Opinion
DOCKET NO. A-4231-13T4
09-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTONIO ANDERSON, Defendant-Appellant.
Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Hubbard, on the brief). Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Whipple. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-01-0052. Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Hubbard, on the brief). Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief). PER CURIAM
Defendant appeals from a March 14, 2014 judgment of conviction after pleading guilty to violating N.J.S.A. 2C:39-7b, second-degree certain persons not to have weapons. We affirm.
On August 6, 2012, at 9:30 a.m., Detective Rivera of the Camden Police Department received a tip from a citizen witness that a man on Lansdowne Avenue had a silver handgun in his pocket, and was walking towards Louis Street. The tipster told Rivera that the person with the gun was a 5'5" black man, dressed in black with braided black hair and was accompanied by two black males, both over six feet tall wearing white t-shirts and blue jeans. Officer John Martinez was on patrol in the area, which he testified was a high crime area when he received the information through the dispatcher. Martinez first saw the tip on a computer screen in his vehicle. However, immediately thereafter, he received radio dispatches from Detective Rivera as the tipster relayed his observations of the suspects to Rivera over the telephone. Martinez arrived on the scene within one minute, driving the wrong way down a one-way street, and observed three males matching the tipster's description and in the area that the tipster described. Martinez pulled ahead of the men, exited his vehicle, and drew his gun while ordering the men to the ground. Two of the men started to get on the ground, defendant froze, looked at Martinez, and ran. As Officer Martinez gave chase, but defendant stumbled and a silver handgun fell and hit the pavement. Martinez tackled defendant, but defendant escaped his grip and was ultimately apprehended a few blocks away after a foot chase.
Defendant was indicted for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; third-degree resisting arrest, N.J.S.A. 2C:29-2a(3); fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f; and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. Before trial, defendant moved to suppress all of the evidence that the officers seized, contending it was obtained as a result of a warrantless search. After a hearing in which Officer Martinez testified, the judge denied defendant's motion on July 18, 2013, finding that the gun was lawfully seized in plain view following an investigatory stop based on a detailed, corroborated tip. Defendant subsequently pled guilty on February 7, 2014 to the certain persons not to have weapons charge, N.J.S.A. 2C:39-7b, and on March 14, 2014, was sentenced to a five-year term of incarceration with five years of parole ineligibility. This appeal followed.
Defendant raises the following points on appeal:
POINT I
THE DETENTION, BASED SOLELY ON A TIP THAT A MAN IN BLACK CLOTHING HAD A GUN, WAS UNCONSTITUTIONAL BECAUSE POLICE HAD NEITHER REASONABLE SUSPICION NOR REASONABLE PROBABLE CAUSE TO STOP OR ARREST MR. ANDERSON. U.S.
CONST. AMEND. IV AND XIV; N.J. CONST. ART I. PAR. 7.
A. The seizure was an arrest for which the police lacked any probable cause.
B. Even if the seizure was an investigatory stop, the police lacked the reasonable suspicion to effectuate such an intrusion.
1. The relied upon information was an anonymous tip and it did not provide the necessary reasonable suspicion to detain Mr. Anderson.
2. Whether or not the tipster was anonymous or known, in the absence of police corroboration or any information about the basis of the tipster's knowledge or reliability there was no reasonable suspicion to detain Mr. Anderson.
a. The tipster provided no basis of knowledge for the tip.
b. The tipster possessed no characteristics or any status which rendered him or her particularly reliable.
c. In the absence of police corroboration of the tip, there was a lack of reasonable suspicion to detain Mr. Anderson.
POINT II
THE DESCRIPTION OF THE AREA OF THE CRIME AS A HIGH CRIME AREA SHOULD NOT HAVE LESSENED THE REQUIREMENT FOR A FINDING OF REASONABLE SUSPICION. U.S. CONST. AMEND IV AND XIV. N.J. CONST. ART. I, PAR. 7.
When reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence on the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). "Those findings warrant particular deference when they are 'substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which the reviewing court cannot enjoy.'" Ibid. (quoting Robinson, supra, 200 N.J. at 15). "To the extent that the trial court's determination rests upon a legal conclusion, we conduct a de novo, plenary review." Ibid. (citing State v. J.D., 211 N.J. 344, 354 (2012); State v. Gandhi, 201 N.J. 161, 176 (2010)).
Here, the motion judge found Martinez to be credible and found the nature of the encounter to be a "very high risk" investigatory stop in a high crime area. The judge determined that, considering the totality of the circumstances, the information received by Martinez through Rivera was sufficiently reliable to justify stopping defendant and his comrades, who fit the description of suspects described. Relying upon State v. Padilla, 321 N.J. Super. 96, 108 (App. Div. 1999), aff'd, 163 N.J. 3 (2000), the motion judge concluded that, given the circumstances of and the information provided by the tipster, the exchange in this case amounted to no more than an investigatory stop.
The motion judge also determined that Officer Martinez's investigatory stop was valid. The judge considered that the tip was about the possession of a gun, which was an imminent danger; the officer's knowledge and experience; and the officer's familiarity with the area, which was described as dangerous and violent.
Defendant asserts the officers had insufficient justification to stop him. Specifically, defendant asserts that the tip, standing alone, did not provide reasonable suspicion to stop defendant, let alone probable cause to arrest him and the "high crime area" designation does not furnish reasonable suspicion and should not have been considered. We disagree.
As an initial matter, we note that the police conduct here was not geared towards a search, "but rather to investigate the anonymous call suggesting that three people [were walking around town] with a gun." Padilla, supra, 321 N.J. Super. at 107. In situations where an anonymous tipster calls and reports the presence of a gun, "the police ha[ve] the right, if not the obligation, to proceed to the scene in order to investigate the report[.]" Ibid. (citations omitted). It is of no moment that police approached the scene with their own weapons drawn, rather, "[t]he caller reported a person with a gun; consequently, the officers had the right to draw their handguns." Id. at 108. The same reasoning is applicable here. Although the officers approached the scene with guns drawn, they were permitted to so under these circumstances; such conduct does not automatically constitute an unconstitutional seizure.
Such conduct was also supported by the officers' corroboration of the tip. The officers observed a man matching the tipster's specific description, walking on a street and in a direction identified by the tipster, and walking with compatriots that the tipster identified. The high-crime area in which the stop occurred also contributed to the circumstances that gave rise to reasonable suspicion because of its known dangerousness. See State v. Privott, 203 N.J. 16, 26 (2010) (citing State v. Valentine, 134 N.J. 536, 547 (1994) (explaining that the area in which a stop occurs may reasonably elevate an officer's suspicion that criminal activity is afoot)).
We note that, in the alternative, any alleged illegality of the investigatory stop does not preclude admission of the gun. "A person has no constitutional right to . . . flee[] or resist[] a stop, even though a judge may later determine the stop was unsupported by reasonable and articulable suspicion." State v. Crawley, 187 N.J. 440, 458 (2006). When an officer commands a person to stop, that person has no right to take flight or obstruct the officer in the performance of his duty. State v. Williams, 192 N.J. 1, 11 (2007). In Williams, our Supreme Court determined that the exclusionary rule does not necessarily require suppression of a gun discovered after an illegal stop. Williams, supra, 192 N.J. at 17. "Obstructing the police constituted a break in the chain from the investigatory stop, which [our Supreme Court] presumed was unconstitutional. The taint from that initial stop was significantly attenuated by defendant's criminal flight that caused the handgun's later seizure[.]" Ibid. Accordingly, "the application of the exclusionary rule is unwarranted in this case." Ibid. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION