Opinion
DOCKET NO. A-2171-14T1
04-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WARREN GROOMES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Nugent. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-04-0725. Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Warren Groomes appeals from a judgment of conviction following a guilty plea to third-degree possession with intent to distribute a controlled dangerous substance (heroin) within 1000 feet of a school zone, N.J.S.A. 2C:35-7, for which he was sentenced to seven years in prison, subject to forty-two months of parole ineligibility. On appeal defendant argues:
POINT I.
THE POLICE OFFICERS' WARRANTLESS SEARCH AND SEIZURE OF THE DRUGS FAILED TO COMPLY WITH CONSTITUTIONAL REQUIREMENTS.
A. Police Directed the Defendant to Step Out of the Car Without Objective Facts to Support a Reasonable Suspicion of Danger or Need to Secure the Scene.
B. Police Conducted a Pat-Down Search of the Defendant Without Specific and Articulable Facts to Support a Reasonable Suspicion of Potential Danger.
C. The Police Lacked Probable Cause to Arrest Defendant for Obstruction and, Therefore, Did Not Properly Search Him as Incident to a Lawful Arrest.
POINT II.
DEFENDANT'S SENTENCE WAS EXCESSIVE SINCE THE TRIAL COURT FAILED TO PROPERLY CONSIDER THE NATURE OF THE OFFENSE OR PROPERLY WEIGH AGGRAVATING AND MITIGATING FACTORS.
A. The Trial Judge Failed to Consider the Particular Facts of the Defendant's Offense When He Imposed His Sentence.
B. The Trial Judge Failed to Consider Mitigating Factors Present on the Record.
C. The Trial Court Failed to Justify the Period of Parole
We affirm.Ineligibility that It Imposed on Defendant.
Seeking to set aside his conviction, defendant challenges, as erroneous, the trial judge's denial of his motion to suppress. These facts are taken from the suppression hearing.
While on patrol traveling southbound on Ocean Avenue, Officers Abel Tavares and Eddie Fernandez from the Jersey City Police Department observed a red Ford turn left without using a turn signal. The police activated their emergency lights to signal the driver to stop. The driver complied and the occupants were seen moving around. Back-up was called and the police approached the car.
Officers Tavares and Fernandez testified they saw all three occupants moving around in the vehicle. Officer Tavares stated the front seat passenger, later identified as defendant, was "moving back and forth, kind of twisting . . . in either direction."
Officer Fernandez approached the driver and asked for his credentials. Although Officer Tavares stood by the back rear tire, he noted "a strong odor of what [he] believed to be PCP" emanating from the lowered window on the passenger side of the vehicle. Officer Fernandez similarly testified he noticed the odor of PCP from where he stood on the driver's side of the vehicle. Once additional officers arrived, Officer Fernandez instructed the driver and two passengers to exit the vehicle. Officer Tavares later discerned the PCP odor was coming from defendant's clothing, specifically the rear of his pants.
The driver and rear seat passenger were frisked for weapons. No citation was issued to the driver and he and the passenger were told they could leave.
Officer Tavares opened the door for defendant to step out of the car. As defendant exited, Officer Tavares noticed his "hand was in -- tucked into his pants as he was coming out of the vehicle." The officer clarified he saw defendant's right hand "inside his pants" underneath his waistband. When Officer Tavares placed defendant's hands on the hood of the car, defendant, using his left hand, began to "grab the rear of his pants" and pull them up.
Officer Tavares grabbed defendant "by the waistband -- the beltline of the back of the jeans" and commenced a pat down. Defendant kept moving, "shaking his body" and looking back saying, "what's going on, what are you doing?" Officer Tavares told defendant to stop moving, but he continued to look over his shoulders to see what was going on and waving his arms. Officer Tavares described defendant as
being very belligerent, overly reacting like [he] didn't want to comply with the way I
was searching him. He's just like — he's like come on, like doing this.Consequently, Officer Tavares handcuffed defendant and proceeded to pat him down. He noticed defendant tightly clenched "his butt and his thighs." As he moved his hand up defendant's right leg, Officer Tavares felt what he believed was a small "brick form of the CDS." At that point, defendant "just threw himself down to the ground, and he started screaming my back, my legs. He started kicking and screaming. I tried to home [sic] him, I couldn't hold at all." Even with Officer Fernandez's help, the officers could not contain defendant. Ultimately, four officers were able to place defendant into the rear of a squad car.
[PROSECUTOR]: You said belligerent, what does that mean exactly to you?
[OFFICER TAVARES]: To me it's he being aggressively [sic], his actions the way he is moving, talking, staying certain ways. Just not letting me complete my -- my pat down.
Officer Tavares explained "[a] brick of CDS is . . . a thin glassine bag, and there's ten in each one and it's bundled up in a rubber band, and then they put five all together, so that would consist of fifty."
Defendant was taken to the police station. As the officers removed him from the police vehicle, defendant "was dead weight" and "acting like he couldn't walk." Defendant was placed in a cell and continued to scream about his legs and back; he continually fell down and rolled from side to side, preventing police from searching him. An ambulance was called to transport defendant to the hospital.
The officers again attempted to search defendant. Defendant continued to struggle and six officers held him down. Inside his underwear were sixty-two glassine bags of heroin, with the logo "welcome to hell" in pink lettering. The contraband was recovered from the area Officer Tavares initially felt the brick; defendant's rear buttock. The officers also recovered $243.
Officer Fernandez and the duty desk sergeant also testified, confirming the facts as presented by Officer Tavares.
On behalf of defendant, the driver of the Ford, David Cummings, testified. Cummings stated the group had experienced a car accident and they were headed home from the doctor's office when stopped by police. He maintained he always uses his turn signals and remembered using his signal that day.
Cummings explained defendant's back hurt from the accident and he tried to tell Officer Tavares, but he was "rough with [defendant.]" Cummings stated Officer Tavares grabbed defendant, put a "knee in his back," and was "very aggressive." Cummings also maintained police searched the entire vehicle, including its glove compartment, beneath the seats, the trunk, and under the hood.
At the conclusion of the five-day hearing the trial judge issued a written opinion, denying defendant's motion to suppress the heroin. Thereafter, defendant entered his guilty plea and reserved the right to challenge the order on appeal.
The Supreme Court has expounded on the standard of review applicable to our consideration of a trial judge's fact-finding on a motion to suppress.
We are bound to uphold a trial court's factual findings in a motion to suppress provided those "findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243-44 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). Deference to those findings is particularly appropriate when the trial court has the "'opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Nevertheless, we are not required to accept findings that are "clearly mistaken" based on our independent review of the record. Ibid. Moreover, we need not defer "to a trial . . . court's interpretation of the law" because "[l]egal issues are reviewed de novo." State v. Vargas, 213 N.J. 301, 327 (2013).An appellate court must be mindful not to "disturb the trial court's findings merely because 'it might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side' in a close case." Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). Rather, we reverse only when the court's findings "are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).
[State v. Watts, 223 N.J. 503, 516 (2015) (second alteration in original).]
When analyzing a warrantless search and seizure we start with the parameters defined by our Federal and State Constitutions. These protections require police to first secure a warrant before seizing a person or conducting a search of a home or a person. Watts, supra, 223 N.J. at 513-14; State v. Reece, 222 N.J. 154, 167 (2015).
[B]oth the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution guarantee to New Jersey's citizens "[t]he right to walk freely on the streets of a city without fear of an arbitrary arrest." State v. Gibson, 218 N.J. 277[, 281] (2014). When evaluating the reasonableness of a detention, the "totality of circumstances surrounding the police-citizen encounter" must be considered. State v. Privott, 203 N.J. 16, 25 (2010) (quoting [State v. Davis, 104 N.J. [490], 504 (1986)]).Thus, police officers may not place their hands on citizens "in search of anything" without "constitutionally adequate, reasonable grounds for doing so." Sibron v. New York, 392 U.S. 40, 64, 88 S. Ct. 1889, 1903, 20 L. Ed. 2d 917, 935 (1968).
