STATE OF NEW JERSEY v. DONALD CLIFTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1539-03T41539-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD CLIFTON,

Defendant-Appellant.

_____________________________________________________________

 

Submitted March 8, 2006 - Decided March 30, 2006

Before Judges Wecker and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Ind. No. 1337-04-02.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Diane Toscano, Assistant Deputy

Public Defender, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for

respondent (Deborah Bartolomey, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence, defendant Donald Clifton pled guilty to unlawful possession of a Colt .45 caliber firearm and a Crossman .22 caliber pellet gun, a third-degree offense, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four); and second-degree possession of weapons by a convicted person, N.J.S.A. 2C:39-7 (count five). Consistent with the plea agreement, defendant was sentenced to an aggregate eight-year prison term with a four-year period of parole ineligibility.

On appeal, defendant presents the following argument:

BECAUSE DEFENDANT'S ACT OF SITTING IN A CAR PARKED NEAR A LIQUOR STORE AND MERE DEPARTURE FROM POLICE PRESENCE DID NOT PROVIDE REASONABLE SUSPICION FOR POLICE PURSUIT AND DETENTION, HE WAS DEPRIVED OF THE RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES. U.S. CONST. AMEND. IV; N.J. CONST. (1947) ART. I, PAR. 7.

After reviewing the record and applicable law, we are satisfied that defendant's argument lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm essentially for the reasons stated by the trial judge, who concluded that the police officers' conduct was reasonable in light of the totality of the circumstances.

Lieutenant Antonio Ortiz and Officer Robert Digerolamo, both members of the Winslow Township Police Department, were the only witnesses to testify at the motion to suppress hearing held on August 23, 2002. Based on their testimony, Judge Cook decided that the initial stop of the vehicle operated by defendant on December 21, 2001, was justified because Ortiz had a "reasonable, articula[ble] suspicion that criminal activity was afoot." The trial court described the events leading up to the initial stop as follows:

This was a winter night. I guess it was just the beginning of winter, the 21st of December in 2001. It was near ten o'clock. The incident occurred near a liquor store that was still open but near the mandatory closing time. It had a lighted parking lot.

The defendant's car, however, was not in that lot. It was in an area that was dark and although it was near the liquor store, it wasn't near anything else. The engine was running. The lights were out. And Lieutenant Ortiz notices this while he was on patrol. And so suspicions are aroused. Those suspicions are heightened because as he comes alongside or near the defendant's car, . . . all of a sudden the lights are turned on and the defendants pull away.

. . . .

There didn't seem to be any apparent reason for the defendant[s] to be stopped there and to leave the car running and their lights out. He testified that he suspected that there was either criminal activity afoot or the car broke down. Well, the car wasn't broken down. Why did he suspect criminal activity was afoot? Because the car was parked near the liquor store and able to observe the liquor store, was not in . . . the lighted lot. Wasn't parked where customers would . . . park.

And to Lieutenant Ortiz's trained mind, he . . . gathered that the defendant was trying to keep the car not visible from the liquor store. He parked it in a completely dark area, near closing time, and in his experience, . . . often robberies occur shortly before closing time because that's when you probably have most of the cash in the register and few, if any, customers are left.

. . . .

And . . . of course, the . . . defendants pull away and put their lights on and he pursues calling in a tag number and a description of the car and stops the . . . vehicle. I find under the totality of the circumstances, that because he had a reasonable and articu[l]able suspicion that criminal activity was afoot, that this was a lawful stop.

The . . . suspicions heighten, if you will. . . . [O]ne of the defendants, Clifton, . . . gets out of the car and he approaches -- starts walking towards the Lieutenant who had gotten out of his car for his own safety. And the Lieutenant has a suspicion, once again based upon his police training and experience, when somebody does something like that under these circumstances, that they may be trying to hide something and keep the police away from the defendant's car.

The . . . story that the Defendant Clifton gave Lieutenant Ortiz was, . . . I'm there waiting for my brother to get out of work at Johns Manville but the uncontroverted testimony is that this car wasn't stopped anywhere near where anyone would ordinarily stop for the purpose of picking up a brother at work. . . . The car was really too far away from Johns Manville for that purpose and . . . there is a lit up area near Johns Manville where the car could have been parked to wait for the brother to come out, if, in fact, there was a brother there working at Johns Manville. Who knows?

The Lieutenant went back to the defendant's car with Defendant Clifton. He couldn't produce a driver's license and . . . Lieutenant Ortiz, again for officer's safety reasons, tells him, well, pull in over there to the lit-up parking lot of the liquor store. He also calls for [backup] and police officers arrive and the Lieutenant tells Officer Cramer to issue a warning to Clifton, I gather, who doesn't have a driver's license.

We pick up then with Officers Cramer and Digerolamo going over to the car, pursuant to Lieutenant Ortiz'[s] directions. And Police Officer Digerolamo goes around to the passenger side, . . . . And Officer Digerolamo takes his flashlight and looks inside with the flashlight and sees what he describes as . . . a ski mask and a pair of gloves on the back seat . . . .

. . . .

So now, with all of this information that the police have, [they] certainly have reasonable, articu[l]able suspicion that criminal activity is afoot . . . and I find that it had, . . . by that point, under the totality of the circumstances, arisen to probable cause to believe that a crime had been or was in the course of or was about to be committed.

Based on the uncontroverted testimony of Officer Digerolamo, the trial court found that the owner of the car, Mark Artist, knowingly and voluntarily consented to the search, after being advised he had a right to refuse to consent and a right to terminate his consent at any time. After consenting to the search, Artist told the police "you are going to find a gun in the car." And the police found a .45 caliber handgun under the driver's seat, a .22 caliber pellet gun under the passenger's seat, and a second ski mask in the glove box.

The trial court described the testimony of Ortiz and Digerolamo as "most credible," and it found that the initial investigatory stop was justified because Ortiz had a reasonable suspicion of criminal activity based upon "specific and articulable facts." State v. Birkenmeier, 185 N.J. 552, 561-62 (2006). We are satisfied that it was not unreasonable for Lieutenant Ortiz to require that the vehicle be moved to the liquor store parking lot as a safety precaution, and, upon observing the ski mask in the back seat of the vehicle, the police had reasonable suspicion to detain defendant for an investigation. See, e.g., Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 905-06 (1968); Birkenmeier, supra, 185 N.J. at 562; State v. Davis, 104 N.J. 490, 504 (1986). Moreover, the record fully supports the trial court's finding that the owner of the vehicle was aware of his right to withhold consent when he voluntarily agreed to the search. State v. Carty, 170 N.J. 632, 647, modified, 174 N.J. 351 (2002); State v. Johnson, 68 N.J. 349, 354 (1975).

We agree that the police did not violate defendant's right to be free from unreasonable searches and seizures, and we affirm the order denying defendant's motion to suppress substantially for the reasons set forth by Judge Cook in his comprehensive oral opinion on August 23, 2002. His findings are firmly supported by sufficient credible evidence contained in the record, State v. Locurto, 157 N.J. 463, 472 (1999); State v. Johnson, 42 N.J. 146, 162 (1964), and his conclusions predicated on those findings are legally sound.

 
Affirmed.

(continued)

(continued)

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A-1539-03T4

March 30, 2006