STATE OF NEW JERSEY v. CHAVIS J. REAVES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1986-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHAVIS J. REAVES,

Defendant-Appellant.

____________________________________

June 24, 2013

Submitted January 30, 2013 - Decided

Before Judges Nugent and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-08-1788.

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

Jeffrey S. Chiesa, Attorney General, attorney for respondent, (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Chavis J. Reaves appeals the denial of his motion to suppress the handgun seized by detectives who arrested him during a street encounter. Defendant argues that the detectives conducted more than a field inquiry, lacked an articulable suspicion to support an investigative stop, and had no probable cause to arrest him when he fled. Having considered defendant's arguments in light of the motion record and controlling law, we affirm.

Detective Thomas Moynihan, a six-year veteran of the Atlantic City Police Department, was the only witness to testify at the suppression hearing. On the morning of April 6, 2010, he and two other detectives, Henry White and Darren Loradi, were patrolling the streets that ran through a housing complex known as Carver Hall on the morning they encountered defendant. Although they wore plain clothes and rode in an unmarked car, they wore police badges around their necks, and because they used the same unmarked vehicles "all the time," their car was familiar to residents in the area.

Carver Hall was well-known to the detectives for violence and drug dealing. There had been shootings there as well as at another housing complex several blocks away called Stanley Holmes Village. Five days earlier, someone had fired numerous shots at a house in Stanley Homes Village and one or more bullets struck a woman in the leg. The police believed that members of a gang known as Crime Family For Life, also known as 36612, were involved in the shooting.

According to the Atlantic City Police Department intelligence files, defendant was a "documented gang member of the Crime Family for Life." Detective Moynihan had arrested defendant five months earlier and found him in possession of hollow point bullets and ball ammunition. In the weeks before April 6, 2010, the detective "had been getting numerous tips from informants that [defendant] was in possession of a handgun." The informants were "other detectives' informants," but the information was common knowledge within the unit.

Detective Moynihan wanted to question defendant about the recent shootings, so when he saw defendant walking on the street through Carver Hall on the morning of April 6, the detective decided to stop and talk to him. When defendant spotted the unmarked police car he crossed the street, quickened his pace, and "kept looking back, looking around." He "seemed to be nervous, acting suspicious."

The detectives pulled their car behind defendant and saw that he was carrying a computer bag, strapped around his shoulder, hanging beneath his armpit down near his wrist. They stopped approximately five or ten feet from defendant, began to get out of the car, and asked defendant, "can we talk to you, can you come over here, can we talk to you[?]" Defendant responded, "I didn't do shit, leave me alone." At the same time, defendant "pulled the bag, it was open, he . . . reach[ed] . . . in and just started running." Fearful that defendant had a weapon inside the computer bag, the detectives ordered him to stop, yelling, "police, stop, you're under arrest." Defendant, looking increasingly agitated, continued to run, still reaching into the bag, and thereby increasing the detectives' fear that he might be armed.

Approximately twenty seconds and one-half block after defendant began to run, the detectives apprehended him and handcuffed him behind his back. Because defendant could still reach into the bag, Detective Moynihan looked into the open bag, reached in, and removed a handgun. The gun was a silver revolver. The detective also seized papers bearing defendant's name, other identifying information, and a small quantity of marijuana from defendant's pocket.

Following defendant's arrest, an Atlantic County grand jury charged him in an indictment with second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count one); fourth-degree obstructing administration of law, N.J.S.A. 2C:29-1 (count two); fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2) (count three); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7. Thereafter, defendant filed a motion to suppress the gun. Judge Michael A. Donio denied the motion in an oral decision. The judge accepted Detective Moynihan's testimony, conducted a fact-sensitive analysis, and concluded that Detective Moynihan had a reasonable and articulable suspicion of criminal activity that justified an investigatory stop. Judge Donio further concluded the detectives ultimately had probable cause to arrest defendant after he disregarded their command to stop.

Defendant subsequently pled guilty to count four of the indictment in exchange for the State recommending a sentence of five years' imprisonment with a five-year period of parole ineligibility. Defendant also pled guilty to the first count of an unrelated indictment, amended to a charge of possession of less than fifty grams of a controlled dangerous substance, marijuana, a disorderly persons offense. In exchange for the plea to the unrelated indictment as amended, the State recommended a sentence of time served and left to the court's discretion the imposition of a fine. The court later sentenced defendant in accordance with the terms of the plea agreement and imposed appropriate fines and assessments. This appeal followed.