[State v. Coles, 218 N.J. 322, 343 (2014) (second alteration in original).]
While the warrantless seizure of a person is "presumptively invalid as contrary to the United States and the New Jersey Constitutions," Coles, supra, 218 N.J. at 342 (quoting State v. Mann, 203 N.J. 328, 337-38 (2010)), there remains a critical "balance to be struck between individual freedom from police interference and the legitimate and reasonable needs of law enforcement." Id. at 343. A reviewing court must determine whether the State has met its burden by a preponderance of the evidence to establish the warrantless search or seizure of an individual was justified in light of the totality of the circumstances. See Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983).
The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period and to pat him or her down for the officer's safety if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)); see also State v. Williams, 192 N.J. 1, 9 (2007) (stating a Terry pat down is constitutionally permissible when the police officer believes the suspect "may be armed and presently dangerous." (quoting Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911)). When reviewing whether the State has shown a valid basis for an investigative detention, consideration of the totality of the circumstances requires we "give weight to 'the officer's knowledge and experience' as well as 'rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise.'" State v. Citarella, 154 N.J. 272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)). "The fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as 'a reasonable person would find the actions are consistent with guilt.'" Id. at 279-80 (quoting Arthur, supra, 149 N.J. at 11).
Finally, we must remember the "touchstone" for evaluating whether police conduct has violated constitutional protections is "reasonableness." State v. Hathaway, 222 N.J. 453, 476 (2015) (quoting State v. Judge, 275 N.J. Super. 194, 200 (App. Div. 1994)). The reasonableness of police conduct is assessed with regard to circumstances facing the officers, who must make split second decisions in a fluid situation. See State v. Bruzzese, 94 N.J. 210, 228 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
Such encounters are justified only if the evidence, when interpreted in an objectively reasonable manner, shows that the encounter was preceded by activity that would lead a reasonable police officer to have an articulable suspicion that criminal activity had occurred or would shortly occur. No mathematical formula exists for deciding whether the totality of circumstances provided the officer with an articulable or particularized suspicion that the individual in question was involved in criminal activity. Such a determination can be made only through a sensitive appraisal of the circumstances in each case.
[Davis, supra, 104 N.J. at 505 (emphasis added).]
Courts must take "a realistic approach to reviewing police behavior in the context of the ever-increasing violence in society." State v. Valentine, 134 N.J. 536, 545 (1994) ("As the front line against violence, law-enforcement officers are particularly vulnerable to violence often becoming its victims."). Guided by these principles, we examine the facts and circumstances presented in this case.
Defendant suggests the police had no justification for asking him to exit the vehicle or for patting him down. We disagree.
The trial judge explained why he found Cummings' testimony not credible and why the officers' testimony was credible. He concluded the initial stop was justified based on the observation of a motor vehicle infraction, which occurred right in front of the officers.
Once stopped, the passengers were all moving around and acting nervously. As Officers Tavares and Fernandez approached the vehicle, they detected the distinctive odor of PCP emanating from the passenger side, which Officer Tavares stated was actually on defendant's clothing. The judge noted the evidence of the PCP odor was uncontroverted. Therefore, the totality of the circumstances provided reasonable, articulable, well-grounded suspicion of illegal activity, permitting further detention. See Judge, supra, 275 N.J. Super. at 201 (recognizing the odor of burnt marijuana emanating from an automobile gave rise to an inference leading a police officer of ordinary prudence and experience to entertain a strong suspicion that additional contraband was present); State v. Myers, 442 N.J. Super. 287, 295 (App. Div. 2015) ("New Jersey courts have [long] recognized that the smell of marijuana itself constitutes probable cause that a criminal offense ha[s] been committed and that additional contraband might be present." (quoting State v. Walker, 213 N.J. 281, 290 (2013))), certif. denied, 224 N.J. 123 (2016).
