STATE OF NEW JERSEY v. THOMAS BOYD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3058-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS BOYD,

Defendant-Appellant.

____________________________________

April 3, 2012

Submitted March 21, 2012 - Decided

Before Judges Graves and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-08-0667.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Jennifer Webb-McRae,Cumberland County Prosecutor, attorneyfor respondent (Marianne V. Rogers, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Thomas Boyd pled guilty to third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c), after his motion to

suppress was denied. He appeals, arguing the following:

POINT I: THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS THE EVIDENCE BECAUSE THE COURT'S FINDINGS OF FACT WERE MISTAKEN, AS THE VIDEO ESTABLISHES THAT AT THE TIME THE OFFICER DECIDED TO STOP THE VEHICLE, THE LICENSE PLATE WAS NOT OBSTRUCTED AND THE OFFICER HAD NO OTHER BASIS FOR CONDUCTING A MOTOR VEHICLE STOP.

We affirm based upon our review of the record.

I.

On June 23, 2009, shortly after midnight, Millville Police Officer Vernon Babka responded to a dispatch relating to a burglar alarm activation at a car dealership on Second Street. While enroute, Officer Babka passed a gray Ford pickup truck going in the opposite direction, noticing its distinctive blue light bar on the roof.

Officer Babka met two other police officers at the car dealership, and together they conducted a brief survey of the premises. They quickly determined that the premises were secure and had not been forcibly entered. While conversing with the others, Police Officer Babka saw the same Ford pickup truck enter the parking lot. As described by the police officer, "once it noticed that we were there it abruptly headed out of the parking lot quicker than it came in." At that time, Officer Babka also observed that the driver was a white male wearing a bandana.

Two to five minutes later, while Officer Babka waited in the neighborhood, the pickup truck reappeared near the closed businesses. Officer Babka began to follow the pickup truck because he found it suspicious that "[i]t was driving around numerous parking lots of businesses that were closed at that time." He then observed what he described as "[a] trailer hitch blocking the license plate, obstructing the view." It was later described as "a metal ball there in the middle of the plate." Officer Babka activated his overhead lights, which triggered a video recording of events, and initiated a motor vehicle stop of the pickup truck.

With the assistance of Sergeant Hagar and Police Officer Sataro, Officer Babka approached the driver of the pickup truck. Officer Babka testified to what happened next:

When I approached the vehicle I could see on the passenger side that there was a soft case for a rifle, and it appeared to be a butt stock because the case was unzipped, and I could see . . . it from that driver's side. And Sergeant Hagar yelled out the word, "Gun." He had seen the gun in the vehicle.

The police officers immediately drew their service weapons and ordered the two occupants to exit the vehicle. Boyd was the passenger; co-defendant Keith Budd was the driver.

Two weapons were recovered from inside the pickup truck. The first was the weapon that Officer Babka had observed between "[t]he passenger's leg and the door"; the second was a gun located "between the driver and passenger on the bench seat."

After considering all of the evidence presented at the suppression hearing, including the video recording of the motor vehicle stop, the Law Division denied Boyd's motion to suppress. Concluding that "it's one o'clock in the morning and this burglar alarm is going off," the motion court found that there was reasonable suspicion to stop the pickup truck and question its occupants. Furthermore, even though "the [c]ourt [did not] find that trailer hitch to be a substantial obstruction," there was a sufficient basis for Officer Babka to "pull the car [sic] over for that statutory violation,[1] as well." The motion court stated, "[t]he [c]ourt does not question Officer Babka's credibility."

On appeal, Boyd challenges only the circumstances surrounding the motor vehicle stop. He does not contest the plain view observation of the rifle case or the seizure of the weapons without a warrant. His primary focus is on Officer Babka's supposed lack of credibility in relying upon the trailer hitch obstruction as the basis for the motor vehicle stop. Boyd contends that "once the vehicle's license plate [came] into view on the video, it is clear that it was unreasonable for Officer Babka to suspect that the vehicle was violating N.J.S.A. 39:3-33 because no part of the license plate was concealed or obscured." Even if these conclusions were discernable from the record, we are satisfied that Officer Babka's stop of the pickup truck did not violate any constitutional principles because it was based upon, as the motion court found, reasonable suspicion of unlawful activity.

II.

Our scope of review of the motion court's factual findings and credibility determinations in a suppression hearing is limited. We will uphold the court's factual findings if they are "'supported by sufficient credible evidence in the record.'" State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007) (further citation omitted)). We "give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). Appellate review of the motion court's legal conclusions, however, remains plenary. Handy, supra, 206 N.J. at 45.

The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect against "unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, 7. "A seizure occurs if, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.'" State v. Sloane, 193 N.J. 423, 429 (2008) (quoting State v. Stovall, 170 N.J. 346, 355 (2002)).

"An investigatory stop, sometimes referred to as a Terry[2] stop, is valid 'if it 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. Pineiro, 181 N.J. 13, 20 (2004) (quoting State v. Nishina, 175 N.J. 502, 510-11 (2003)). The suspicion necessary to conduct a lawful Terry stop "need not rise to the probable cause necessary to justify an arrest." Ibid. (internal quotation marks and citation omitted). However, "[u]nless the totality of the circumstances satisfies the reasonable and articulable suspicion standard, the investigatory stop 'is an unlawful seizure, and evidence discovered during the course of an unconstitutional detention is subject to the exclusionary rule.'" State v. Mann, 203 N.J. 328, 339 (2010) (quoting Elders, supra, 192 N.J. at 247).

Whether a police officer acted reasonably depends upon "'the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.'" State v. Arthur, 149 N.J. 1, 8 (1997) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). "'[I]narticulate hunches'" and "subjective good faith" will not justify infringing a citizen's constitutional rights. Ibid. (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906).

We discern no reason to disturb the motion court's findings, which are supported by sufficient credible evidence in the record and not at all "clearly mistaken." Elders, supra, 192 N.J. at 243-44. The court found that Officer Babka's observations of the pickup truck on multiple occasions in the early morning hours of June 23, driving in the vicinity of several closed businesses when a burglar alarm had just been activated, and avoiding the police officers when observed at the car dealership, constituted reasonable suspicion to make further inquiries of, at least, the driver of the pickup truck. We have no quarrel with either Officer Babka's conduct or the motion court's legal conclusions. We conclude that under the totality of the circumstances, the police officer had well-grounded reasonable articulable suspicion to justify an investigatory stop.

A

1 N.J.S.A. 39:3-33 ("No person shall drive a motor vehicle which has a license plate frame or identification marker holder that conceals or otherwise obscures any part of any marking imprinted upon the vehicle's registration plate or any part of any insert which the director, as hereinafter provided, issues to be inserted in and attached to that registration plate or marker.").

2 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).