Opinion
DOCKET NO. A-3565-14T4
01-26-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. DERELL WILSON, Defendant-Respondent.
Gretchen A. Pickering, Assistant Prosecutor, argued the cause for appellant (Robert L. Taylor, Cape May County Prosecutor, attorney; Ms. Pickering, of counsel and on the briefs). Peter T. Blum, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Haas. On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 14-02-0180. Gretchen A. Pickering, Assistant Prosecutor, argued the cause for appellant (Robert L. Taylor, Cape May County Prosecutor, attorney; Ms. Pickering, of counsel and on the briefs). Peter T. Blum, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). PER CURIAM
After a suppression hearing, and with leave granted, the State appeals from the February 17, 2015 order granting defendant Derell Wilson's motion to suppress the .22 caliber handgun he threw to the ground as he was being chased by a State Trooper who had commanded defendant to stop after he ran away when the trooper arrived at the scene to investigate a report of a fight in progress in which one of the participants was armed with a gun. We reverse.
The suppression hearing revealed the following facts. At approximately 10:00 a.m. on October 28, 2013, Trooper David Leo, who had seven years of law enforcement experience, received a radio dispatch directing him to respond to a specific address because there was a "fight in progress" in which "one of the individuals . . . had a hand gun." "[W]ithin minutes[,]" Leo, who was wearing his full uniform, arrived at the scene in his marked patrol car. Leo was the first officer to arrive, but other troopers "were right behind" him.
Leo did not provide any testimony concerning the source of the radio dispatch. However, in his brief in support of his motion to suppress, defendant represented that "the New Jersey State [P]olice switchboard received a call from a local citizen advising that there was a fight in progress in front of a residence located at" a specific address.
When Leo arrived at the scene of the reported fight, he found "a large crowd" of between ten to twenty individuals "in the middle of the street[.]" Leo did not observe "anybody fighting" as he parked his car near where the group was milling around in the road.
Before he got out of his car, Leo saw a man, later identified as defendant, who was "dressed in black with a black hoodie[.]" Leo testified that defendant made eye contact with him as he pulled up to the scene. Leo stated that defendant then ran away from the crowd toward the residences on the street.
Leo got out of his car and began to chase defendant as he "broke away" from the crowd. Leo testified that he chased defendant because he was the only individual who ran away from the scene as he arrived, which made him suspect that defendant was involved in the reported incident. When Leo was about ten yards away from defendant, the trooper ordered defendant to stop. Leo then saw defendant throw a handgun to the ground. Less than thirty yards from that spot, Leo was able to catch defendant. Leo described the pursuit as "very brief[.]"
Leo arrested defendant and returned him to the location where the other troopers were speaking to members of the crowd. Once defendant was secured, Leo walked back to retrieve the handgun, which he described as a .22 caliber Ruger. Later, the troopers found a "live [.]22 caliber round" near where defendant had been standing in the street.
Leo testified that the radio dispatch he received did not specifically describe defendant as one of the individuals involved in the fight or as the person who possessed the handgun. Leo stated that the individuals standing in the street were committing an offense, which he described as "jay walking or whatever you want to call it[,]" and explained that he could have charged defendant and the other members of the group with that offense because they were all in the middle of the road when he arrived at the scene. However, Leo stated that his "main concern was the safety" of the public, and he "wasn't concerned about petty crimes at that time[.]"
A Cape May County grand jury subsequently indicted defendant for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); and fourth-degree aggravated assault by "point[ing] a firearm at or in the direction of" an individual identified by name in the indictment, N.J.S.A. 2C:12-1b(4) (count three). Defendant then filed a motion to suppress the handgun recovered by Trooper Leo.
The factual predicate for this alleged aggravated assault is not otherwise disclosed in the record.
Following oral argument, the trial judge granted defendant's motion. Although observing in her brief oral opinion that "this is a very close call[,]" the judge ruled that Leo lacked the authority to execute an investigatory stop because he did not have a "reasonable and articulable suspicion" that defendant was involved in a criminal activity when the trooper chased him and ordered him to stop.
The judge found that, even though the trooper testified that standing in the middle of the street constituted a petty offense, "[t]here was nothing illegal going on" when Leo arrived at the scene because "there no longer appeared to be a fight in progress." In addition, the judge stated that defendant "was not identified by anyone" as being involved in the fight or in possession of a handgun.
