STATE OF NEW JERSEY v. ANTHONY ARCE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1598-05T41598-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY ARCE,

Defendant-Appellant.

___________________________________

 

Submitted September 27, 2006 - Decided November 1, 2006

Before Judges Wefing and Parker.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

No. 05-02-0170.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Abby P. Schwartz,

Assistant Deputy Public Defender, of

counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Steven J. Kaflowitz,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
Following denial of his motion to suppress, defendant entered a negotiated plea of guilty to one count of possession of a controlled dangerous substance, cocaine, with intent to distribute, N.J.S.A. 2C:35-5b(3), a crime of the third degree, and one count of possession of a firearm while in the course of committing a drug-related offense, N.J.S.A. 2C:39-4.1(a), a crime of the second degree. The trial court sentenced defendant to three years in prison for the drug offense and a consecutive five years in prison for the weapons offense. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Police Officers Rense Schalen and Vincent Napoli of the Elizabeth Police Department were on duty the night of November 11, 2004, as members of the Night Emergency Services Team. A citizen informant told them that a short, black male with a large mole on his face was selling drugs from an apartment building located at 470 Jefferson Avenue. The informant said there were four vacant apartments in the building this individual was using to sell narcotics and identified the specific apartments. The informant also said this individual was known to carry a handgun.

When the officers met with the citizen informant, they were engaged in another drug-related operation. When that was concluded, they proceeded, with two other officers, to 470 Jefferson Avenue. The officers knew the area as a high-crime area. Officer Napoli, for example, had made ten prior arrests in that particular building.

The police were able to enter the building from the rear and quietly walked up the stairs to the top, fifth floor where they learned that one of the apartments identified by the informant was indeed vacant. They went down to the third floor where, again, they learned that the second apartment identified by the citizen informant was vacant. They proceeded down the staircase and had nearly reached the first floor, where the two remaining apartments were located, when several men ran past, one of whom was a short black male with a large mole on his face.

The officers detained the group to inquire whether they lived in the building. As the officers were trying to talk to these men, the short male with the mole, later identified as defendant, kept moving his hands, despite repeated instructions to keep them still and in sight. When defendant started to reach toward his rear pocket, Officer Schalen spun him around and placed defendant's hands on the wall. Officer Schalen saw a large bulge in defendant's right rear pocket; Officer Schalen reached in and retrieved a handgun. A subsequent search revealed that defendant also had thirteen vials of cocaine and seven hundred dollars in cash.

On appeal, defendant raises one argument:

POINT I THE WARRANTLESS ARREST AND SEARCH OF DEFENDANT WAS UNCONSTITUTIONAL BECAUSE THE INFORMANT'S TIP AND THE CORROBORATION OF PURELY INNOCENT DETAILS WERE INSUFFICIENT TO ESTABLISH PROBABLE CAUSE. U.S. CONST. AMEND. IV; N.J. CONST. (1947) ART. I, PAR. 7.

The flaw in defendant's argument is his assertion that the officers required probable cause for their initial stop and pat-down of defendant. Defendant was not under arrest at that point, and probable cause was not required. Rather, the officers were in possession of specific and articulable facts that provided reasonable suspicion that defendant was engaged in criminal activity. State v. Arthur, 149 N.J. 1, 8 (1997). It is settled that a reviewing court, in assessing the validity of such an investigatory stop, must look at the totality of the circumstances. State v. Valentine, 134 N.J. 536, 542 (1994).

A separate question is, of course, presented with respect to the pat-down of defendant. "Whether a police officer's protective search for weapons is justified is a separate question from whether the stop was permissible in the first instance." Ibid.

Here, the officers not only had information from a citizen informant that defendant was known to carry a handgun, defendant refused to comply with the directions to keep his hands visible and in one place. Defendant then made a movement as if to reach in his rear pocket. As Justice Garibaldi noted in Valentine,

[N]o mathematical formula exists for determining what set of facts gives rise to a reasonable belief that a suspect is a potential threat to an officer and thus justifies a protective search for weapons. Instead, we must balance the competing interests [by b]alancing the right to be protected from unwarranted and overbearing police intrusions against the State's need for effective law enforcement and police safety . . . .

[Valentine, supra, 134 N.J. at 553.]

We fully concur with the trial court's analysis and conclusion that Officer Schalen had a reasonable suspicion justifying his action in patting down this defendant. The order under review is affirmed.

 

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A-1598-05T4

November 1, 2006