STATE OF NEW JERSEY v. BRIAN PHELPS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3755-05T23755-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN PHELPS,

Defendant-Appellant.

______________________________

 

Submitted October 24, 2006 - Decided November 14, 2006

Before Judges Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-04-0340.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert L. Sloan, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Kathleen Petrucci, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On leave granted, the State of New Jersey appeals an order entered by the Law Division on March 2, 2006, granting defendant Brian Phelps's motion to suppress evidence seized following a stop of his motor vehicle on January 26, 2005. We affirm.

On April 13, 2005, defendant, Brian Phelps, was charged by a Mercer County Grand Jury with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3) (Count Two); third-degree possession of cocaine with intent to distribute on or near school property, N.J.S.A. 2C:35-7 (Count Three); second-degree possession of a firearm during a CDS offense, N.J.S.A. 2C:39-4.1a (Count Four); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Count Five); third-degree resisting arrest, N.J.S.A. 2C:29-2a (Count Six); and second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7b (Count Seven). On June 13, 2005, defendant moved to suppress evidence. After first denying the motion, Judge Pereksta sua sponte revisited the matter and granted the motion, determining that the police did not have a reasonable, articulable suspicion to make the motor vehicle stop. A confirming order was entered on March 2, 2006. On March 28, 2006, this court granted the State's motion for leave to appeal.

The salient facts pertaining to the suppression motion as deduced from the testimony of Patrolman Long of the Trenton Police Department, the sole witness to testify at the evidentiary hearing, are as follows. On January 26, 2005, at approximately 3:35 p.m., Officer Long and his partner, Patrolman Perez, while riding in a marked police motor vehicle, received a radio dispatch, directing that they proceed to the area of Wayne Avenue and Martin Luther King Boulevard. The dispatcher advised the police officers that there were members of the Bloods street gang in a bluish-gray motor vehicle chasing a man down the street, and guns were involved. The dispatcher's report indicated that "five Bloods" were involved in the chase and that they were "in [a] blue car." The report also described the Bloods as "dark skinned black males."

The two officers arrived on the scene approximately two minutes after they were dispatched, and observed a bluish-gray four-door Pontiac Bonneville with two occupants therein, parked on Wayne Avenue near the intersection of Martin Luther King Boulevard. As they approached the parked motor vehicle, Long observed defendant look back toward the officers, enter the vehicle, and drive away toward Calhoun Street. Believing that the motor vehicle matched the description "that was put out as the vehicle involved [in the chase]," the officers activated their emergency lights and stopped the motor vehicle after it had traveled only a few feet. The only people in the motor vehicle were defendant and a Hispanic female passenger.

Long and Perez exited their police vehicle and began walking toward defendant's car. Long approached the driver's side, while Perez approached the passenger's side. During his approach, Perez observed the handle of a gun in the motor vehicle and alerted Long. Upon being alerted, Long drew his service weapon. As Long approached the back door of the driver's side of the motor vehicle, defendant opened the driver's side door in his attempt to exit the vehicle. Upon seeing Long's weapon, defendant attempted to re-enter his vehicle, but Long, having blocked defendant from closing his car door, pulled defendant out of the car. After doing so, Long observed a clear plastic bag in defendant's hand, which was later determined to have contained 7.02 grams of crack cocaine.

After removing defendant from his vehicle, Long transferred defendant's custody to Officer Leopardi, who had arrived on the scene as backup. As Long searched the passenger side of defendant's vehicle, a struggle ensued between Leopardi and defendant, causing them to fall to the ground, allowing defendant the opportunity to throw a gun underneath his motor vehicle. After a brief struggle, defendant was placed under arrest.

At close of the evidentiary portion of the hearing, defendant moved to suppress the handgun and cocaine, arguing that they were fruits of an unlawful warrantless search because the officers lacked the articulable suspicion required to stop his vehicle. In her initial decision, Judge Pereksta found that:

[T]he vehicle did match the description closely enough for there to be a reason to stop and for the police to at least conduct the Terry stop which then gave rise to the seeing [sic] by ... Officer Perez[] of the gun from the passenger side of the vehicle.

So therefore I do find that [at] the initial stop, the police did have reasonable suspicion of criminal activity based upon fact that the car reasonably matched the description given . . . .

The judge also found that any occupants would have had enough time to exit the vehicle and flee the scene before the officers entered the area. Upon revisiting her decision, sua sponte, Judge Pereksta granted the motion stating:

The description given by the caller here could not be considered to have evoked certainty by the police that they were stopping the vehicle described by the caller. That being the standard espoused by the New Jersey Supreme Court in Golotta, I must find the stop here did not meet that standard.

....

[E]ven in light of the lesser need for corroboration [of a 9-1-1 call,] based upon the Supreme Court's direction in Golotta that there must be some corroboration and that ... corroboration ... should be something so that the officer and the court may be certain that the vehicle stopped is the same one identified by the caller. I find [that] the description of the vehicle in this case was lacking.

