Opinion
DOCKET NO. A-5946-11T2
07-22-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRANDON DARBY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen Nazaire, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 08-09-00827 and 10-11-001230.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen Nazaire, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Brandon Darby appeals from an April 11, 2012 judgment of conviction by challenging the denial of his motion to suppress evidence obtained when he was stopped by the police. We affirm.
I.
Darby was indicted by a Mercer County grand jury for four drug-related crimes. After unsuccessfully moving to suppress evidence and enduring a mistrial, Darby pled guilty to second-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(2), and was sentenced to a ten-year term of imprisonment with a forty-two month parole disqualifier.
The evidence presented at the motion to suppress was collected over a two-day hearing, and consisted of the testimony of Trenton detectives Elizer Ramos and Brian Kevin Egan. The witnesses testified on separate days, approximately two weeks apart. After Ramos testified, the State rested. However, upon inquiries from the motion judge, the State requested the opportunity to call another witness, who turned out to be Egan. Darby objected, claiming unfairness in allowing the State to supplement its proofs upon hearing the concerns of the motion judge. At the conclusion of all of the evidence, the judge denied Darby's motion to suppress.
Ramos testified that on March 4, 2008, while he and another police officer were in uniform and in a marked police vehicle, he observed Darby operating "the pick-up truck that was wanted in regards to a homicide." Ramos had been made aware of the pick-up truck after reviewing "flyers handed out at roll call." After recognizing "the [license] plate being the same one that was on the flyer," the police officers followed the pick-up truck and caused it to stop a few blocks away.
Ramos testified, "[o]nce the pick-up truck pulled over, we conducted a felony motor vehicle stop," which Ramos described as the following:
Q. Describe what you mean by a felony motor vehicle stop.Additional police officers arrived at the scene in short order.
A. My partner and I, we got out of our vehicle but stood like right by the door. Basically just taking cover behind the open doors and gave verbal command through the [public address system]. Turn off the engine, remove the keys from the ignition, both hands out the window.
Q. What is the purpose of a felony motor vehicle stop? Why does one conduct a felony motor vehicle stop versus a regular motor vehicle stop?
A. Well, the felony motor vehicle stop, it's for officer safety. No doubt about that. Definitely for officer safety. But I'm pulling this car over because it's suspected in a murder and a homicide as opposed to it just ran a red light so for officer safety and to keep control, keep control of the subject inside the vehicle.
Ramos eventually approached the driver's side of the pick-up truck and Darby was removed from the vehicle. Ramos immediately "conducted a pat-frisk," detecting "a bulge in [Darby's] vest pocket . . . consistent with rough texture like peanut brittle." Ramos "immediately associated [the object creating the bulge] with crack cocaine."
Ramos continued the pat-frisk. After concluding that Darby "didn't have a weapon on him," Ramos removed the "peanut brittle" object from Darby's vest pocket. It was later found to be a controlled dangerous substance. Ramos also recovered $1000 in cash, a scale, and a quantity of marijuana from Darby's person. Darby was placed in handcuffs, read his Miranda rights, and transported to police headquarters.
Detective Egan testified next. He described his investigation into a Trenton homicide that had occurred on February 25, 2008. Egan explained that as a result of his detective work, he believed that a primary suspect was Darby's son. The detective further developed evidence — after viewing a surveillance videorecording created on February 25, 2008 — which strongly suggested that a black pick-up truck may have been used to transport the victim's body. On March 2, 2008, Egan prepared two wanted flyers to be distributed to police officers: one for the suspect; the other for the black pick-up truck.
The pick-up truck flyer described the vehicle's potential involvement in the homicide and contained a physical description, including its license plates and vehicle identification number:
Image materials not available for display.
The motion judge concluded that Egan's investigation "certainly had collected evidence supporting a reasonable and articulable suspicion that the 1995 Chevy pick-up truck, black with plates XN-200J was the vehicle used in connection with the homicide." Furthermore, the judge found that Ramos had a reasonable basis to rely upon the information in the pick-up truck's wanted flyer, and to consider the occupant of the pickup truck armed and dangerous. Thus, pulling over the pick-up truck and frisking Darby were reasonable actions. The discovery of the vest-pocket bulge was valid, and the seizure of the contents of Darby's pockets was proper. The motion to suppress was denied. This appeal followed.
II.
On appeal, Darby raises the following arguments for our consideration:
POINT I: THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE STATE'S MOTION TO REOPEN THE SUPPRESSION HEARING.These contentions are unpersuasive.
POINT II: THE TRIAL COURT SHOULD HAVE SUPPRESSED THE EVIDENCE BECAUSE THE STATE FAILED TO PRESENT A REASONABLE AND ARTICULABLE SUSPICION TO JUSTIFY SEARCHING DEFENDANT.
POINT III: AS PART OF A PROTECTIVE SEARCH UNDER TERRY V. OHIO, THE ARRESTING OFFICER WAS NOT PERMITTED TO REMOVE THE PEANUT BRITTLE-LIKE LUMP FROM DEFEDANT'S VEST POCKET.
We review the motion judge's decision granting a continuance and allowing the State to present Egan's testimony for an abuse of discretion. See State v. Goodman, 390 N.J. Super. 259, 268 n.3 (App. Div. 2007). A court's discretion to grant or deny a continuance is not unfettered. "Judicial discretion is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004).
Abuse of discretion "defies precise definition." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002). However, to command our deference, "the court must provide factual underpinnings and legal bases supporting the exercise of judicial discretion." Clark v. Clark, 429 N.J. Super. 61, 72 (App. Div. 2012). We will reverse a discretionary decision "when the stated 'findings were mistaken[,] . . . the determination could not reasonably have been reached on sufficient credible evidence present in the record[,]' or the judge 'failed to consider all of the controlling legal principles.'" Ibid. (quoting Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009)).
Here, Darby insists that the motion judge acted improperly in granting the State's request because "the judge chose to serve as a partisan, allowing the State an unwarranted opportunity to present additional evidence after it had rested." Additionally, Darby contends that the motion judge "acted as the State's legal advisor" when the judge raised concerns about the adequacy of proof after the State initially rested.
Our review of the record reveals a motion judge who was fully involved in the process of ascertaining all of the relevant facts that surrounded Darby's apprehension by Ramos on March 4, 2008. The judge had versed himself in the relevant law, and his comments to counsel after the State rested were neither biased in favor of the State nor one-sided. This was a judge who actively engaged himself to ensure decisional accuracy, no more and no less. We detect nothing in the record that would support the contention that the continuance was an abuse of discretion.
It is axiomatic that a warrantless search is justified only if it fits one of the few well-delineated exceptions to the warrant requirement. State v. Maryland, 167 N.J. 471, 4 82 (2001); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854, 858 (1973). One exception, based upon Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), is "the right of a police officer to conduct a brief, investigatory stop." State v. Morrison, 322 N.J. Super. 147, 151-52 (1999). However, an officer may conduct a Terry stop only if the officer "is able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." Id. at 152. Thus, there must be "'some objective manifestation that the suspect was or is involved in criminal activity'" in order for a Terry stop to be considered valid. State v. Arthur, 149 N.J. 1, 8 (1997) (quoting State v. Thomas, 110 N.J. 673, 678 (1988)). In determining whether the investigative detention was justified under this reasonable suspicion standard, a court must consider the "totality of the circumstances - the whole picture." State v. Stovall, 170 N.J. 346, 361 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L.Ed. 2d 621, 629 (1981)).
A stop made in reliance on a police departmental report, flyer, or bulletin violates the Fourth Amendment unless the police officer or officers who issued the flyer or bulletin or report possessed a reasonable suspicion justifying a stop. State v. Spencer, 221 N.J. Super. 265, 269 (App. Div. 1987) (citing United States v. Hensley, 469 U.S. 221, 233, 105 S. Ct. 675, 683, 83 L. Ed. 2d 604, 615 (1985)). As noted in Spencer:
The mere fact that [the officer] acted on a report circulated within his department does not mean that he had an articulable and reasonable suspicion. If the information in the hands of the police was mere hunch or rumor or was otherwise insufficient to support an articulable and reasonable suspicion, that information would not justify a stop even though [the officer] relied on it in good faith to stop the car. The reliability of the information is not enhanced simply because it is communicated through police channels.
[Id. at 268.]
We are entirely satisfied that Egan's investigation, and its determination that the pick-up truck was a potential instrumentality in the homicide, supplied articulable and reasonable suspicion that validated Ramos's stop and frisk. Egan issued the pick-up truck flyer based on solid police work, not speculation or a hunch. The motion judge's similar conclusion was proper.
Lastly, we turn to Darby's claim that Ramos's seizure of the "peanut brittle" from Darby's vest pocket was unjustified because it "could not have contained a dangerous weapon." Ramos seized the object because his training and experience led him to the immediate conclusion that what he felt was contraband. Ramos did not invade Darby's protected rights by manipulating the object or otherwise examining its contours. This is entirely reasonable within the confines of the Fourth Amendment.
We have upheld a search and seizure on "plain feel" grounds in the context of a lawful pat-down search. State v. Toth, 321 N.J. Super. 609, 614-16 (App. Div. 1999), certif. denied, 165 N.J. 531 (2000). "Thus, '[i]f a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy[.]'" Id. at 614 (quoting Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 2137, 124 L. Ed. 2d 334, 346 (1993)). The present case's circumstances support the motion judge's validation of the seizure.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).