DOCKET NO. A-0776-13T3
Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-06-1540. Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following the denial of his motion to suppress evidence seized in a Terry frisk, defendant Malik Ellis entered a negotiated plea of guilty to second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and was sentenced to a prison term of five years, with a mandatory three-year period of parole ineligibility. Defendant appeals from the denial of his motion to suppress the handgun, arguing the trial court erred in finding the police had a reasonable basis to conduct the frisk. We disagree and affirm.
The only witness at the suppression hearing was the arresting officer. According to the officer, he saw defendant near 11:00 p.m. while on routine patrol with three other officers in a high-crime area in Orange. Defendant was standing on a well-lit corner with another man drinking from a bottle of gin. The officer, who recognized defendant from prior encounters, got out of his unmarked car intending to issue defendant a summons for the open container. The other policemen also got out. According to the officer, he approached defendant along with one other officer while the other two officers approached defendant's companion.
When the two officers approached defendant, he turned away and put the bottle in the left front pocket of his cargo pants. The officer testified that he told defendant he was going to issue him a summons and ordered him to produce identification for that purpose. Defendant responded saying, "fuck this bullshit. My brother was just killed. You're going to give me a ticket for drinking in public? You're a mall cop." The officer testified defendant's speech was slurred, and he smelled of alcohol. The officer ordered defendant to turn and face him and to show his hands. Defendant continued to blade his body away from the officers "with his hand near his pocket" and replied "I don't have ID. I'm not giving you shit."
The officer testified that based on his prior encounters with defendant, the late hour and high-crime neighborhood, his inability to see defendant's hands and defendant's uncooperative, belligerent behavior, he asked his partner to assist him in a protective pat down of defendant. When defendant was patted down, the officers discovered a loaded .32 caliber revolver in his right front pocket. The officer estimated the entire encounter lasted less than thirty seconds.
At the conclusion of the hearing, after listening to the testimony and the arguments of counsel, the judge asked for a transcript. He subsequently produced a comprehensive written opinion identifying the controlling precedents and detailing the facts. The judge concluded:
the actions language and demeanor of [defendant], [the officer's] knowledge of
his identity and background, coupled with the high crime area factor constitutes, in the judgment of this court, objectively reasonable suspicion to warrant a frisk for weapons. Moreover, the initial basis precipitating the police approach, the questioning conducted and the defendant's adamant noncompliance was sufficient to create a "reasonable suspicion" of criminal activity. More importantly, however, it raised in the law enforcement officer's mind the issue of [his] safety and the concomitant need to conduct a Terry search as a protective and precautionary measure, which was manifestly reasonable under the "totality of circumstances."
From the outset of the police and [defendant] encounter, the defendant displayed anger, resistance and rebuffed the police directives. Simultaneously, [defendant's] movement in turning his body away from the police can reasonably be seen as an attempt to conceal a weapon. Of equal importance, [defendant] defiantly refused to "show his hands," particularly his left hand, which covered his left-hand pants pocket. Under the totality of these circumstances, the police concluded that [defendant] was endeavoring to conceal an item or object, which clearly prompted a need to search, which was "an objectively
reasonable concern for the officers' safety." State v. Roach, 172 N.J. 19, 27, 29 (2002).
The officer testified that defendant "had identified himself as a gang member previously, weapons offenses in his history and previous narcotics arrests also." See State v. Privott, 203 N.J. 16, 28-29 (2010) (finding officer's knowledge of defendant's gang affiliation and drug offenses relevant to the determination of the reasonableness of a Terry frisk); State v. Valentine 134 N.J. 536, 547 (1994) ("[A] police officer's knowledge of a suspect's criminal history, especially where that history involves weapons offenses, is a relevant factor in judging the reasonableness of a Terry frisk.").
Defendant appeals, raising only one issue:
BECAUSE THE STATE PRESENTED INSUFFICIENT FACTS FROM WHICH THE LOWER COURT COULD REASONABLY FIND THAT THE POLICE HAD A REASONABLE AND ARTICULABLE SUSPICION THAT DEFENDANT WAS PRESENTLY ARMED AND DANGEROUS[,] THE ORDER DENYING HIS MOTION TO SUPPRESS SHOULD BE REVERSED.
We defer to the trial court's factual findings on a motion to suppress unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention. State v. Elders, 192 N.J. 224, 245 (2007). Applying that standard here, our review of the record convinces us that no intervention is warranted. Defendant's argument to the contrary is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm, substantially for the reasons expressed in Judge Peter V. Ryan's comprehensive written opinion of February 13, 2013.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION