STATE OF NEW JERSEY v. HASSEIN A. FERRELL

NOT FOR PUBLICATION WITHOUT THE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.

HASSEIN A. FERRELL,

Defendant-Appellant.

__________________________________

SubmittedApril 2, 2014 Decided May 6, 2014

Before Judges Sapp-Peterson and Maven.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 12-04-0218.

Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief).

PER CURIAM

Following the denial of his suppression motion, defendant, in accordance with a negotiated plea agreement, pled guilty to second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3). At sentencing, the court imposed a four-year custodial term, together with appropriate fines and penalties. Pursuant to the terms of the plea agreement, defendant reserved the right to appeal from the order denying his motion to suppress the evidence seized from him at the time police detained him.1 On appeal defendant contends:

Point I

The police officer did not have reasonable suspicion to stop or probable cause to arrest Mr. Ferrell for defiant trespass because he had not violated the specific requirements of N.J.S.A.2C:18-3(b)(2).

A. Officer Simpkins Did Not Have Reasonable Suspicion To Stop Mr. Ferrell, Let Alone Probable Cause For A Full Arrest.

B. Even If Notice Against Trespass Had Existed, The Totality Of The Circumstances Did Not Furnish Officer Simpkins With Probable Cause To Believe That Mr. Ferrell Had Committed Defiant Trespass.

Point II

The trial judge erred in denying the motion to suppress as the state failed to establish a "significant attenuation" between the unconstitutional stop and seizure of Mr. Ferrell and the later seizure of the controlled dangerous substances. U.S. Const. Amends. IV, XIV; N.J. Const.(1947) Art. I, Par. 7.

We reject defendant's contention that the arresting officer lacked reasonable and articulable suspicion to detain him. Not only does the evidence credited by the motion judge establish reasonable and articulable suspicion to stop defendant and inquire as to his purpose for being at the housing complex, defendant's actions thereafter justified officers undertaking a Terry2 frisk to ensure their safety. In addition, defendant's actions also established probable cause to believe that he had committed an offense. We therefore affirm, substantially for the reasons expressed by Judge Timothy G. Farrell in his well-reasoned oral opinion of August 3, 2012.

Under the Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, along with Article 1, Paragraph 7 of the New Jersey Constitution, citizens have the right to remain free from unreasonable searches and seizures by the State. See Bailey v. United States, __ U.S. __, __, 133 S. Ct. 1031, 1037, 185 L. Ed. 2d 19, 28 (2013). Seizures are reasonable only if based on probable cause, which can only be upheld by applying traditional standards governing intrusions into a person's liberty. Id. at ___, 133 S. Ct. at 1042, 185 L. Ed 2d at 33.

Police encounters with individuals generally occur at three distinct levels: a field inquiry, an investigatory stop, and/or an arrest. There are constitutional considerations at all levels of encounters. A field inquiry is the least intrusive form of police encounters with citizens and occurs when a police officer approaches an individual and asks "if the person is willing to answer some questions." State v. Piniero, 181 N.J. 13, 20 (2004) (citations and internal quotation marks omitted). The hallmark of a proper field inquiry lies in the officer's recognition of the citizen's right to refuse to listen to or answer questions that are put to him and to continue on his way. Ibid. As such, the inquiry must be conducted in a conversational manner that is not "harassing, overbearing and accusatory in nature." Ibid. (citations and internal quotation marks omitted). A field inquiry is not considered a seizure in the constitutional sense unless the citizen is denied his freedom to leave. State v. Sheffield, 62 N.J. 441, 447 (1973).

The most demanding constitutional standard is reserved for an "arrest," which requires a showing of probable cause, based upon the totality of the circumstances. State v. Nishina, 175 N.J. 502, 510-11 (2003). In State v. O'Neal, 190 N.J. 601, 612 (2007), the Court described the probable cause standard as a well-grounded suspicion that criminal activity is occurring or has occurred and it exists where

the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.

[Id. at 612 (alterations in original) (citation and internal quotation marks omitted).]

