STATE OF NEW JERSEY v. JAMAR L. KING

NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

JAMAR L. KING, a/k/a JAMMAR KING,

JAMMAR L. KING, JAMAR KING,

JARMAR M. KING, JERMAR KING,

JERMAR L. KING and ERIC LEWIS,

Defendant-Appellant.

_________________________________

December 31, 2015

Submitted December 16, 2015 Decided

Before Judges Ostrer and Haas.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-11-02985.

Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jane C. Schuster, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After the trial court denied his motion to suppress evidence in connection with Camden County Indictment No. 12-11-02985, defendant Jamar L. King pled guilty to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). In accordance with the negotiated plea, the judge sentenced defendant to eight years in prison, with a five-year period of parole ineligibility, and assessed appropriate fines and penalties. The remaining counts of the indictment were dismissed. We affirm.

The suppression hearing revealed the following facts. At approximately 11:00 p.m. on April 14, 2012, Detective Angel Nieves and his partner received a report of a "shots fired activation"1 in the area of Chester and Louis Streets. Nieves later learned that a victim, E.W.,2 had been shot at that location. Nieves could not immediately respond to the call because he and his partner were handling another matter.

When Nieves was able to respond, he was notified that another officer had handled the call and that E.W. was on the way to the hospital. Nieves then received a report that a second person had been shot about four blocks away from the first shooting scene in the area of Princess and Wildwood Avenues. Nieves and his partner went to the second location and found a man suffering from a gunshot wound to the calf. As the officers started to canvas the immediate area as a crime scene, Nieves heard a gunshot "off in the distance." The officers then received another "shots fired activation" report that the gunshot had occurred about three-to-four blocks away near a location on Kaighns Avenue.

Nieves got into his patrol car and drove to the scene. When Nieves arrived at the location, he saw a woman sitting in a car in front of a bar. Nieves pulled his car next to the woman, who was parked facing the opposite direction, so that he was face-to-face with her. Nieves asked the woman, "[W]ho shot?" The woman responded by pointing behind her and stating "that there was a male dressed in a dark sweatshirt and a black hat walking down [the street], and she had witnessed him fire a handgun." Nieves looked down the street and "there was only one male walking in that direction and there was no one else around[.]" Nieves asked the woman, "[I]s that him there?" The woman replied, "[Y]es, that's him." Nieves testified that the man, later identified as defendant, was wearing "[a] dark gray sweatshirt and a black hat."

Nieves broadcast defendant's description to the other officers, and Officer Perez was the first to respond. Nieves pointed out defendant to Perez, and the officers decided that Nieves would pull his car up in front of defendant, while Perez would stop behind him.

When Nieves stopped his car, he got out and observed "that there was something in [defendant's] waistband, a bulge." Based on his experience, Nieves "believed [defendant] to be armed." Nieves "immediately . . . drew [his] weapon and . . . ordered [defendant] down to his knees." When defendant did not comply, Perez came up from behind and "took [defendant] down to the ground." The officers searched defendant and found a .44 magnum handgun, over $100 in cash, and E.W.'s identification.

Following oral argument, the trial judge rendered an oral opinion denying defendant's motion to suppress the evidence seized during the search. The judge found that Nieves was a credible witness who, based upon the totality of the circumstances, properly searched defendant incident to his arrest. This appeal followed.

On appeal, defendant raises the following contention

DEFENDANT'S ARREST, BASED SOLELY ON A TIP THAT A MAN IN A DARK GRAY SWEATSHIRT AND BLACK HAT HAD FIRED A GUN, WAS UNCONSTITUTIONAL.

We reject this contention and affirm.

Our Supreme Court recently reaffirmed our well-settled standard of review of a trial court's decision to grant or deny a defendant's motion to suppress evidence

Appellate courts reviewing a grant or denial of 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. Deference to these factual findings is required because those findings are substantially influenced by [an] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy. Thus, appellate courts should reverse only when the trial court's determination is so clearly mistaken that the interests of justice demand intervention and correction.

A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference. Therefore, a trial court's legal conclusions are reviewed de novo.

[State v. Gamble, 218 N.J. 412, 424-25 (2014) (alteration in original) (internal citations omitted).]