When defendant turned and ran away from the group after making eye contact with Leo, the judge found that the trooper improperly "made the jump to the assumption that a person that is leaving the area is involved in criminal activity." Observing that an individual is under no obligation to speak to the police and has "the right to walk away from an encounter with a police officer[,]" the judge ruled that Leo was barred from chasing defendant and ordering him to stop. In so ruling, the judge stated she could not "let" the fact that defendant threw away the handgun during the chase "influence[]" her decision as to the propriety of the trooper's actions. Therefore, the judge did not consider whether this intervening circumstance purged the taint of the improper stop.
On appeal, the State contends that, under the totality of the circumstances presented, Trooper Leo had "a reasonable and articulable suspicion that defendant ha[d] committed a criminal offense" when he effectuated an investigatory stop by chasing defendant and ordering him to stop. The State also argues that, even if that was not the case, because defendant discarded the handgun as he fled the scene, the taint from the allegedly unconstitutional stop was purged. We agree.
Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting Robinson, supra, 200 N.J. at 15). Additionally, we defer to a trial judge's findings that are "substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting Robinson, supra, 200 N.J. at 15). We do not, however, defer to a trial judge's legal conclusions, which we review de novo. Ibid.
It is clear that when Leo chased after defendant and ordered him to stop, the trooper instituted an "investigatory stop." See State v. Tucker, 136 N.J. 158, 166 (1994) (holding that an investigatory stop occurs when police officers chase a suspect and, under the totality of the circumstances, "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") (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)). An investigatory stop, sometimes referred to as a Terry stop, "is valid 'if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" State v. Williams (Williams II), 410 N.J. Super. 549, 555 (App. Div. 2009) (quoting State v. Williams (Williams I), 192 N.J. 1, 9 (2007)), certif. denied, 201 N.J. 440 (2010) "In making this determination, a court must consider '[t]he totality of circumstances.'" Ibid. (quoting Williams I, supra, 192 N.J. at 9. The suspicion necessary to conduct a lawful Terry stop "need not rise to the 'probable cause necessary to justify an arrest.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (quoting State v. Nishina, 175 N.J. 502, 511 (2003)).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). --------
When evaluating whether a police officer had a reasonable suspicion that criminal activity had taken place or was about to take place, a court must "ascribe sufficient weight to the officer's knowledge and experience and to the rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." State v. Arthur, 149 N.J. 1, 10-11 (1997). "[S]imply because a defendant's actions might have some speculative innocent explanation does not mean that they cannot support articulable suspicions if a reasonable person would find the actions are consistent with guilt." Id. at 11.
Our courts have held that "flight alone does not create reasonable suspicion for a stop[.]" Williams II, supra, 410 N.J. Super. at 555 (quoting State v. Dangerfield, 171 N.J. 446, 457 (2002)). "However, flight 'in combination with other circumstances . . . may support [the] reasonable and articulable suspicion' required to justify a stop." Ibid. (quoting Pineiro, supra, 181 N.J. at 26).
Applying these standards here, we conclude that the trial judge mistakenly concluded that the investigatory stop was improper. The facts of this case are strikingly similar to those presented in our recent decision in State v. Dunbar, 434 N.J. Super. 522 (App. Div. 2014), where, under similar circumstances, we upheld the investigatory stop of a defendant who ran from the police. In Dunbar, two uniformed officers were dispatched to a scene based on a report of "shots fired." Id. at 524. When the officers arrived in their patrol car, they found a crowd "of approximately thirty persons who were 'yelling' and screaming[.]" Ibid. The group dispersed when the officers arrived. Ibid. The officers saw the defendant, "who appeared nervous." Ibid. The defendant went into an alley as he turned to watch the patrol car. Ibid. The defendant then "came back out of the alley and began to walk away[,]" as the patrol car followed him. Ibid.
One of the officers in the car asked the defendant "if he had heard shots in the area." Ibid. The defendant "appeared even more nervous, did not respond but continued moving away from the patrol car, looking back over his shoulder." Ibid. The officer then got out of the car and told the defendant to stop. Ibid. The defendant "began running" away, and the officer chased him. Ibid. As he ran, the defendant threw a handgun onto the ground. Ibid. The officer stopped to pick up the weapon and then pursued the defendant until he was captured. Ibid.
