STATE OF NEW JERSEY v. TERRY HAMPTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4790-05T44790-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRY L. HAMPTON,

Defendant-Appellant.

__________________________________

 

Submitted June 10, 2008 - Decided

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 05-02-0391.

Yvonne Smith Segars, Public Defender, attorney for appellant (Carmine J. Scarpa, Designated Counsel, of counsel and on the briefs).

Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Following a denial of his motion to suppress, defendant, Terry Hampton, pled guilty to third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, as charged in Count I of Atlantic County Indictment No. 05-02-0391, and third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), as charged in Atlantic County Indictment No. 05-01-0053. He was sentenced to a three-year term on each charge concurrent with each other. Defendant appeals the denial of his motion to suppress. We affirm.

On October 21, 2004, Sergeant Edward Brady of the Atlantic City Police Department was dispatched to the Atlantic Palace Hotel in response to a complaint that two individuals were involved in a fight. When he arrived, an unidentified individual told him that there were men just fooling around. However, hotel security officer Jim Thomas advised Brady that when four males who had been in an earlier fight were asked to leave, they threatened to beat him up and then went to room 3006.

While Brady was talking to the security guard, Atlantic City Police Officers Rose, Schultz, Constable, and Corson arrived at the hotel. Accompanied by two security guards, Brady and the other officers took the elevator to the thirtieth floor. When the elevator door opened, Brady saw four males in front of the elevator waiting for it to arrive. Looking startled, two of the individuals started to run or walk rapidly away in the direction of room 3006. Brady yelled for them stop, to no avail, as two of the individuals proceeded down the hallway. Two others complied and Officers Rose, Schulz, and Constable remained with them at the elevator.

Brady heard Corson yelling, "[t]hey are reaching out into their waistband." As Brady ran after one of the individuals, later identified as co-defendant Anthony Jones, he saw Jones reach toward his waistband. He tackled Jones. Meanwhile, Corson chased defendant, tackling him in the hallway. Although Brady did not see Corson actually tackle defendant, he was aware that Corson was on the ground with him. After tackling defendant, Corson recovered a fully cocked and loaded handgun from defendant, which he later showed to Brady. Brady also testified on cross-examination, after viewing the security videotape from the hallway camera, that it appeared as if one of the individuals was running and one individual was reaching into his waistband. Officer Rose confirmed that Corson yelled that "they" were reaching into their waistband.

On appeal, defendant raises the following points on appeal:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.

POINT II

SHOULD THE DENIAL OF DEFENDANT'S MOTION TO SUPPRESS ON INDICTMENT NO. 05-02-0391 . . . BE REVERSED DEFENDANT'S PLEA ON INDICTMENT NO. 05-01-0053 . . . MUST BE VACATED OR, IN THE ALTERNATIVE, REMANDED TO PERMIT DEFENDANT TO FILE A MOTION TO VACATE PLEA.

Defendant contends that there is insufficient credible evidence to sustain an investigational stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Defendant argues that the evidence established that: the police went to the thirtieth floor despite having information that the individuals purported to have been fighting were only fooling around; when the elevator door opened, neither defendant nor Jones were identified by Thomas as the persons who threatened him; and only one individual was identified as reaching into his waistband.

We commence our inquiry by restating the applicable legal principles. Where a police officer can point to "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion," an investigatory stop is sustainable. Id. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906; State v. Dickey, 152 N.J. 468, 477 (1998).

In reviewing the actions of a police officer in such an encounter, it must be borne in mind that the officer, who is not a constitutional lawyer, is often required to act on the spur

of the moment. State v. Contursi, 44 N.J. 422, 431 (1965). Accordingly, the Fourth Amendment requires only that their actions be reasonable under the totality of the circumstances. State v. Owens, 102 N.J. Super. 187, 199 (App. Div. 1968), aff'd, 54 N.J. 153 (1969), certif. denied, 396 U.S. 1021, 90 S. Ct. 593, 24 L. Ed. 2d 514 (1970). "Judicial review of police action taken in the face of a fast moving, excited situation must be 'in a commonsense and realistic fashion.'" Ibid. (quoting United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684, 689 (1965)); see also Dickey, supra, 152 N.J. at 476-77.