On appeal, the State argues that the motion judge erred when she determined that the officers did not have a reasonable, articulable suspicion to stop defendant's vehicle. We disagree.

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey State Constitution protect individuals against unreasonable searches and seizures. State v. Johnson, 171 N.J. 192, 205 (2002). "[O]ur constitutional jurisprudence expresses a preference that [police officers] secure warrants issued by neutral and detached magistrates before executing a search ...." State v. Frankel, 179 N.J. 586, 597-98 (2004). A warrantless search is presumed to be unlawful unless it falls within one of the recognized exceptions to the warrant requirement. State v. DiLoreto, 180 N.J. 264, 275-77 (2004). "Those exceptions are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary." Frankel, supra, 179 N.J. at 598.

One exception deals with police conduct: "necessarily swift action predicated upon the on-the-spot observations of the officer on the beat -- which historically has not been, and as a practical matter could not be, subjected to the warrant procedure." Terry, supra, 392 U.S. at 20, 88 S. Ct. at 1879, 20 L. Ed. 2d at 905. In order for a police officer to justify an intrusion of an individual's constitutionally-protected rights, that officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906. When reviewing a police search, however, "it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action was appropriate?" Ibid. Reviewing courts must not ignore "the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest." Id. at 24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 908.

An automobile may be stopped by the police when they have a reasonable, articulable suspicion that its operator is currently or is about to violate the law. United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 628 (1981); Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979). Although the amount of reasonable suspicion required to justify an investigatory stop is lower than the probable cause required to sustain an arrest, State v. Stovall, 170 N.J. 346, 356 (2002), "[t]he standard requires 'some minimal level of objective justification for making the [vehicle] stop.'" State v. Golotta, supra, 178 N.J. at 213 (quoting State v. Nishina, 175 N.J. 502, 511 (2003)). Such an inquiry requires the court to evaluate the stop based on the totality of the circumstances. Cortez, supra, 449 U.S. at 418, 101 S. Ct. at 695, 66 L. Ed. 2d at 629.

Our Supreme Court has held that a caller's information placed through the 9-1-1 calling system is, by its very nature, more reliable than the information received from an anonymous tipster. Golotta, supra, 178 N.J. at 218. See State v. Williams, 381 N.J. Super. 572, 577 (App. Div. 2005) (Police lacked reasonable and articulable suspicion to stop defendant based on an anonymous tip that "a black male wearing a black jacket" was selling drugs in an area known for its high crime rate.) Although "the State stands on firm constitutional ground when it treats the anonymous 9-1-1 caller in the same fashion as it would an identified citizen informant who alerts the police to an emergent situation[,]" Golotta, supra, 178 N.J. at 219, it will not be enough for a caller to merely impart any information to the police: it must be specific. Id. at 221. "[T]he 9-1-1 caller must provide a sufficient quantity of information, such as an adequate description of the vehicle, its location and bearing, or 'similar innocent details, so that the officer, and the court may be certain that the vehicle stopped is the same as the one identified by the caller.'" Id. at 222 (quoting United States v. Wheat, 278 F.3d 722, 731 (8th Cir. 2001), cert. denied, 537 U.S. 850, 123 S. Ct. 194, 154 L. Ed. 2d 81 (2002)).

An appellate court's scope of review of a trial court's determination is limited. We are obligated to "review the record in the light of the contention, but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Factual findings of the trial judge are generally given deference, especially when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.; accord State v. Locurto, 157 N.J. 463, 470-71 (1999). When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Johnson, supra, 42 N.J. at 162. "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.

We have reviewed the record of the evidentiary hearing, and are satisfied that Judge Pereksta's decision was based on credible evidence present in the record. Here, the caller reported that "five Bloods with guns" were chasing him in a "blue car," located at the intersection of Martin Luther King Boulevard and Wayne Avenue in Trenton. Upon responding to the scene, Officers Long and Perez noticed a "bluish-gray" Pontiac Bonneville at the described intersection, which defendant was entering. However, besides defendant, who is black, the only other occupant was a Hispanic female. The 9-1-1 caller identified the five Bloods chasing him as "dark-skinned black males." Although there was ample time for other occupants to exit the vehicle and flee the scene, neither the number nor the gender of the passengers observed by the officers matched the caller's description; and the only identification of the motor vehicle was of a non-descript color. Accordingly, the officers were not justified in stopping defendant's vehicle because the information provided by the 9-1-1 caller did not correspond to the officer's observations to the degree that "'the [officers], and the court may be certain that the vehicle stopped is the same as the one identified by the caller.'" Golotta, supra, 178 N.J. at 222, (quoting Wheat, supra, 278 F. 3d at 731). Rather, as testified to by Long, the caller's description of the motor vehicle "was vague."

Affirmed.

 

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

State v. Golotta, 178 N.J. 205 (2003).

(continued)

(continued)

11

A-3755-05T2

November 14, 2006