DOCKET NO. A-0945-13T3
Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Currier. On appeal from Superior Court of New Jersey, Criminal Division, Hudson County, Indictment No. 12-01-00045. Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Michael Ray appeals from an April 9, 2013 conviction for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), for which he was sentenced to five years in prison with a three-year parole disqualifier, pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). Before defendant pled guilty, Judge John A. Young, Jr. denied his motion to suppress the seizure of a gun he dropped in an apartment building stairwell while being chased by the police. Defendant argues that the motion judge erroneously concluded that there was sufficient attenuation between the unlawful stop and the recovery of the handgun. We disagree and affirm.
Defendant has the right to appeal the denial of his motion to suppress. Rule 3:5-7(d) states: "Appellate Review. Denial of a motion made pursuant to this rule may be reviewed on appeal from a judgment of conviction notwithstanding that such judgment is entered following a plea of guilty."
The suppression hearing revealed the following facts. Jersey City Police Officer Hilburn was on duty wearing plain clothes in an unmarked car with his partner. At approximately 6:00 p.m. they approached the front of a three-story apartment building, which had a large glass window. Through the window Officer Hilburn could see one woman and three men in the hallway.
Officer Hilburn displayed his badge on the glass of the window while requesting that the woman inside the hallway open the locked front door so he could conduct an investigation. She opened the door, and as both officers entered the hallway, Officer Hilburn said, "you know, listen, we're conducting a narcotics investigation, we're receiving numerous complaints of narcotics being sold." When he made this statement, defendant was sitting in a chair in the hallway underneath the bottom of the stairs to the ground floor, and another man was standing on the other side of defendant.
Shortly after Officer Hilburn told them that he was conducting a narcotics investigation, the man that was standing next to defendant turned around and began to walk away. Defendant then stood up from the chair and began to take a step back, at which time Officer Hilburn said "stop." Neither of the men stopped; the first man took flight up the stairs. Defendant continued walking backwards "while simultaneously reaching under his shirt grabbing an unknown object near his waist and proceed[ing] up the stairs."
Officer Hilburn testified: "I believe and through my training and experience of making numerous gun arrests I knew -- I felt that he was reaching for a weapon." He ran after defendant. As Officer Hilburn chased the men up the stairs, defendant continued to reach for his waist area. They all tripped on the stairs.
As Officer Hilburn came close to the landing on the top floor, he observed defendant "pull out a gun from his waistband, the same area where he was reaching initially." Defendant tripped, hit the floor with his hands in order to protect himself, and dropped the handgun.
The first man entered into Apartment 16, followed shortly by defendant. Officer Hilburn grabbed the gun dropped by defendant. The two fleeing men escaped from the pursuing officers. Defendant was arrested months later and charged with possession of the gun he had dropped on the stairs.
Defendant raises the following single issue on appeal,
POINT I: ALTHOUGH THE TRIAL COURT PROPERLY FOUND RAY WAS SUBJECT TO A SEIZURE THAT VIOLATED THE FOURTH AMENDMENT, THE COURT ERRONEOUSLY CONCLUDED THAT THERE WAS SUFFICIENT ATTENUATION BETWEEN THE STOP AND THE RECOVERY OF EVIDENCE TO AVOID SUPPRESSION
When considering a trial court's ruling on a motion to suppress evidence, "[w]e conduct [our] review with substantial deference to the trial court's factual findings, which we must uphold . . . so long as those findings are supported by sufficient credible evidence in the record." State v. Hinton, 216 N.J. 211, 228 (2013) (citation and internal quotation marks omitted). "Those findings warrant particular deference when they 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." State v. Rockford, 213 N.J. 424, 440 (2013) (citation and internal quotation marks omitted).
The United States and New Jersey Constitutions guarantee an individual's right to be free from "unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. A warrantless search is "'presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement.'" State v. Wilson, 178 N.J. 7, 12 (2003) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)).
At a suppression hearing, "the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure falls within one of the few well-delineated exceptions to the warrant requirement." State v. Mann, 203 N.J. 328, 337-38 (2010) (citation and internal quotation marks omitted); State v. Edmonds, 211 N.J. 117, 128 (2012) (citation omitted).
Under the New Jersey Constitution, "a seizure occurs only when, by means of physical force or a show of authority, the suspect's freedom of movement is restrained and only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." State v. Tucker, 136 N.J. 158, 164 (1994) (citation and internal quotation marks omitted); Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889, 903 (1968) ("It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person."); State v. Rodriguez, 172 N.J. 117, 126 (2002) (noting that an investigative stop arises "when an objectively reasonable person feels that his or her right to move has been restricted") (citing State v. Davis, 104 N.J. 490, 498 (1986)).
In Pineiro, our Supreme Court stated that the determination of whether an officer had a reasonable suspicion to conduct a brief investigatory stop is fact-sensitive and necessitates an evaluation of the "totality of the circumstances[.]" State v. Pineiro, 181 N.J. 13, 22 (2004) (citation omitted). "Unless the totality of the circumstances satisfies the reasonable and articulable suspicion standard, the investigatory stop 'is an unlawful seizure, and evidence discovered during the course of an unconstitutional detention is subject to the exclusionary rule.'" Mann, supra, 203 N.J. at 339 (quoting State v. Elders, 192 N.J. 224, 247 (2007)).
Generally, "flight alone does not create a reasonable suspicion for a stop[.]" State v. Dangerfield, 171 N.J. 446, 457 (2002) (citation omitted); Pineiro, supra, 181 N.J. at 26 (citation omitted). "However, flight in combination with other circumstances . . . may support the reasonable and articulable suspicion required to justify a stop." State v. Williams, 410 N.J. Super. 549, 555 (App. Div. 2009), certif. denied, 201 N.J. 440 (2010) (citations and internal quotation marks omitted).
N.J.S.A. 2C:29-1(a) states in pertinent part:
A person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act."[A] person has no constitutional right to flee from an investigatory stop[.]" Williams, supra, 192 N.J. at 11 (citation omitted).
Here, defendant argues that the trial court's decision not to suppress the evidence of his possession of a handgun was not supported by credible evidence. Defendant cites to our decision in Williams, supra, 410 N.J. Super. at 552, which held that the "commission of the offense of obstruction is insufficient by itself to establish significant attenuation," to prove that the motion judge erred in his decision.
The defendant in our Williams decision reached into his pocket as he was riding his bicycle away from the police. Id. at 556-57. Officer Hilburn testified that after seeing defendant reach for his waist he decided to chase after him. Unlike the defendant in Williams, who rode his bicycle away on the open street, defendant was in a stairway of an apartment building where a gun posed an immediate hazard to all occupants. Ibid.
We agree with Judge Young that the officers did not have the constitutional authority to enforce their order to defendant to stop. Judge Young stated in his written opinion:
Had Defendant's encounter with police ended at the bottom of the stairs, the situation before this court would be that of police off[ic]ers having exceeded the constitutional constraints of a field inquiry. However, the encounter did not end there. Defendant reaches for his waistband, then turned and fled, reaching for the gun once again while running from the police. Those events precipitated a reasonable suspicion to stop Defendant for possession of a suspected firearm or arrest him for obstruction of a police investigation contrary to N.J.S.A. 2C:29-1.
"[T]he exclusionary rule will not apply when the connection between the unconstitutional police action and the evidence becomes so attenuated as to dissipate the taint from the unlawful conduct." State v. Badessa, 185 N.J. 303, 311 (2005) (citation and internal quotation marks omitted). "In evaluating whether evidence is sufficiently attenuated from the taint of a constitutional violation, [the courts] look to three factors: '(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.'" State v. Williams, 192 N.J. 1, 15 (2007) (quoting State v. Johnson, 118 N.J. 639, 653 (1990)).
Judge Young found the first factor for determining whether evidence is sufficiently attenuated from the taint of a constitutional violation, "the temporal proximity between the illegal conduct and the challenged evidence," favored defendant. However, as Judge Young pointed out, that factor is the "least determinative" factor. State v. Worlock, 117 N.J. 596, 622-23 (1990) (citation omitted).
As to the second factor, "the presence of intervening circumstances," Judge Young found this factor favored the State. In Williams, our Supreme Court opined that "[i]t is the second factor--the presence of intervening circumstances--that is determinative." Williams, supra, 192 N.J. at 16 (citation omitted); Johnson, supra, 118 N.J. at 656 (explaining that the second factor may be the most important factor in evaluating whether evidence is tainted).
Judge Young wrote:
Defendant did not, however, have a right to reach for an object in his waistband that the police reasonably believed to be a firearm, flee from sight, then reach for a gun, leading officers to believe that he posed a risk to the officers and the public.
After the instruction, Defendant's actions gave police, at minimum, a reasonable, articulable suspicion to attempt either a Terry search or an arrest of Defendant after apprehending him for obstruction of justice. Because the chase was conducted in furtherance of that aim and because police were lawfully present on the staircase in the common hallway, the discovery of the gun was sufficiently attenuated from the initial, unlawful stop.
Judge Young found the third factor, "the flagrancy and purpose of the police misconduct," also favored the State. He found no evidence that the officers acted in bad faith. In Williams, our Supreme Court opined that "[w]ith regard to the third factor, it bears repeating that even though the officers may have acted mistakenly, they did so in good faith. Accordingly, their actions could hardly be described as flagrant misconduct." Williams, supra, 192 N.J. at 16. Judge Young stated:
There is no indication here that officers acted in bad faith. Though the initial instruction to stop was unjustified, their response to what they perceived to be the threat of a weapon was reasonable under the circumstances, particularly considering the fact that they were responding to citizen complaints of illegal narcotics sales.
Officer Hilburn testified that based on his experience he believed that defendant had a weapon because he was reaching for his waist as he was walking backwards away from him. It was after observing this conduct by defendant that the two officers pursued defendant up the stairs.
Judge Young properly denied defendant's motion to suppress.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION