STATE OF NEW JERSEY v. FARON KNIGHT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3335-09T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

FARON KNIGHT,

Defendant-Respondent.

________________________________________________________________

March 11, 2011

Argued February 15, 2011 - Decided

Before Judges Carchman, Graves and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 08-10-00475.

Thomas DeSimone, Assistant Prosecutor, argued the cause for appellant (John T. Lenahan, Salem County Prosecutor, attorney; Gregory G. Waterston, Assistant Prosecutor, on the brief).

Michael P. Resavage argued the cause for respondent.

PER CURIAM

By leave granted, the State appeals from an order of the Law Division granting defendant Faron Knight's motion to suppress the seizure of a handgun. We reverse and conclude that under the circumstances presented, the police did not violate defendant's Fourth Amendment rights.

These are the facts adduced at the hearing on the suppression motion. During the evening hours of September 9, 2008, Investigator Darryl Saunders of the Salem County Prosecutor's Office received information from a reliable confidential informant (CI) regarding an altercation between two men. The CI, who had provided the Salem Police Department with reliable information in the past, informed Saunders that:

[A] person he/she knows as Faron Knight . . . and a person he/she knows as Richard Lewis . . . were having an argument in the area of Union [Street] and Magnolia Street. [The CI] stated Lewis made a comment to Knight that he was going to get . . . his shit . . . . Knight then stated to Lewis, "That's all I needed to hear," and both suspects walked away in opposite directions. [The CI] has observed . . . Knight on previous occasions in possession of a firearm. And, Lewis is known to carry a firearm with him at times, yet [the CI] has never observed Lewis with a firearm in his possession. [The CI] believed both suspects were about to have an altercation.

Saunders was familiar with Knight, who had been the recent victim of a shooting, so he proceeded to the area of Union Street and Magnolia Street with other officers.

Fifteen minutes after receiving the information, Saunders observed defendant walking south on Union Street heading towards Magnolia Street. Saunders, who was in an unmarked patrol car and wearing a vest with the marking "Police" on the front and rear, approached Knight based on "a suspicion that he may have a firearm." According to Saunders:

[A]s we approached him, he looked towards our way -- I don't [know] if he noticed our vehicle or what, but we observed him turn around and head back towards . . . [a residence on] Union Street.

I exited the vehicle. Once I got out of the vehicle, I hollered his name, "Faron." And, again, I hollered out, "Faron, stop." Faron looked back towards . . . where I was coming from, and he continued on.

[ASSISTANT PROSECUTOR]: And so, he's walking one direction, sees you, and then goes in the opposite direction?

[SAUNDERS]: Yes.

. . . .

[ASSISTANT PROSECUTOR]: And, what did you do then?

[SAUNDERS]: Like I said, at that point, I hollered out his name. Faron continued to walk towards the . . . residence. As I hollered out his name I hollered out, "Police, stop." He then picked up his pace, not running, but he just picked up in a faster walk pace to the residence. At that time I continued approaching him.

Saunders followed behind at a distance of ten feet and noticed defendant's gate was peculiar because "he held the arm that would be to the far side parallel with his body and blocked by his body[.]" Saunders characterized this movement as "blading." Accordingly, Saunders "was thinking possibly he might have had a weapon on him" based both on his stride and information from the CI. As a result, Saunders drew his gun and yelled to defendant: "Let me see your hands. Stop, police."

Sergeant Robert Hans arrived at the scene and joined Saunders on foot. Defendant ran up the porch of the Union Street address and both Hans and Saunders, who were a few feet behind, witnessed him "fumbling with something in front of him" at the door. Saunders again hollered, "Stop; let me see your hands," but defendant entered the premises and closed the door before either officer could physically reach him.

"Three to four seconds" later, defendant opened the door and "threw his hands up in the air, saying 'What's wrong? What's the problem? What's wrong? What's the problem?'" The officers immediately placed him in custody.

Next, Hans and Saunders thinking that there may have been others in the house, including children, entered the premises and looked around the two rooms closest to the entry door. They observed a 9mm handgun on the floor. Neither officer sought consent from Mr. Tunis, a resident of the house who was present on the porch or secured a search warrant.

According to Saunders, he entered the premises immediately:

Because of the circumstances. Because of the information that I received. Because of Mr. Knight's actions, and just the hot pursuit. . . . [W]e were on him and we pursued him, believing that he had a weapon. I did not know who was inside the house. . . . So, we just immediately -- just reacted, and it was more or less just going in, trying to get the gun, trying to secure the gun, which we believed he had.

