STATE OF NEW JERSEY v. TRAVIS TOWNSEND, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5544-04T15544-04T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

TRAVIS TOWNSEND, JR.,

Defendant-Respondent.

_______________________________________

 

Submitted December 7, 2005 - Decided

Before Judges Conley and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-0939-04.

John L. Molinelli, Bergen County Prosecutor, attorney for appellant (Jessica A. Gomperts, Assistant Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent (Seon Jeong Lee, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

This interlocutory appeal by the State arises out of a warrantless search that resulted in the police seizure of a substantial amount of cocaine, and the charging of defendant Travis Townsend, Jr., with the illegal possession of that cocaine and with various other offenses. The trial court granted defendant's motion to suppress the cocaine uncovered in the search. We reverse, finding that the police conduct at issue here fully comported with search-and-seizure precepts under the Federal and State Constitutions.

Defendant has been indicted in Bergen County on charges of third-degree possession of a controlled dangerous substance (CDS), specifically cocaine, with the intent to distribute; third-degree possession of CDS with intent to distribute within a school zone; third-degree resisting arrest by flight; and fourth-degree obstruction of the administration of law. The charges all stem from events that transpired on October 1, 2003.

After defense counsel filed a motion to suppress the fruits of the police search which led to the indictment, the trial court conducted a suppression hearing on February 4, 2005. The trial court granted the motion, concluding in a written decision that the search and seizure was illegal. Reconsideration was denied. The State then moved to this court for leave to appeal the suppression ruling. We granted that motion on June 27, 2005, and have since reviewed the full record and the parties' briefs on the merits. That review leads us to conclude that the trial court strayed from precedent in applying the law of search and seizure to the underlying facts.

The following facts emerged at the suppression hearing.

On October 1, 2003, at about 11:15 p.m., Paramus Police Officer Sal LaFerlita and New Jersey State Parole Officer Sean Van Leuven were in an unmarked car patrolling the City of Englewood. The two officers were part of a drug interdiction task force. Their assignment that evening was to patrol the vicinity of Warren Street, which was regarded as a high crime area. Although he was wearing plain clothes, Officer LaFerlita visibly displayed a police badge around his neck.

While driving on Warren Street, the officers spotted two men, Corey Washington and defendant Travis Townsend, Jr., drinking beer on the public sidewalk. Van Leuven, the parole officer, instantly recognized Washington as one of his parolees. The officers pulled their vehicle to the side of the road, and approached the men. The officers were aware that an Englewood City Ordinance, Section 4-11 of Chapter 4, prohibited the consumption of alcoholic beverages in an open container on a public sidewalk. LaFerlita testified that he intended to issue a summons for the public drinking violation. Van Leuven was also concerned that his parolee Washington was imbibing alcohol in violation of the terms of parole.

Upon observing the officers, Washington and Townsend retreated to the exterior steps of Washington's residence. They ascended to the top step, and sat down. The two officers walked over to the steps. Moments later, defendant and Washington rose to a standing position. Officer LaFerlita then asked Townsend, who smelled of alcohol, to present identification. Townsend did not do so.

Instead, according to LaFerlita's testimony, Townsend became belligerent and aggressive. He exclaimed that he was on private property and that the police had no right to bother him. LaFerlita estimated that Townsend stood about six feet, three inches, and weighed about 200 pounds, which made him seven inches taller and about fifty pounds heavier than LaFerlita.

Concerned for his personal safety and that of Van Leuven, LaFerlita attempted to pat Townsend down. In the course of that pat-down, Townsend abruptly swung his right elbow back in the direction of LaFerlita, broke free, and ran off. LaFerlita chased Townsend, catching up with him about three houses away. He applied handcuffs and placed Townsend under arrest. In the course of a search incident to the arrest, LaFerlita discovered clear plastic bags containing seventy-three rocks of cocaine in Townsend's pants pocket.

The trial judge found Officer LaFerlita, the sole witness at the suppression hearing, to be generally credible. In fact, the judge remarked that he "admire[d] [LaFerlita's] candor," and that LaFerlita did not "embroider what had occurred." Despite those words of praise for the officer's honesty, the trial judge, nevertheless, invalidated his course of conduct. The judge concluded that LaFerlita lacked a sufficient constitutional basis to stop, frisk or pat down the defendant under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed 889 (1968).

In particular, the trial court found that LaFerlita's "concern for his and his partner's safety and the [late evening] hour. . . [do] not meet the standard required by Terry for a stop, much less a frisk or a pat down." The trial judge further opined that defendant Townsend's "attitude did not afford the officer. . . [a] right to control defendant's actions, and [that] defendant was entitled to ignore and resist being pressed for information."

We respectfully disagree. Indeed, we find that the investigating officers' conduct here, at every step in the factual sequence, was in compliance with Terry and other applicable case law under the Fourth Amendment and the New Jersey Constitution.

First of all, the officers possessed valid reasons to approach and question the two men. The parole officer recognized Washington, who was imbibing alcohol in apparent violation of his parole conditions. State v. Maples, 346 N.J. Super. 408, 414-15 (App. Div. 2002)("reasonable suspicion" to support warrantless search of parolee is met by "specific and articulable facts to justify belief" that the parolee is violating conditions of parole). Additionally, both men were violating a municipal ordinance by drinking on a public sidewalk. Although a person ordinarily may not be arrested for violating a municipal ordinance, police may stop and detain the person committing the violation temporarily to verify his or her identity and issue a summons. State v. Hurtado, 113 N.J. 1 (1988), reversing this court and adopting the reasoning of Judge Skillman's dissent, see State v. Hurtado, 219 N.J. Super. 12, 23 (App. Div. 1987)(Skillman, J., dissenting).

Under the totality of circumstances, as detailed in the testimony of the sole witness at the suppression hearing, there was an articulable, reasonable suspicion that one or more offenses were taking place. State v. Maryland, 167 N.J. 471, 487 (2001)(applying "totality of the circumstances" standard to a Terry stop). That is enough under Terry to justify the initial stop. Terry v. Ohio, supra., 392 U.S. at 21; Delaware v. Prouse, 440 U.S. 648, 663 (1979).

The suspects' retreat to the porch steps did not insulate them from police involvement. As a matter of law, a porch facing a public street, as a portion of the curtilage of a dwelling, is "only a semi-private area," because it is the normal route of access for persons who visit the premises. State v. Johnson, 171 N.J. 192, 208-09 (2002).

Once the police approached, their concerns about the suspects justifiably escalated. Defendant Townsend refused to show identification. He was obviously intoxicated. He stood up, all six feet, three inches of him, towering over the officers below. He got aggressive and belligerent. He was wearing cargo pants, large enough to conceal a weapon. Additionally, the setting compounded the officers' concerns. It was late in the evening, in a high-crime area.

Even if one were to regard as exaggerated or unreasonable Officer LaFerlita's professed fear that his life was in peril at that moment, the attendant circumstances at least provide an ample reasonable basis for the officer to have felt physically unsafe, whether or not at lethal risk. Officer LaFerlita also had a legitimate reason to be concerned about the safety of his partner, whose attention was focused on the defendant's drinking companion, a known felon. Hence, there was a reasonable basis for the attempted frisk to assure that defendant was not carrying a weapon of some kind.

Although the trial court inferred from the record facts that defendant "Townsend's actions are more consistent with a purpose to flee, not to gratuitously assault a police officer," the law requires us to focus upon the reasonableness of the perceptions of the police officer, rather than the actual probabilities of physical harm. See Terry, supra., 392 U.S. at 27 (a frisk is justified where "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger"); accord State v. Diloreto, 180 N.J. 264, 276 (2004); State v. Valentine, 134 N.J. 536 (1994). Here, we find that the officer's perception of a safety risk was reasonable, even if it likewise would have been reasonable to believe the contrary possibility that Townsend was unarmed and would not try to push the officer down the stairs or otherwise injure him.

Having established a lawful basis for the police to stop and frisk Townsend, we may easily validate the officers' subsequent actions. The record from the suppression hearing indisputably shows that Townsend swung his arm in the direction of LaFerlita, and then ran off. That conduct reasonably could be interpreted as the attempted assault of a police officer, see N.J.S.A. 2C:12-1(b)(b); as resisting arrest by flight, see N.J.S.A. 2C:29-2; and as the obstruction of justice, see N.J.S.A. 2C:29-1. The police thus had probable cause to arrest Townsend, for multiple reasons. State v. Wanczyk, 201 N.J. Super. 258, 266-67 (App. Div. 1985) (reversing suppression order where record adequately supported probable cause to arrest defendant who had resisted his pat-down). The search of his person incident to the arrest, which yielded the cocaine, was clearly proper under Chimel v. California, 395 U.S. 752, 762-63 (1969); see also State v. Gray, 59 N.J. 563, 569 (1971). Whether, of course, the apparent offenses that supported the arrest are ultimately proven beyond a reasonable doubt will be evaluated by the jury at trial.

In sum, even accepting the trial judge's core findings of fact, we find that he erred in his application of the law. The stop, attempted frisk, arrest and search were all constitutional. The seized cocaine should not have been suppressed.

 
The suppression order is reversed, and the case is remanded for trial.

The jury also may assess, as to the eluding and resisting arrest charges, whether the trial proofs support the defense of justification under N.J.S.A. 2C:3-2, as posited by the trial judge in his letter opinion.

(continued)

(continued)

10

A-5544-04T1

January 9, 2006