anderson, known criminal suspects who had committed an armed robbery were being pursued. Critical to the totality of the circumstances is the proximity of the stop, both in time and place to the crime and that codefendants' vehicle was the only car on the roadway as it was headed east on Route 10, away from the Exxon and the direction the robbers were viewed to have fled.
In addition to these facts, the trial judge found Corporal Hill's knowledge and experience as a thirty-two year veteran of the police force significant. In evaluating the "totality of the circumstances," we "are to give weight to 'the officer's knowledge and experience' as well as 'rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise.'" State v. Citarella, 154 N.J. 272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)). "The fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as 'a reasonable person would find the actions are consistent with guilt.'" Id. at 279-80 (quoting Arthur, supra, 149 N.J. at 11).
We conclude the investigatory stop was based on reasonable suspicion as: Corporal Hill was investigating a report of a violent crime and the suspects were believed to be armed, posing a serious threat to police and public safety; codefendants matched the limited description of the suspects he received in the dispatch; the temporal considerations and direction of travel matched the reported information; and his experience found the configuration of the vehicle's occupants suspicious. Under these circumstances, the totality of the objectively reasonable facts and the rational inferences drawn therefrom validate the motor vehicle stop. Moreover, once Officer Franco was given Tillery's name as Downey's coworker and Tillery denied he knew Downey, the situation developed quickly thereafter. The officers' reasonable suspicion escalated to probable cause to effectuate defendants' arrests when Officer Boulard spotted the first gun.
B.
Codefendants next maintain suppression of the evidence was warranted as Corporal Hill's detention exceeded the bounds of an investigatory stop and his conduct amounted to a warrantless arrest without probable cause. We disagree.
To determine the reasonableness of police detention following a motor vehicle stop, the stop must first be justified by reasonable or probable articulable suspicion and, second, the police action following the stop must be "'reasonably related in scope to the circumstances which justif[y] the interference in the first place.'" DelaCruz v. Borough of Hillsdale, 365 N.J. Super. 127, 145 (App. Div. 2004) (quoting State v. Dickey, 152 N.J. 468, 476 (1998)), aff'd in part and rev'd in part 183 N.J. 149 (2005).
A stop which is "more than 'minimally intrusive[,]'" or "more intrusive than necessary for an investigative stop[,]" is a de facto arrest which must be supported by probable cause. Dickey, supra, 152 N.J. at 478. "Much as a bright line rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria." Id. at 476-77 (internal quotation marks and citations omitted). "Factors to be weighed in determining whether such escalation occurred [include] whether there was delay unnecessary to the legitimate investigation, the degree to which the police conduct engender[ed] fear or humiliation, and whether [a] suspect was isolated, handcuffed, or confined." State v. Baum, 393 N.J. Super. 275, 288 (App. Div. 2007) (citing Dickey, supra, 152 N.J. at 479), aff'd in part and modified in part, 199 N.J. 407 (2009). Further, "[t]ime is an important factor in distinguishing between an investigative stop and a de facto arrest[.]" Dickey, supra, 152 N.J. at 479 (citations omitted). "The courts have also held that transporting a suspect to another location or isolating him from others can create an arrest." Ibid. (citations omitted).
Here, Corporal Hill's dashboard video recorder was activated when he pulled over codefendants' vehicle. Approximately fifteen minutes after the stop began, he approached the driver's side window, and picked up the car keys he requested the driver to drop outside the vehicle. The record is not entirely clear whether any interaction occurred during the time that elapsed prior to these demands. We know Corporal Hill contacted EHPD and was told to detain the suspects until EHPD officers arrived. We also know he requested back-up and provided information for a multi-municipality broadcast.
The video began recording at 3:26 and Corporal Hill is seen approaching the car to retrieve the keys at 3:41-13.
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We do not conclude Corporal Hill's demands that Hagmeyer turn off the engine, drop the car keys, and the three vehicle occupants keep their hands raised in plain view was unnecessarily intrusive under the circumstances. See Mann, supra, 203 N.J. at 338 (explaining reasonableness is examined objectively in light of the facts known to police at the time). Corporal Hill had reliable evidence the suspects were armed and his demands were out of concern for his safety because of the likelihood weapons were in the vehicle. See Terry, supra, 392 U.S. at 25-26, 88 S. Ct. at 1882, 20 L. Ed. 2d at 908 (explaining officer safety is the foundation for a limited pat-down for weapons when the officer had an articulable suspicion that a suspect may be armed).
Nor do we conclude the delay was too long resulting in a de facto arrest. See United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d 605, 615-16 (1985) (stating "assessing whether a detention is too long in duration to be justified as an investigative stop," requires consideration of "whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly"). Codefendants sat in their immobilized vehicle for approximately nineteen minutes until Officer Franco arrived with Wasim. Clearly, identification by an eyewitness was the most expedient method of confirming Corporal Hill's suspicions.
None of the defendants were initially handcuffed, ordered out of the vehicle, placed in a police squad car, or interrogated. Toledo was not removed from the vehicle until his responses contradicted the information provided by Downey; Tillery was also removed for separate questioning to sort out the conflicting facts. See United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994) (concluding inconsistent answers by occupants provides grounds for broadening the inquiry), cert. denied, 514 U.S. 1134, 115 S. Ct. 2015, 131 L. Ed. 2d 1013 (1995); see also State v. Smith, 134 N.J. 599, 618 (1994) (stating police must point to "some fact or facts in the totality of the circumstances that would create . . . a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car"). The necessary probable cause to arrest codefendants was presented when the first gun was observed by Officer Bullard.
The facts at hand are very different from those cases where the Supreme Court or this court concluded the investigatory stop escalated into an arrest. In Dickey, supra, the Court concluded the arresting trooper's decision to hold the defendant until he could locate the vehicle's owner to confirm he was the defendant's relative, as the defendant claimed, was unreasonable, intrusive, and caused inordinate delay. 152 N.J. at 481.
In DelaCruz, supra, we concluded police actions, including pointing a gun at the defendant who was sitting in his van, ordering he exit, ignoring the defendant's questions and attempts to show his reason for being in the neighborhood, referring to him as a "Mother F--er," handcuffing him, and placing him face down on the ground for ten minutes, 365 N.J. Super. at 138-39, far exceeded what should have been "an innocuous five-minute investigatory stop," converting it "into a de facto arrest, carried out in an excessively confrontational and abusive manner." Id. at 146.
In our view, the facts presented in this matter demonstrate minimal intrusion into and disruption of codefendants' freedom and privacy. The steps taken by Corporal Hill were not greater than necessary to address justified concerns for police safety and the almost twenty minute delay was directly related to awaiting the arrival of Officer Franco accompanied by the eyewitness. There was no effort by Corporal Hill to intimidate or incite fear in codefendants, in fact, he explained they needed to wait for the witness from East Hanover. As the Court noted in Dickey, supra, "the government's interest in preventing imminent criminal activity may be substantial enough to outweigh the still-serious privacy interests implicated by a limited Terry stop." 152 N.J. at 477 (citing Terry, supra, 392 U.S. at 22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906-07).
C.
Toledo also challenges the constitutionality of the seizure of the first handgun from the vehicle, maintaining the plain view exception was inapplicable. We disagree and conclude the argument lacks sufficient merit to warrant extended discussion in our opinion. R. 2:11-3(e)(2). We add these brief comments.
Under the plain view exception to the warrant requirement, police may seize evidence without a warrant when (1) the officer was "lawfully in the viewing area[,]" (2) the evidence was discovered "inadvertently," and (3) the police had "probable cause to associate the [item] with criminal activity." Mann, supra, 203 N.J. at 341 (internal citations omitted) (second alteration in original).
