STATE OF NEW JERSEY v. DENNIS J. MUNOZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3336-07T43336-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENNIS J. MUNOZ,

Defendant-Appellant.

____________________________

 

Argued November 18, 2008 - Decided

Before Judges Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 06-03-532 and 07-04-828.

Eric H. Lubin argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Stephen F. Funk, on the brief).

Jack J. Lipari argued the cause for respondent (Theodore F. L. Housel, Atlantic County Prosecutor, attorney; Mr. Lipari, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

An Atlantic County Grand Jury charged defendant Dennis J. Munoz under Indictment No. 07-04-828 with escape and other related offenses, including the offense of possession of a weapon (a handgun) by a convicted person, N.J.S.A. 2C:39-7 (Count Seven). On June 29, 2007, the trial court denied defendant's motion seeking to suppress evidence. Pursuant to a negotiated plea on October 16, 2007, defendant pled guilty to the charge of possession of a weapon by a convicted person and to Count Forty-Six of an earlier unrelated indictment, No. 06-03-532, charging him with third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). On February 1, 2008, the trial court sentenced defendant on Count Seven of Indictment No. 07-04-828 to a sentence of eight years of imprisonment with a five-year term of parole ineligibility and to a flat concurrent three-year term of imprisonment on Count Forty-Six of Indictment No. 06-03-532. The trial court also imposed all appropriate fines and penalties.

On appeal, defendant only challenges the denial of his motion to suppress evidence. Defendant argues:

POINT I.

THE OFFICER'S COMPULSION OF DEFENDANT TO PRODUCE IDENTIFICATION WAS UNLAWFUL.

POINT II.

THE GUN WAS NOT ABANDONED [PROPERTY] SINCE IT WAS PLACED WHERE IT WAS RECOVERED AS A PRODUCT OF UNLAWFUL CONDUCT BY THE OFFICER.

We affirm.

We briefly state the salient facts as adduced from the transcript of the suppression hearing. Michael J. Massey is employed by the New Jersey Division of Fish and Wildlife as a law enforcement officer. Part of his duties include enforcing fish and wildlife regulations, including those prohibiting littering and dumping of trash. On February 16, 2007, while on patrol in Egg Harbor City, Massey drove into a secluded, wooded area that surrounded an abandoned camp owned by the Catholic Diocese. Unoccupied buildings are located within the camp area. On entering the site, Massey observed a sports utility vehicle parked in front of one of the buildings. Because he did not see anyone in the immediate area, Massey parked his vehicle approximately thirty yards away from the building.

While Massey was in his vehicle, he observed defendant walk out from behind the building, wearing a jacket that extended below his waist. After walking four or five steps from the building, defendant looked toward Massey and stopped, pulling down on the right front of his jacket. Appearing "shocked" and "very surprised," defendant looked around and walked backward toward the building. Massey became concerned not only because he was not sure whether defendant was with another person, but also because of defendant's "facial expression," "body language" and defendant's actions of pulling on the right front of his jacket.

Massey exited his vehicle and walked toward defendant, stopping approximately ten yards in front of him. Massey asked defendant to approach him for "a second" so that he could speak with defendant. Defendant complied, and the two engaged in a two or three minute conversation with defendant explaining why he was on private property. During the conversation, Massey asked defendant if he had identification. Defendant stated that he did, but that it was in his car. The two walked to defendant's car, where defendant opened the door, sat in the car, retrieved his registration and insurance card from the glove compartment and handed them to Massey. Massey then inquired whether defendant possessed a driver's license. Defendant told Massey that he did, and while seated, reached behind him, retrieved his wallet, and handed his license to Massey.

During the time defendant produced his driver's license, Massey "noticed that his jacket had bulged out down where he was sitting. And it looked like something was underneath there." On noticing the bulge, Massey became concerned that defendant had something hidden underneath his jacket. After observing defendant again pulling down on the right front of his jacket, Massey asked defendant whether he had anything underneath his jacket, and defendant responded that he had a knife.