Under the totality of the circumstances presented in Dunbar, we concluded that the investigatory stop was permissible because they "gave rise to a reasonable and articulable suspicion that [the] defendant had committed a crime or was in the process of committing one." Id. at 527. Specifically, we noted that the officers arrived at the scene moments after they received the dispatch and found a large group of people at an intersection. Ibid. The defendant was the only individual in the crowd who appeared nervous, which drew the attention of the officers. Ibid. Once the defendant "saw that the officers were following him, his nervousness only increased." Ibid. Finally, the defendant ran away from the scene as soon as the officer attempted to speak to him. Ibid.
While each of these individual facts taken alone may not have been sufficient to support the propriety of the investigatory stop, we concluded that, "in the aggregate, [the] defendant's conduct supported a finding of reasonable suspicion." Id. at 528. A similar result is fully warranted by the totality of the circumstances presented in the case at hand.
Here, Leo and the other troopers were dispatched to the scene based on a report of a fight in progress with one of the participants in possession of a handgun. As in Dunbar, the officers quickly arrived at the scene and encountered a large crowd of people, who were "jaywalking" in the middle of the road. The fact that ten to twenty individuals were milling around in the street was fully consistent with the information contained in the dispatch that a fight had occurred. When Leo pulled up in his patrol car, he did not observe any member of the crowd engaging in criminal activity. That is the same situation the officers in Dunbar encountered, where the crowd began to disperse as soon as the officers arrived.
In both Dunbar and this case, however, one individual acted differently than the rest of the group, which understandably raised the officers' suspicion that the individual was involved in a criminal activity. In Dunbar, the defendant appeared nervous, began walking away, and then ran after the officer attempted to speak to him. In this case, defendant made eye contact with Leo and ran away as soon as the officer began to get out of his patrol car to speak to him.
Investigatory stops "are warranted 'where a police officer observes unusual conduct which leads him [or her] to reasonably conclude in light of his [or her] experience that criminal activity may be afoot and that the persons with whom he [or she] is dealing may be armed and presently dangerous.'" Ibid. (quoting Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911 (1968)). As we did in Dunbar, we conclude that the circumstances in this case, taken in the aggregate, "creat[ed] reasonable and articulable suspicion justifying the investigatory stop of defendant, making seizure of the handgun, and defendant's eventual arrest, lawful." Id. at 529.
Defendant unpersuasively argues that the facts of this case are more like those presented in Williams II and Tucker, where the investigatory stops were found to be impermissible. However, both of these cases are readily distinguishable.
Williams II involved a situation where the officers "were patrolling a housing complex, hoping to deter a possible retaliatory shooting." Dunbar, supra, 434 N.J. Super. at 525 (citing Williams II, supra, 410 N.J. Super. at 552). The officers saw the defendant, who was riding his bicycle. Williams II, supra, 410 N.J. Super. at 553. When the defendant saw the officers, he simply pedaled away, placed his hand in a pants pocket, and ignored the officers' command that he stop. Ibid. The officers chased and caught the defendant who, as the officers grabbed him, threw away a box of cocaine. Ibid. Thus, in Williams II, the police had no reason, other than the defendant's decision to leave the scene, to suspect that the defendant was involved in any criminal activity and, therefore, we found that the investigatory stop was not justified. Id. at 558.
In Tucker, the police saw the defendant sitting on a curb. Tucker, supra, 136 N.J. at 161. The defendant fled the scene as the patrol car approached and, during the chase that ensued, the defendant dropped a packet of cocaine. Ibid. As was the case in Williams II, "the sole basis asserted for police action was the [defendant's] flight" and, accordingly, the Supreme Court found that the police officers' actions required suppressing the drugs seized as the result of the investigatory stop. Id. at 168-69.
In the present case, however, the troopers received a dispatch directing them to a specific location where a specific crime was reported to have occurred. The dispatch was immediately corroborated by the circumstances the troopers encountered when they arrived at the scene where they found a large group of people in the middle of the street. Only one of those individuals ran as soon as he made eye contact with Leo. Once defendant ran away, the trooper had a reasonable and articulable suspicion that defendant was involved in the criminal activity that had been reported and was permitted to conduct an investigatory stop. Therefore, we reject defendant's contention on this point.
Defendant also argues that the "tip" that resulted in the dispatch Leo received of the fight in progress and the presence of a gun at the scene should be "discount[ed]" in the analysis of the totality of the circumstances because it was "anonymous, undetailed, and unsubstantiated[.]" We disagree.
