STATE OF NEW JERSEY v. JAMAINE B. HAINES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMAINE B. HAINES,

Defendant-Appellant.

______________________________________________

October 3, 2013

Submitted May 29, 2013 Decided

Before Judges Yannotti and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 11-10-00618.

Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence, defendant, Jamaine B. Haines, pled guilty to third-degree possession with intent to distribute a controlled dangerous substance (CDS) within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a)(1). The trial judge sentenced defendant to six years imprisonment with three years parole ineligibility.

On appeal, defendant raises the following contentions for our consideration.

POINT I: THE TRIAL COURT ERRONEOUSLY DENIED [DEFENDANT'S] MOTION TO SUPPRESS BECAUSE THE POLICE LACKED REASONABLE ARTICUABLE SUSPICION TO CONDUCT THE STOP AND LACKED PROBABLE CAUSE TO ARREST.

POINT II: THE TRIAL COURT ERRED BY FAILING TO FIND MITIGATING FACTORS SUPPORTED BY THE RECORD.

Having considered defendant's arguments in light of the applicable legal principles, we affirm his conviction and sentence.

We discern the following facts from the record of the motion to suppress. In May 2011, in response to several reports of drug activity and violent criminal acts in the Borough of Woodbine, the New Jersey State Police established a plain-clothes foot patrol, termed a "quality of life detail." The State Police assigned Detective Daniel DeLucia, Trooper Ron Gillespie, and Trooper William D. Carney to the northeast quadrant of the Borough and instructed them to focus their attention on four specific residences. One of these residences was a duplex located at 802 Adams Avenue, where the police had received reports from confidential informants and unidentified concerned citizens of drug distribution activity.

On the evening of May 13, 2011, Carney, a three-year veteran of the force familiar with drug trafficking in Woodbine, was concealed about fifty yards from the Adams Avenue duplex. He saw two men standing in front of the residence. Carney then saw a vehicle pull up to the driveway of the residence and stop in the road. He observed the two men "lean into the vehicle" on the passenger side for less than thirty seconds. The vehicle departed, and the two individuals remained on the scene. Carney testified that the thirty second drive-up was consistent with a method of drug distribution in Woodbine, and that, based on this observation, he had sufficient cause to stop the men for questioning.

Carney immediately contacted DeLucia, who was patrolling nearby with Gillespie, and advised DeLucia of the "hand-to-hand drug transaction" he believed he had just witnessed. DeLucia, a ten-year veteran of the force who had participated in about one thousand narcotics investigations, instructed Carney to wait until he arrived to detain and question the individuals.

As they approached the duplex, DeLucia and Gillespie remained concealed in the shadows, when suddenly a pit bull charged at them. The officers shined their flashlights on the dog and drew their handguns. One of the two men standing in the yard at 802 Adams Avenue yelled "Yo," and the dog stopped immediately and returned to the man. DeLucia testified that individuals engaged in drug distribution often use pit bulls to warn them when people are approaching.

The officers then shined their flashlights on the second man, and said "Don't move. State Police." The man, later identified as defendant, exclaimed, "Oh, shit," then turned and ran. DeLucia pursued defendant and caught him when defendant became trapped between a garage and a stockade fence. When Gillespie arrived at the scene, the officers handcuffed defendant without incident. The officers then conducted a search incident to his arrest and found a bag of marijuana, cocaine, and heroin in defendant's pocket.

On October 4, 2011, a Cape May County Grand Jury indicted defendant for: third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (counts one and two); third-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts three and four); third-degree possession with intent to distribute CDS within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a)(1) (count five); and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2) (count six).

Defendant moved to suppress the CDS found during the search. The judge denied the motion. The judge found that although Carney's initial observation did not establish that a drug transaction had occurred, the observed activity was consistent with a street level drug transaction, and Carney would have been remiss to not pursue the matter. Further, the judge observed that "the circumstances changed dramatically and substantially at the occasion of the partial attack by the dog."

As a result of this "interceding" or "superseding event," the officers feared for their safety, drew their guns, shone their flashlights on the individuals, and announced their presence as police officers. Defendant exclaimed, "Oh, shit" and fled. "That comment certainly suggests that . . . defendant[] had more concerns about their presence." The judge concluded that DeLucia had an articulable reasonable suspicion that a criminal offense had occurred, and "the immediate flight, . . . further justified the pursuit, the stop, and the arrest."

After the denial of his motion to suppress, defendant entered into the aforementioned plea agreement. This appeal followed.

We begin with a review of the well-established legal principles that guide our analysis. We defer to the trial court's findings of fact in reviewing a motion to suppress, "provided those factual findings are 'supported by sufficient credible evidence in the record.'" State v. Smith, 212 N.J. 365, 387 (2012) (quoting State v. Handy, 206 N.J. 39, 44 (2011)), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). We do not, however, defer to a trial court's interpretation of the law, and conduct a de novo, plenary review of legal issues. State v. Rockford, 213 N.J. 424, 440 (2013); State v. Shaw, 213 N.J. 398, 411 (2012).

"The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution both guarantee '[t]he right of the people to be secure . . . against unreasonable searches and seizures[.]'" Shaw, supra, 213 N.J. at 409 (quoting U.S. Const. amend. IV; N.J. Const. art. I, 7). An investigative stop or detention of a person is a seizure that "implicates our constitutional protections." State v. Mann, 203 N.J. 328, 337 (2010) (citation omitted). Warrantless searches and seizures by law enforcement officers are presumptively invalid. State v. Pineiro, 181 N.J. 13, 19 (2004). The State bears the burden of proving that such searches and seizures are "justified by one of the 'well-delineated exceptions' to the warrant requirement." Shaw, supra, 213 N.J. at 409 (citations omitted).

One such narrowly-drawn exception to the warrant requirement is an investigatory stop as recognized in Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 905-06 (1968). "An investigatory police stop, sometimes referred to as a Terry stop, is permissible '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.'" Shaw, supra, 213 N.J. at 410 (quoting Pineiro, supra, 181 N.J. at 20). The standard for a brief investigatory stop "is less than the probable cause showing necessary to justify an arrest." Ibid.

The determination of whether an officer had a reasonable suspicion to conduct a brief investigatory stop is fact-sensitive and requires an evaluation of the "totality of the circumstances[.]" Pineiro, supra, 181 N.J. at 22. "Unless 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.'" Mann, supra, 203 N.J. at 339 (quoting State v. Elders, 192 N.J. 224, 247 (2007)).

"An officer's experience and knowledge are factors courts should consider in applying the totality of the circumstances test." Pineiro, supra, 181 N.J. at 22 (citing State v. Davis, 104 N.J. 490, 504 (1986)). "However, an officer's hunch or subjective good faith even if correct in the end cannot justify an investigatory stop or detention." Shaw, supra, 213 N.J. at 411 (citing State v. Arthur, 149 N.J. 1, 8 (1997)). Courts can consider, as one of a number of suspicious circumstances, a defendant's presence in a high crime area. Pineiro, supra, 181 N.J. at 24; see also State v. Tucker, 136 N.J. 158, 169 (1994) (flight may also be considered as evidence in assessing guilt). And, "the fact that a suspect's behavior may be consistent with innocent behavior does not control the analysis." Mann, supra, 203 N.J. at 338.

Defendant contends that the evidence seized should have been suppressed for three reasons. First, he argues that the judge failed to analyze the reasonableness of the initial stop that occurred before defendant's flight. Second, he claims the judge never conducted an attenuation analysis on whether the pit bull s thwarted attack constituted an intervening act. Third, he maintains that the police lacked probable cause to arrest and search defendant after his flight. We disagree.

We conclude that defendant was subjected to an investigatory stop when DeLucia, who had his gun drawn, shone his flashlight on defendant and said, "Don't move. State Police." State v. Crawley, 187 N.J. 440, 444, 450 (officer said, "'Police. Stop. I need to speak with you'"), cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006); State v. Williams, 410 N.J. Super. 549, 554-55 (App. Div. 2009) (officer ordered defendant to stop), certif. denied, 201 N.J. 440 (2010). Defendant clearly understood the command and was not free to leave. See Shaw, supra, 213 N.J. at 412.

Moreover, we agree with the trial judge that, under the totality of the circumstances, DeLucia had a reasonable suspicion at the time that defendant had engaged in criminal activity sufficient to conduct a lawful investigatory stop. The officers were patrolling an area known for its high volume of drug transactions. They focused on 802 Adams Avenue based on several reports by informants and concerned citizens of drug trafficking. Carney, a veteran police officer with experience in drug transactions, observed conduct in front of the duplex consistent with a hand-to-hand drug transaction, and immediately reported that observation to DeLucia. See Crawley, supra, 187 N.J. at 457 (police can rely on information transmitted by another officer). The attack by the dog further heightened DeLucia's suspicion that criminal activity was afoot.

Further, as the judge found, the dog attack changed the circumstances "dramatically and substantially," in that DeLucia and Gillespie drew their guns out of concern for their own safety, and focused their attention on defendant, one of only two men standing in the yard. The totality of these circumstances, as viewed by a reasonable officer with DeLucia's knowledge and experience, established a reasonable articulable suspicion that defendant was engaged in criminal activity, prior to defendant's flight from the scene. We therefore find the investigatory stop was constitutional.

Contrary to defendant's argument, the judge did not err in failing to utilize the attenuation doctrine. Such an analysis is conducted to determine whether an "interceding" or "superseding event" purged the taint of the unconstitutional stop. See Shaw, supra, 213 N.J. at 414-15; State v. Johnson, 118 N.J. 639, 652-53 (1990). Here, the investigatory stop was lawful and thus the analysis was not applicable. Defendant misconstrues the trial judge's use of the terms "interceding" and "superseding," which appear to refer to the fact that the dog attack was a significant event that altered the officer's conduct not an "intervening circumstance" that broke the causal chain between an unlawful investigatory stop and a subsequent search.

We next consider whether the police had probable cause to arrest defendant, and whether the CDS seized from defendant was admissible under the search incident to arrest exception to the warrant requirement. Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969); see also State v. Eckel, 185 N.J. 523, 528-37 (2006). Here, the trial judge found that defendant's expletive, after having been ordered to stop, followed by his immediate flight, "further justified the pursuit, the stop, and the arrest."

Probable cause for an arrest is "'a well-grounded suspicion that a crime has been or is being committed.'" State v. O'Neal, 190 N.J. 601, 612 (2007) (quoting State v. Moore, 181 N.J. 40, 45 (2004)). When a person is arrested lawfully, based on probable cause, the police can search his person or items within his immediate control incident to the arrest. State v. Minitee, 210 N.J. 307, 318 (2012).

The State argues that the police had probable cause to arrest defendant for the sale of drugs and for obstruction of justice under N.J.S.A. 2C:29-1. We agree.

"Under New Jersey's obstruction statute [N.J.S.A. 2C:29-1(a)1], 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. Williams, 192 N.J. 1, 11 (2007) (citation omitted). "[S]uspects must obey a police officer's commands during an investigatory stop, even if the stop is unlawful, and test the stop and detention later in court." State v. Herrerra, 211 N.J. 308, 334 (2012).

"[D]efendants have 'no right' to resist arrest, elude or obstruct the police, or escape 'in response to an unconstitutional stop or detention.'" Id. at 335 (quoting Crawley, supra, 187 N.J. at 455). "Even though the suspect may have done nothing wrong, 'he cannot be the judge of his own cause and take matters into his own hands and resist or take flight. The proper forum to challenge supposed unlawful police conduct is in court.'" Ibid. (quoting Crawley, supra, 187 N.J. at 459-60).

Here, during the lawful investigatory stop, DeLucia explicitly ordered defendant not to "move," and identified himself as a State police officer. Defendant was obligated to comply with that instruction, and when he ran and refused to obey the order, the police had sufficient probable cause to arrest defendant for obstruction under N.J.S.A. 2C:29-1(a). In that regard, Pineiro, supra, which was cited by defendant, is distinguishable because in Pineiro "there was no evidence that [the defendants] ran from the scene or refused to stop when the police directed them to do so." 181 N.J. at 25-26. Similarly distinguishable is Tucker, supra, where the sole basis asserted for the police action was the young defendant's flight. 136 N.J. at 168-69.

We therefore find that the facts supported probable cause to arrest defendant for obstruction of justice. Additionally, under the totality of circumstances here, including the high crime area, the report of sale of drugs from the duplex, the apparent drug transaction, the charge of the pit bull, defendant s expletive followed by flight upon being told not to move, the police had a well-grounded suspicion that a crime had been committed. Thus, the police also had probable cause to arrest defendant on drug charges. Accordingly, the CDS was admissible under the search incident to arrest exception to the warrant requirement. We conclude that the motion to suppress was properly denied.

Lastly, defendant challenges his sentence as excessive. Our "review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). We may not substitute our "assessment of aggravating and mitigating factors for that of the trial court." State v. Bieniek, 200 N.J. 601, 608 (2010).

In sentencing defendant, the court found three aggravating factors: "[t]he risk that defendant will commit another offense;" the extent of defendant's criminal record; and the need to deter "defendant and others from violating the law[.]" N.J.S.A. 2C:44-1(a)(3), (6), (9). The court found no evidence to support any of the mitigating factors, including factor eleven, that imprisonment "would entail excessive hardship," N.J.S.A. 2C:44-1(b)(11), and determined that the aggravating factors outweighed the nonexistent mitigating factors. The extended term of imprisonment for a crime of the third degree is between five and ten years. N.J.S.A. 2C:43-7(a)(4). The court sentenced defendant to six years, at the lower end of that range. We are satisfied that the court properly followed and applied the sentencing guidelines and criteria, and the sentence imposed in accordance with the plea bargain is not manifestly excessive, nor does it shock our judicial conscience. State v. Ghertler, 114 N.J. 383, 387-90 (1989); State v. Roth, 95 N.J. 334, 362-66 (1984).

1 N.J.S.A. 2C:29-1(a) (emphasis added), provides that:

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. . . .