Consideration of the totality of the circumstances is essential to a determination that probable cause exists. Ibid.

We consider the issues in this appeal in the context of the evidence presented before the motion judge at the suppression hearing. Two witnesses testified, Patrolman Sean Simpkins of the Salem City Police Department and defendant. According to Patrolman Simpkins, on December 6, 2011, between 2:00 a.m. and 3:00 a.m., he and his partner, Patrolman Kenneth May, were conducting foot patrol in the area of the Harvest Point housing complex, a gated complex. The complex has a no trespass list. Patrolman Simpkins explained that when a person on the premises is discovered to be on the list, "a special complaint, which is basically a ticket, a summons to appear in court for trespassing" is issued to the individual who is neither handcuffed nor arrested during the process, unless the individual "had a warrant or any other reason" to be taken into custody.

Patrolman Simpkins saw defendant, whom he knew, leaving the complex with a female individual. He walked towards them as they were walking towards him. He asked defendant whether he was on the no trespassing list and defendant told him "No." He proceeded to the guard shack located approximately twenty to thirty yards from where he encountered defendant, and checked the no trespassing list, finding defendant's name on the list. He and Patrolman May jumped into their patrol vehicle, which was parked at the guard shack, and caught up with defendant, telling him to stop because he was going to be charged with trespassing. Defendant seemed surprised and then "reached his right hand for his right pocket." Patrolman Simpkins described that defendant "started to sweat profusely from his brow and just seemed extremely nervous." Patrolman Simpkins explained that he had "multiple encounters with [defendant] before."

Based upon defendant's actions, "for officer safety," the two officers "secured defendant's hands and walked him back to the police vehicle to conduct a Terry pat-down." During the attempt to pat him down, Patrolman Simpkins asked defendant to place his hands on the hood of the vehicle. Defendant, however, "reached his right hand again for the same right pocket." Patrolman May then proceeded to grab defendant's hand so that Patrolman Simpkins could once again attempt to pat down defendant. At that point, defendant leaned his crotch and right hip into the vehicle, impeding the officer's ability to pat him down. Despite being advised to stop leaning into the vehicle, defendant continued to do so, but Patrolman Simpkins was ultimately able to conduct the pat down, resulting in the discovery of a loaded nine-millimeter handgun in defendant's right pocket.3 He placed defendant under arrest, charging him with a weapons offense and obstruction. Patrolmen Simpkins and May transported defendant to the police station. During a search incident to his arrest, police uncovered suspected narcotics.

Defendant acknowledged he had been at the Harvest Point housing complex visiting Jalisa Bell, who lived there and with whom he had arrived at the complex. He explained that he arrived around 12:30 a.m. and presented the guard with his identification. The guard signed his name and asked where he was going. He told the guard that he was going to Apartment 2B. The guard did not request identification from Bell because, according to defendant, the guard "knew she lived there." The guard then opened the electronic gate and allowed the two individuals to enter.

Defendant left the complex between 3:15 a.m. and 3:20 a.m., at which time he encountered the two police officers. When asked whether he was on the no trespassing list, he told them "no, because the guard let me in." He then walked away and the officers walked away. Two to five minutes later, defendant testified the officers "hopped out of the car[], they told me they w[ere] searching me for [t]respassing[,]" and told his companion that "she can keep going."

In denying the motion, Judge Farrell credited Patrolman Simpkins's testimony and concluded there were "sufficient facts for the officer to issue the citation[,]" finding:

Those facts were, that he saw Mr. Ferrell leaving the premises. He confirmed that Mr. Ferrell was on the no trespassing list, which prohibited him from being in the area.

But even if he didn't have, at that juncture, probable cause, which I find that he did[,] to issue the citation, he certainly had sufficient articulable facts to further investigate and to ask Mr. Ferrell to stop and to speak with him.

And once that occurred, the conduct of Mr. Ferrell escalated matters and certainly permitted the officers to frisk him for their safety.

