Opinion
DOCKET NO. A-0505-10T4
07-17-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BOBBY B. HAYES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-07-0632.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following denial of his motion to suppress evidence seized from a warrantless search, defendant Bobby Hayes entered a plea of guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. Pursuant to the plea agreement, the court sentenced defendant to a term of five years, with a three-year period of parole ineligibility, and upon the State's motion, dismissed the remaining four counts of the indictment charging various third and fourth-degree crimes. Defendant now appeals from the denial of his suppression motion. We affirm.
I.
One witness testified at the suppression hearing, Millville Police Lieutenant Edward Zadroga. The record evidence reflects the following: Lt. Zadroga was on patrol near Ware Avenue and Main Street in Millville at around 7:00 p.m. on May 21, 2008. While stopped at an intersection, a woman pulled up next to him and rolled down her window. She appeared "visibly shaken, upset, and nervous." She said that she had just come from the Wawa convenience store within view of the intersection and she overheard four black males there talking about robbing the store. She indicated the men were on the east side of the store. She did not provide any further descriptive details about the men, and Lt. Zadroga did not stop to obtain the woman's name, or to take her license plate.
He immediately proceeded to the Wawa, a couple hundred feet from the intersection and arrived in roughly thirty seconds. He pulled into a parking space even with the east side of the store and saw four black males, huddled together, some to his right and some to his left, all at least twenty-five feet from the front door. He did not see anyone else entering or leaving the store, nor was there anyone else near the east wall. As Lt. Zadroga left his vehicle, the men turned toward him and he made eye contact with all four men. Lt. Zadroga directed them to take their hands out of their pockets, and walk near the wall on the east side of the store "so they were all contained."
Three cooperated and defendant did not. Standing eight to ten feet away, defendant accused Lt. Zadroga of harassing him and had no reason to ask him to stand near the wall. Lt. Zadroga responded by telling defendant he would explain everything, but he should join the other men.
Meanwhile, Lt. Zadroga was attentive to the men's hands, mindful that if a robbery were planned, one might possess a weapon. Three men put their hands on the wall, as if preparing for a pat-down, and Lt. Zadroga told them there was no need to do that, they just needed to take their hands out of their pockets. However, Hayes kept his right hand in his pocket despite the lieutenant's repeated request that he remove it. He continued to refuse to stand near the wall, and continued to speak to the lieutenant.
Coincidentally, an off-duty sergeant had arrived at the Wawa to use the ATM, noticed Lt. Zadroga and the four men, and approached, letting Lt. Zadroga know he was available to assist. The sergeant's presence enabled Lt. Zadroga to focus all his attention on defendant, after he asked the sergeant to keep an eye on the other three.
Then, an elderly woman exited the store, approached Lt. Zadroga from behind, and stated, "That's my son," referring to defendant. She was loud and boisterous. Lt. Zadroga asked the woman to step back, but she refused and continued yelling as she stood behind the officer. In the meantime, defendant continued to refuse to take his hand out of his pocket. Lt. Zadroga drew his weapon, at which point defendant "started to meander over to the wall," facing away from the officer. Lt. Zadroga was concerned that defendant possessed a weapon.
Lt. Zadroga told defendant to put his hands against the wall, and announced he was going to conduct a pat-down. At that point, defendant placed both hands on the wall, Lt. Zadroga began patting down defendant's right side first and detected a hard object that he believed was "quite possibly a gun." As he put his hand on the object, defendant pulled away. Lt. Zadroga announced to the sergeant that he detected a gun. Defendant and the lieutenant wrestled on the ground; defendant stood up, tearing his sweatshirt from Lt. Zadroga's hand. As the assisting sergeant grabbed defendant, he swung and hit the sergeant on the head, then broke free and fled the scene, prompting a foot pursuit.
Lt. Zadroga followed defendant as he ran north into a city park, and then near tennis courts, where he discarded a handgun under a parked school bus. Defendant was ultimately apprehended in the chase and the gun recovered.
Judge Robert P. Becker, Jr. denied the motion to suppress. Without deciding the constitutionality of Lt. Zadroga's initial stop and pat-down of defendant, Judge Becker held that defendant's resistance to the pat-down, his assault on the officers, and his subsequent flight, was an intervening basis to arrest defendant, and attenuated any taint from the initial stop. Judge Becker relied on State v. Crawley, 187 N.J. 440 (2006) and State v. Williams, 192 N.J. 1 (2007).
Defendant raises the following point on appeal:
POINT I
THE COURT ERRED IN DENYING THE MOTION TO SUPPRESS BECAUSE THE STOP AND SUBSESQUENT FRISK WERE CONDUCTED IN THE ABSENCE OF REASONABLE SUSPICION.
A. THE INITIAL STOP WAS UNLAWFUL.
B. THE FRISK WAS UNLAWFUL.
C. THE SEIZURE OF THE GUN WAS UNLAWFUL.
II.