Massey, while pulling his weapon half out of his holster, requested that defendant step out of the car. Massey started to conduct a pat down search of defendant and detected "a very hard object that felt like a knife attached to his [waistband]." As Massey felt the knife, defendant moved away from him, causing the jacket to "[come] open." Massey then "saw the butt of a handgun sticking out of his back pocket." On making that observation, Massey pulled his weapon and instructed defendant to get on the ground. Contrary to the officer's instruction, defendant backed away from Massey and darted into the woods. When apprehended, defendant had the knife in his possession, but not the gun. After a search of the area, the gun was located in the woods.

Following the evidentiary hearing, Judge DeLury determined that the search and seizure of defendant were valid, concluding that Massey had initially commenced a field inquiry concerning defendant's reason for being on private property. The judge accepted Massey's testimony regarding the observations he made of defendant constantly pulling on the front of his jacket, and of the bulge underneath the jacket while defendant was seated in his car. Lastly, the judge concluded that, based on the observation of a bulge under defendant's jacket and defendant's admission that he possessed a knife, Massey properly escalated the permissible investigatory stop into a Terry protective search.

An appellate court's scope of review of a trial court's factual determination is limited. We are obligated to review the record in light of defendant's contention, "that the trial court erred in its determination of the facts," 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.

Generally, other than an arrest, there are two forms of police encounters. The first is that of a field inquiry or field interrogation. The second is a more intrusive form of encounter known as an investigative or Terry stop. State v. Nishina, 175 N.J. 502, 510 (2003). The first type of encounter does not implicate the Fourth Amendment. State v. Maryland, 167 N.J. 471, 483 (2001).

A field inquiry is limited in scope and does not involve detention, that is, the police may not prohibit the individual's freedom to move about. Ibid. "'[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.'" Ibid. (quoting Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)).

Nevertheless, the individual is not required to answer the questions and is free to leave the place of interrogation. Ibid. In determining whether a police encounter was a field inquiry or an investigatory stop, the court considers whether under all "attendant circumstances," the individual believed that he was free to leave the police officer's presence. Ibid. Accordingly, the court considers such factors as the conversational manner in which the police officer questioned the defendant - whether the questions were propounded in an "harassing, overbearing, or accusatory [tone]." Nishina, supra, 175 N.J. at 510.

Contrary to a field inquiry, an investigatory or Terry stop "permits law enforcement officers to detain an individual temporarily for questioning." Maryland, supra, 167 N.J. at 486. Because detention equates in the constitutional sense to a seizure, an investigatory stop implicates the Fourth Amendment of the United States Constitution. Ibid.

The Fourth Amendment 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, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128, (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 taken was appropriate?" Id. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906. 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 907-08.

We have considered defendant's arguments raised in light of the record and applicable law, and we are convinced that they are of insufficient merit to warrant a full discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge DeLury in his oral opinion of June 29, 2007.

Nevertheless, we add the following comment. Defendant does not dispute the sequence of events that occurred between him and Massey. However, defendant argues he testified at the suppression hearing that: Massey's demeanor was aggressive, instructing him to produce identification, not merely requesting it; he did not believe that he was free to ignore Massey's requests or leave the area; he never pulled on his jacket in an effort to hide a weapon; he never informed Massey that he possessed a knife; and he did not possess a gun. In addition, defendant contends that he informed the trial court that it was Massey, not him, who initiated the confrontation by forcing him out of his car and patting him down. Lastly, defendant asserts that he told the trial court he only fled the scene after Massey drew his weapon.

Although we agree with defendant that if the trial court believed his testimony and rejected Massey's, the motion to suppress should have been granted, but such was not the trial court's determination. The trial court specifically determined that Massey's testimony was credible and defendant's was not. Because we conclude that the trial court's credibility finding is amply supported by the record, we affirm.

Affirmed.

Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968).

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A-3336-07T4

December 18, 2008