STATE OF NEW JERSEY v. LAQUAY WILLIAMS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4604-07T44604-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAQUAY WILLIAMS,

Defendant-Appellant.

_____________________________________________

 

Submitted April 28, 2009 - Decided

Before Judges Winkelstein and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-01-0037.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Laquay Williams appeals from the denial of his motion to suppress two weapons seized from the vehicle he was driving. He thereafter pled guilty to all counts in the indictment, while preserving his right to appeal the denial of the suppression motion. We affirm.

I

Defendant pled guilty to two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), (counts one and two); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d), (count three); two counts of third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(1), (counts four and five); and two counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7, (counts six and seven).

At sentencing, the trial court granted the State's motion for an extended term as a persistent offender under N.J.S.A. 2C:44-3(a). On counts six and seven, defendant was sentenced to fourteen years imprisonment, with seven years of parole ineligibility. He was sentenced to five years imprisonment on counts four and five and eighteen months imprisonment on count three. Counts one and two were merged into counts six and seven respectively. The trial court provided that all sentences would run concurrently. As a result, defendant's aggregate sentence is fourteen years with seven years of parole ineligibility. The trial court also imposed the requisite Violent Crimes Compensation Board assessment, under N.J.S.A. 2C:43-3.1.

At the suppression hearing, the State presented the testimony of two Atlantic City Police officers, Christopher Barber and James L. Andros, who were on patrol together on July 21, 2006. Officer Barber testified that at approximately 3:50 a.m. that day, four men, unknown to him, approached him at a traffic stop and advised that about twenty to thirty minutes earlier, they had seen a person driving a vehicle by the Player's Club on the east block of New York Avenue with a silver pistol that they thought had a .380 caliber. They described the vehicle as a black Mercedes CLK convertible without flashy rims and with, they believed, New Jersey registration. They described the occupant as a black male wearing a black baseball cap and black T-shirt. Officer Barber did not obtain the identification of the four men.

The officers went to the location described which was about four blocks away. About a half hour later, Officer Barber saw a vehicle and driver matching this description. The officers stopped the vehicle and approached it with their weapons drawn. Defendant was frisked twice but no weapons were found on his person. When defendant began to flee, he was restrained by the police. At some point in these events, back-up officers also arrived at the scene.

Officer Andros testified that when he approached the vehicle from the passenger side, he saw a weapon wedged between the seat and center console, which he secured after defendant exited the vehicle. When doing so, he observed a second weapon under the seat, which he subsequently seized as well. Both officers testified that once Officer Andros announced recovery of the first weapon, defendant indicated that he had another one. The defense presented the testimony of Jacqueline Ricci, the owner of the vehicle in which the weapons were found, to refute the officers' testimony that the license plate on the vehicle was partially obstructed.

The trial court found the officers to be credible witnesses and accepted their accounts of events that night. It found that while the police did not have probable cause to stop the car, they did have an articulable suspicion to conduct a Terry stop. The court further determined that the first weapon was in plain view and that Officer Andros had probable cause to enter the vehicle to retrieve it. When he did so, the second one came into plain view. The trial court denied the motion to suppress.

On appeal, defendant raises the following issue:

POINT I

THE COURT BELOW ERRONEOUSLY DENIED THE MOTION TO SUPPRESS EVIDENCE AS THE CONDUCT OF THE POLICE VIOLATED DEFENDANT['S] RIGHT TO BE FREE OF ILLEGAL SEARCHES AND SEIZURES. BOTH THE SEIZURE OF DEFENDANT AND THE SEARCH OF HIS AUTOMOBILE WERE THE "FRUITS" OF AN ILLEGAL ARREST. THEREFORE, THE ORDER DENYING THE MOTION TO SUPPRESS EVIDENCE MUST BE REVERSED. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. ART. I, PAR. 7.

II

We must uphold the trial court's factual findings on a motion to suppress, provided they are "supported by sufficient credible evidence." State v. Elders, 192 N.J. 224, 243 (2007) (citation omitted). However, "[w]hether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

Under both the United States and New Jersey Constitutions, a warrant generally must be issued before the police may search and seize evidence. U.S. Const. amend. IV; N.J. Const. art. I, 7; State v. Pineiro, 181 N.J. 13, 19 (2004). A warrantless search is presumptively invalid unless it "falls within one of the few well-delineated exceptions to the warrant requirement." Ibid. (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). The State has the burden of showing that the search falls within one of the recognized exceptions to the warrant requirement. Ibid. If a warrantless search does not fall within a recognized exception, the evidence seized must be suppressed. See State v. Lee, 190 N.J. 270, 277-78 (2007) (stating that "[p]ursuant to the exclusionary rule, the State may not introduce evidence obtained from an unlawful search or seizure by the police"); Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1090 (1961) (applying the exclusionary rule to the states through the Due Process Clause of the Fourteenth Amendment).

The State maintains that the officers were making a constitutionally permissible Terry stop in order to investigate the report that a person in the vehicle had a gun. Defendant contends that the report from four unidentified men did not provide the proper foundation for a Terry stop, because nothing is known about them and their reliability as informants.

In Terry v. Ohio, supra, the United States Supreme Court recognized that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." 392 U.S. at 22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906-07 (1968). When doing so, the officer has "a narrowly drawn authority" to make a reasonable search "for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Id. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909.

A Terry stop may not be based on an anonymous tip alone unless the tip is "suitably corroborated" and "exhibits 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.'" Florida v. J.L., 529 U.S. 266, 268-70, 120 S. Ct. 1375, 1377-79, 146 L. Ed. 2d 254, 258-60 (2000) (quoting Alabama v. White, 496 U.S. 325, 327, 110 S. Ct. 2412, 2414, 110 L. Ed. 2d 301, 306 (1990)) (anonymous tip from an unknown caller at an unknown location that "a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun" did not justify a Terry stop). For example, if the anonymous tipster predicts future conduct of the target and police observation confirms that the conduct took place, that evidence provides corroboration that the tipster has some familiarity with the target's affairs. Id. at 270-71, 120 S. Ct. at 1378-79, 146 L. Ed. 2d at 260.

The test of "[r]easonable suspicion necessary to justify an investigatory stop" is less than the finding of probable cause needed to justify an arrest. State v. Golotta, 178 N.J. 205, 213 (2003) (quoting State v. Stovall, 170 N.J. 346, 356 (2002)) (alteration in original). "The standard requires 'some minimal level of objective justification for making the stop.' The test is 'highly fact sensitive and, therefore, not readily, or even usefully, reduced to a neat set of legal rules.'" Ibid. (citations omitted).

The United States Supreme Court specifically declined to make an exception for anonymous calls that someone has a gun, concluding that the "bare report of an unknown unaccountable informant" does not have the "indicia of reliability" to justify a Terry stop. Florida v. J.L., supra, 529 U.S. at 271-74, 120 S. Ct. at 1379-80, 146 L. Ed. 2d at 260-62; see also State v. Matthews, 398 N.J. Super. 551, 555-60 (App. Div.) (concluding that an anonymous tip received by a police officer by radio dispatch from headquarters that someone in a burgundy Durango at a specific location had a gun did not justify a Terry stop of a vehicle matching the description and found at the designated location), certif. denied, 196 N.J. 344 (2008), cert. denied, __ U.S. __, 129 S. Ct. 1037, 173 L. Ed. 2d 480 (2009).

While Officer Barber did not obtain the names of the four men who provided the tip, he did speak to them face to face, and was in a position to assess their demeanor and make a judgment concerning their credibility. A tip received by an officer in a face to face encounter is generally considered more reliable than one received from an anonymous telephone caller because the officer has the opportunity to assess the credibility and demeanor of the person. United States v. Valentine, 232 F.3d 350, 354 (3d Cir. 2000), cert. denied, 532 U.S. 1014, 121 S. Ct. 1748, 149 L. Ed. 2d 670 (2001). Further, "[f]rom the fact that the officers acted, and acted quickly, after receiving the tip [in a face to face encounter], a court may deduce that the officers thought the tipster's demeanor, voice, and perhaps a host of other factors supported the reliability of the tip." Id. at 355.

Unlike the anonymous tipster who calls the police station, here the four men physically presented themselves to the officer who could assess their credibility, and nothing in the record suggests that they would have refused to give their identities if asked. Further, the four men were in a location close to the alleged event, providing corroboration that they could have made the asserted observation. Their report was fresh since they had made the observation within a half hour before speaking to Officer Barber. Finally, defendant, his vehicle and their location all matched the description provided by the tipsters. Accordingly, we conclude that the record contains sufficient credible evidence to support the trial judge's finding that the Terry stop was permissible.

III

Defendant maintains that the officers went beyond a Terry stop and were effectively performing an arrest because they approached the vehicle with their guns drawn. Since the officers did not have probable cause at that point to arrest defendant, he contends that the stop and resulting seizure of the weapons was unconstitutional. The State denies that the circumstances amounted to an arrest, maintaining that the conduct of the police officers was appropriate for a Terry stop in the situation presented.