Toledo contends Officer Bullard observed the weapon after Tillery was wrongfully requested to exit the vehicle. As we explained above, the conflicting stories provided by Toledo and Downey allowed the police to expand their inquiry and justified separating the vehicle's occupants. See Smith, supra, 134 N.J. at 618. Moreover, the furtive movements made by Tillery while exiting the vehicle drew Officer Bullard's attention to Tillery's feet, where the handle of the weapon was visible.
D.
Toledo also argues the trial judge erred in upholding the search of the vehicle, resulting in the discovery of the second imitation handgun and the bandana, was unconstitutional. The facts and circumstances demonstrate a permissible warrantless automobile search, which applies "where a defendant is not under arrest or where an arrested defendant has been secured," satisfying the three-pronged test of State v. Pena-Flores, 198 N.J. 6, 20 (2009). The State must show "(1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." Id. at 28.
We have discussed the justification for the stop and the probable cause basis for the belief codefendants were complicit in the armed robbery. We also conclude the "totality of the circumstances" in this quickly unfolding investigation satisfied the exigency requirement making it "impracticable to secure a warrant." Id. at 28-29. The relevant factors supporting a finding of exigency include:
the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.
[Id. at 47 (citations omitted).]
We know the stop was on a state highway, which was initially devoid of traffic, but as dawn approached, the traffic increased. Once one gun was discovered, police reasonably believed they had apprehended the armed gas station robbery suspects, two of whom had brandished a weapon. Although several officers were at the scene, Officer Franco had Wasim in his car; Officer Bullard had Tillery; Officer Collins had Toledo; and Corporal Hill had Hagmeyer. It would have been negligent to leave the vehicle unsecured knowing it may contain a weapon while police secured the three suspects and a witness and sought a warrant. See State v. Wilson, 362 N.J. Super. 319, 333 (App. Div.), certif. denied, 178 N.J. 250 (2003) ("Our state law has long recognized the special significance of firearms and the threat they represent to public safety. A deadly weapon poses a special threat to both the public and police, and its presence is a significant factor in evaluating whether there are exigent circumstances which justify a warrantless search.").
We conclude the police had an "urgent, immediate need . . . to conduct a full search of the automobile[,]" Pena-Flores, supra, 198 N.J. at 32, based on concerns for officer safety and the increasing presence of the general public. The bandana, partially visible from the center console, and the second handgun, located under the passenger-side front seat, were properly seized in a valid warrantless automobile search.
IV.
Finally, Toledo maintains the trial judge's flawed application of aggravating factors and omission of applicable mitigating factors resulted in an excessive sentence. He also maintains the sentence was disparate in light of the sentences imposed for Hagmeyer and Kahl. We disagree.
A.
Although our review of a sentence must be "careful and vigorous[,]" we may not substitute our judgment for that of the sentencing judge. State v. Kirk, 145 N.J. 159, 175 (1996). The test is not whether this court would have imposed a different sentence, but "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989). A trial judge is given "wide discretion" to impose a sentence, provided it is within the statutory framework, and the reviewing court must give that decision "great deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). However, we must make sure the sentencing guidelines set forth in the statute have been met, that the aggravating and mitigating factors found below are based upon "'competent credible evidence in the record,'" and that the sentence is not "'clearly unreasonable so as to shock the judicial conscience.'" Id. at 501 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). If the trial court complies with "the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing." State v. Bieniek, 200 N.J. 601, 608-09 (2010).
B.
In imposing the sentence, the trial judge considered Toledo as a first offender, found and applied aggravating factors one (the nature and circumstances of the offense), N.J.S.A. 2C:44-1a(1); three (the risk that the defendant will commit another offense), N.J.S.A. 2C:44-1a(3); and nine, (the need to deter defendant and others from violating the law), N.J.S.A. 2C:44-1a(9). Also, the judge applied mitigating factor seven (defendant had no prior criminal record), N.J.S.A. 2C:44-1b(7). Concluding the aggravating factors outweighed the mitigating factor, he imposed a sentence on the first-degree offense within the second-degree range for a term of incarceration of eight years subject to NERA, as recommended in the plea agreement.
