STATE OF NEW JERSEY v. GARY B. KNOX

NOT FOR PUBLICATION WITHOUT THE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.

GARY B. KNOX, a/k/a CHARLIE BROWN,

a/k/a GARY B. KNOX, JR., a/k/a DWIGHT A.

KNOX, a/k/a CHARLES BROWN, a/k/a GARY V.

KNOX,

Defendant-Appellant.

___________________________________________

April 11, 2014

Submitted February 3, 2014 - Decided

Before Judges Parrillo, Harris, and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment Nos. 10-11-807 and 11-06-355.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, 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, defendant, Gary B. Knox, pled guilty to possession of cocaine pursuant to a plea agreement. He was sentenced consistent with the terms of the agreement to a four-year term to be served concurrently with another unrelated four-year sentence. On appeal, defendant claims that the actions of two police officers in training the spotlights from their vehicles on him were excessively intrusive and constituted an unwarranted de facto arrest which led to an illegal seizure. Alternatively, defendant argues that if we find the police conducted an investigatory stop, it was unlawful because they lacked reasonable suspicion of criminal activity. We have considered these arguments in light of the record and applicable legal standards and we affirm.

During the early morning hours of September 25, 2010, Patrolman Donald Boice of the Wildwood City Police Department was driving a patrol car in the vicinity of East Lincoln and New Jersey Avenues when he saw defendant. Boice recognized defendant from an encounter a few weeks earlier and knew that he was not a Wildwood resident. Boice described the block where he saw defendant as "a high crime, high drug activity area" and he and other officers on his squad had conducted several drug investigations in the area.

Boice parked his patrol car and observed defendant as he walked into the parking lot of a motel on the corner of East Lincoln and New Jersey Avenues. Defendant stood behind a parked SUV and made a phone call. After observing defendant for approximately five minutes, Boice concluded he "was waiting to meet up with someone." When defendant began to walk toward East Lincoln Avenue, Boice radioed his dispatcher and advised that he would be approaching a suspicious person on foot.

Two other officers, Andrew Granero and John Ribera, responded to the East Lincoln location as Boice was walking toward defendant. Ribera and Granero approached the area from different directions and simultaneously trained the spotlights from their vehicles on defendant. When defendant noticed the marked patrol cars, he reached into his left front pocket, dropped something to the ground, and continued walking. Boice was approximately forty or fifty feet from defendant and immediately retrieved the object, which he described as a piece of white plastic containing a small piece of brown paper containing loose marijuana and crack cocaine. Defendant was issued summonses for possession of marijuana and cocaine and released.

A grand jury sitting in Cape May County returned a one-count indictment charging defendant with third-degree possession of cocaine. N.J.S.A. 2C:35-10(a)(1). This appeal followed his plea and sentencing. Defendant presents one argument:

point i

the trial court erred in denying defendant's motion to suppress because defendant discarded his property only as a result of being illegally seized by officers, whose method of apprehension was excessively intrusive such as to constitute an unwarranted de facto arrest. alternatively, if the court finds that the police conducted an investigatory stop, it was unlawful because they lacked a reasonable suspicion of criminal activity.

Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). We must uphold the judge's factual findings, "'so long as those findings are supported by sufficient credible evidence in the record.'" State v. Rockford, 213 N.J. 424, 440 (2013) (quoting Robinson, supra, 200 N.J. at 15). Additionally, we defer to a trial judge's findings that are "'substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting Robinson, supra, 200 N.J. at 15).

Defendant claims that the actions of the police constituted a de facto arrest and because Boice lacked probable cause to arrest him, any property discarded by defendant cannot be considered abandoned and should have been suppressed. We disagree.

"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) (citing State v. Alston, 88 N.J. 211, 230 (1981)). The same is true of the warrantless seizure of a person, Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 904-06 (1968), or property, State v. Hempele, 120 N.J. 182, 217-18 (1990).

The seizure of a person occurs in a police encounter if the facts objectively indicate that "'the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)).

The motion judge indicated that the simultaneous illumination of defendant by the spotlights from the two police vehicles driven by Ribera and Granero was sufficient to constitute a "stop." The judge reasoned that once the lights were trained on defendant, he "would not reasonably feel free to leave[.]" We disagree, and find no support for this conclusion in the record.

First, the illumination did not cause defendant to stop; he continued walking along East Lincoln Avenue after the spotlights were trained on him and actually tried to walk past Officer Ribera. There is no indication that defendant interpreted the spotlights as a signal to stop. Second, the police did not activate either their emergency lights or sirens, the traditional warning signals used by law enforcement to direct a subject to stop. Third, there were no verbal commands from any of the officers to defendant to stop.

We are satisfied that the mere illumination of defendant by police spotlights did not constitute a de facto arrest. Other jurisdictions have reached similar conclusions. See State v. Stuart, 811 P.2d 335, 338 (Ariz. Ct. App. 1990) (shining a spotlight on a vehicle did not constitute a seizure); People v. Perez, 260 Cal. Rptr. 172, 174 (Cal. Ct. App. 1989) (shining a spotlight on a vehicle did not manifest police authority to the degree that a reasonable person would conclude he was not free to leave); People v. Cascio, 932 P.2d 1381, 1388 (Colo. 1997) (declining to attribute any significance to the officer's use of a spotlight because it was used as a matter of practical necessity, as the encounter took place as it was getting dark); State v. Baker, 107 P.3d 1214, 1218 (Idaho 2004) (the use of a spotlight to illuminate the defendant's car did not constitute a seizure); Campbell v. State, 841 N.E.2d 624, 630 (Ind. Ct. App. 2006) (the shining of a spotlight alone did not amount to such a show of authority that a reasonable person would have believed that he or she was not free to leave); State v. Clayton, 45 P.3d 30, 35 (Mont. 2002) (a police officer's shining a spotlight into the defendant's vehicle did not amount to such a showing of authority that a reasonable person would have believed he or she was not free to leave); State v. Justesen, 47 P.3d 936, 939 (Utah Ct. App. 2002) (officer's use of take-down lights was not meant as a show of authority but to illuminate the area and did not indicate that motorist was not free to leave); State v. Young, 957 P.2d 681, 688-89 (Wash. 1998) ("The illumination by [a police] spotlight did not amount to such a show of authority a reasonable person would have believed he or she was not free to leave[.]").

Based on Officer Boice's observations of defendant's actions, the high-crime character of the location, and the early-morning hour, he had the requisite reasonable suspicion to approach defendant to make further inquiry. See State v. Pineiro, 181 N.J. 13, 20 (2004) ("A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" (quoting State v. Nishina, 175 N.J. 502, 510 (2003))). Before Boice was able to conduct such an inquiry, defendant reached into his pants pocket and dropped the packet of drugs he was carrying and continued walking. Boice recovered the discarded drugs within seconds. There was sufficient credible evidence to conclude that defendant abandoned the contraband and, thus, relinquished any expectation of privacy in it. See State v. Carroll, 386 N.J. Super. 143, 160-61 (App. Div. 2006) (finding abandonment after the defendant crashed a stolen vehicle, left the doors open, and fled, leaving a bag containing drugs behind).

We thus affirm the trial court's denial of the motion to suppress the packet discarded by defendant and recovered by Officer Boice.