STATE OF NEW JERSEY v. WALTER Q. FRENCH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3260-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WALTER Q. FRENCH,

Defendant-Appellant.

_____________________________

August 15, 2011

Submitted June 16, 2011 - Decided

Before Judges Fisher and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

Indictment Nos. 08-08-1966, 06-09-2155

and 06-02-0439.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Celeste Dudley-Smith, Designated Counsel, 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

Following the denial of his motion to suppress certain evidence, defendant Walter Q. French pled guilty to second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2. In accordance with a negotiated plea, the judge sentenced him to four years of imprisonment, subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. Appropriate fines, costs, penalties and assessments were also imposed. Defendant now appeals the denial of his suppression motion, R. 3:5-7(d), and we affirm.

The testimony at the suppression hearing, which the judge found credible, revealed the following. On July 7, 2008, at approximately 2:00 a.m., the Atlantic City Police Department dispatcher notified officers that a customer had been robbed at a Dunkin' Donuts on the corner of Morris and Pacific Avenues. Officer Jeffrey Braasch responded. Braasch was told by the victim, Pedro Nunez, that he had been approached by a "short black male with a black T-shirt, jean shorts, with a tattoo of a name on his neck and a tattoo on his forearm," who Nunez later identified as defendant. The robber demanded Nunez's diamond earrings, but Nunez refused. The robber then lifted his shirt, showed Nunez a gun in his waistband and told Nunez that if Nunez did not hand over his earrings, he was "going to use" the gun. Nunez gave the robber one of his earrings, and the robber fled. The robber was accompanied by another person, who Nunez described as black male with short hair, wearing a do-rag and a blue t-shirt, and who was later identified as French's co-defendant, James Webb.

Braasch had the dispatcher broadcast a description of the suspects. Officer Lisa Kaplin heard the broadcast and spotted defendant and Webb who matched the description on the corner of South Chelsea and Pacific Avenues. The two noticed Kaplin and ducked into a near-by store, emerging a short while later after looking to see if Kaplin had left. Kaplin, who had pressed herself against a wall to conceal her presence, stopped them and patted them down for weapons. None were found. Kaplin asked the two where they had come from, and defendant said they had come from a housing project fifteen blocks away. Kaplin found this response suspicious because there were other stores closer to the project, but, having no reason to detain them further, let them go. Defendant appeared nervous and was sweating during the encounter.

Approximately ten minutes after Kaplin dismissed defendant and Webb, the dispatcher informed officers that an anonymous call about the robbery had come in. The caller stated that the two males the police had just stopped were near the Chelsea Hotel retrieving a twelve-gauge shotgun from over a fence. The Chelsea Hotel is as the name suggests located on South Chelsea Street, between Pacific Avenue and the Atlantic City boardwalk.

Officer Braasch and Officer Patrick Yarrow, who were patrolling the boardwalk, heard the dispatch. They noticed defendant and Webb walking north on South Chelsea Avenue, away from the boardwalk, and then turn right on Pacific Avenue. These observations were consistent with the two having come from the vicinity of the Chelsea Hotel.

Braasch and Yarrow approached defendant and Webb and asked them where they were coming from. They responded that they were coming from the spot where they had initially been stopped. Yarrow found this suspicious because he had seen them come from the direction of the beach, not the corner of Pacific and Morris where Kaplin had stopped them. Based on the call and the seemingly inconsistent statement, Braasch and Yarrow ordered the two to stop and searched them again. This time, the officers uncovered a revolver and a sawed-off twelve-gauge shotgun concealed in Webb's pants.

Defendant and Webb moved to suppress the weapons, arguing that the officers did not have reasonable suspicion to stop them a second time. They did not contest the first stop. The trial judge found that the entirety of the circumstances not just the anonymous phone call justified the second stop and frisk. Accordingly, he denied the motion to suppress. Defendant appeals that ruling, and we affirm.

In reviewing a trial judge's decision to deny a motion to suppress, we must affirm so long as the judge's decision is "supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted). A detention following a field inquiry such as the one Yarrow and Braasch undertook when they approached defendant and Webb prior to the second search is impermissible absent "'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 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)). In order to frisk a suspect detained to confirm or dispel reasonable suspicion of criminal activity, an officer must have "'reason to believe that he is dealing with an armed and dangerous individual[.]'" State v. Privott, 203 N.J. 16, 25 (2010) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). In determining whether the requisite suspicion is present, courts consider the "totality of the circumstances surrounding the police-citizen encounter." State v. Davis, 104 N.J. 490, 504 (1986).

Defendant primarily argues that the anonymous tip that he and Webb had retrieved weapons from near the Chelsea Hotel was insufficient to provide reasonable suspicion that they were engaged in criminal activity or armed and dangerous. It is true that "[a]n anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity." Rodriguez, supra, 172 N.J. at 127. But in this case, the anonymous tip did not stand alone.

At the time of the first stop, the officers knew that defendant matched Nunez's description of the armed robber, including the fairly-distinctive tattoo. They also knew that defendant and Webb were near the scene of the robbery, that they were attempting to avoid the police, that they appeared nervous and that their story for why they had entered the store was suspicious given where they had claimed to have come from. Nonetheless, because Nunez's robber was armed, and defendant and Webb were unarmed, Kaplin decided to let them go.

The anonymous phone call rather than being an entirely new basis for reasonable suspicion fit into the information the officers already had. It explained how defendant and Webb could be the robbers without them having been armed when Kaplin stopped them. It suggested that defendant and Webb had robbed Nunez, disposed of their weapons near the Chelsea Hotel and waited for the police to depart before returning to retrieve them. That suggestion was corroborated by Yarrow observing defendant and Webb coming from the direction of the hotel and their apparent lie when asked where they had come from. These pieces of additional information, combined with what the officers already knew at the time of the first stop, supported a finding of reasonable suspicion that defendant and Webb were contrary to Kaplin's initial belief Nunez's robbers and that they had just retrieved the weapons used in the crime. When deciding to stop and frisk defendant and Webb a second time, the officers were entitled to rely on all the information available to them, not just the additional information they obtained between the first and second stops. See generally Davis, supra, 104 N.J. at 500-01 (requiring a reviewing court to look at "whole picture" to determine whether a stop is justified).

Affirmed.