Opinion
DOCKET NO. A-3720-13T2
07-14-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARCUS A. BOONE a/k/a, KAREEM JONES, Defendant-Appellant.
Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender attorney; Mr. Kirsch, of counsel and on the brief). Sarah Elizabeth Ross, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Ross, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges O'Connor and Suter. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-05-0379. Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender attorney; Mr. Kirsch, of counsel and on the brief). Sarah Elizabeth Ross, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Ross, of counsel and on the brief). PER CURIAM
Defendant Marcus A. Boone appeals an order denying his motion to suppress evidence of a handgun. He also challenges his sentence as manifestly excessive. After the court denied his motion to suppress evidence, defendant pled guilty to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Under the negotiated plea, the State agreed to recommend a five-year prison term with a three-year period of parole ineligibility, provided defendant appear at the sentencing hearing. Defendant failed to appear at that hearing and, when ultimately sentenced, the court imposed a seven-year prison term. The remaining counts of the indictment were dismissed.
The court also dismissed the other charges with which defendant had been indicted, third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d).
Following our review of the record and applicable legal principles, we reverse the order denying defendant's motion to suppress evidence and remand for further proceedings.
I
Police Officer Carmine Giannetta of the Elizabeth Police Department was the only witness who testified at the suppression hearing. Giannetta reported that, on January 11, 2012, Detective Torres, also of the Elizabeth Police Department, was stopped by a person on the street who reported that an African-American man in a puffy jacket was in possession of a handgun in a specific rooming house in Elizabeth. Giannetta conceded he knew nothing about the tipster, including whether he or she was anonymous or known to the police, or whether the tipster was reliable. Giannetta also admitted it was not uncommon to see people wearing a puffy jacket — which he interpreted to mean a down jacket - in winter, or for African-American men to be in that area of Elizabeth.
Giannetta testified the rooming house was in a "high-narcotic area" where the police had made numerous arrests for various offenses, including "narcotics and handguns." He mentioned the Police Department had received complaints that drugs were sold throughout the day in and on the grounds of the rooming house.
At around 6:00 pm, Giannetta and Torres drove to the area where the rooming house was located, where they were joined by two other officers, Lieutenant Kiley and Sergeant Nowinski. After emerging from their respective patrol cars, the four officers, all in uniform, walked down the sidewalk toward the rooming house, where they spotted co-defendant Lamont Jones and an African-American male in a down jacket, later identified as defendant, coming out of the front door of the rooming house. As they walked down the front steps to the building, the two men noticed the police. One of the two men said "Oh shit," and the two separated. Defendant began to walk at a fast pace away from the police.
Giannetta did not know anything about defendant but he did recognize Jones from "numerous" narcotics investigations and from having recovered handguns from an apartment adjoining Jones' apartment; the handguns reputedly belonged to Jones. Giannetta did not elaborate upon the nature of the narcotics investigations, but mentioned Jones is known to be a member of the Crip gang and that he or "somebody near him" usually has a gun.
Giannetta stopped Jones and the two "exchanged words." Jones appeared to be nervous and, because of his demeanor, his background, and the fact he might have a gun, Giannetta and Nowinski grabbed and searched Jones for weapons. Although cocaine was found on Jones, he did not have a weapon.
According to Giannetta, when defendant and Jones separated and defendant began to walk away from the police, Kiley "ran after [defendant], grabbed him, had a brief struggle, I guess." (emphasis added). It is unknown which part, if not all, of the latter statement was supposition by Giannetta.
Later in his testimony Giannetta stated that when Kiley caught him, defendant started flailing his arms in the air and Kiley pinned defendant up against a parked car. Giannetta heard Kiley say "I've got a gun," and saw Kiley having "like a brief struggle against a car. . . [w]ith Mr. Boone." Giannetta then ran over to assist Kiley with handcuffing defendant. Giannetta admitted that he did not know how Kiley discovered the gun. A pat-down search revealed defendant had cocaine and a handgun in his possession. Having been placed under arrest, defendant and Jones were then transported to the police station.
The trial court denied defendant's motion to suppress evidence of the handgun for the following reasons.
I'm satisfied that it was defendant's reactions that gave some heightened sense and gave [the police] not only the right to stop and investigate but, also, to detain them briefly when Mr. Boone turns and walks away from them, and one of the other people in the group says "oh shit." I'm also satisfied that that instance is heightened by the officer's knowledge of one of those co-defendants, one of those individuals, being a — a gang member known to carry drugs.
Focusing now on what happened between Kiley and — and Boone. I'm satisfied that Kiley had a right and every reason to detain Mr. Boone on the street, to make further inquiry of him. I'm satisfied that there was a struggle, that the defendant did not have a right to struggle, that he was subject to arrest at that point for obstructing, and that anything that was recovered from him after that was [a] search incident to arrest.
II
On appeal, defendant raises the following contentions:
POINT I - THE MOTION TO SUPPRESS THE GUN SHOULD HAVE BEEN GRANTED. THE STATE PROVIDED ALMOST NO EVIDENCE OF WHAT ACTUALLY OCCURRED WHEN DEFENDANT WAS STOPPED AND SEARCHED.
POINT II - THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
Specifically, defendant contends that the State failed to prove by a preponderance of the evidence that the search and seizure of the handgun fell within one of the exceptions to the warrant requirement. He argues there was insufficient evidence showing what occurred between Kiley and defendant, and thus the State cannot demonstrate that the handgun was lawfully seized.
The State contends that the police conducted an investigatory stop based upon a reasonable, articulable suspicion that defendant had or was about to engage in criminal activity and, during the course of that stop, frisked defendant as a protective measure. In the alternative, the State argues the police had the right to arrest defendant for obstructing Kiley from executing the investigatory stop when he flailed his arms. Thus, the State contends, the police were justified in conducting a pat-down frisk incident to that arrest.
"Appellate courts reviewing a grant or denial of a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). But appellate courts may reverse a trial court's determination if it "is 'so clearly mistaken that the interests of justice demand intervention and correction.'" Id. at 424-25 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Further, "[a] trial court's interpretation of the law . . . and the consequences that flow from established facts are not entitled to any special deference. Therefore, a trial court's legal conclusions are reviewed de novo." Id. at 425 (internal citations omitted).
The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "'No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.'" Terry v. Ohio 392 U.S. 1, 9, 88 S. Ct. 1868, 1873, 20 L. Ed. 2d 889, 898-99 (1968) (quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 1001, 35 L. Ed. 734, 737 (1891)). Thus, "[p]eople, generally, are free to go on their way without interference from the government. That is, after all, the essence of the Fourth Amendment — the police may not randomly stop and detain persons without particularized suspicion." State v. Shaw, 213 N.J. 398, 409-10 (2012).
"A seizure occurs if, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.'" State v. Sloane, 193 N.J. 423, 429 (2008) (quoting State v. Stovall, 170 N.J. 346, 355 (2002)). "Even a brief detention can constitute a seizure." Stovall, supra, 170 N.J. at 356. Because warrantless seizures and searches are presumptively invalid, when the police seize a person and evidence without a warrant, and the defendant moves to suppress the evidence, the State bears the burden of proving by a preponderance of the evidence the seizure and search fell within "'one of the well-delineated exceptions to the warrant requirement.'" Shaw, supra, 213 N.J. at 409 (internal quotation marks omitted) (quoting State v. Frankel, 179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004)).
One exception to the warrant requirement is an investigatory stop, as recognized in Terry, supra, 392 U.S. at 20-22, 88 S. Ct. at 1879-80, 20 L. Ed. 2d at 905-06. "A police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." Stovall, supra, 170 N.J. at 356 (citing Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). See also Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 527, 544 (1996). "'The principal components of a determination of reasonable suspicion . . . [are] the events which occurred leading up to the stop . . . , and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion. . . ." Stovall, supra, 170 N.J. at 357 (quoting Ornelas, supra, 517 U.S. at 696, 116 S. Ct. at 1661-62, 134 L. Ed. 2d at 919).
The determination of whether an officer had reasonable suspicion to conduct a brief investigatory stop is fact-sensitive and requires an evaluation of the "totality of the circumstances[.]" State v. Pineiro, 181 N.J. 13, 22 (2004). "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.'" State v. Mann, 203 N.J. 328, 339 (2010) (quoting State v. Elders, 192 N.J. 224, 247 (2007)).
Some of the factors to be considered when reviewing a police officer's decision to embark upon an investigatory stop are as follows. One factor is the officer's experience and knowledge. Pineiro, supra, 181 N.J. at 22 (citing State v. Davis, 104 N.J. 490, 504 (1986)). The defendant's presence in a high crime area, see Pineiro, supra, 181 N.J. at 26, and the defendant's criminal history, if known, are also relevant factors, id. at 24-25, 29. The suspect's demeanor, such as nervousness when questioned by the police, may be considered in determining whether reasonable suspicion exists. Stovall, supra, 170 N.J. at 367. However, a person's flight upon seeing the police, without more, generally does not constitute reasonable suspicion to support a stop. State v. Dangerfield, 171 N.J. 446, 457-58 (2002); Pineiro, supra, 181 N.J. at 26; State v. Tucker, 136 N.J. 158, 168-69 (1994).
Significantly, "[a]n anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 127 (2002) (citing Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990)). "[A]n unverified and uncorroborated informant's tip does not by itself justify a Terry stop[,]" State v. Richards, 351 N.J. Super. 289, 300 (App. Div. 2002) (citing State v. Caldwell, 158 N.J. 452, 460-61 (1999)), "[a]nd that is so even if the tip is of a gun in the possession of a suspect. See Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000)." Ibid.
In J.L., the Court held an anonymous caller's report to the police "that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun," without more, was insufficient "to justify a police officer's stop and frisk of that person." J.L., supra, 529 U.S. at 268, 120 S. Ct. at 1377, 146 L. Ed. 2d at 258-59. "[T]he United States Supreme Court declined to adopt a man with a gun exception to the rule of individualized reasonable suspicion to 'stop and frisk' and ordered the evidence suppressed." Richards, supra, 351 N.J. Super. at 300 (citing J.L., supra, 529 U.S. at 272, 120 S. Ct. at 1379, 146 L. Ed. 2d at 261). The Court further noted "that an anonymous tip lacking indicia of reliability . . . does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm." J.L., supra, 529 U.S. at 274, 120 S. Ct. at 1380, 146 L. Ed. 2d at 262.
During an investigatory stop, a police officer may conduct a protective search, also known as a pat-down or frisk, "where he has reason to believe that he is dealing with an armed and dangerous individual . . . ." Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909. If that basis exists, the officer may "conduct a carefully limited search of the outer clothing of such person[] in an attempt to discover weapons which might be used to assault him." Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1885, 20 L. Ed. 2d at 911.
The police may also pat-down an individual incident to an arrest. See State v. Moore, 181 N.J. 40, 45 (2004). A person who flees from an investigatory stop still may be convicted of obstruction under N.J.S.A. 2C:29-1 even though the stop is later found to have been unconstitutional. See State v. Crawley, 187 N.J. 440, 460-61, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006).
Defendant was not charged with obstruction or violating any other aspect of N.J.S.A. 2C:29-1. --------
Here, the evidence presented by the State failed to show the police had the requisite suspicion that a crime had been or was about to be committed. Similar to the circumstances in J.L., all the police had to go on was the report of a tipster stating that an African-American male in a puffy coat was in possession of a handgun at the rooming house. J.L., supra, 529 U.S. at 268-69, 120 S. Ct. at 1381, 146 L. Ed. 2d at 264. The State did not introduce any evidence about the source of the information upon which that report was based. White, supra, 496 U.S. at 328-29, 110 S. Ct. at 2415-16, 110 L. Ed. 2d at 307-08. There was no evidence about the identity or reliability of the tipster and the tip was not corroborated. Ibid.