Defendant raises a single point for our consideration:

BECAUSE DETECTIVE MOYNIHAN HAD NO VALID BASIS FOR AN INVESTIGATIVE DETENTION OF [DEFENDANT], AND HIS ACTIONS FAR EXCEEDED THE LEGITIMATE SCOPE OF A FIELD INQUIRY, [DEFENDANT'S] SUBSEQUENT FLIGHT DID NOT IN ANY WAY CREATE A BASIS FOR ARREST AND SEIZURE.

When reviewing a trial court's decision to deny a motion to suppress evidence, "an appellate court '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.'" State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). An appellate court's review of a trial court's legal conclusions, however, is plenary. Id. at 45.

Defendant does not dispute Detective Moynihan's testimony. Rather, he contends the judge misapplied the law to that testimony. Specifically, he argues that when he told Detective Moynihan to leave him alone the detectives should have ended their field inquiry. Defendant insists that at that point in the encounter, Detective Moynihan did not have reasonable suspicion that would warrant an investigatory stop. Although acknowledging that one who flees in the face of an unlawful police command may be arrested for the separate offense of obstructing the administration of justice, and that evidence may lawfully be seized incident to such an arrest, defendant asserts that such an arrest is invalid if the police do not have a good faith belief that they have sufficient cause to conduct the initial investigatory stop. Defendant contends that Detective Moynihan did not have such a good faith belief.

The State argues that under the totality of circumstances confronting him, Detective Moynihan had a reasonable, articulable suspicion that justified his attempt to temporarily detain defendant. Alternatively, the State argues that when defendant disregarded the command to stop, he obstructed justice, which subjected him to arrest and a search incident to the arrest. The State maintains defendant has pointed to no evidence supporting his claim that the officers acted in bad faith.

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect the State's citizens 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)) (alteration in original).

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)). 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). "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (alteration in original). "'The person approached, however, 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.'" Ibid. (quoting Maryland, supra, 167 N.J. at 483).

Unlike a field inquiry, "an investigatory stop, sometimes referred to as a Terry1 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.'" Ibid. (quoting State v. Nishina, 175 N.J. 502, 510-11 (2003)) (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. (quoting Nishina, supra, 175 N.J. at 511).

When evaluating whether a police officer had a reasonable suspicion that criminal activity had taken place or was about to take place, a court must "ascribe sufficient weight to the officer's knowledge and experience and to the rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." State v. Arthur, 149 N.J. 1, 10-11 (1997). "[S]imply because a defendant's actions might have some speculative innocent explanation does not mean that they cannot support articulable suspicions if a reasonable person would find the actions are consistent with guilt." Id. at 11.

In this case, the totality of circumstances provided a particularized and objective basis for believing that defendant possessed a gun in the computer bag. The incident occurred in an area well-known to the police for gun and drug activity. Defendant was known to the police as a member of a gang that was suspected of shooting a resident five days earlier. Detective Moynihan had found defendant in possession of bullets five months earlier, and the detective had received within the previous several weeks information from informants that defendant possessed a gun. Although those factors may not have initially justified an investigatory stop, when defendant quickened his pace at the sight of the police vehicle, began to act nervous, and reached into the bag as the police stopped to question him, the police had a reasonable suspicion that defendant might be reaching for a gun. They were not required to wait to see if defendant pulled the gun before taking measures to protect themselves. "A police officer is not required by his occupation or the Constitution of the United States to take unnecessary risks in the performance of his duties or to refrain from the taking of 'necessary measures to determine whether the person is in fact carrying a weapon [or the neutralizing of] threat of physical harm.'" State v. Ransom, 169 N.J. Super. 511, 522 (App. Div. 1979) (alteration in original) (quoting Terry, supra, 392 U.S. at 24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 908). We agree entirely with Judge Donio that the totality of circumstances were supported by an articulable, reasonable suspicion that defendant was engaging in criminal activity.

In State v. Privott, the Supreme Court upheld an investigatory stop under similar circumstances. 203 N.J. 16, 29 (2010). In that case, an officer on routine patrol with his partner received a radio dispatch "that an anonymous caller reported a man with a handgun [on a street corner]." Id. at 20-21.

As the officer approached and made eye contact with defendant, who partially matched the description given by the anonymous informant, the officer recognized defendant from prior narcotic arrests. The officer knew that defendant was associated with violent gangs that were responsible for recent shootings in the area . . . . Defendant appeared nervous, walked away from the officer, and moved one hand towards his waistband. From his extensive experience in the field, the officer was aware that the waistband is an area commonly used by armed persons to conceal a weapon.