While defendant correctly notes that Leo did not testify concerning the source of the dispatch the police received, defendant ignores the fact that he represented to the court that "the New Jersey State [P]olice switchboard received a call from a local citizen advising that there was a fight in progress in front of a residence located at" a specific address. Our Supreme Court has noted that an ordinary citizen reporting crime to the police is not viewed with suspicion, and courts assume that a further demonstration of reliability is not necessary to justify a stop of the person identified in the citizen's report. State v. Basil, 202 N.J. 570, 586 (2010).
"Thus, an objectively reasonable police officer may assume that an ordinary citizen reporting a crime, which the citizen purports to have observed, is providing reliable information." Ibid. "There is an assumption grounded in common experience that such a person is motivated by factors that are consistent with law enforcement goals." State v. Davis, 104 N.J. 490, 506 (1986). In addition, the Supreme Court has also observed that "effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information." State v. Crawley, 187 N.J. 440, 457 (quoting United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976)), cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006).
Therefore, Leo could reasonably rely upon the information the dispatch officer provided him concerning the fight and the presence of a handgun at the scene. Moreover, when Leo arrived at the scene he encountered a situation corroborating that a fight had taken place or was about to occur. Although no member of the group was fighting when the troopers arrived, there were ten to twenty people standing in the street outside of a residence. While the existence of this highly unusual scene may have had "some speculative innocent explanation[,]" this did not mean that Leo had to ignore what his experience told him was possible criminal activity under the totality of the circumstances. Arthur, supra, 149 N.J. at 11. Therefore, we conclude that the motion to suppress should have been denied because Leo had sufficient reasonable and articulable suspicion to justify an investigatory stop.
Even assuming that the chase and order to stop were unconstitutional, defendant's flight, coupled with discarding the handgun in the trooper's presence and continuing to flee, purged any taint from the unconstitutional stop. A person must obey a police officer's commands to stop even if the stop is unlawful. Crawley, supra, 187 N.J. at 458-60. As our Supreme Court has stated:
suspects must obey a police officer's commands during an investigatory stop, even if the stop is unlawful, and test the stop and detention later in court. It is well-settled that defendants have no right to resist arrest, elude or obstruct the police, or escape "in response to an unconstitutional stop or detention." "For compelling public safety reasons, the law requires that a defendant submit to an illegal detention and that he take his challenge to court." Even though the suspect may have done nothing wrong, "he cannot be the judge of his own cause and take matters into his own hands and resist or take flight.""[E]luding the police and resisting arrest in response to an unconstitutional stop or pat down constitute intervening acts and . . . evidence seized incident to those intervening criminal acts will not be subject to suppression." Williams I, supra, 192 N.J. at 16.
[State v. Herrerra, 211 N.J. 308, 334-35 (2012) (citations omitted) (quoting Crawley, supra, 187 N.J. at 455).]
To determine whether the seizure of evidence is sufficiently attenuated from an unlawful investigatory stop, a court must consider three factors: "(1) 'the temporal proximity' between the illegal conduct and the challenged evidence; (2) 'the presence of intervening circumstances'; and (3) 'particularly, the purpose and flagrancy of the official misconduct.'" State v. Shaw, 213 N.J. 398, 415 (2012) (quoting Brown v. Illinois, 422 U.S. 590, 602-04, 95 S. Ct. 2254, 2261-62, 45 L. Ed. 2d. 416, 427 (1975)); Williams, supra, 192 N.J. at 15.
Here, the chase was "very brief," a factor which would weigh in favor of suppressing the gun. However, there was no evidence that Leo acted in bad faith; rather, he acted in good faith based on his training and experience, which led him to suspect that defendant was either involved in the fight or in possession of the handgun because, unlike everyone else at the scene, he tried to run away as soon as he saw that Leo was looking at him.
Most importantly, there were intervening criminal acts. Leo arrived in a marked patrol car and was wearing his uniform. When he ordered defendant to stop, defendant was obligated to comply. Defendant opted instead to run, discard the handgun into a residential yard, and avoid apprehension by continuing to run. These intervening criminal acts purged the taint from the allegedly unconstitutional investigatory stop. See State v. Worlock, 117 N.J. 596, 623 (1990) (holding that the presence of intervening criminal events is the most important factor in the attenuation analysis).
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION