DOCKET NO. A-1813-14T4
Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-12-1281. Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Following the denial of his motion to suppress evidence seized without a warrant, defendant Scott A. Reddick pled guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and was sentenced in accord with a negotiated agreement to a downgraded term of three years in State prison with a twelve-month parole disqualifier. He appeals, challenging the denial of his motion. Because we detect no error, we affirm.
The facts elicited by the State at the suppression hearing are easily summarized. Shortly after 1:00 a.m., Linden police were dispatched to a house on an anonymous report of men with guns. The caller claimed that behind the house were four men armed with handguns, two wearing black shirts and two wearing white shirts standing next to a BMW and a Cadillac. The officers knew the street because of the many gang-related narcotics crimes occurring there and its location in an area where the majority of the city's weapons offenses occurred.
The house was a large, multi-family dwelling located on a corner lot with a long L-shaped driveway. As the officers approached the house, they could see a BMW with the doors open and the interior lights on, and a Cadillac parked behind the house. Also present were three men: two seated in the BMW, one wearing a black shirt and one a white shirt, while the third man, defendant, was standing by the Cadillac wearing a black shirt. After making those observations, the officers walked up the driveway, approached the men and ordered them to show their hands.
The men immediately began running. As the men took off, one of the officers noticed among them a fourth man in a white shirt. The officers drew their weapons and gave chase, ordering the men to stop and show their hands. None complied.
Another unit had already arrived, however, and was approaching the property from the direction the men were fleeing. When they saw the other officers, the men stopped and turned around. As the men began to walk back toward the officers who first ordered them to stop, one of those officers watched as defendant took a black gun from his waistband and threw it by some garbage cans alongside the house. Seeing the gun, the officers ordered all of the men to the ground.
The officer who saw defendant toss the gun retrieved it from where defendant had discarded it. The officer also retrieved another small handgun in plain view on the floor in front of the driver's seat of the BMW. The officer testified that while processing the men at headquarters for unlawful possession of a weapon, and obstruction, N.J.S.A. 2C:29-1, among other charges, he learned that none of the men lived at the house where they were arrested.
Defendant argued on the basis of the testimony that the confidential informant's tip did not provide a basis for the investigatory stop, relying on Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). The judge appeared, however, to agree with the State that the initial encounter was not an investigatory stop but a field inquiry, justified by the report that the men were carrying guns.
Relying on the officer's credible testimony, the judge also found that the report that the men were armed justified the officers' walk up the driveway once they saw the cars and the men described by the tipster and made reasonable their request that the men show their hands. Ultimately, however, the judge reasoned that even if the initial stop was unlawful, defendant's act in fleeing the officers precluded him from arguing he was entitled to suppression of the handgun, which defendant had discarded in any event. See State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999) (upholding finding that defendant abandoned property he dropped on the driveway).
Defendant raises a single issue on appeal.
THE ANONYMOUS TIP ALLEGING THAT A GROUP OF MEN WEARING CERTAIN CLOTHING WERE ARMED - NEARLY IDENTICAL TO THE TIP IN FLORIDA V. J.L. - DID NOT PROVIDE REASONABLE SUSPICION FOR THE INVESTIGATORY STOP.
Our standard of review on a motion to suppress is limited. We must defer to the trial court's factual findings, so long as they are supported by sufficient credible evidence in the record. State v. Elders, 192 N.J. 224, 243-44 (2007). Our review of the trial court's application of the law to the facts, however, is plenary. State v. Hathaway, 222 N.J. 453, 467 (2015).
Applying those standards here, to the extent the judge concluded that the officers' initial encounter with the men amounted to only a field inquiry, we disagree. Based on the officer's testimony that he identified himself as a police officer and immediately "ordered" the men to show their hands, we have no hesitation in concluding that initial encounter was an investigatory stop, not a field inquiry. See State v. Rodriguez, 172 N.J. 117, 125-27 (2002) (discussing the differences between a field inquiry and an investigatory stop).
We also agree with defendant that an informant's anonymous tip, which the police could only corroborate as to benign descriptive details and not illegal conduct, is ordinarily insufficient to justify such an investigatory stop under Florida v. J.L., supra, 529 U.S. at 271-72, 120 S. Ct. at 1379, 146 L. Ed. 2d at 260-61 and Rodriguez, supra, 172 N.J. at 129-32. When, however, "the anonymous tip is conveyed through a 9-1-1 call and contains sufficient information to trigger public safety concerns and to provide an ability to identify the person, a police officer may undertake an investigatory stop of that individual." State v. Gamble, 218 N.J. 412, 429 (2014) (relying on State v. Golotta, 178 N.J. 205, 219-20 (2003)). That is because courts treat anonymous 9-1-1 calls as more reliable than other anonymous tips, owing to "technological and regulatory features of the 9-1-1 system which safeguard against false reports." Id. at 430 (citing Navarette v. California, 572 U.S. ___, ___, 134 S. Ct. 1683, 1689-90, 188 L. Ed. 2d 680, 688-89 (2014)).
The suppression motion in this case was decided before either Navarette or Gamble, and the record is unclear as to whether the anonymous tip, which was transmitted to the officers by dispatch, was conveyed to the police via the 9-1-1 system. The officer testified he had no knowledge of the call, and no 9-1-1 tapes or CAD records were produced in discovery. Notwithstanding, we are satisfied considering the totality of the circumstances, including the lateness of the hour, the high-crime neighborhood, the report of multiple guns in a residential area, and that the two officers who initially approached saw three men, making them outnumbered, that the officers had reasonable concern for their own safety to order the men to show their hands. See Gamble, supra, 218 N.J. at 431.
Even were we to doubt the constitutionality of the stop here, however, the judge rightly found defendant obstructed the officers' investigation by flight. The finding that defendant fled the police after being ordered to show his hands, following on a call from dispatch, which is supported by sufficient credible evidence, means the case is squarely controlled by the Supreme Court's holding in State v. Williams, 192 N.J. 1, 4 (2007), that the exclusionary rule will not support suppression of evidence seized incident to defendant's lawful arrest for resisting or obstruction, regardless of whether the initial stop or seizure was lawful.
"[D]efendants have 'no right' to resist arrest, elude or obstruct the police, or escape 'in response to an unconstitutional stop or detention.'" State v. Herrerra, 211 N.J. 308, 335 (2012) (quoting State v. Crawley, 187 N.J. 440, 455, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006)). Accordingly, because the judge was correct that defendant's flight from the police was an intervening act that would, in any event, have purged the taint from an unlawful seizure, we agree that the gun recovered from the ground in the area of the garbage cans should not have been suppressed. See Williams, supra, 192 N.J. at 18.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION