STATE OF NEW JERSEY v. JAMES SEABROOKS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3756-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES SEABROOKS,

Defendant-Appellant.

_________________________________

June 3, 2011

Submitted March 16, 2011 - Decided

Before Judges Ashrafi and Newman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-02-0467.

Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Following a guilty plea, defendant James Seabrooks appeals the denial of his motion to suppress a handgun seized from his person without a warrant. See R. 3:5-7(d). We affirm.

Detective Richard Weber of the Newark Police Department was the only witness to testify at the suppression hearing. The relevant facts are not in dispute. At about 9:30 p.m. on October 18, 2008, Weber and two other plainclothes police detectives were patrolling a high-crime area of Newark in an unmarked police car. As they passed Fleming and Chapel Avenues, a woman stepped into the street and flagged down their car. Weber testified that the car, a Ford Crown Victoria, was recognizable to the residents as a police vehicle although unmarked. The woman told the detectives that a black man at the first driveway of the nearby Terrell Homes had a gun in his waistband. She described the man as about five feet six inches tall and about 150-160 pounds, wearing a black jacket and blue jeans. She said he was standing near a gold-colored vehicle.

The detectives did not question the woman further but immediately drove about three blocks to the first driveway of the Riverview Court Housing Complex, which is also known as the Terrell Homes. There, they saw a group of four or five young men standing near a gold-colored vehicle in a parking lot. Defendant was among the men, and he was the only one wearing a black jacket and blue jeans. Also, he matched the height and weight description the woman had given.

As the detectives stepped out of their car with their police badges visible, defendant's right hand moved toward his waistband. The detectives ordered him to keep his hands in sight. Defendant complied with the command. Weber immediately conducted a patdown of the outer clothing of defendant and felt a gun in the waistband. He removed and seized a loaded .45 caliber handgun. Defendant was arrested without incident.

A grand jury indicted defendant on charges of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and fourth-degree possession of an ammunition magazine, N.J.S.A. 2C:39-3j. After the court denied his motion to suppress the handgun and ammunition, defendant entered into a plea agreement and pleaded guilty to the second-degree charge. He was sentenced in accordance with his plea agreement to five years' imprisonment with three years to be served before eligibility for parole.

On appeal, defendant argues:

BECAUSE THE DETECTIVES LACKED A SPECIFIC, ARTICULABLE SUSPICION THAT DEFENDANT WAS ARMED AND DANGEROUS, THEY HAD NO LEGAL BASIS TO CONDUCT A PATDOWN, AND THE COURT ERRED IN DENYING THE MOTION TO SUPPRESS THE GUN.

We reject this argument and conclude that the trial court correctly denied defendant's motion to suppress evidence.

We defer to the findings of fact and credibility determinations of the trial court on a suppression motion. State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)); State v. Johnson, 42 N.J. 146, 161 (1964). However, we need not defer to the court's legal conclusions reached from the established facts, in particular, "[i]f the trial court acts under a misconception of the applicable law[.]" State v. Brown, 118 N.J. 595, 604 (1990). The trial court's understanding and application of the law is subject to plenary review on appeal. See State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

When performing their duties, the police may 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). Where, however, the police restrain a person's freedom, or conduct a search of his person as in this case, constitutional protections must be honored. The Fourth Amendment to the United States Constitution and article I, paragraph 7, of the New Jersey Constitution prohibit unreasonable searches and seizures. See Davis, supra, 104 N.J. at 498. The State must prove by a preponderance of the evidence that the police did not violate constitutional rights in conducting a search and seizing evidence without a warrant. See State v. Maryland, 167 N.J. 471, 489 (2001).

The police may, without a warrant, temporarily detain and frisk a person for possession of a weapon if they have a "reasonable and articulable suspicion" that the person is engaged in unlawful activity and may be armed. Terry v. Ohio, 392 U.S. 1, 30-31, 88 S. Ct. 1868, 1884-85, 20 L. Ed. 2d 889, 911 (1968); 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) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996)).

In this case, the State justified the warrantless patdown search of defendant as a temporary Terry stop and frisk for weapons. As the trial court found, Detective Weber's suspicion of criminal activity was based on the information received from the unidentified citizen, the matching of the description and location provided with the detective's own observations, his knowledge that the area was a high-crime neighborhood with extensive narcotics activity and weapons offenses, and the movement of defendant's hand toward his waistband upon seeing the police approach.

Defendant argues that an anonymous tip does not provide reasonable suspicion to conduct a warrantless search, citing Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375; 146 L. Ed. 2d 254 (2000), and State v. Matthews, 398 N.J. Super. 551 (App. Div.), certif. denied, 196 N.J. 344 (2008). In those cases, however, the anonymous tips were made by telephone, with no personal police contact with the tipster. See J.L., supra, 529 U.S. at 268, 120 S. Ct. at 1377; 146 L. Ed.2d 258-59; Matthews, supra, 398 N.J. Super. at 559. In this case, the detectives saw the woman who provided information face-to-face in the neighborhood where the criminal activity was allegedly afoot. Unlike an anonymous telephone caller, such a citizen tipster is not an unknown source of information without any "indicia of reliability." See J.L., supra, 529 U.S. at 271, 120 S. Ct. at 1379; 146 L. Ed. 2d 260; Matthews, supra, 398 N.J. Super. at 560.

Our Supreme Court has noted that an ordinary citizen reporting crime to the police is not viewed with suspicion, and courts assume that a further demonstration of reliability is not necessary. State v. Amelio, 197 N.J. 207, 212-13 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009); Stovall, supra, 170 N.J. at 362. The Court stated in Davis, supra, 104 N.J. at 506, "there is an assumption grounded in common experience that such a person is motivated by factors that are consistent with law enforcement goals." See also Adams v. Williams, 407 U.S. 143, 146-47, 92 S. Ct. 1921, 1923-24, 32 L. Ed. 2d 612, 617 (1972) (information officer received on the street from a known informant had sufficient indicia of reliability to justify reaching into vehicle to remove gun from the suspect's waistband).

Here, the detectives received information from a citizen regarding present criminal activity, but they did not ask her to identify herself. The absence of identification does not divest the citizen's information of some indicia of reliability as does an anonymous tip. Cf. State v. Basil, 202 N.J. 570, 587-89 (2010) (victim refusing to provide identification in high-crime area); State v. Golotta, 178 N.J. 205 (2003) (sufficient reliability of anonymous 911 call to make motor vehicle stop for suspected driving while intoxicated).

In the circumstances of Detective Weber's patrolling activity, the police cannot be expected to stop in a high-crime area and take a report from every citizen who reports criminal activity. If constitutional protections were to impose a requirement of identifying every person who reports crime, residents of high-crime neighborhoods might be dissuaded from aiding the police on patrol, and the opportunity to apprehend the offender and prevent crime might be lost in the few-minutes of delay required to take a report.

In this case, the citizen's information was immediately confirmed by the detectives' own observations as to location and description of the individual. It was precise and accurate. The police had no reason to discredit the information they had received after making their own observations, and they certainly had a right to approach defendant and the other men near the Terrell Homes to investigate further.

Moreover, as the trial court concluded, police observation of defendant moving his hand toward his waistband provided specific additional reason for the police to fear that defendant might be concealing a weapon in his waistband. If there was any doubt about the validity of the patdown of defendant without further investigation, his own action increased the possibility that he might be armed and dangerous and justified the minimally intrusive police conduct, "a carefully limited search of the outer clothing," Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1885, 20 L. Ed. 2d at 911, to ensure the safety of the police in a high-crime area. The totality of the circumstances established articulable and reasonable suspicion to frisk defendant for weapons. See Basil, supra, 202 N.J. at 589; State v. Valentine, 134 N.J. 536, 542, 551 (1994).

Affirmed.