STATE OF NEW JERSEY v. ANTHONY NEAL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4929-06T44929-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY NEAL,

Defendant-Appellant.

__________________________

 

Submitted September 2, 2008 Decided

Before Judges Payne and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-12-1770.

Yvonne Smith Segars, Public Defender, attorney for appellant (Scott J. Sheldon,

Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Lenka Richards, Assistant Prosecutor, on the brief).

PER CURIAM

The issue presented on this appeal is whether information volunteered by unknown citizen witnesses at the scene of a shooting constitutes a lawful basis for an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). We find that it does and we consider the investigatory stop conducted in this case to have been lawful. We therefore affirm.

Following the denial of defendant Anthony Neal's motion to suppress, he entered a guilty plea to possession of a controlled dangerous substance (CDS) with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. On January 12, 2007, defendant was sentenced in accordance with the plea agreement to six years imprisonment, subject to three years of parole ineligibility, together with appropriate fines and penalties. This appeal followed.

The sole witness at the suppression hearing was Jersey City police officer Anthony Mochella, a ten-year veteran of the force. Mochella testified that on the afternoon of August 29, 2005, while in uniform, he was dispatched to the scene of a shooting, which he described as "hectic" at the time of his arrival. Mochella's assignment was to direct traffic at the corner of Bidwell Avenue and MLK Drive, as the victim was "still laying in the middle of the intersection" and the ambulance had not yet arrived. Mochella was approached by two women whom he assumed resided in the neighborhood. They told him that two persons "involved in the shooting were walking east on Bidwell Avenue." He notified his sergeant, and they immediately proceeded down Bidwell Avenue. They stopped the two individuals who had been pointed out to Mochella, one of whom was defendant. Mochella frisked defendant to "check for a gun."

During the course of the frisk, Mochella felt a large object that he suspected was heroin. He then reached into defendant's pocket and pulled out bundles of heroin, which defendant unsuccessfully sought to suppress.

Defendant's legal challenges, as recited in his brief, are:

POINT I

THE BARE AND UNDETAILED STATEMENT OF THE TWO UNKNOWN AND UNIDENTIFIED INFORMANTS THAT DEFENDANT WAS SOMEHOW "INVOLVED IN THE SHOOTING," WITHOUT ANY CORROBORATION OR ADDITIONAL GROUNDS FOR SUSPICION, DID NOT JUSTIFY THE INVESTIGATIVE STOP.

A. THE MOTION COURT ERRED AS A MATTER OF

LAW BY CLASSIFYING THE TIP AS A CITIZEN

TIP RATHER THAN AN ANONYMOUS TIP

B. VIEWED PROPERLY AS AN ANONYMOUS TIP, THE

STATEMENT AT ISSUE DID NOT JUSTIFY A

STOP

The State agrees that the stop in this case was investigative in nature and not a mere field inquiry. See State v. Maryland, 167 N.J. 471, 483-84 (2001) (discussing the distinction between a detention and a field inquiry). It contends on appeal, as it did in the motion court, however, that given the nature of the "hectic" crime scene and the information received, i.e., the totality of the circumstances, there was a reasonable and particularized suspicion that defendant had just engaged in criminal activity. We agree. The frisk for weapons was constitutionally permissible in light of the need to protect the safety of the public and the officers.

There is no doubt that an ordinary citizen who was a witness to a crime stands on very different footing than a police informant. State v. Kurland, 130 N.J. Super. 110, 114-15 (App. Div. 1974). A citizen-informer acts to aid police because of his or her "concern for society." Id. at 115. The fact that the citizen is unknown does not undercut the reliability of the information.

In State v. Alvarez, 238 N.J. Super. 560, 563 (App. Div. 1990), a uniformed member of the Atlantic City Police Department was approached by a citizen who reported that there was "a disturbance relating to drugs on the fourth floor of the nearby Aristocrat Hotel." After checking with the front desk, the police proceeded immediately to the hotel's only occupied room and heard voices loudly discussing drug sales. Ibid. Employing a ruse, the police gained admission to the room and, once the door opened, saw drugs and drug paraphernalia scattered throughout the room. Ibid. As we said in Alvarez:

The information received from the citizen informant . . . clearly called for further investigation. Detective Thomas was not dealing with a tip received from a faceless and anonymous member of the criminal milieu, but rather from an ordinary citizen presumably having "no ties or connections with the underworld. . . ." State v. Lakomy, 126 N.J. Super. 430, 435 (App. Div. 1974). "Consequently, an individual of this kind may [generally] be regarded as trustworthy and information imparted by [her] to a police [officer] concerning a criminal event would not especially entail further exploration or verification of [her] personal credibility or reliability before appropriate police action is undertaken." Ibid. In these circumstances, the officer would have been derelict in his duty had he failed to investigate.

[Id. at 566.]

More so in this case than in Alvarez, the need to investigate was urgent. The police were engaged in a fluid and unplanned ongoing investigation of a shooting incident. See id. at 569-70. Mochella's action in following up on the information received from the citizen witnesses at this fresh crime scene was a reasonable investigative response. We said in State v. Sibila, 330 N.J. Super. 496, 500 (App. Div. 2000), "[T]he actual name of a citizen witness is not always a sine qua non to legitimate police action." In this case, the identity of the eyewitnesses was not necessary because the exigencies at the crime scene required an immediate response to the information they gave. Accordingly, as in Alvarez, we find information obtained from unknown citizens at a crime scene to be a sufficient basis for the investigative stop.

Once having determined that the investigative stop was lawful and the frisk permissible, the next question is whether the officer's seizure of the suspected bundles of heroin was proper. First, it is clear that although he said he "suspected" the object was heroin, he actually knew what it was with greater certainty. He did not "suspect" drugs in general, he suspected heroin in particular.

Under the "plain feel" doctrine, the warrantless seizure was legitimate. That doctrine permits the seizure of "nonthreatening contraband detected during a protective patdown search of the sort permitted by Terry." Minn. v. Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 2136, 124 L. Ed. 2d 334, 344, (1973). See also State v. Cargill, 312 N.J. Super. 13, 17 (App. Div.), certif. denied, 156 N.J. 408 (1998). The patdown here was compelled by valid safety concerns raised by defendant's suspected involvement in a shooting. The discovery of the drugs was entirely inadvertent and unexpected. The officer's identification of the item he was feeling during the frisk is analogous to plain view recognition, making the doctrine of plain feel applicable here, and the removal of the item therefore proper. State v. Toth, 321 N.J. Super. 609, 615 (App. Div. 1999), certif. denied, 165 N.J. 531 (2000). Accordingly, we affirm the denial of defendant's motion to suppress.

Affirmed.

(continued)

(continued)

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A-4929-06T4

October 6, 2008