Upon entering the premises, Saunders found a woman and two young children in the house. According to Saunders, the woman told him that "Mr. Knight ha[d] been there, he [was] allowed to come there, but he was not allowed to just come and go as he pleased, as far as . . . just coming in and out of that door."

Defendant was charged with fourth-degree obstruction, N.J.S.A. 2C:29-1; third-degree hindering prosecution, N.J.S.A. 2C:29-3(b); fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1); second-degree burglary, N.J.S.A. 2C:18-2(a); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7.

In his oral decision on defendant's motion to suppress, the judge determined there was neither hot pursuit nor exigent circumstances to justify the warrantless search of the house. He granted defendant's motion to suppress. We granted leave to appeal.

On appeal, the State raises the following issues:

POINT I.

THE POLICE HAD BOTH A RIGHT AND OBLIGATION TO APPROACH AND PURSUE FARON KNIGHT AND THE COURT COMMITTED ERROR BY FINDING NO EXIGENT CIRCUMSTANCES OR HOT PURSUIT IN SUPPRESSING THIS WARRANTLESS SEARCH.

POINT II.

FARON KNIGHT HAD NO REASONABLE EXPECTATION OF PRIVACY AS A TRESPASSER TO MOVE TO SUPPRESS A WEAPON HE HAD ABANDONED.

Our consideration on reviewing a motion to suppress is a mixed issue of fact and law. Our review of a motion to suppress requires us to "'uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). However, if the trial judge's findings are clearly mistaken "and the interests of justice demand intervention and correction," we review "the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." State v. Johnson, 42 N.J. 146, 162 (1964). Nevertheless, "[i]t is a well-established principle of appellate review that a reviewing court is neither bound by, nor required to defer to, the legal conclusions of a trial or intermediate appellate court." State v. Gandhi, 201 N.J. 161, 176 (2010) (citing Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).

We commence our analysis with consideration of the initial encounter with defendant. The judge found, and we agree, that Saunders had the lawful right to approach Knight and conduct a field inquiry based on his reasonable inference from the CI's tip that Knight intended to retrieve a weapon. State v. Padilla, 321 N.J. Super. 96, 107 (App. Div.) (stating that "police had the right, if not the obligation, to proceed to the scene in order to investigate the report [of] a person with a gun"), certif. denied, 162 N.J. 198 (1999). Saunders' repeated commands of "Stop" suggests a transforming of the field inquiry into an investigatory stop, a Terry stop,1 which triggered the Fourth Amendment. State v. Rodriguez, 172 N.J. 117, 126 (2002) ("An encounter becomes more than a mere field inquiry when an objectively reasonable person feels that his or her right to move has been restricted."); State v. Williams, 410 N.J. Super. 549, 554-55 (App. Div. 2009) ("It is undisputed that defendant was subjected to [an investigatory stop] when [the officer] ordered him to stop . . . ."), certif. denied, 201 N.J. 440 (2010).

Although defendant challenges whether the investigatory stop was supported by reasonable suspicion that criminal activity was afoot,2 we conclude that the investigatory stop was warranted. See Rodriquez, supra, 172 N.J. at 126 (An investigatory stop is lawful "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") (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). We need not dwell on the bona fides of whether this was a proper Terry stop given the tip as well as the "blading" conduct, as defendant's failure to yield to Saunder's "Stop" requests created probable cause to arrest for obstruction, N.J.S.A. 2C:29-1,3 even if the investigatory stop was unconstitutional. State v. Williams, 192 N.J. 1, 11 (2007) ("Under New Jersey's obstruction statute, when a police officer commands a person to stop . . . that person has no right to take flight or otherwise obstruct the officer in the performance of his duty."); State v. Crawley, 187 N.J. 440, 460 ("We hold that a defendant may be convicted of obstruction under N.J.S.A. 2C:29-1 when he flees from an investigatory stop, despite a later finding that the police action was unconstitutional."), cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006). Moreover, the record supports the court's determination that the officers' investigation and pursuit occurred in good faith. See id. at 461 n.8 (stating that "a prerequisite for a conviction under N.J.S.A. 2C:29-1 is that the police officer acted in good faith").

The police officers made the arrest outside of the residence, and the judge correctly found that "[w]ithin three to four seconds, Mr. Knight [came] back out of the house with his hands in the air." The arrest was lawful.

As to the search, we reach the same conclusion. Prior to entering the house, the officers did not have a search warrant. We recognize the basic principle that "[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). The State must prove that at the time of entry, the officers had probable cause to believe that a gun was in the residence and exigent circumstances existed. Kirk v. Louisiana, 536 U.S 635, 638, 122 S. Ct. 2458, 2459, 153 L. Ed. 2d 599, 603 (2002) ("[P]olice officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home."); State v. Johnson, 193 N.J. 528, 552 (2008) ("[W]hen the police act without a warrant, the State bears the burden of proving by a preponderance of the evidence not only that the search or seizure was premised on probable cause, but also that it 'f[ell] within one of the few well-delineated exceptions to the warrant requirement.'") (quoting State v. Pineiro, 181 N.J. 13, 19-20 (2004) (alteration in original).

The judge did not determine whether the officers had probable cause to believe a gun was in the residence. Instead, he found that based on "the initial information from the CI . . . there was not sufficient information from which Investigator Saunders could form probable cause, to believe that Mr. Knight had an illegal weapon." We disagree. First, Saunders had the benefit of the CI's tip, and defendant's statement that defendant was going to get his "shit." Saunders construed "shit" to mean a firearm based on the "urgency" of the information and the CI's first-hand knowledge that Knight had possessed a firearm in the past. While the CI did not say that the parties were "getting their guns," we are informed by the Supreme Court's observation, expressed in the context of questioning a suspect, that:

In point of fact, it is equally fair to say that interrogating officers, when engaged in communications with suspects, most often use language that is also more like that of the suspect than the precise and pristine elocutions of [an] Oxford don. We recognize that because this is so, if the participants converse in vernacular or use colloquial expressions, as they did in this exchange, a minute parsing of the words used might yield an inaccurate picture of what was meant.

[State v. Alston, ____ N.J. ____, slip op. at 19 (2011).]

This observation applies in equal force to "street talk" of potential combatants. We cannot ascribe a different meaning to the language overheard by the CI other than his apparent understanding that the vernacular referred to a handgun. Moreover, both Saunders and Hans observed Knight: (1) act in a manner consistent with concealing the opposite side of his body to hide something from the officers as he walked towards the residence; (2) fumble with something at the door; and (3) enter and exit the resident within seconds. These additional considerations raised the specter of probable cause.

The judge determined that there were no exigent circumstances justifying the warrantless search. We conclude otherwise. "Exigent circumstances" is "incapable of precise definition because . . . the term takes on form and shape depending on the facts of any given case. . . . [E]xigency in the constitutional context amounts to 'circumstances that make it impracticable to obtain a warrant when the police have probable cause . . . .'" State v. Cooke, 163 N.J. 657, 676 (2000) (quoting State v. Colvin, 123 N.J. 428, 437 (1991)). Because the issue is "highly fact-sensitive[,]" State v. Lewis, 116 N.J. 477, 487 (1989), the court should qualitatively, not quantitatively, analyze the following factors:

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics traffic; (6) the gravity of the offense involved; (7) the possibility that the suspect is armed; (8) the strength or weakness of the facts establishing probable cause, and (9) the time of the entry.

[State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990).]

Additionally, the "inconvenience to the officers and the slight delay involved in processing the application for a warrant is never a convincing reason for proceeding without one[.]" State v. Naturile, 83 N.J. Super. 563, 569 (App. Div. 1964).

The court reasoned that exigent circumstances did not exist because:

[T]here were not sufficient exigent circumstances. This is not [an] apartment building where Mr. Knight might have left the weapon in a hallway, that could have exposed others to dangers.

I recognize that there were some people in the house. I would suggest that that was not determined, it appears, until after the officers got into the house.

But in any event, this is a situation where they could have easily asked Mr. Tun[i]s to have the other individuals come out and then secured the house pending a warrant.

While the police did not know whether there were people still in the house after defendant exited with his hands up, under the facts presented here, it is the unknown that creates the exigency that warranted immediate action by the officers. They had a sufficient factual basis to conclude that defendant was in possession of a handgun. He exited the house without one. Whether there was a confederate behind the door or simply an innocent third-party including a child within reach of the weapon was unknown. The police did not conduct an extensive search of the premises; they entered, looked at two rooms and observed the weapon on the floor as well as a mother and two children. Both their safety as well as the safety of bystanders was in potential jeopardy. They did not have the option of securing the house absent assurances that it was safe within.

We conclude that the facts demonstrated sufficient exigent circumstances to support their actions and there was no constitutional violation by their entry into the house. We conclude that the suppression of the evidence obtained in the warrantless search of the premises was error and reverse.

Reversed.

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

2 The judge at one point indicated that "I think I agree with the State that there was sufficient information arguably to justify an investigative stop, but also noted "[W]e've got this tip that I would suggest, as I indicated previously, was not enough for a Terry stop but certainly enough for a field inquiry."

3 "A person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act. . . ." N.J.S.A. 2C:29-1(a).