STATE OF NEW JERSEY v. TERRENCE HOLMES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4586-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRENCE HOLMES a/k/a DERRICK BROWN

a/k/a TYREE DAVIS a/k/a TERRENCE O. HOLMES

a/k/a MALIK TERRY a/k/a TERRELL THOMAS,

Defendant-Appellant.

_______________________________________________________

December 4, 2012

Submitted November 29, 2011 - Decided

Before Judges Fisher and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 09-02-0337 and 10-02-0123.

Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Terrence Holmes appeals from the order denying his motion to suppress the handgun he discarded while fleeing from a street encounter with police. He argues the police unlawfully seized the gun as the direct result of an unconstitutional investigatory stop. Based on our review of the record and applicable law, we conclude that when the police attempted to stop defendant, their conduct was based on specific and articulable facts that raised a reasonable suspicion of criminal activity. Accordingly, we conclude that the police conduct did not constitute an unreasonable seizure of defendant. We affirm.

I.

For the purpose of the suppression hearing, defendant stipulated to the following facts, as set forth in the police incident report of his arrest and the State's brief.

On September 16, 2008, members of the Newark Police Department's Street Crimes Task Force, including Officers E. Pereira, D. Neives, and C. Alvarado1, were assigned to two "sectors" where there had been a recent increase in shootings and other criminal activity. The sectors included high crime areas of Newark around North Munn Avenue and Mountainview Avenue. The officers had made "numerous, prior arrests in these sectors for narcotic and weapon offenses."

While patrolling in an unmarked Sport Utility Vehicle on Mountainview Avenue at approximately 9:50 PM, the officers spotted defendant, "who was wearing a white T-shirt and blue jean shorts, holding a large object by his waistband." Conscious of the numerous shootings that had recently occurred in that particular area of Newark, Alvarado asked defendant if he resided in the area. Defendant did not answer, but became very nervous as he stood on Mountainview Avenue. Nieves exited the SUV "to further investigate defendant's actions." Upon seeing Nieves exit the SUV, defendant fled north on North Munn Avenue. The officers ordered defendant to stop but he continued to flee.

The officers chased defendant. Alvarado and Pereira drove north on North Munn Avenue, while Nieves pursued defendant on foot. During the pursuit, Nieves saw defendant grab a gun from his waistband and discard it in front of 35 North Munn Avenue. Nieves retrieved the weapon and continued to pursue defendant. Meanwhile, the officers in the SUV drove "perpendicular to [defendant] who tried to run back south on No[rth] Munn[.]" The officers apprehended him. According to the incident report, the gun was a "colt .38 caliber . . . revolver . . . which contained six, live, ball rounds in the cylinder."

On February 4, 2009, an Essex County grand jury charged defendant in Indictment No. 09-02-337 with second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (first count); and fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1 (second count). The grand jury also charged defendant in Indictment No. 09 02-338 with second-degree possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7b. On March 24, 2009, defendant filed the suppression motion which is the subject of this appeal.

The trial court denied defendant's motion. In a written opinion, the court determined that "there was no seizure until after the defendant was tackled." The court explained that when the officers asked defendant where he lived, they were conducting a valid field inquiry. The court also determined that the police were entitled to conduct an investigatory stop because they had a "particularized suspicion" of criminal activity based upon their assessment of the totality of the circumstances. The totality of circumstances included the officers patrolling at night in a high crime area "which had been home to numerous and recent shootings"; the officers observing defendant holding a large object in his waistband; and defendant becoming nervous upon questioning. The court also cited defendant's flight, suggesting that defendant fled in an effort to avoid an accusation based on his consciousness of guilt. Lastly, the court determined that the defendant abandoned the revolver.

Following the court's denial of his suppression motion, defendant entered into a negotiated plea agreement on February 8, 2010. He had been arrested on new charges. To dispose of all pending charges, defendant pled guilty to the first count of Indictment No. 09-2-337, and to three counts of an accusation that arose from the new charges. Specifically, defendant pled guilty to two counts in the accusation charging him with third-degree possession with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and (b)(1); and one count of third-degree conspiracy to manufacture, distribute or dispense a CDS, N.J.S.A. 2C:5-2a(1), 2C:35-5a(1) and b(1). In exchange, the State agreed to recommend a five-year prison term with three years of parole ineligibility on count one of Indictment No. 09-02-337, and a three-year term of imprisonment on each count in the accusation to which defendant pled guilty. The State also agreed to dismiss the remaining count in Indictment No. 09 02-337, the remaining counts in the accusation, and Indictment No. 09-02-338 in its entirety. Lastly, the State agreed that the prison terms on the CDS offenses would run concurrent to the prison term on the weapons offense.

On March 22, 2010, the court sentenced defendant to a five-year prison term with three years of parole ineligibility on Indictment No. 09-02-337, in accordance with the negotiated plea. As to the accusation, the court merged the conspiracy count and sentenced defendant on each of the two remaining counts to three-year prison terms, to be served concurrently with each other and with the prison term imposed on the weapons offense. The court also imposed appropriate fines and penalties. This appeal followed.