An investigative stop becomes a de facto arrest when it is more than minimally intrusive. State v. Dickey, 152 N.J. 468, 478 (1998). When considering whether an investigatory stop has become a de facto arrest, the court will consider such factors as whether the defendant's detention was unnecessarily delayed, whether defendant was moved to another location or kept isolated, and whether defendant was handcuffed, and the court will consider "the degree of fear and humiliation that the police conduct engenders." Id. at 479 (quoting United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir. 1994), cert. denied, 514 U.S. 1113, 115 S. Ct. 1970, 131 L. Ed. 2d 859 (1995)).

In the case before us, the officers did not unnecessarily delay defendant's detention, move him to another location, or isolate him. The sole factor that defendant relies on in arguing that a de facto arrest occurred is the fact that the officers had their weapons drawn when they approached the car.

The fact that the officers drew their weapons at the beginning of the Terry stop did not transform the stop into an arrest under the facts presented. See State v. Padilla, 321 N.J. Super. 96, 107-08 (App. Div. 1999) (discussing whether police officers had a right to draw their weapons when investigating "an anonymous tip about a man with a gun" in a motel room), aff'd, 163 N.J. 3 (2000). In Padilla, the police received an anonymous tip that a person in a motel room was carrying a handgun. Id. at 102-03. The police approached the motel room to investigate, with their guns drawn but by their sides. Id. at 103. In upholding the evidence seized in plain view once the officers entered the motel room, we said, "[t]he fact that the officers had their guns drawn but at their side is of no consequence. The caller reported a person with a gun; consequently, the officers had the right to draw their handguns." Id. at 108. Indeed, "[t]he vast majority of courts have held that police actions in blocking a suspect's vehicle and approaching with weapons ready, and even drawn, does not constitute an arrest per se." United States v. Edwards, 53 F.3d 616, 619 (3d Cir. 1995).

IV

In addition, we agree with the trial court's finding that the retrieval of the weapons falls within the plain view exception. Under the plain view exception, a law enforcement officer may seize evidence that is in plain view provided he is lawfully in the viewing area and he has "probable cause to associate the property with criminal activity." State v. Johnson, 171 N.J. 192, 206-07 (2002) (quoting State v. Bruzzese, 94 N.J. 210, 237 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). Here these requirements were met because Officer Andros was lawfully in the viewing area due to the Terry stop when he saw the handle of a gun protruding from the area between the front seat and console.

We note, however, the law has long imposed the additional requirement of inadvertency, namely, that the officer "did not know in advance where evidence was located nor intend beforehand to seize it." Id. at 206 (quoting State v. Bruzzese, supra, 94 N.J. at 236). This inadvertency requirement has now been eliminated from federal constitutional law. Horton v. California, 496 U.S. 128, 130, 110 S. Ct. 2301, 2304, 110 L. Ed. 2d 112, 118-19 (1990). The law is unclear whether the inadvertency requirement still applies under New Jersey constitutional law. State v. Padilla, supra, 321 N.J. Super. at 109 n.7. However, we need not resolve this question, since the requirement of inadvertency, if viable, has been met under the facts of this case.

Although the officers learned in advance of the stop that the vehicle may contain a gun, they inadvertently found the gun in plain view. In this respect, the facts are similar to those in State v. Padilla, supra, 321 N.J. Super. at 102-03, where the police had received an anonymous call that three people in a particular hotel room had a gun. The police went to the room, were admitted entrance, and observed a gun and CDS which they seized. Id. at 103-04. Despite the fact that the police had reason to believe a gun was in the room, the search and seizure of the gun was deemed "inadvertent." Id. at 109-10. In so holding, we explained:

While the police had a reason to investigate the report that someone in the room had a gun, they did not know its precise location let alone that it would be in plain view. The purpose of the inadvertence requirement is to prevent the police from engaging in planned warrantless searches where they know in advance the location of certain evidence and intend to seize it, relying on the "plain view" exception as a pretext. Here, the officers were not aware of the specific location of the gun and clearly did not enter the premises in order to rely on the plain view exception as a pretext. Their purpose in entering the room was to perform their duty and investigate the tip.

[Id. at 109 (citation omitted).]

Here, Officer Andros was legitimately in a place he needed to be in order to carry out his law enforcement responsibilities in a Terry stop, when he observed the handle of the gun. Once he went to seize that gun, the second gun then came into view, so that seizure of the second gun was permissible too. See id. at 104, 108 (upholding a search and seizure under the plain view exception that included ammunition seen after an officer picked up a bag containing currency that was also in plain view).

For all of these reasons, we find that the stop was a valid Terry stop and that the search and the seizure of the guns was justified under the plain view exception to the warrant requirement. The denial of the motion to suppress is affirmed.

 

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

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A-4604-07T4

June 9, 2009