[Id. at 28-29].

The Court concluded, "[b]ased on the totality of the circumstances, . . . that there were specific and particularized reasons for the officer to conduct an investigatory stop." Id. at 29.

Here, like Privott, the circumstances extended beyond an anonymous tip. Defendant was walking in an area known for drug and gun activity, where shootings had occurred in the past. Similar to the officer in Privott, Detective Moynihan knew defendant was associated with a violent gang suspected of shooting into a home in a nearby housing development a week earlier. Defendant here, like the defendant in Privott, quickened his pace after spotting the police car and appeared nervous when the officers called to him. In Privott, the defendant put his hand into the waistband of his pants; here, defendant put his hand into the open computer bag.

Defendant argues that the anonymous tips about his possessing a handgun were "weeks old, and of no established quality." The tips, without more, would not have provided reasonable suspicion to support a Terry stop. But, like Privott, there was much more for the detectives to consider. The tips had been received from more than one informant, Detective Moynihan was aware of defendant's affiliation with a violent street gang, and when the detective had arrested defendant on a previous occasion, defendant possessed ammunition. Considering the detective's knowledge and experience, the totality of the circumstances provided "specific and particularized reasons for the officer to conduct an investigatory stop." Ibid.

Defendant also argues that the detectives were not acting in good faith when they confronted him. The State counters that nothing in the record supports defendant's bad faith claim.

Defendant challenges the detective's "good faith" because "as a basic precondition for a prosecution under the obstruction statute,2 the police officers [must] act[] in good faith and under color of their authority." Defendant's argument relates to the precept that the exclusionary rule is not applied to evidence resulting from an unlawful stop if there is sufficient attenuation between the unconstitutional stop and the seizure of the evidence. Implicit in the argument is that a valid arrest under the obstruction statute constitutes sufficient attenuation. "[A] person has no constitutional right to flee from an investigatory stop, 'even though a judge may later determine the stop was unsupported by reasonable and articulable suspicion.'" State v. Williams, 192 N.J. 1, 11 (2007) (quoting State v. Crawley, 187 N.J. 440, 458, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006)). For that reason, "a defendant [can] be convicted of violating the obstruction statute even if he [flees] from an unconstitutional investigatory stop. Ibid. "[A]s a basic precondition for prosecution under the obstruction statute, . . . police officers [must] act [] in good faith and under color of their authority." Williams, supra, 192 N.J. at 13.

Here, the officers acted in good faith and had probable cause to believe defendant had violated the obstruction statute after he placed his hand into the computer bag and fled. Detective Moynihan and his partners decided to conduct a field inquiry of defendant as part of their investigation into a shooting. They were acting in good faith and under color of their authority by doing so.

Nevertheless, a defendant's flight from an unlawful investigatory stop, in violation of the obstruction statute, does not "automatically justif[y] the admission of any evidence revealed during the course of that flight." State v. Williams, 410 N.J. Super. 549, 552 (App. Div. 2009), certif. denied, 201 N.J. 440 (2010). "[S]uch evidence is admissible only if there is a significant attenuation between the unconstitutional stop and the seizure of evidence[.]" Ibid. To determine whether seizure of evidence is sufficiently attenuated from an unlawful investigatory stop, a court must consider three factors: "(1) 'the temporal proximity' between the illegal conduct and the challenged evidence; (2) 'the presence of intervening circumstances'; and (3) 'particularly, the purpose and flagrancy of the official misconduct.'" State v. Shaw, 213 N.J. 398, 415 (2012) (quoting Brown v. Illinois, 422 U.S. 590, 602-04, 95 S. Ct. 2254, 2261-62, 45 L. Ed., 2d. 416, 427 (1975)); Williams, supra, 192 N.J. at 15.

In the case before us, Detective Moynihan seized the handgun from defendant within approximately twenty seconds of defendant beginning to flee, a factor which would weigh in favor of suppressing the gun. But the detective's conduct was not flagrant. As we previously stated, he had a right to conduct a field inquiry of defendant as part of a larger investigation and he legitimately feared defendant might pull a gun when defendant reached into the computer bag. The critical factor --intervening circumstances -- is present here. Defendant's reaching into the computer bag was an act that posed an immediate threat to the police officers. Thus, there were more circumstances in this case than mere obstruction by flight. Consequently, even if the Terry stop was unlawful, which it was not, the gun seized from defendant should not have been suppressed.

Affirmed.

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

2 N.J.S.A. 2C:29-1a provides in pertinent part: "a person commits an offense if he . . . 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."