As such, a two-part test has been designed to measure the reasonableness of an investigative stop against the intrusion on the detainee's right to be secure from unreasonable searches. Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909; State v. Butler, 278 N.J. Super. 93, 103 (App. Div. 1994). First, the court must consider whether the stop was justified at its inception and then whether the search was reasonably related in scope to the circumstances that justified the interference in the first place. Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909. "In evaluating whether an officer has acted reasonably . . . 'due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.'" Butler, supra, 278 N.J. Super. at 103 (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909).

However, a valid investigatory stop does not automatically justify a police officer's protective search for weapons. State v. Valentine, 134 N.J. 536, 542 (1994); State v. Thomas, 110 N.J. 673, 678 79 (1988). "Whether a police officer's protective search for weapons is justified is a separate question from whether the stop was permissible in the first place." Valentine, supra, 134 N.J. at 542. An officer may conduct a reasonable search for weapons if he is "justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others." Terry, supra, 392 U.S. at 24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 908. As noted in Terry:

The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

[Id. at 27, 88 S. Ct. at 1883, 20 L. Ed 2d

at 909 (citations omitted).]

Moreover, "the right to frisk must be immediate and automatic if the reason for the stop is . . . an articulable suspicion of a crime of violence." Id. at 33, 88 S. Ct. at 1886, 20 L. Ed. 2d at 913 (Harlan, J., concurring). Even where an officer does not believe a suspect is engaged in violent criminal activity, the right to frisk for weapons is frequently automatic where the officer has a specific and objectively credible reason to believe that the suspect is armed. See, e.g., Adams v. Williams, 407 U.S. 143, 146-47, 92 S. Ct. 1921, 1923, 32 L. Ed 2d 612, 617-18 (1972).

Applying these principles, we reject defendant's claim that the trial judge improperly denied his motion to suppress. Our review of the factual circumstances surrounding the stop and ensuing search for weapons supports a finding that there were specific and articulable facts which reasonably warranted both the stop of defendant and the ensuing search.

The motion judge credited Brady's testimony that Thomas advised him that he was threatened by individuals who went to room 3006 after Thomas asked them to leave following their involvement in a fight. He also credited Brady's testimony respecting the individuals' startled reaction when the elevator door opened and their ensuing flight. The judge's factual findings could reasonably have been reached on sufficient credible evidence present in the record. State v. Johnson, 42 N.J. 146, 162 (1964); see also State v. Locurto, 157 N.J. 463, 474 (1999). His credibility determination was based in part on Brady's demeanor as a witness and is entitled to our deference. Locurto, supra, 157 N.J. at 474-75.

The threat of violence to the hotel security officer by individuals who then went to room 3006 justified an investigatory stop under the circumstances facing the officers when the elevator door opened on the thirtieth floor and defendant and Jones reacted with surprise and retreated rapidly in the direction of room 3006, without abiding by Brady's direction to stop. The situation was fluid and fast moving. Both officers acted reasonably under the circumstances and were warranted in participating in a protective search for weapons after apprehending defendant and Jones in the hallway. The threatened crime was one of violence, and circumstances of at least one of the fleeing individuals being seen reaching into his waistband gave both officers sufficient reason to institute a Terry frisk and search. We perceive no sound basis to disturb the result reached by the motion judge.

The order denying defendant's motion to suppress is affirmed. Defendant's point II argument is rendered moot by our determination.

Indictment No. 05-02-0391 charged eleven other defendants with multiple offenses, all of whom appeared and were represented at the motion to suppress. Of the twelve individuals charged, all except co-defendant Jones and defendant successfully moved to dismiss the indictment based upon the failure to prove a prima facie case.

The two indictments arose out of different incidents. The CDS charge was unconnected with the weapons charge.

Although Brady testified that he did not relay the information given to him by Thomas to dispatch before entering the elevator, after the arrest Thomas provided a statement indicating that he told Brady that he had been threatened by four individuals. That statement was used at trial to refresh Brady's memory as to what he was told.

(continued)

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A-4790-05T4

June 27, 2008