Cummings was not asked whether to confirm or deny the presence of the odor. --------
The odor of PCP also signaled possible PCP use, satisfying probable cause to detain the vehicle's occupants, who were justifiably asked to exit and be subjected to a Terry frisk for weapons to assure the officers' safety. See State v. Mai, 202 N.J. 12, 24 (2010) ("[W]e too acknowledge that 'traffic stops may be dangerous encounters' and the fact that there is more than one occupant [in] the vehicle increases the possible sources of harm to the officer." (quoting Maryland v. Wilson, 519 U.S. 408, 413, 117 S. Ct. 882, 885, 137 L. Ed. 2d 41, 47 (1997))).
Defendant's conduct thereafter provided probable cause to search his person for possible contraband. First, he was observed as moving around more than the other two occupants. Second, defendant was observed with his hand pushing something down his pants. Third, defendant was reaching back grabbing the rear of his pants as Officer Tavares attempted to complete the pat down. Fourth, once Officer Tavares noted the object, which his training and experience led him to reasonably believe was a brick of illicit narcotics, defendant's conduct became uncontrollable. Fifth, defendant resisted efforts to complete the pat down, even while handcuffed. Last, at the police station defendant's continued conduct increased the reasonable, articulable suspicion defendant was hiding narcotics. He thwarted police efforts to search him and six officers were required to complete the search.
As this court has observed:
Probable cause has been aptly described as "a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules." United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993) (internal quotation marks omitted) (quoting [Gates, supra, 462 U.S. at 232, 103 S. Ct. at 2329, 76 L. Ed. 2d at 544]). The standard "deals with probabilities and depends on the totality of circumstances." Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 800, 157 L. Ed. 2d 769, 775 (2003).
[State v. Chippero, 201 N.J. 14, 27 (2009), certif. denied, 207 N.J. 227 (2011).]
We reject defendant's suggestion to consider individual events discretely. Such an approach is in contravention to the mandate we examine the totality of all circumstances presented. Following our review of the record, we conclude, as did the trial judge, probable cause justifying the warrantless search was demonstrated and the search was constitutionally performed, making the evidence properly admissible.
We find defendant's other arguments raised to challenge the denial of his suppression motion lack sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(2).
Finally, defendant argues his sentence was excessive. He specifically argues the trial judge erred with respect to his findings regarding the sentencing factors and in imposing a seven-year sentence.
"[Our] review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 364-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Ibid.
"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 295-97 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).
Defendant does not disagree he was eligible for an extended term pursuant to N.J.S.A. 2C:43-6(f). Rather, he challenges the weight placed on the aggravating factors and asserts the judge failed to consider mitigating circumstances. Specifically, defendant maintains the judge failed to "focus on the nature of his offense" or consider mitigating factors such as his deep remorse, his limited "history of employment" and the support he provided to his children. We are not persuaded.
At the time of sentencing, defendant had also been charged with a violation of probation, issued in an unrelated matter. As a result, he was arrested while sentencing in this matter was pending. In addition to this matter, defendant had twenty-five arrests, including eight indictable convictions, one of which was from New York. The trial judge found aggravating factors three, six, and nine applied. N.J.S.A. 2C:44-1(a)(3) ("risk that the defendant will commit another offense"); N.J.S.A. 2C:44-1(a)(6) ("extent of the defendant's prior criminal record" and "seriousness of" prior convictions); N.J.S.A. 2C:44-1(a)(9) ("need for deterring the defendant and others"). He commented defendant was likely to commit another offense because he had committed "an offense every year since 1999[,] excluding 2004 and 2009." The judge found his criminal history "extensive" and identified the various crimes for which he was convicted. Further, the judge mentioned the seriousness of the current offense and the need to deter others. The judge found the "aggravating factors outweigh [non-existent] mitigating factors," and specifically referred to defendant's inability to comply with the previously issued probationary sentence.
We have fully reviewed these arguments in light of the record and applicable law. We cannot agree the judge abused his discretion in imposing the sentence outlined in the negotiated plea agreement, which he found was appropriate once reviewing all facts and circumstances.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION