STATE OF NEW JERSEY IN THE INTEREST OF A.R

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4962-07T4

STATE OF NEW JERSEY

IN THE INTEREST OF A.R.

 
 

Submitted September 23, 2009 - Decided

Before Judges Lyons and J. N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-1953-08.

Yvonne Smith Segars, Public Defender, attorney for appellant A.R. (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent State of New Jersey (John R. Cascarano, Assistant Prosecutor, on the brief).

PER CURIAM

After a hearing that resulted in the denial of his motion to suppress evidence, A.R, a juvenile, entered a guilty plea to an offense which, if committed by an adult, would constitute conspiracy to distribute a controlled dangerous substance. N.J.S.A. 2C:5-2; N.J.S.A. 2C:35-5. A.R. appeals the denial of his motion to suppress together with the adjudication of delinquency.

Our consideration involves whether A.R. was entitled to an order suppressing a clear-colored bag containing a controlled dangerous substance that he jettisoned in flight from police officers. In light of the totality of the circumstances that justified the police officers' pursuit and apprehension of A.R. on the street, suppression of his discarded property is unwarranted following the attempted protective search pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct 1868, 20 L. Ed. 2d 889 (1968). We affirm the motion judge who likewise rejected A.R.'s claim of being subjected to an unlawful search.

I.

At 6:25 p.m. on December 22, 2007 just hours after the winter solstice and with sunset at 4:29 p.m. A.R. was observed by undercover police officers peering into shop windows "in the area of Linden [Avenue]" and clutching something within his waistband. A.R. was attired in dark clothing: a hooded sweatshirt, black gloves, dark jeans, and a ski mask.

The police officers were in the vicinity of John F. Kennedy Boulevard and Danforth Avenue in the Jersey City neighborhood where several robberies had been reported in the previous weeks. Without obvious cause, A.R. began running away from the location of the police officers. He eventually slowed to a walk. The officers' curiosity was piqued and they were concerned about the oddity of the events they witnessed. Immediately, the police officers drove their vehicle to a spot in front of A.R. and activated its lights and sirens. Upon exiting the vehicle the police officers displayed their badges and instructed A.R. not to move; they were planning to frisk A.R. and investigate the circumstances of his presence on the street. Upon realization that he was being apprehended by police, A.R. exclaimed, "Oh shit, 5-0;" he "took off running."

A.R.'s second sprint caused the police officers to give chase and they managed to apprehend him several blocks away. During the course of the pursuit, A.R. was observed to discard a clear-colored bag, with several objects inside. After retrieving the bag, it was examined by the police and found to contain a controlled dangerous substance.

Two days later, A.R. was charged in a Juvenile Complaint as being delinquent in that he was alleged to have 1) possessed a controlled dangerous substance, namely fifty vials of cocaine, 2) possessed a controlled dangerous substance, namely fifty vials of cocaine with the intent to distribute, 3) possessed a controlled dangerous substance, namely fifty vials of cocaine with the intent to distribute within 1,000 feet of a school, 4) possessed a controlled dangerous substance, namely fifty vials of cocaine with the intent to distribute within 500 feet of a park, 5) resisted arrest, and 6) obstructed government function.

On March 13, 2008, Judge Camille M. Kenny heard testimony in connection with A.R.'s motion to suppress evidence. The State's witness, Police Officer Cory J. Carson was the only witness to testify at the hearing. Judge Kenny found the following:

The officer, on examination demonstrated what he saw. And while I didn't describe it at the time I should have. He held both his hands at waist high clutching that area and looking back and forth in a furtive way as he clutched the area in front of his, what would be the belt area, but under the hood. And that's what Officer Carson described.

He decided -- he and his partner decided to look at this a little further. They slowed their car down as they -- as they saw this, and for whatever -- whatever reason, at that point in time the juvenile ran a bit, but then stopped running. The officer said he could not -- he didn't know what the juvenile saw, but he saw the juvenile look in his -- in the direction of his unmarked patrol car then run, and then stop.

Based on this, the officer had concerns of a weapon. He had concerns -- he had suspicion based on the furtive movements, the location of the hands, the juvenile starting -- and the juvenile beginning to run after having looked in his direction.

Judge Kenny concluded from her review of the evidence that "the police officer did have reasonable suspicion to stop and order [A.R.] to halt and to show him his hands." She denied the motion and refused "to suppress the evidence abandoned after [A.R.] fled from the police officers."

On April 16, 2008, A.R. entered a guilty plea to an amended charge, if committed by an adult, of conspiracy to distribute cocaine. The other charges were dismissed. A.R. was sentenced to a one-year period of probation, plus thirty hours of community service.

II.

In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007); see also State v. Alvarez, 238 N.J. Super 560, 562-64 (App. Div. 1990). We will reverse only if convinced that the trial judge's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244. "In those circumstances solely [we] 'appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Ibid. After applying these standards, we conclude that reversible error was not committed below.

The protective search standard established in Terry v. Ohio is an exception to the warrant requirement that permits a police officer to detain an individual for a brief period, and to pat him down in order to ensure the officer's safety. The stop is permitted if "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriquez, 172 N.J. 117, 126 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).

Here, the evidence that was found credible by the motion judge established that at a minimum, the police had a constitutional right to stop A.R. for investigative purposes based on a reasonable suspicion, grounded in specific and articulable facts. "Reasonable suspicion" means that "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906. "Reasonable suspicion" is "less than proof . . . by a preponderance of evidence," and "less demanding than that for probable cause," but must be something greater "than an 'inchoate or unparticularized suspicion or hunch.'" United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989); State v. Thomas, 110 N.J. 673, 678 (1988) (a reasonable, articulable suspicion involves something less than the probable cause standard needed to support an arrest).

During an investigatory stop, a police officer who believes that the suspect "'may be armed and presently dangerous'" may conduct a pat-down. State v. Williams, 192 N.J. 1, 9 (2007) (quoting Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911). The police officers in the present case acted in fidelity with the Constitution and did not deprive A.R. of any rights reserved thereunder. They witnessed a person acting oddly in a neighborhood that had reported several recent robberies. They verily believed although they did not discover a weapon was secreted on A.R.'s person, as evidenced by his clutching movements in the area of his waistband. The combination of A.R.'s first dash away from the police officers, coupled with his garb, location, and other conduct cemented their suspicions that impelled the follow-up investigatory actions.

It is settled that a defendant has no expectation of privacy in property that he or she has abandoned. State v. Burgos, 185 N.J. Super 424, 428 (App. Div. 1982). "For purposes of search-and-seizure analysis," a defendant who abandons property "no longer retain[s] a reasonable expectation of privacy with regard to it at the time of the search." State v. Carroll, 386 N.J. Super 143, 160 (App. Div. 2006) (citations omitted). "In the context of the Fourth Amendment a defendant 'abandons' property when he voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question[.]" State v. Farinich, 179 N.J. Super 1, 6 (App. Div. 1981) (citing United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973)), certif. denied, 88 N.J. 497 (1981), aff'd o.b., 89 N.J 378 (1982); see also Carroll, supra, 386 N.J. Super. at 160; State v. Gibson, 318 N.J. Super 1, 11 (App. Div. 1999).

A.R. relies upon State v. Tucker, 136 N.J 158 (1994), to argue that the police officers had no reasonable and articulable suspicion to believe he had engaged in criminal activity to justify an investigatory stop and detention. A.R. concludes, therefore, that the dropping of the bag and its contents could not be characterized as abandonment. We disagree.

In Tucker, supra, 136 N.J. at 161-62, the defendant was sitting with a companion on the curb at the rear of a private residence when he saw a marked police car approach. He immediately got up and ran. A chase ensued. The defendant ran past a house and threw a clear plastic bag into an opening under the porch. An officer stopped the defendant and retrieved the plastic bag from under the porch. The bag contained crack cocaine. Id. at 162. The defendant moved to suppress evidence. The trial court found the stop and arrest unjustified because the officers had neither probable cause, nor a reasonable, articulable suspicion to believe the defendant had committed a crime. Ibid. However, the trial court denied the motion, finding that the defendant had abandoned the contraband by throwing it under the porch, thereby relinquishing any reasonable expectation of privacy. Ibid. We reversed, finding that the police illegally seized the defendant, and that the act of discarding the contraband was the product of an illegal seizure rather than an abandonment. Ibid.

Our Supreme Court affirmed the reversal, finding that defendant's flight alone, without some evidence of criminality or particularized suspicion that he was engaged in criminal activity, was insufficient to justify seizure. Id. at 169. However, the Court also reaffirmed the principle that "a police officer on patrol, [] having an articulable suspicion that citizens are engaged in illegal activity, has the right to question the suspects." Id. at 167. The Court reaffirmed the notion that reason and common sense dictate that the officer should clearly "'have the right to stop persons on the street for summary inquiry where [] the circumstances are so highly suspicious as to call for such inquiry.'" Id. at 168 (quoting State v. Dilley, 49 N.J 460, 464 (1967)).

Unlike the defendant in Tucker, who was doing nothing more than sitting on a curb before he ran, A.R. was observed acting furtively and potentially in possession of a weapon in an area under surveillance due to complaints about robberies. The police officer also observed A.R. take flight for no obvious reason. Based on those observations, there was a reasonable and articulable suspicion that defendant had engaged in criminal activity. Thus, the police had every right to stop A.R. on the street and question him. We are satisfied that there was sufficient credible evidence supporting the legality of the stop and seizure.

We are also satisfied that there was sufficient credible evidence that A.R. abandoned the bag and contents and, thus, relinquished any expectation of privacy in it. See Carroll, supra, 386 N.J. Super. at 160-61 (finding abandonment of defendant's vehicle and the plastic bag left in it where defendant, after crashing the vehicle into a parked vehicle, left the vehicle's doors open and fled); State v. Hughes, 296 N.J. Super 291, 296 (App. Div. 1997) (finding abandonment of a container filled with bags of cocaine where defendant, who was riding a bicycle, threw the container against a curb when he noticed police were approaching and continued to bicycle another fifty feet away), certif. denied, 149 N.J 410 (1997); Gibson, supra, 318 N.J. Super. at 5, 11 (finding abandonment of contraband where defendant, after seeing an unmarked police car approaching him, dropped contraband onto a driveway); Farinich, supra, 179 N.J. Super. at 6-7 (finding abandonment of a suitcase where defendant, after being approached by the police in an airport, dropped it and started to flee).

Affirmed.

(continued)

(continued)

11

A-4962-07T4

RECORD IMPOUNDED

October 8, 2009