STATE OF NEW JERSEY IN THE INTEREST OF K.K.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY

IN THE INTEREST OF K.K.,

A JUVENILE.

________________________________________________

SubmittedMay 5, 2014 Decided July 30, 2014

Before Judges Ashrafi and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1880-12.

Joseph E. Krakora, Public Defender, attorney for appellant K.K. (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
 

Defendant K.K., a juvenile, appeals from an order denying his motion to suppress evidence. We affirm.

In April 2012, a juvenile delinquency complaint was filed charging defendant with possession of less than 50 grams of marijuana, contrary to N.J.S.A. 2C:35-10a(4) (count one); possession of drug paraphernalia, contrary to N.J.S.A. 2C:36-2 (count two); and theft by unlawful taking, contrary to N.J.S.A. 2C:20-3 (count three), all disorderly persons offenses if committed by an adult. The State dismissed the theft charge prior to trial.

The trial court denied defendant's motion to suppress evidence and found defendant delinquent on counts one and two of the complaint. Defendant was sentenced to two concurrent terms of probation, to expire on December 13, 2012, and imposed monetary penalties.

On defendant's motion to suppress evidence, the trial judge conducted a hearing during which two police witnesses testified, Patrolman Raymond Kwiatkowski and Patrolman Thomas Kenny of the Spring Lake Heights Police Department. Both officers are also School Resource Officers. Defendant did not offer any witnesses and declined to testify at the suppression hearing.

The following testimony was elicited at the suppression hearing. On February 10, 2012, between 10:00 a.m. and 11:00 a.m., Kwiatkowski and Kenny were stationed in the area of the Allaire Road and Route 71 intersection in Spring Lake Heights. The officers observed a juvenile, later identified as defendant, ride by on a bicycle heading northbound on Route 71. The officers approached the defendant in the parking lot at a 7-Eleven and asked his name and age. As School Resource Officers, the officers were aware that school was in session. The officers asked defendant why he was not in school, and he explained that he had been suspended. Officer Kenny returned to his police car to verify defendant's story. Officer Kenny spoke with the vice principal of defendant's high school who confirmed that defendant was suspended.

Kwiatkowski testified that while Kenny was in his vehicle making the call, he engaged in a conversation with defendant and defendant informed him that he was on probation for being caught with marijuana. During the conversation, the officer observed a bulge in defendant's left front pants' pocket and asked defendant, for officer safety, if he had anything on him. The officer asked for defendant's consent to search his person. Defendant responded, "no problem" and that he only had a phone charger on him. Then defendant "reached in and pulled the items out of his pocket," a phone charger and a ceramic cigarette known as a "one hitter". Kwiatkowski immediately recognized the one hitter as an instrument used to smoke marijuana. Thereafter, Kwiatkowski removed everything from defendant's hands and placed the items on top of a garbage can next to defendant. Kenny returned from the police vehicle and Kwiatkowski informed him of the one hitter. Defendant was placed under arrest for possession of drug paraphernalia and CDS.1

The trial judge, in an oral opinion, denied defendant's motion to suppress the seized paraphernalia and CDS. The judge determined that since the officers were both School Resource Officers and observed a juvenile riding a bicycle during normal school hours, their decision to stop defendant and question him was an appropriate initial field inquiry under N.J.S.A. 2A:4A-31 and N.J.S.A. 18A:38-25.

The judge further found that when Kwiatkowski observed the bulge in defendant's pocket, he asked him, for safety reasons, whether defendant had anything in his pockets. The judge noted the officer "was concerned about that because he said something just seemed out of normal" and "his suspicions may have been heightened based on the information that juvenile allegedly provided with regard to why he was on probation." The judge also stated, "once the Officer had that suspicion or hunch in his mind and started asking questions of the juvenile and asked him about his pockets . . . it's clear that at that point he wasn't free to leave. And the situation was now stepped-up from a field inquiry into an investigative stop."

With respect to defendant's response to the officer's inquiry, the judge stated, "the juvenile said that he only had a phone charger. The Officer asked him for consent to search. The juvenile said . . . it's only a cell phone charger." The judge determined that "the juvenile then took the items out of his pocket. When he took the items out of the pocket he had the phone charger and the one hitter. . . the officer then removed the items from defendant's hand and placed him under arrest."

When an appellate court reviews the factual findings made by a trial judge during a hearing on a defendant's motion to suppress, the reviewing court is obliged to uphold the judge's findings of fact "so long as those findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013)(internal citations omitted). Those findings warrant particular deference when they are "substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy." Ibid. (quoting State v. Elders, 192 N.J. 224, 244 (2007)(alteration in original)). To the extent that the trial court's determination rests upon a legal conclusion, we conduct a de novo, plenary review. Ibid.; see also State v. J.D., 211 N.J. 344, 354 (2012); State v. Gandhi, 201 N.J. 161, 176 (2010).