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, 904-06 (1968) (seizure of a person); see State v. Hempele, 120 N.J. 182, 216-17 (1990) (seizure of property).

Police-citizen encounters generally occur at three distinct levels: a field inquiry, an investigatory stop, and an arrest. The 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). During such an 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)).

In contrast to a field inquiry, an investigatory stop, also known as a Terry stop, 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 Terry exception 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." 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).

The constitutional standard for an arrest is the most demanding, and requires a showing of probable cause based upon the totality of the circumstances. State v. O'Neal, 190 N.J. 601, 612 (2007). In O'Neal, the Supreme Court described the probable cause standard as follows

The probable cause standard is a well-grounded suspicion that a crime has been or is being committed. Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.

[Ibid. (alterations in original) (quoting State v. Moore, 181 N.J. 40, 45-46 (2004)).]

Applying these principles here, we discern no basis for disturbing the judge's determination that the search was valid. Detective Nieves was on the scene of the second shooting when he heard a gunshot. Almost immediately, he received a "shots fired activation" report giving him the approximate location of the third shooting. When he arrived, he asked a woman in a parked car, "[W]ho shot?" The woman pointed down the street at defendant and described his clothing. The woman also stated that she had seen defendant shoot his gun. Nieves looked where the woman pointed and saw defendant, who matched the woman's description. The woman again confirmed that defendant was the shooter. Defendant was the only person on the street. Thus, Nieves clearly had sufficient reasonable suspicion that defendant had engaged in criminal activity to permit him to conduct a Terry investigatory stop.

As Nieves got out of his patrol car, however, he saw a bulge in the waistband of defendant's pants. Based on his experience, Nieves believed that the bulge was a gun. Nieves then drew his weapon and ordered defendant to get on the ground. The trial judge found, and we agree, that this action, coupled with the other officer's action in taking defendant to the ground, constituted an arrest. The arrest was valid because, under the totality of the circumstances presented, Nieves had probable cause to believe that defendant had committed an offense. After the arrest, Nieves' search of defendant's person was authorized by the well-established Fourth Amendment exception permitting the warrantless search of persons incident to their lawful arrest. See Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969); State v. Dangerfield, 171 N.J. 446, 461 (2002).

Defendant argues that it was unreasonable for Nieves to rely upon the woman's "tip" that defendant was the shooter because she was "anonymous" and did not give a complete description of all of defendant's clothing or his physical appearance. This argument lacks merit.

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 to justify a stop of the person identified in the citizen's report. State v. Basil, 202 N.J. 570, 586 (2010) (citing State v. Amelio, 197 N.J. 207, 212 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009)). "Thus, an objectively reasonable police officer may assume that an ordinary citizen reporting a crime, which the citizen purports to have observed, is providing reliable information." Ibid. (citing Stovall, supra, 170 N.J. at 362). "There is an assumption grounded in common experience that such a person is motivated by factors that are consistent with law enforcement goals." Davis, supra, 104 N.J. at 506.

Contrary to defendant's contention, the woman in the car was not an "anonymous tipster." Nieves encountered her face-to-face as their cars were parked next to each other at the location identified by the "shots fired activation" report. The woman identified defendant as the shooter, gave a description of his clothing, and explained that she had witnessed defendant shooting a gun. Nieves was able to observe the woman's demeanor and, through his own observations at the scene, determine whether her report was credible.

These circumstances are plainly distinguishable from those presented in Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000), the case primarily relied upon by defendant. In J.L., the tip was made anonymously by telephone, with no personal police contact with the tipster. J.L., supra, 529 U.S. at 268, 120 S. Ct. at 1377, 146 L. Ed. 2d at 258-59. Here, however, Nieves met the woman at the scene. Thus, unlike an anonymous telephone caller, the woman was not an unknown source of information without any "indicia of reliability." Id. at 271, 120 S. Ct. at 1379, 146 L. Ed. 2d at 260. Therefore, we reject defendant's contention.

Affirmed.

1 A "shots fired activation" is a signal generated by a system of microphones placed throughout the city of Camden designed to pick up the sound of a gunshot and alert the police of the approximate location of the shot.

2 We use initials to protect the confidentiality of the victim.