This is not a case where they frisked him, they found something squishy, which ended up to be 23 bags of cocaine, and then stuck their hand in the pocket.

They frisked him for their safety, which I suggest that they had a legitimate reason to do and legal authority to do, and they felt what they believed was a handgun and . . . it was.

So under either scenario, I find that the search was constitutional[.]

The court rejected defendant's attempt to analogize the circumstances surrounding his detention, seizure of the weapon, and arrest the subsequent search from the circumstances found in State v. Dangerfield, 171 N.J. 446 (2002). The judge noted that unlike in Dangerfield, there was "actually a published no trespass list and that list precluded the Defendant from entering the property, and Officer Simpkins confirmed the no trespass list. He did what Dangerfield requires." We agree. At the outset, in our review of a motion to suppress, we "'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. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We defer to those "findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Id. at 336-37 (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Accordingly, "[a] trial court's findings should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162). In short, "on appeal 'we may only consider whether the motion to suppress was properly decided based on the evidence presented at that time.'" State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999) (quoting State v. Jordan, 115 N.J. Super. 73, 76 (App. Div.), certif. denied, 59 N.J. 293 (1971)). Finally, we need not defer or be bound by the trial court's legal conclusions. State v. Gandhi, 201 N.J. 161, 176 (2010) (citation omitted).

Here, Patrolman Simpkins's first encounter with defendant can be properly characterized as a field inquiry. He questioned defendant as to whether he was on the no trespassing list, and when defendant informed the officer that he was not, Officer Simpkins permitted defendant to continue walking away. The officer proceeded to the guard shack to review the list, which was admitted into evidence, finding defendant's name on the list. He then returned to defendant to issue him a summons for defiant trespass, a petty disorderly persons' offense. He testified he had no intention of arresting defendant, as that is not the usual practice in such situations. However, he explained that defendant's actions alerted concerns for officer safety and led to the Terry pat-down. We defer to Judge Farrell's credibility findings and agree Patrolman Simpkins pointed to specific and articulable facts which, taken together with rational inferences, established an objectively reasonable suspicion in him that defendant was armed and dangerous. State v. Privott, 203 N.J. 16 (2010). When viewed under the totality of the circumstances, no further investigation was required before the officer conducted a Terry frisk of defendant.

Moreover, as Judge Farrell noted, the factual circumstances here are entirely distinguishable from those in Dangerfield, where, in advance of arresting the defendant for trespassing, the police officer failed to follow established procedures for determining whether the defendant was lawfully on the premises. Dangerfield, supra, 171 N.J. at 457. Here, Patrolman Simpkins followed the protocol for determining whether defendant was on the no trespassing list and, upon doing so, established probable cause to issue the summons for defiant trespass. That the charge may not later result in a conviction, because defendant may have been unaware he was on the list and was in fact admitted onto the property, is not the test for establishing probable cause to issue. See Fleming v. United Parcel Serv., Inc., 273 N.J. Super. 526, 530 (App. Div. 1994).

Finally, pursuant to Rule 2:6-11(d), defendant brought to our attention the Supreme Court's recent decision in State V. Gibson, ___ N.J. ___ (2014) (slip op. at 9), where the Court unanimously found police lacked probable cause to arrest the defendant for defiant trespass. Gibson is distinguishable, as the seizure here resulted not from defendant's arrest on the charge of trespassing and a search incident to that arrest occurring thereafter. Id. at 8-9. Rather, defendant's arrest stemmed from his conduct when approached the second time by Patrolman Simpkins, before the trespassing summons had been issued. Thus, the officer's actions are not judged based upon whether there was probable cause to arrest but, instead, whether there was an objectively reasonable basis upon which the officer determined there was a need to conduct a Terry frisk of defendant. Id. at 34.

Affirmed.

1 See R. 3:5-7(d) (permitting a defendant the right to appeal from a denial of a motion to suppress evidence "notwithstanding that such judgment is entered following a plea of guilty.").

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

3 It was later revealed that the gun was inoperable.