STATE OF NEW JERSEY v. RONNIE BOYKIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2154-08T42154-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONNIE BOYKIN,

Defendant-Appellant.

______________________________________

 

Submitted February 1, 2010 - Decided

Before Judges Carchman and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-08-1766.

Jacobs & Barbone, attorneys for appellant (Erika A. Appenzeller, on the brief).

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

PER CURIAM

Defendant Ronnie Boykin appeals from his conviction for possession of a firearm by a convicted person, in violation of N.J.S.A. 2C:39-7. He contends that the trial court erroneously denied his motion to suppress the gun found on his person by a police officer. We affirm.

On March 23, 2007, shortly after 11:00 p.m., Officer Brian Hurley of the Atlantic City Police Department was dispatched to the 800 block of Maryland Avenue to investigate an anonymous 911 call reporting that shots had been fired. That block is in a high crime area known for assaults, shootings, drug related offenses, and similar crimes.

As he approached the area in his patrol car, the officer saw a group of men and decided to question them about the reported shooting. Defendant was among the men, seated in the driver's seat of a Chevrolet Tahoe with the door open. Officer Hurley stopped his vehicle and walked toward the men on foot. Another officer also arrived and approached the men.

Officer Hurley noticed that defendant appeared nervous and was reaching with his hand down his left side. As the officer observed defendant's movements, he saw a bulge in defendant's jacket pocket. Fearing that defendant may be armed, the officer ordered him to get out of the vehicle and to put his hands on his head. Defendant initially complied, but his hand dropped to his left side again. Officer Hurley ordered defendant a second time to raise his hands, at which point defendant took flight.

The officer chased defendant into a residence, not defendant's, and subdued him in the hallway near the door. Inside his left pocket, the officer recovered a loaded nine-millimeter handgun.

Defendant was arrested and charged with weapons and other offenses. After indictment, defendant moved to suppress evidence obtained at the time of his arrest. The trial court held a suppression hearing; testimony was given by the two officers and a friend of defendant who was present at the scene. Defendant's friend did not significantly contradict the officers' version of the events, but differed in minor ways with respect to the officers' arrival and the distances from which Officer Hurley would have allegedly observed a bulge in defendant's pocket.

In its oral decision, the trial court made findings of fact as described here and concluded that the police had not violated defendant's constitutional rights by any of their actions. The court said that "Hurley had a reasonable suspicion to investigate" after responding to the scene, observing defendant's nervousness and movements toward his pocket, and noticing a bulge in that pocket. The court said further that the "investigatory stop quickly escalated to something much more definitive because Mr. Boykins . . . took off running." Describing the officer's actions after defendant's flight as a "clear case of pursuit and seizure[,]" the court concluded that the police acted lawfully in seizing and searching defendant.

On appeal, defendant contends that the police did not have enough information to suspect him and the other men on the street of involvement in any criminal activity and, therefore, had no constitutionally permissible basis to detain them. Additionally, defendant cites State v. Tucker, 136 N.J. 158, 169 (1994), in support of his contention that his flight did not give the police probable cause to arrest and search him. Neither contention has merit.

"[A]n appellate court reviewing a motion to suppress 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. . . . [A] trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)). Applying this standard of review, we find no basis to disturb the trial court's findings and conclusions.

Upon being dispatched to investigate a 911 call about shots being fired, Officer Hurley could make "field inquiry" of any person without objective evidence to suspect that person of involvement in criminal activity. Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983); State v. Rodriguez, 172 N.J. 117, 126 (2002); State v. Davis, 104 N.J. 490, 497 (1986). The field inquiry grew into a "seizure" of defendant, however, when Officer Hurley ordered defendant out of his vehicle with his hands up. See id. at 498. Such a seizure, although intended to be temporary, is subject to the constraints of the Fourth Amendment and article 1, paragraph 7 of the New Jersey Constitution. Id. at 498-99.

The "seizure," or detention, of defendant was a constitutionally permissible "stop and frisk" as described in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The United States Supreme Court held in Terry that a police officer may temporarily detain and search a suspect for weapons if the officer 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. The Court stated further that "[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Ibid.

To justify such a "stop and frisk," or any investigatory detention, the police must have "reasonable and articulable suspicion" that the person detained is engaged in criminal activity. Elders, supra, 192 N.J. at 247; State v. Pineiro, 181 N.J. 13, 21-22 (2004). Reasonable suspicion has been described as "a particularized and objective basis for suspecting the person stopped of criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002).

Here, Officer Hurley was investigating a report of shots fired in a high crime area late at night. As he approached defendant to conduct a field inquiry, defendant looked nervous and moved his hand toward the pocket of his jacket, in which the officer saw a bulge. All of these factors have been recognized as relevant objective facts establishing reasonable suspicion to detain and search a suspect for weapons. See State v. O'Neal, 190 N.J. 601, 607, 613 (2007); Pineiro, supra, 181 N.J. at 26; State v. Valentine, 134 N.J. 536, 551 (1994); State v. Toth, 321 N.J. Super. 609, 611-12 (App. Div. 1999), certif. denied, 165 N.J. 531 (2000).

When defendant took flight before the officer could conduct a pat-down search, reasonable suspicion was elevated to probable cause to pursue and arrest defendant. State v. Williams, 192 N.J. 1, 4 (2007); State v. Crawley, 187 N.J. 440, 460-61, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006).

This is not a case like Tucker, supra, 136 N.J. at 169, where the police had no information but the defendant's flight alone to support their seizure of the defendant and use of evidence obtained as a result of that seizure. See also State v. Dangerfield, 171 N.J. 446, 457 (2002) ("flight alone does not create reasonable suspicion for a stop, let alone probable cause"). Rather, the flight in this case "heightened the level of reasonable articulable suspicion" that the police already had to detain and pat down defendant for weapons. State v. Citarella, 154 N.J. 272, 281 (1998).

Moreover, the gun seized from defendant after his flight was admissible in evidence on the charge of possession of the weapon even if the police had earlier lacked sufficient suspicion to stop and detain defendant when they arrived on the scene. Williams, supra, 192 N.J. at 18.

We conclude, as did the trial court, that defendant's constitutional rights were not violated by the police conduct leading to his arrest and seizure of a handgun from his person.

Affirmed.

 
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A-2154-08T4

March 1, 2010