Opinion
DOCKET NO. A-4406-11T4
07-01-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL R. WIMBISH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Koblitz and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-06-01494.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant appeals the denial of his motion to suppress evidence and his sentence. We affirm.
Defendant was indicted for third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); fourth-degree obstruction of justice, N.J.S.A. 2C:29-1 (count three); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(b) (count four).
Defendant was acquitted of count four but convicted on the other counts. After granting the State's motion to impose a mandatory extended term, N.J.S.A. 2C:43-6(f), and following the merger of count one into count two, the court sentenced defendant to an eight-year term, with a four-year period of parole ineligibility, on count two, and a concurrent eighteen-month term on count three.
During the suppression hearing, Atlantic City Police Officer Vicenzo Visceglia testified he was on patrol when dispatch alerted him of a 9-1-1 call. The caller reported that there was a black male possibly in possession of a gun in a particular Rite-Aid. The man was described as wearing a black "sweat hood." The officer did not receive any other information, and did not have any knowledge about who made the call or the source of the caller's information. The officer said he was familiar with the store and that generally it was a busy store with numerous customers. He and six other officers immediately responded because of the "possible threat, especially when there is other people in the store." He was not aware, however, of any actual threats, merely that there was a man who was possibly in possession of a gun.
After entering the store, the officer spotted a black male at the rear wearing a black sweatshirt. When he caught up to the man, later identified as defendant, another officer was telling defendant to exit through the rear door. Defendant complied and Officer Visceglia followed; there were two other police officers waiting outside of the door. Meanwhile, four other officers were in the store, where another black male was undergoing a field interview.
Once outside, Officer Visceglia instructed defendant to put his hands up and another officer conducted a pat-down. No weapons were found. Officer Visceglia told defendant the reason the police had been dispatched to the store, and further advised defendant that he fit the description of the person possibly in possession of a gun. Defendant, who was sweating and "very nervous," claimed the police were lying. Officer Visceglia repeated the reason the police were present. Defendant claimed he did not have any guns and, without any prompting by the police, spontaneously blurted out "all I have is a bag of weed." Defendant mentioned the "weed" was in his pocket, and looked down at and shook his leg. Visceglia noticed a large bulge in the pocket of defendant's pants.
Visceglia advised defendant he was under arrest and placed defendant's hands behind his back, but defendant threw his hands in the air. Sensing defendant was getting "a little more irate," Visceglia grabbed the back of defendant's sweatshirt to detain him, but defendant broke free and ran. The officers immediately grabbed defendant and, after a brief struggle, succeeded in subduing and handcuffing him. When defendant was searched, a plastic bag containing what was later determined to be marijuana and heroin was discovered in the pocket of his pants.
Defendant testified he entered Rite-Aid with his cousin around 4:55 p.m., and left fifteen minutes later after looking for and purchasing some merchandise. As soon as he exited the rear door, a police officer told him to put up his hands, telling him he fit the description of a person believed to be in possession of a gun. The police patted him down over his outer clothing and then "pretty much kept me there."
Defendant denies saying he had a "bag of weed." He claims that, after the police patted him down, the police reached into his pockets, which in turn caused him to run. He was then apprehended, handcuffed, searched and the drugs discovered.
The trial court found defendant did in fact tell the police he had "weed." The trial court concluded the investigatory stop was lawful, but also determined that even if it were not, when defendant ran from the police after his arrest he "broke the link in the chain" between the alleged unlawful stop and the search incident to his arrest that led to the discovery of the drugs. See State v. Williams, 192 N.J. 1, 4 (2007). Therefore, suppression of the drugs was not warranted by the exclusionary rule.
Defendant raises two points for our consideration:
POINT I- THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE AS THERE WAS NO REASONABLE SUSPICION TO STOP AND FRISK THE DEFENDANT AND ANYTHING FOUND AFTER THIS STOP AND FRISK WAS THE FRUIT OF THE POISONOUS TREE.
POINT II - THE DEFENDANT'S SENTENCE IS EXCESSIVE.
Defendant contends he was subjected to an unlawful investigatory stop, also referred to as a "Terry stop" or a "stop and frisk," when asked to step outside of the store and place his hands in the air, followed by the pat-down search. He claims the drugs found in his possession after his arrest should have been suppressed because, had he not been unlawfully detained, the drugs never would have been discovered. We need not reach the question whether the investigatory stop adhered to constitutional standards, because the police had the right to search defendant incident to his arrest for obstruction, if not for possession of drugs.
In Williams, two police officers on patrol in a marked car received a dispatch that a black man wearing a black jacket was possibly selling drugs at a residence in Elizabeth. When they responded to the residence they saw two men, each of whom was wearing a black jacket. One walked away but the other, the defendant, remained in place when he saw the patrol car. There was not any indication the defendant was engaging in any criminal activity.
The police approached the defendant to interview him. For their safety, they sought to conduct a pat-down first, and thus told the defendant to place his hands on his head. Instead, the defendant pushed the officer and ran. The officers immediately apprehended and arrested him. During a pat-down search, they found a handgun in the defendant's waistband.
The Court characterized the constitutional "propriety" of the investigatory stop as "doubtful," but noted one is nevertheless "obliged to submit to [an] investigatory stop, regardless of its constitutionality." Williams, supra, 192 N.J. at 10. If incriminating evidence is discovered during an unlawful stop, one is not to obstruct the police but to resort to "judicial remedies, and . . . if a person peaceably submits to an unconstitutional stop the result will be suppression of the evidence seized from him." Id. at 13 (citing State v. Crawley, 187 N.J. 440, 459 (2006)).
By fleeing the police, however, the defendant committed the offense of obstruction, N.J.S.A. 2C:29-1, making the search incident to the arrest lawful. That search, unquestionably legitimate, led to the discovery of the handgun. Fleeing from and thus obstructing the police broke the chain from the dubious investigatory stop, making the taint from the stop "significantly attenuated by defendant's criminal flight that caused the handgun's later seizure, and accordingly the application of the exclusionary rule is unwarranted in this case." Williams, supra, 192 N.J. at 10-11.
To determine if evidence is sufficiently attenuated from an unlawful investigatory stop, three factors must be taken into consideration: "(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct." Id. at 28-29.
Like in Williams, here the search incident to the arrest of defendant for obstruction was also lawful. While there was a close temporal proximity between the stop and the arrest, temporal proximity "'is the least determinative'" factor. Id. at 16 (quoting State v. Worlock, 117 N.J. 596, 622-23 (1990)). The intervening circumstance was that defendant committed an offense. At that point, the police were clearly empowered to arrest and search defendant, and it was during the search illicit drugs were found.
As for the third factor, the police were responding to a report that a person might be carrying a gun in a place normally crowded with customers. Given the potential threat to public safety, we cannot conclude that the trial judge was not entitled to find that the police's conduct "was neither flagrant nor was their purpose unjust." On balance, the second and third factors far outweigh the first. We therefore affirm the decision to deny the motion to suppress.
After considering the record and the briefs, we conclude defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).