Further, the tip imparted little by way of identifying the individual with the handgun. The tip did note the location of the person with the handgun with particularity, but as even Giannetta conceded, there was nothing uncommon about an African-American man being in that area of Elizabeth and, at that time of year, it was not uncommon for many to be wearing down jackets. In short, the tip was insufficient to warrant a Terry stop, and that is so even though the tip was of a person in possession of a weapon. J.L., supra, 529 U.S. at 268-69, 120 S. Ct. at 1381, 146 L. Ed. 2d at 264; Richards, supra, 351 N.J. Super. at 301 (citing Caldwell, supra, 158 N.J. at 460-61).
As for other indicia defendant had committed or was about to commit a crime, there was evidence drugs sales were common in and on the grounds of the rooming house. However, there was nothing about defendant's demeanor or conduct that provided the police with a reasonable, particularized, and objective basis to suspect he had just engaged in or was about to engage in criminal activity. Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906.
When the police approached him, defendant simply walked away hurriedly. His movements can hardly be characterized as flight, especially when there was no testimony the officers indicated in any way to defendant that he should stop or otherwise submit to them. Even if defendant had been fleeing from the police, as previously stated, flight upon seeing the police, without more, generally does not constitute reasonable suspicion to support a stop. Dangerfield, supra, 171 N.J. at 457-58. Certainly, the very fact defendant did walk away from the officers suggested he did not plan to inflict any harm upon the police.
The only witness who testified at the suppression hearing knew nothing about defendant. More important, there was no evidence the officer who conducted the investigatory stop of defendant had any knowledge of him, let alone had knowledge he had a criminal history or a proclivity to engage in violence. There also was no evidence about Kiley's training and experience and what impelled him to go after defendant.
In the final analysis, the State, which bore the burden of proving the seizure and search fell within one of the exceptions to the warrant requirement, did not show that Kiley possessed a reasonable, particularized, and objective basis for suspecting defendant had just engaged in, or was about to engage in, criminal activity. Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906. Thus, because the investigatory stop was an unlawful detention, the evidence discovered during that stop is subject to the exclusionary rule and must be suppressed. Terry, supra, 392 U.S. at 29, 88 S. Ct. at 1884, 20 L. Ed. 2d at 910-11.
The State alleges defendant interfered with Kiley's efforts to execute an investigatory stop when defendant flailed his arms and, thus, violated N.J.S.A. 2C:29-1. The State contends that even if the investigatory stop were unlawful, as Kiley was authorized to frisk defendant incident to his arrest for obstruction, during which the gun was discovered, there are no grounds to reverse the trial court's decision to deny defendant's motion to suppress. We disagree.
Little is known about what transpired during the investigatory stop. According to Giannetta, after defendant moved away from the police, Kiley went after and "caught" defendant, who started flailing his arms in the air. Kiley then pinned defendant against a parked car. Giannetta did indicate there was a brief struggle, but he was not specific about whether the struggle was the act of defendant flailing his arms and Kiley pinning him against the car, or whether Giannetta was referring to some other, undisclosed conduct.
But most important, there is no evidence defendant resisted a command to stop or otherwise failed to cooperate with Kiley. The fact defendant flailed his arms may well be evidence he was obstructing Kiley's good faith efforts to fulfill his duties as a police officer. On the other hand, flailing his arms also could have been an instinctive reaction to suddenly being grabbed or to Kiley using excessive force. It is simply not known why, or for how long, defendant flailed his arms. There is insufficient evidence about how this encounter unfolded and what transpired, including what was communicated to defendant — if anything - to support a finding defendant obstructed the police in violation of N.J.S.A. 2C:29-1, thus warranting a pat-down search incident to the arrest.
The order denying defendant's motion to suppress evidence and the judgment of conviction is reversed. The trial court is directed to enter an order suppressing the handgun. In light of our disposition, we need not address defendant's contention his sentence is manifestly excessive.
Reversed and remanded for further proceedings consistent with this opinion. 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