STATE OF NEW JERSEY IN THE INTEREST OF D.B., a minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1273-10T4

STATE OF NEW JERSEY IN THE

INTEREST OF D.B., a minor.

___________________________________

April 11, 2012

Submitted January 25, 2012 - Decided

Before Judges Lihotz and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-2617-09.

Joseph E. Krakora, Public Defender, attorney for appellant D.B. (Susan R. Bohrod, Designated Counsel, on the brief).

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent State of New Jersey (Mary R. Juliano, Assistant Prosecutor, of counsel; Adam Salzer, Legal Assistant, on the brief).

PER CURIAM

D.B., to whom we refer by the pseudonym Dennis, appeals from the order of the Family Part adjudicating him delinquent, following a guilty plea, for possession of marijuana, conduct that would have been a violation of N.J.S.A. 2C:35-10(a)(4) if committed by an adult. We reverse.

I.

We discern the following facts and procedural history from the record on appeal, including testimony developed at a hearing on Dennis's motion to suppress the evidence.

In the afternoon of March 13, 2009, Police Officer Darnell Esdaile received a report that "a tall, thin, black male wearing a black hooded sweatshirt and jeans" had just robbed a bank located on Main Street in Freehold Borough. Esdaile went to the bank and ascertained that the suspect had fled. A sergeant at the scene directed Esdaile to look for the suspect in the surrounding areas, including a nearby bus station.

Approximately ten minutes later, Esdaile observed a black male, who fit the general description of the suspect, in the bus station parking lot. The man was walking "shoulder-to-shoulder" with a younger black male, with whom he was speaking. The younger male was later identified as Dennis, then a minor. Dennis is the older man's nephew.

Esdaile verified the description of the suspect and requested backup. Esdaile then stopped the man and Dennis, and ordered them to place their hands on his patrol car until the backup arrived. Esdaile had not been advised that the suspect had an accomplice, although he testified that robbers "sometimes" work with them. There was no specific testimony that Esdaile had been informed that the suspect was armed or that he was concerned for his own safety. In response to questions by the prosecutor, however, he testified that people who commit robberies "sometimes" carry concealed weapons and "sometimes" give their weapons to others to hide.1

Several police officers arrived at the scene, including Officer Ronnie Steppat. While Esdaile spoke with the older man and searched him for weapons, Steppat addressed Dennis. Steppat testified that, in his experience, robbers "sometimes" carry a concealed weapon, "sometimes" work with accomplices, and "sometimes" give a weapon to someone else to hide.2

Steppat testified that he told Dennis to "[j]ust keep your hands on the car." He continued: "I'll tell you in a second why you were stopped. . . . [B]ut right now I'm gonna check you for weapons. Do you have anything that's gonna hurt me, stab me, or stick me?" Dennis responded that he had "bags of bud," a street term for marijuana, in his pants pocket.

After obtaining Dennis's "permission," Steppat removed five baggies of marijuana from his pocket. Steppat then asked: "[D]o you have anything else . . . on you now that I need to know about?" Dennis responded, "[N]o." Steppat completed his pat down, finding no weapons.

Upon further investigation, the police concluded that the older man and Dennis had no involvement in the bank robbery. However, Dennis was charged with delinquency based upon his possession of marijuana.

At the conclusion of the hearing on Dennis's motion to suppress, defense counsel conceded that the police lawfully stopped the older man, because he matched the description of the suspect. He also conceded that there was a sufficient basis to frisk the older man for weapons, based on the reported robbery. However, defense counsel argued that it was not lawful for the police to stop and frisk Dennis, because they did not have an individualized suspicion as to him.

The judge found Esdaile and Steppat to be credible witnesses. She held that the police had a reasonable basis for stopping Dennis, because he was with the man who fit the description of the suspect. She noted that Esdaile

observed the juvenile with the suspect, not just next to him. [He] observed the two of them walking shoulder to shoulder and talking to each other. . . . The officer's training and experience revealed that robbers carry weapons and use accomplices. Suspects who carry guns often pass them to accomplices.

The judge concluded that the

subsequent search, which yielded the bags of marijuana, was valid under the constitution. . . . [Dennis] failed to answer the limited question that was posed and indicated that he was in possession of marijuana. At that point, the officer had every right to arrest him and perform a search which yielded the contraband.

Following the denial of his motion to suppress, Dennis pled guilty. Defense counsel waived a predisposition report so that the disposition could be completed that day. The judge imposed a six-month deferred disposition, along with required fees and penalties.

II.

Dennis raises the following issue on appeal:

THE TRIAL COURT ERRED BY DENYING [DENNIS]'S MOTION TO SUPPRESS EVIDENCE.

The Supreme Court has explained the standard of review applicable to a trial court's decision on a motion to suppress as follows:

[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." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).

An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.

[State v. Elders, 192 N.J. 224, 243-44 (2007).]

In contrast, a judge's legal determinations are subject to our plenary review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.) (citing State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001)), certif. denied, 182 N.J. 148 (2004).

Under the Fourth Amendment of the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). The same is true of the warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 905-06 (1968) (seizure of a person); State v. Hempele, 120 N.J. 182, 218-19 (1990) (seizure of property).

The seizure of a person occurs in a police encounter if the facts objectively indicate that "'the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)). In applying that test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects.'" Id. at 165 (quoting N.J. Const. art. I, 7).

In State v. Pineiro, 181 N.J. 13, 20 (2004), the Supreme Court defined a field inquiry as "the least intrusive encounter," occurring when a police officer approaches a person and asks if he or she is willing to answer some questions. "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). During such a field inquiry, "the individual approached 'need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)).

An investigatory stop, unlike a field inquiry, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry, supra, 392 U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904. The stop in this case was a Terry stop, rather than a field inquiry.

The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, and to pat him down for the officer's safety, if that stop is "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. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). 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).

"To determine whether the State has shown a valid investigative detention requires a consideration of the totality of the circumstances." Elders, supra, 192 N.J. at 247; see also Privott, supra, 203 N.J. at 25-26 ("[A] reviewing court must 'evaluate the totality of circumstances surrounding the police-citizen encounter, balancing the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions.'" (quoting Davis, supra, 104 N.J. at 504)). As the Supreme Court observed in Davis, supra, 104 N.J. at 505,

[s]uch encounters are justified only if the evidence, when interpreted in an objectively reasonable manner, shows that the encounter was preceded by activity that would lead a reasonable police officer to have an articulable suspicion that criminal activity had occurred or would shortly occur. No mathematical formula exists for deciding whether the totality of circumstances provided the officer with an articulable or particularized suspicion that the individual in question was involved in criminal activity. Such a determination can be made only through a sensitive appraisal of the circumstances in each case.

In evaluating the "totality of the circumstances," we "are to give weight to 'the officer's knowledge and experience' as well as 'rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise.'" State v. Citarella, 154 N.J. 272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)). "The fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as 'a reasonable person would find the actions are consistent with guilt.'" Id. at 279-80 (quoting Arthur, supra, 149 N.J. at 11).

A police officer may conduct a pat-down search for weapons if he or she has a reasonable belief that the suspect is armed and dangerous regardless of whether there is probable cause for arrest. Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 910; see State v. Thomas, 110 N.J. 673, 679 (1988) (citing Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S. Ct., 338, 343, 62 L. Ed. 2d 238, 247 (1979)). "The reasonableness of the search . . . is . . . measured by an objective standard . . . . The officer must be able 'to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.'" Thomas, supra, 110 N.J. at 679 (emphasis omitted) (quoting Sibron v. New York, 392 U.S. 40, 64, 88 S. Ct. 1889, 1903, 20 L. Ed. 2d 917, 935 (1968)). To determine whether an objectively reasonable suspicion exists, the court must look to the totality of the circumstances and determine whether those circumstances created an "objectively reasonable concern for the officer['s] safety." State v. Roach, 172 N.J. 19, 27, 29 (2002).

There appears to be no dispute that Esdaile had a reasonable and articulable suspicion sufficient to warrant a Terry stop of the older man, who generally fit the description of the suspect. And, because he was investigating a bank robbery, there was a sufficient basis for a weapons pat-down of the suspect. The issue is whether the same considerations warranted the stop and pat down of Dennis, given the fact that there was no information that the robbery suspect had an accomplice and the police officers did not notice any suspicious activity on his part.

The judge did not base her conclusion solely on the fact that Dennis was found near the older man. See State v. Dolly 255 N.J. Super. 278, 283 (App. Div. 1991) ("[M]ere propinquity" to those "suspected of criminal activity" is not a sufficient basis for a search. (citing Ybarra, supra, 444 U.S. at 91, 100 S. Ct. at 342, 62 L. Ed. 2d at 245)). Instead, she based it on the testimony that they were walking together and were engaged in conversation. From those facts and the testimony of the police officers that robbers "sometimes" give their weapons to accomplices, the judge determined that there was a sufficient basis for the pat down. We disagree.

Taking the facts as found by the judge and applying the applicable law, we conclude, based upon the totality of the circumstances, that, although Esdaile had a sufficient basis to detain Dennis at the scene pending further questioning of the older man, the police officers did not have a sufficient basis for a pat down of Dennis. The fact that Dennis was walking and talking with someone who resembled a robbery suspect, but who was not himself otherwise a suspect or acting in any way suspiciously, was not a sufficient foundation for an "objectively reasonable concern for the officer['s] safety." Neither police officer testified that he was actually concerned about his safety, other than a generalized concern based upon what "sometimes" happens. There were sufficient police officers present at the scene to ensure officer safety while the other man, the actual suspect, was questioned.

Because there was no basis for the search, which cannot plausibly be represented as in any way consensual under the circumstances, we reverse the decision denying the motion to suppress and vacate the guilty plea.

Reversed.

1 Later in the testimony, the judge asked Esdaile whether robbers "often" carry weapons and Esdaile responded in the affirmative.

2 In response to the judge's questions, Steppat testified that it is "common practice" for a bank robber "to either brandish a weapon" in front of a bank employee or threaten to use a weapon not visible to the employee.