STATE OF NEW JERSEY v. JEROME JENKINS

NOT FOR PUBLICATION WITHOUT THE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.

JEROME JENKINS,

Defendant-Appellant.

_____________________________________________

January 24, 2014

Submitted October 16, 2013 Decided

Before Judges Messano and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-02-0331.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence seized by the police, defendant Jerome Jenkins entered a plea agreement. Defendant reserved the right to appeal from the denial of his motion to suppress. On appeal, defendant raises the following contentions for our consideration:

POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE OFFICERS DID NOT HAVE THE REQUISITE REASONABLE SUSPICION TO CONDUCT AN INVESTIGATORY STOP OF THE VEHICLE OR DEFENDANT. THEREFORE, THE GUN AND DRUGS SEIZED BY OFFICERS WERE FRUIT OF THE UNCONSTITUTIONAL STOP.

A. The Court Below Should Have Suppressed the Handgun as the Officers Did Not Have the Requisite Reasonable Suspicion to Conduct an Investigatory Stop of the Vehicle or Defendant, and Because Defendant's Flight Did Not Provide for an Intervening Circumstance that Resulted in Significant Attenuation Between the Unconstitutional Stop and the Seizure of the Handgun.

B. Because the Officers Did Not Have Reasonable Suspicion to Conduct an Investigatory Stop of the Vehicle or Defendant, the Trooper Was Not Legally Within the Viewing Area when he Observed the Drugs and, Therefore, the Plain-View Exception to the Warrant Requirement Was Inapplicable and the Drugs Should Have Been Suppressed.

Having considered defendant's contentions in light of the applicable legal principles, we affirm.

We discern the following facts from the testimony at the suppression hearing. On October 21, 2010, at approximately 10:00 p.m., Trooper Paul Kochis of the New Jersey State Police Street Gang Unit, Detective Thomas Del Mauro of the Newark Police Department, and Trooper Strassheim of the New Jersey State Police were riding in an unmarked police vehicle. They were in plain clothes, but were wearing their badges on chains around their necks, and Kochis was wearing a bullet proof vest over his clothing with "State Police" written in large yellow letters.

Responding to the report of a shooting, they proceeded to the scene where an individual was being treated for a gunshot wound. They obtained a description of the suspects as African-American men wearing black hoodies and black or blue pants. The suspects had fled on foot westbound on Avon Avenue.

The three officers began canvassing the area, a high-crime, high-narcotics area, for persons matching the suspects' description. As they approached the intersection of South Tenth Street and Avon Avenue, just a short distance from the shooting scene, they observed a gray Audi parked illegally on the corner with three individuals inside. Two of the individuals matched the suspects' description because they were wearing black hoodies. The officers activated the emergency lights of their vehicle and pulled behind the Audi.

The rear seat passenger of the Audi, later identified as defendant, turned and looked at the police vehicle when its lights were activated. The officers immediately exited their vehicle, identified themselves as police and shouted for the vehicle occupants to show their hands. Defendant, wearing a black hoodie and blue jeans, exited the Audi and began walking northbound. Del Mauro and Strassheim began pursuing defendant, shouting multiple times "Police, stop." Defendant did not comply, he began to run, and the officers pursued him.

While fleeing, defendant reached into his waistband, removed a black handgun and attempted to throw it away. When defendant stumbled, Del Mauro was able to tackle defendant before he was able to discard the gun. Strassheim recovered the gun, a nine-millimeter pistol with an extended clip.

Meanwhile, Kochis remained with the Audi. With his weapon drawn and flashlight directed at the vehicle, Kochis ordered the remaining passengers, later identified as Jamal Stevenson and Majeed Smith, out of the vehicle to ensure his own safety due to the recent nearby shooting. Stevenson and Smith complied, and Kochis handcuffed them. Once Kochis secured the individuals, he illuminated the inside of the Audi with his flashlight and observed two clear plastic bags on the center console. One bag contained pills, and the other contained smaller bags of a white powdery substance. Kochis secured those bags believing them to be narcotics.

Defendant denied being a passenger in the Audi that night. Instead, defendant maintained that he was standing on the sidewalk near the Audi after having gone to the liquor store. He admitted knowing Stevenson and Smith, but denied speaking with them that night. Defendant alleged that he never saw police lights or heard the officers identify themselves. Rather, defendant contended that an unknown man approached him, stating "don't move." Not knowing the person, defendant walked away, then began to run, and was tackled and beaten before being placed in handcuffs. Defendant denied having a gun or knowing that the men chasing him were police until he was handcuffed.

On February 16, 2011, an Essex County grand jury indicted defendant on twelve counts including third-degree conspiracy to violate narcotics laws, N.J.S.A. 2C:5-2 (count one); two counts of third-degree possession of a controlled dangerous substance (CDS), for cocaine and ecstasy, N.J.S.A. 2C:35-10(a)(1) (counts two and five); two counts of 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 six); two counts of third-degree possession with intent to distribute a CDS within a school zone, N.J.S.A. 2C:35-7 (counts four and seven); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count eight); fourth-degree possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count nine); second-degree possession of a weapon while committing certain CDS crimes, N.J.S.A. 2C:39-4.1 (count ten); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count eleven); and third-degree obstructing the administration of law, N.J.S.A. 2C:29-2(a)(3)(a) (count twelve). On the same day, defendant was charged under a separate indictment with second-degree possession of a weapon by a person previously convicted of certain crimes, N.J.S.A. 2C:39-7(b).

Judge Michael A. Petrolle held the suppression hearing on January 18, 2012, and February 3, 2012. The judge determined that defendant's testimony was "preposterous" and "totally unbelievable." On the other hand, the judge found Del Mauro to be accurate and believable. The judge concluded that the State met its burden of proof regarding defendant's arrest and recovery of the gun.

The judge found, given the totality of the circumstances, that it was reasonable for Kochis to remove Stevenson and Smith from the Audi and place them in handcuffs to ensure his safety. The judge noted that there had been a shooting, the suspects fled in the direction the Audi was located, the people in the Audi fit the limited description of the suspects, and when approached and asked to stop, one of the Audi's occupants fled. After concluding that the detention was proper, the judge determined that that the drugs recovered were seen in plain view from a position Kochis had a right to occupy. The judge further stated that the items on the console were clearly visible from outside of a vehicle, even if the passengers had not been removed.

The judge entered an order denying the motion on February 9, 2012. On the same day, pursuant to a plea agreement with the State, defendant pled guilty to counts two, five, eight, and twelve. In exchange, the State agreed to recommend a sentence of three years with three years of parole ineligibility, sentencing defendant as a third-degree offender, and dismissal of all remaining counts, including the second indictment. Judge Petrolle accepted defendant's guilty plea.

On March 28, 2012, Judge Petrolle sentenced defendant in accordance with the plea agreement to an aggregate sentence of three years incarceration with three years of parole ineligibility. This appeal followed.

Our review of a trial judge's decision on a suppression motion is deferential. State v. Robinson, 200 N.J. 1, 15 (2009). 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. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks and citations omitted). Because the trial judge observes the character and demeanor of the witnesses, he or she is better positioned to determine credibility. State v. Locurto, 157 N.J. 463, 474 (1999). On the other hand, as appellate review of the trial court's legal conclusions is plenary, we need not defer to the trial court's decisions when a question of law is at stake. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV. "Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004). 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). The State bears the burden of establishing that a search "'falls within one of the few well-delineated exceptions to the warrant requirement.'" Pineiro, supra, 181 N.J. at 19 (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).

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.'" State v. Shaw, 213 N.J. 398, 410 (2012) (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 Elders, supra, 192 N.J. at 247).

"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. Flight may also be considered as evidence of consciousness of guilt. State v. Tucker, 136 N.J. 158, 169 (1994). "[T]he fact that a suspect's behavior may be consistent with innocent behavior does not control the analysis." Mann, supra, 203 N.J. at 338.

We agree with defendant that he was subjected to an investigatory stop when the officers exited their vehicle, commanded the occupants of the Audi to show their hands, and drew their weapons. State v. Crawley, 187 N.J. 440, 444, 450, 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), certif. denied, 201 N.J. 440 (2010). We do not agree, however, that the investigatory stop violated defendant's constitutional rights. Instead, we agree with the trial judge that, under the totality of the circumstances, the officers had a reasonable articulable suspicion at the time that defendant had engaged in criminal activity sufficient to conduct a lawful investigatory stop. The officers were patrolling a high-crime, high-drug area. Additionally, the Audi was parked illegally1 a short distance from the location of the shooting, and contained occupants matching the description of the suspects of the nearby shooting. Thus, the detention of the vehicle and its occupants was permissible under Terry.

When defendant, an occupant of the legally detained Audi, attempted to flee and failed to heed police commands to stop, there was undoubtedly ample support for his detention. State v. Doss, 254 N.J. Super. 122, 129-30 (App. Div.), certif. denied, 130 N.J. 17 (1992). Not only was the suspicion valid based on his presence in the Audi and his matching the shooting suspects' description, but his flight provided additional evidence of consciousness of guilt. The gun defendant attempted to discard was properly recovered as part of a lawful arrest. Crawley, supra, 187 N.J. at 455.

Defendant argues that his flight did not attenuate the taint of the initial unconstitutional stop. 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). However, under these facts, an analysis under the attenuation doctrine is not required as the investigatory stop was lawful.

We next consider whether the pills and powdery substances in plastic bags were lawfully seized. "The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Payton v. New York, 445 U.S. 573, 587, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651 (1980). "The rationale for the plain view doctrine is that 'a police officer lawfully in the viewing area' need not 'close his eyes to suspicious evidence in plain view.'" State v. Reininger, 430 N.J. Super. 517, 535 (App. Div.) (quoting State v. Bruzzese, 94 N.J.210, 237 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)), certif. denied, __ N.J. __ (2013). In order to satisfy the plain view doctrine, the State must prove three criteria:

(1) the officer was "lawfully in the viewing area," (2) the officer discovered the evidence "'inadvertently,' meaning that he did not know in advance where the evidence was located nor intend beforehand to seize it," and (3) it was "immediately apparent" that the items "were evidence of a crime, contraband, or otherwise subject to seizure."

[State v. Earls, 214 N.J. 564, 592 (2013) (quoting Mann, supra, 203 N.J.at 341).]

Defendant argues that the initial stop was illegal; thus, the removal of Stevenson and Smith was impermissible, and the officer was not lawfully in a position to view the contraband subsequently seized from the Audi. We disagree.

As stated previously, the stop was a lawful Terry stop supported by reasonable suspicion. Further, the removal of the Audi's occupants was permissible, under the totality of the circumstances, as justified by officer safety. State v. Mai, 202 N.J. 12, 15 (2010). Moreover, the seizure of the drugs was permissible under the plain view doctrine. The officer had every right to be on the sidewalk next to the lawfully-detained vehicle. The officer discovered the evidence inadvertently when he shined his flashlight into the interior of the Audi. Based on the officer's training and experience, he immediately recognized the pills and small bags of white powdery substance to be contraband. Thus, the trial court properly ruled that the drugs were admissible as the seizure met the requirements of the plain view exception to the warrant requirement. Earls, supra, 214 N.J. at 592.

1 The illegal parking of the Audi would provide an independent justification for the Terry stop of the vehicle and its occupants. See State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990) ("[L]aw enforcement officials may stop motor vehicles where they have a reasonable or articulable suspicion that a motor vehicle violation has occurred.").