We defer to the trial court's factual findings on a motion to suppress, unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention. State v. Elders, 192 N.J. 224, 245 (2007). However, we exercise plenary review of a trial court's application of the law to the facts on a motion to suppress. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999). Applying that standard of review, we affirm Judge Becker's denial of the motion to suppress based substantially on the reasons stated in his oral opinion. Moreover, we are persuaded that the initial stop, and the lieutenant's subsequent frisk were also justified. We therefore also affirm Judge Becker's order on this alternate ground. See State v. Maples, 346 N.J. Super. 408, 416-17 (App. Div. 2002) (appellate court may uphold trial court's denial of suppression motion for different legal reasons).
A.
We first analyze Lt. Zadroga's initial encounter with defendant — commanding him to step near a wall, and remove his hands from his pockets. We think it plain that this was an investigatory stop that, to pass constitutional muster, must be founded on a reasonable and articulable suspicion of wrongdoing. See Elders, supra, 192 N.J. at 246-47 (when police encounter results in a reasonable person's belief that he was not free to leave, the encounter rises to an investigatory stop and is constitutional only "if it 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") (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)). Such facts and inferences are present here.
In assessing the constitutionality of a stop, we balance "the State's interest in effective law enforcement against the individual's right to be protected from unwanted and/or overbearing police intrusions." State v. Davis, 104 N.J. 490, 504 (1986).
An investigatory stop is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.The investigatory stop may not be predicated on "unparticularized suspicion or 'hunch[.]'" Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968).
[Ibid.]
In concluding that the totality of circumstances supported Lt. Zadroga's initial stop, we rely on several compelling facts. Lt. Zadroga utilized the inherently reliable information of a concerned citizen that four persons standing by the east wall of the Wawa had been discussing robbery.
We have noted that "[a] report by a concerned citizen" or a known person is not "viewed with the same degree of suspicion that applies to a tip by a confidential informant" or an anonymous informant. Wildoner v. Borough of Ramsey, 162 N.J. 375, 390 (2000). That is, "'[d]ifferent considerations obtain . . . when the informer is an ordinary citizen,'" Ibid. (omission in original) (quoting State v. Davis, 104 N.J. 490, 506 (1986) ("There is an assumption grounded in common experience that such a person is motivated by factors that are consistent with law enforcement goals.")); see also [State v.]Stovall, 170 N.J. [346,] at 362 [(2002)] (noting that "[w]hen an informant is an ordinary citizen, New Jersey courts assume that the informant has sufficient veracity and require no further demonstration of reliability").
[State v. Amelio, 197 N.J. 207, 212-13 (2008).]
Defendant mischaracterizes the witness as an anonymous tipster, whose reliability is generally questioned. See, e.g., Rodriguez, supra, 172 N.J. 121-25 (no reasonable suspicion based on anonymous tip leading to a match of described appearance). The woman presented herself in person. Although Lt. Zadroga determined not to delay his response by obtaining the witness's name or even taking her license plate number, a significant factor supporting the citizen's reliability was her willingness to be identified, and when the witness approached Lt. Zadroga, she could not reasonably have expected anonymity. See State v. Golotta, 178 N.J. 205, 218-19 (2003) (deeming reliable report by unidentified 9-1-1 caller, noting the capacity of police to investigate caller's identity).
Her reliability was also enhanced by her demeanor. She was excited and frantic, belying any indication of dissembling or fabrication. Cf. 5-803 Weinstein's Federal Evidence § 803.04 (2d ed. 1997) ("The premise underlying the exception [to the hearsay rule] for excited utterances is that a person under the influence of excitement precipitated by an external startling event will not have the reflective capacity for fabrication. Thus, any utterance made under such circumstances will be spontaneous and trustworthy.").
There also was little risk of misidentification. See State v. Lakomy, 126 N.J. Super. 430, 436 (App. Div. 1974) (little risk of misidentification where concerned citizen pointed out defendant). Lt. Zadroga's response was immediate. The witness pointed to the area where the men stood — a couple hundred feet away from the intersection where she spoke to the lieutenant — and the lieutenant arrived at the scene within thirty seconds. There were no other groups of persons outside the store. The group of four were situated on the side of the building, twenty-five feet from the entrance. No one else was seen entering or exiting the building. The circumstances supported a strong suspicion that the persons whom Lt. Zadroga confronted were the same four men the witness said she overheard, moments earlier. See State v. Reynolds, 124 N.J. 559, 569 (1991) (stating that defendant's proximity to reported crime in "both time and space" supported finding of reasonable suspicion).
The information Lt. Zadroga received from the citizen "imported a risk of harm to persons on the premises or elsewhere." Lakomy, supra, 126 N.J. Super. at 436. The circumstances therefore justified not only the lieutenant's decision to stop the men, but also his request that they show their hands. State v. Otero, 245 N.J. Super. 83, 92 (App. Div. 1990) (circumstances permitted investigating officer to order automobile occupants "to place their hands where they could be seen, even if such an order constituted a seizure of the person.").
B.
As the events unfolded, and defendant refused to comply with the officer's direction to stand by the wall, and refused to remove his hand from pocket, the totality of circumstances justified the protective frisk for a weapon. 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. The test is an objective one: would "a reasonably prudent man in the circumstances . . . be warranted in the belief that his safety or that of others was in danger[?]" Ibid. "[W]hether there is good cause under the Terry rule for an officer to make a protective search incident to an investigatory stop is a question separate from whether it was permissible to stop the suspect in the first place." State v. Lund, 119 N.J. 35, 45 (1990).