II.

Defendant raises a single argument on appeal:

POINT I

THE MOTION COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE HANDGUN AT ISSUE WAS UNLAWFULLY SEIZED AS A DIRECT RESULT OF AN UNCONSTITUTIONAL INVESTIGATORY STOP.

Generally, when we review a motion to suppress evidence, we defer to the trial court's factual findings that are supported by sufficient credible evidence. State v. Handy, 206 N.J. 39, 44-45 (2011). Here, however, the parties stipulated to the facts and "[a]ppellate review of legal determinations is plenary." Id. at 45.

The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect against "unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, 7. "A seizure occurs if, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.'" State v. Sloane, 193 N.J. 423, 429 (2008) (quoting State v. Stovall, 170 N.J. 346, 355 (2002)).

Law enforcement officers violate neither the federal nor the state constitution when they conduct a field inquiry "'without grounds for suspicion.'" State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)). "A 'field inquiry' is the least intrusive encounter, and occurs 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) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)) (alterations in original). If the officers do not prohibit an individual's right to move, the inquiry does not amount to detention. State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973).

On the other hand, "an investigatory stop, sometimes referred to as a Terry2 stop, is valid '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.'" Pineiro, supra, 181 N.J. at 20 (quoting Nishina, supra, 175 N.J. at 510-11) (internal quotation marks and citation omitted). The suspicion necessary to conduct a lawful Terry stop "need not rise to the 'probable cause necessary to justify an arrest'." Ibid. However, "[u]nless the totality of the circumstances satisfies the reasonable and articulable suspicion standard, the investigatory stop 'is an unlawful seizure, and evidence discovered during the course of an unconstitutional detention is subject to the exclusionary rule.'" State v. Mann, 203 N.J. 328, 339 (2010) (quoting State v. Elders, 192 N.J. 224, 247 (2007)).

In determining whether a seizure has occurred, New Jersey has

adopted the approach of United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980), in which the Court held that a seizure occurs "only when, by means of physical force or a show of authority, [the suspect's] freedom of movement is restrained" and "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."

[State v. Tucker, 136 N.J. 158, 163-64 (1994) (alteration in original).]

Here, defendant argues that he "could not have felt free to leave as he was being chased by Officer Nieves on foot and Officer Alvarado in the unmarked police vehicle." The State argues that the officers were merely making field inquiries until Nieves commanded defendant to "stop" after defendant began to run. Once Nieves commanded defendant to stop and the officers started to chase defendant, their field inquiries were transformed into a seizure. See State v. Davis, 104 N.J. 490, 498 (1986). The question we must decide is whether, at that time, the facts available to the officers justified a Terry stop. We conclude that they did.

The police were patrolling in a high-crime location where there had been a recent increase in shootings and the officers had made numerous arrests for weapons and drug-related offenses. It was nearly ten o'clock at night. Defendant was wearing a white T-shirt and blue jean shorts, holding a large object by his waistband. When the officers asked him where he lived, he became nervous. When one of the officers exited the SUV, defendant ran.

Although none of these factors, in isolation, provided the officers with a particularized suspicion, based upon objective observation, that defendant was engaging in criminal activity, taken together they established the "'minimal level of objective justification for making the stop.'" Nishina, supra, 175 N.J. at 511 (quoting U.S. v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989).

Walking down a street holding a bulky object near one's waistband may not, in and of itself, be a reasonable basis for suspecting that a person possesses a handgun. Likewise, merely being on the street in a high-crime area known for drug and weapons offenses, plagued by a recent escalation in shootings, does not form a basis for such a belief. Similarly, flight, without more, is not in and of itself a basis for reasonable suspicion of criminal activity. However, such circumstances must be considered not in isolation, but in their totality. Taken together, they demonstrate the particularized suspicion necessary to conduct an investigatory stop.

As our Supreme Court has recognized, "under circumstances demonstrating particularized suspicion . . . such as a high-crime location or late-evening to early-morning hours, police would have greater latitude to subject a citizen to an investigatory stop." Tucker, supra, 136 N.J. at 168. And though, as defendant emphasizes, flight alone does not create reasonable suspicion for a stop, flight is a fact that can be considered, along with other facts, to support an officer's reasonable articulable suspicion of criminal activity. State v. Citarella, 154 N.J. 272, 281 (1998). Although the facts known to Nieves "might have some speculative innocent explanation, they also are reasonably consistent with illegal activity." Id. at 280-81 (internal quotation marks and citation omitted). The officers had the particularized suspicion necessary to conduct an investigatory stop.

Having concluded that the officers had a reasonable and articulable suspicion to conduct an investigatory stop, we reject defendant's argument that the officers seized the handgun he had discarded as a direct result of their attempt to unlawfully detain him in violation of his right to be free from an unreasonable seizure.

Affirmed.

1 The first names of the law enforcement officers do not appear in the record.

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