Toledo notes the court incorrectly applied aggravating factor one. We agree.
In applying aggravating factor one, the judge stated despite the use of an imitation gun, the armed robbery had the same effect upon the victims who believed the weapon was genuine. However, this ignored that the use of the weapon elevated the conduct from a second-degree offense to a crime of the first-degree. Therefore, the additional duplication of that factor in sentencing was error. See State v. Pillot, 115 N.J. 558, 564 (1989) (holding a court may not "double-count the use of a fire arm as an aggravating factor" in armed robbery). The judgment of conviction must be amended to delete application of aggravating factor one.
Toledo also maintains the judge incorrectly applied aggravating factor three, suggesting his lack of a criminal record obviates the risk of re-offense. He also minimizes the need for deterrence, stating "nothing specific about [the conduct] . . . raises a particular need to deter." We disagree.
Having been convicted of a prior disorderly persons offense, Toledo's conduct escalated to armed robbery, suggesting as noted by the trial judge, "his judgment was so poor and the mistake was so great" it evinces a disregard for the law, resulting in a likelihood for re-offense.
Further, we reject the notion deterrence is inapplicable. The court and our system of justice is greatly invested in deterring the intimidation and robbery of innocent store patrons at gunpoint.
We also are not persuaded by Toledo's argument advancing application of mitigating factor eleven (incarceration would create hardship for defendant's dependents), N.J.S.A. 2C:44-1b(11). Although Toledo resided with his two-year old child, the household included the child's mother and Toledo's two sisters. Every parental incarceration creates a hardship on children. In this matter, although Toledo lived with his two-year old child, no evidence shows he was the primary caretaker or even a principal wage earner in the household.
Overall, despite the error in applying aggravating factor one, we discern no basis to disturb the imposed sentence. Excluding the noted error, the sentencing court explicated the reasons for imposing the term of incarceration, made an appropriate "qualitative assessment," which is supported by the record, and the imposed term aligned with the recommendation in the plea agreement. We conclude the court did not abuse its discretion and the sentence is neither unduly harsh nor unreasonable in light of the circumstances of the crime for which defendant pled guilty.
C.
The last argument advanced by Toledo, in support of his request for resentencing, maintains the term imposed was disparate from those imposed on Hagmeyer and Kahl. We are not persuaded.
The standard of review for a claim of sentence disparity mirrors that for claims of excessiveness. State v. Tango, 287 N.J. Super. 416, 422 (App. Div.), certif. denied, 144 N.J. 585 (1996). We examine "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." Ghertler, supra, 114 N.J. at 388 (citing Roth, supra, 95 N.J. at 365).
While sentences of sufficiently similar codefendants should be similar, sentences may differ widely when the disparity is due to differences in the defendants' backgrounds, roles in the crime, and cooperation with prosecution. State v. Williams, 317 N.J. Super. 149, 159 (App. Div. 1998), certif. denied, 157 N.J. 647 (1999).
The roles played by Hagmeyer and Kahl were significantly dissimilar to Toledo's, who acted as one of two principals who used a weapon to commit the crime. Hagmeyer, the lookout and getaway driver, and Kahl, who lent the BB guns, had somewhat lesser roles, but also aided the prosecution by cooperating and agreeing to testify against codefendants.
We reject Toledo's claim of disparity. We conclude the sentence was properly imposed.
V.
Having addressed each argument advanced by each defendant on appeal, we find no basis to interfere with the order denying the motions to suppress the evidence. We will not disturb codefendants' convictions or the sentences imposed. We remand for the limited purpose of correcting the judgment of conviction to delete application of aggravating factor one.
Affirmed and remanded for the correction of the judgment of conviction.