On appeal, defendant argues:

THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE INVESTIGATORY STOP OF A JUVENILE SUSPECTED OF TRUANCY WAS UNREASONABLE AND EXCESSIVELY INTRUSIVE, AND THE RESULTING SEARCH WAS NOT JUSTIFIED BY THE CONSENT DOCTRINE.

Defendant argues that the police lacked reasonable suspicion to stop him, and the investigation was more expansive in scope and duration than necessary to address the suspicion of truancy. In making that argument, defendant maintains the judge's determination that the encounter began as a field inquiry, prevented the judge from assessing whether the officers had a reasonable basis for the stop. Defendant also submits that, since he was not informed of his right to refuse consent, the search of his pockets was not justified.

The judge determined that the "State's argument is the Officer asked for consent to search. And before anything else could happen, the juvenile pulled out of his pockets what he had in his pockets. That's the only version that the Court can consider because that's the only testimony I have." He further found "the Officer never even had time to be able to advise the juvenile that he had the right to refuse. So there is no violation with regard to the consent to search procedures for the juvenile not being advised of his right to tell the officer no." We reject defendant's invitation to substitute our evaluation of the factual record for that of the trial judge, who had the opportunity to see and hear the witness and evaluate his credibility. State v. Mann, 203 N.J. 328, 336-37 (2010). We see no reason to disagree with the judge's factual findings since they are supported by sufficient, credible evidence in the record.

Having addressed the facts, we now review the judge's application of the law.

Our Supreme Court has defined a field inquiry as "the least intrusive" form of police encounter, occurring "when a police officer approaches an individual and asks 'if [the person] is willing to answer some questions.'" State v. Pineiro, 181 N.J.13, 20 (2004) (alteration in original) (quoting State v. Nishina, 175 N.J.502, 510 (2003)). "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid.(alteration in original) (quoting Nishina, supra, 175 N.J. at 510). A simple request for identification does not convert a field inquiry into an investigative stop, provided the officer is non-confrontational and non-accusatory, asks questions in a conversational manner and the questions are not overbearing or harassing in nature. SeeState v. Rodriguez, 172 N.J. 117, 126 (2002).

In contrast to a field inquiry, an investigatory stop, also known as a Terrystop, 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 v. Ohio, 392 U.S. 1, 19, 88 S. Ct. 1868, 1878-79, 20 L. Ed. 2d 889, 904 (1968). The Terryexception to the warrant requirement permits a police officer to detain an individual for a brief period, 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." Rodriguez, supra, 172 N.J.at 126 (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).

We conclude that there was no error in the judge's denial of the motion to suppress the evidence. First, because the officers acted reasonably when they initially approached defendant in the parking lot. As the Court has stated, "[a] field inquiry 'is a limited form of police investigation that, except for impermissible reasons such as race, may be conducted without grounds for suspicion'" and does not violate the Fourth Amendment. Nishina, supra, 175 N.J. at 510 (quoting Rodriguez, supra, 172 N.J. at 126).

Here, the officers acted reasonably when they, as School Resource Officers, observed defendant, believed by them to be sixteen years old, riding his bicycle while school was in session. See N.J.S.A. 18A:38-25 (requiring children "between the ages of six and 16" to attend public school or to receive equivalent instruction elsewhere). The judge's finding that this was an appropriate field inquiry is supported by the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). That the defendant was seventeen years old, a fact unknown to the officers, does not provide a basis to invalidate the officers' field inquiry.

Our Supreme Court has also recognized that when "the circumstances 'give rise to suspicions unrelated to the [initial detention], an officer may broaden [the] inquiry and satisfy those suspicions.'" State v. Dickey, 152 N.J. 468, 479-80 (1998) (second alteration in original) (quoting United States v. Johnson, 58 F.3d 356, 357-58 (8th Cir.), cert. denied, 516 U.S. 936, 116 S. Ct. 348, 133 L. Ed. 2d 245 (1995)); see also State v. Baum, 393 N.J. Super. 275, 287 (App. Div. 2007) (noting that "inconsistent stories, inability to name the owner of the car, the lack of a driver's license, and [the driver's] nervousness supported a reasonable extension of the original detention beyond the activity justifying the initial stop"), aff'd in part and modified in part, 199 N.J. 407 (2009). For similar reasons, there was sufficient justification for further investigation in this case.

When the officer asked defendant, after observing the bulge, if he had anything in his pockets, the detention developed into an investigatory stop, which required reasonable articulable suspicion. That requirement was satisfied because the officer saw the bulge, was aware that defendant had been on probation for being caught with marijuana, and that defendant had been suspended. When defendant voluntarily removed the one hitter from his pocket, before the officer had the opportunity to advise him that he did not have to comply with the request to search, the officer had the probable cause to arrest defendant.

We conclude that there is no basis, given these facts, that defendant's rights under either U.S. Const. amend. IV. or our State Constitution, N.J. Const. art. I 7, were violated. Therefore, we determine that the judge did not err in denying defendant's motion to suppress.

1 Our record does not reflect whether the charge of possession of marijuana resulted from the contents of the one hitter or additional evidence. However, defendant has not raised an argument that the evidence was insufficient to support that charge.