Initially, Lt. Zadroga did not apparently intend to conduct a protective search of the four mean. He testified that when the three cooperating individuals placed their hands on the wall, as if to prepare for a pat-down, Lt. Zadroga informed them that they did not need do that; he simply wanted them to keep their hands visible. However, defendant's refusal to comply, coupled with his vociferous protests, aroused suspicion that he was concealing something in his clothing; and given the witness's report that the men were planning a robbery, he reasonably suspected that the item concealed was a weapon. In Otero, supra, 245 N.J. Super. at 92, we sustained a pat-and-frisk that occurred after a stop, based upon the suspects' evasiveness and failure to comply with police direction that they show their hands. "When the occupants refused to comply with the officer's request [to place their hands on the dashboard], this resistance provided a reasonable suspicion that they might be armed," when viewed in light of the surrounding circumstances. Ibid. See also State v. Bellamy, 260 N.J. Super. 449, 457 (App. Div. 1992) (sustaining pat-down of driver that was prompted by driver moving his hand toward inside jacket pocket during a traffic stop), certif. denied, 133 N.J. 436 (1993). Under the circumstances here, Lt. Zadroga's pat-down of defendant was reasonable.
C.
We agree with Judge Becker that regardless of whether the initial stop and frisk were reasonable, defendant's subsequent resistance, assault upon the officers, and flight, constituted intervening circumstances that attenuated any conceivable taint from the prior encounter. Where the connection between unlawful police action and the discovery of evidence is sufficiently attenuated, the exclusionary rule will not apply. Williams, supra, 192 N.J. at 14-18. In Williams, defendant's flight from an unconstitutional investigatory stop was an intervening act that attenuated the connection between the unlawful stop and the subsequent discovery of a handgun. The Court recited the three-part test for assessing attenuation.
In evaluating whether evidence is sufficiently attenuated from the taint of a constitutional violation, we look to three factors: "(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct."
[Id. at 15 (citation omitted).]
Attenuation may be found, even if the police would not have secured the evidence, but for the initial unlawful conduct. "[T]he test is not whether the authorities would have failed to obtain the challenged evidence 'but for' their illegal conduct." State v. Johnson, 118 N.J. 639, 653 (1990). A court must be mindful of the ultimate goal of the exclusionary rule, which is to deter law enforcement officers from violating a person's rights under the Fourth Amendment and Article 1, Paragraph 7 of our State's Constitution. Williams, supra, 192 N.J. at 14-15. In Williams, the court also sought to deter suspects who would endanger the police and themselves by not submitting to official authority. Id. at 17. The Court found it to be "farfetched . . . that police officers will attempt suspicionless investigatory stops or pat-downs — to which the exclusionary rule applies — in the hope that a suspect will commit an independent crime that will be the basis for a lawful search." Id. at 17.
Applying the attenuation factors to this case, we conclude defendant's resistance, assault and flight were intervening circumstances that attenuated any taint from the stop. We reach this conclusion, notwithstanding that the first of the three factors — temporal proximity — does not support attenuation. Temporal proximity is the least weighty of the three factors. Id. at 16.
Defendant's resistance, assault and flight satisfy the second factor, an intervening circumstance. "Courts of this State have held that eluding the police and resisting arrest in response to an unconstitutional stop or pat down constitute intervening acts and that evidence seized incident to those intervening criminal acts will not be subject to suppression." Ibid. Defendant physically struggled with the lieutenant and punched the sergeant. See State v. (Robert) Williams, 410 N.J. Super. 549, 563-64 (App. Div. 2009) (suggesting that "risk of physical injury" to police or public supports finding second factor and relying on the absence of such factors in concluding defendant's flight was not an intervening factor).
Third, there is no basis to conclude the officer's conduct was flagrant or in bad faith. Lt. Zadroga was acting on a citizen's report of an imminent robbery. Defendant and the three others standing with him appeared to be the persons the citizen had overhead.
Finally, once defendant tossed the gun under the bus, the police were authorized to recover it. "For purposes of search-and-seizure analysis, a defendant abandons property 'when he voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question so that he can no longer retain a reasonable expectation of privacy with regard to it at the time of the search.'" State v. Carroll, 386 N.J. Super. 143, 160 (App. Div. 2006) (defendant abandoned stolen Buick and plastic bag inside after fleeing from accident scene) (quoting State v. Farinich, 179 N.J. Super. 1, 6 (App. Div. 1981), aff'd o.b., 89 N.J. 378 (1982)). See also State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999) (defendant who dropped item as police approached abandoned it); State v. Hughes, 296 N.J. Super. 291, 296 (App. Div.) (defendant abandoned cocaine he threw to curb as police approached), certif. denied, 149 N.J. 410 (1997); Farinich, supra, 179 N.J. Super. at 7 (defendant abandoned suitcase at airport while police pursued him).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION