STATE OF NEW JERSEY v. SHANNON REEVES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1756-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHANNON REEVES,

Defendant-Appellant.

______________________________

October 19, 2010

Argued: September 29, 2010 - Decided

Before Judges Fisher and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-06-0547.

Michael J. O'Donnell argued the cause for appellant (Markowitz Gravelle, L.L.P., attorneys; Mr. O'Donnell, on the brief).

Frank Muroski argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Mr. Muroski, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress, defendant Shannon Reeves pled guilty to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. The trial judge imposed a five-year term of imprisonment with a five-year period of parole ineligibility. On appeal, defendant raises the following contentions:

I. The Trial Court Erred in Denying Mr. Reeves' Motion to Suppress the Evidence.

A. The Trial Court Erred in Determining that the Arresting Officer's "Stop" of Mr. Reeves Did Not Result in a Violation of Mr. Reeves['] Fourth Amendment Rights.

1. The Arresting Officer did not Have a Reasonable and Articulable Suspicion That Mr. Reeves Was Engaged or Was About to Engage in Criminal Activity.

a. Mansur's Order to Stop and Show Your Hands Constituted a "Stop" for Constitutional Purposes.

b. The "Stop" of Mr. Reeves Cannot be Supported by any "Articulable and Reasonable Suspicion" Based Upon N.J.S.A. 2C:33-7 and Violated His Rights Under the First Amendment.

B. The Trial Court Erred in Determining that the Search of Mr. Reeves' Person was Valid under the Fourth Amendment.

We affirm.

We derive the following facts from the evidence produced at the hearing on the motion to suppress.

At approximately 6:46 p.m. on October 8, 2007, Edwin Assencio reported to the Trenton Police Department that two men had robbed him of $50 at gunpoint. Assencio could not positively identify the suspects due to poor lighting conditions and the rapid time frame of the incident; however, he described one of the suspects as a black male, fourteen to sixteen years old, 5'7" tall, weighing 130 pounds, and dressed in "blue jeans, black shirt, [and] sneakers," and the other suspect as a black male, fourteen to sixteen years old, 5'8" tall, weighing 165 pounds, and wearing "blue jeans, black hoody sweatshirt, [and] sneakers." There were no other witnesses and no known surveillance cameras in the area of the robbery.

At approximately 6:53 p.m. the next day, Officer Ahmad Mansur, who was in uniform in a marked police vehicle, was patrolling the area where the robbery occurred. The police were assigned to patrol this area twenty-hours per day, seven days per week due to drug and gang activity, robberies, and burglaries that had previously occurred.

While driving his patrol vehicle, Mansur passed a group of "five black males huddled together standing in the middle of the sidewalk" on Beatty Street, which is approximately one block from the scene of the previous night's armed robbery. The men were not acting disorderly or involved with drugs or weapons; however, they were "obstructing the public passage rendering same impassable," causing someone who wanted to traverse the group to have to walk in the street. Also, Mansur saw an individual named Brandon among the group of men, who the officer had "locked . . . up a couple of times and . . . was a suspect on a couple of robberies."

Mansur drove around the corner twice more and saw that the men had not dispersed. After passing a third time, Mansur stopped and exited his vehicle, intending to issue the men a summons for blocking a public passage. Upon seeing the officer, most of the men walked away, but defendant and Brandon remained. Mansur told the men to show their hands. Brandon began walking away but defendant stayed.

Upon approaching defendant, Mansur noticed that "he kind of matched the description of a robbery suspect" from the previous night's armed robbery, and wore clothes similar to those Assencio had described of the suspects. The officer also noticed that defendant "looked a little nervous" and his hands were "shaking a little bit." Mansur ordered defendant to put up his hands. Defendant went beyond that order by turning toward a brick wall with his hands raised, putting the front of his body away from the officer's view. As Mansur approached defendant, defendant reached down with his right hand to his waistband area. Based on his training and experience, Mansur knew that people carry guns in their waistband area. The officer immediately grabbed defendant's hands, put them on the back of defendant's head, felt the waistband area defendant had attempted to reach, and discovered a gun. Mansur secured the gun and arrested defendant.

Based on this evidence, the trial judge denied defendant's motion to suppress, finding that defendant was required to stop and comply with Mansur's order to put up his hands, and that by turning toward the brick wall and dropping his hand toward his waistband, defendant gave Mansur reason to fear for his safety.

Our review of a trial judge's factual determination is limited. State v. Robinson, 200 N.J. 1, 15 (2009). On reviewing a motion to suppress evidence, 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.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Additionally, factual findings of the trial court are entitled to deference 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. (quoting Elders, supra, 192 N.J. at 244).

When we are satisfied that the findings of the trial court could reasonably have been reached on the record, "[our] task is complete and [we] should not disturb the result, even though [we have] the feeling [we] might have reached a different conclusion were [we] the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). Nevertheless, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then [we] should review 'the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" State v. Mann, ___ N.J. ___, ___ (2010) (slip op. at 8) (quoting Johnson, supra, 42 N.J. at 162). "[We owe] no deference to the trial court in deciding matters of law. When a question of law is at stake, [we] must apply the law as [we] understand[] it." Ibid. (internal citation omitted).

Based upon our review of the record, we are satisfied that the record amply supports the trial judge's findings. Although we question the constitutionality of the stop in this case, our Supreme Court's holding in State v. Williams, 192 N.J. 1 (2007), compels affirmance. In Williams, the defendant was not engaged in any illegal activity. Id. at 5. Nonetheless, two police officers stopped him in order to conduct an interview. Ibid. After one of the officers instructed the defendant to place his hands on his head, defendant pushed the officer and fled. Ibid. The officers apprehended defendant shortly thereafter and arrested him. Ibid. A pat down search revealed a handgun tucked in defendant's waistband. Ibid. The Court found the stop was probably unconstitutional; however, the arrest and search were lawful because of the intervening act of flight, which could endanger the police or the public. Id. at 10.

In this case, defendant failed to comply with Mansur's order to put up his hands. Instead, he turned away from the officer and reached for his waistband, thereby potentially endangering the officer and the public. Thus assuming the stop was unconstitutional, defendant's actions constitute an intervening act that completely purged the taint. Id. at 10-11.