STATE OF NEW JERSEY v. ALI W. IBRAHIM-VANN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4240-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALI W. IBRAHIM-VANN,

a/k/a ALI W. VANN,

a/k/a ALI W. IBRAHIM,

a/k/a ALI IBRAHIMVANN,

a/k/a ALI W. IBRAHIMVANN,

a/k/a ALI VANN,

Defendant-Appellant.

_____________________________________

June 3, 2014

Argued March 24, 2014 Decided

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-05-01388.

Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Watson, of counsel and on the letter brief).

Andrew Robert Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Burroughs, of counsel and on the brief).

PER CURIAM

Defendant Ali W. Ibrahim-Vann appeals from the judgment of conviction dated March 27, 2013, and challenges the denial of his motion to suppress evidence obtained when he was stopped by the police. We affirm.

Defendant was charged under Essex County Indictment No. 12-05-01388-I, with third-degree theft by knowingly receiving movable property, specifically a .357 Taurus handgun, N.J.S.A. 2C:20-7 (count one); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); unlawful possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f) (count three); and unlawful possession of a prohibited weapon, N.J.S.A. 2C:39-3(e) (count four).

Thereafter, defendant filed a motion to suppress evidence. The trial court conducted an evidentiary hearing on the motion. At the hearing, Officer Sanford Davis testified that, on February 24, 2012, the Irvington Police Department received a call from a lounge, indicating that an individual there had a gun.

Davis said that various police units responded to the area.

Davis heard the radio transmission from an officer on the scene, who indicated that the suspect was wearing black clothing and a black cap with "Boss" written on it in large letters. The transmission also indicated that the suspect was walking towards the Maple Gardens complex on Marshall Street. Davis went to Maple Gardens.

There, Davis observed the "described suspect out front." When the suspect saw Davis's marked patrol car, he walked inside the gate of the complex. Davis directed the security officer in the booth to open the gate. Davis stopped the suspect, who he identified as defendant. Davis frisked defendant. He recovered a black .357 handgun loaded with hollow-nose bullets.

On cross-examination, Davis acknowledged that he did not know who made the initial call to the police. Davis said he stopped defendant because defendant matched the description from the call. Davis admitted that he did not have any other suspicion concerning defendant.

Davis was shown the incident report that he prepared, which was dated February 24, 2012. The report identified the person who had provided the police with the information about the gun. He said the person was a bartender at the lounge from which the call was made.

Defendant testified that he resides at Maple Gardens. He said that entry to the complex is through a gate with a guardhouse. He said persons entering the complex require an access card and they must go through security. Defendant also stated that no one enters the complex unless they are authorized to do so by persons living there. He said that, on the date in question, he did not invite anyone to enter.

The motion judge filed a written opinion dated February 4, 2013. The judge found that, based on the "citizen tip[,]" the "State has demonstrated a reasonable articulable suspicion to support the investigative detention of [defendant]." The judge explained that the suspicion was "based on the detailed information received from the citizen and the matching description and location provided with the officer's own observations."

The judge noted that Officer Davis had been dispatched to the Maple Gardens housing complex

after a citizen called 911 to report seeing a man with a gun. The caller phoned 911 from a women's lounge, where she saw a man with a handgun. The caller stated that the man with the gun left the women's lounge and was walking towards Maple Gardens. According to the police report, the citizen, identified by Davis at the hearing and in his incident report as Miss [Smith1] at Wilma's Lounge, described the man as a black male wearing all black clothing and a black baseball cap with the word "boss" in bold silver lettering on the front. Officer Davis was then dispatched to the area where the suspect was last seen.

From these facts, the judge determined that "this is not a case where there is an anonymous tip, because the tip came from a citizen who called the police. Unlike an anonymous tip, a citizen tipster is not an unknown source of information without any 'indicia of reliability.'" The court concluded that "[t]he police in this case acted in response to a citizen's tip that was phoned into police." With the citizen tip providing justification for the stop and frisk, the motion to suppress evidence was denied. The judge entered an order memorializing his decision.

On February 4, 2013, defendant pled guilty to count two, charging unlawful possession of the weapon, and count three, possession of hollow-nose bullets. The State agreed to the dismissal of the other counts.

The judge sentenced defendant to five years of imprisonment, with a three-year period of parole ineligibility, on count two; and eighteen months on count three. The judge ordered that the sentences be served concurrently. The court also imposed appropriate fines and penalties. This appeal followed. Defendant raises the following arguments:

POINT I

THE STOP AND FRISK, BASED SOLELY ON A CITIZEN TIP THAT A MAN IN BLACK CLOTHING HAD A GUN, WAS UNCONSTITUTIONAL. ALTERNATIVELY, A REMAND IS NECESSARY TO RESOLVE WHETHER THE POLICE ACTED UPON A CITIZEN'S TIP OR A TIP THAT WAS THE FUNCTIONAL EQUIVALENT OF AN ANONYMOUS TIP.

We disagree with defendant's arguments, and affirm the denial of defendant's motion to dismiss.

Under the FourthAmendment to the United States Constitutionand Article I, Paragraph 7 of the New Jersey Constitution, "searches and seizures conducted without warrants issued upon probable cause are presumptively unreasonable and therefore invalid."State v. Elders, 192 N.J.224, 246 (2007)(citing State v. Pineiro, 181 N.J.13, 19 (2004)). The State must establish proof, by a preponderance of the evidence, that a warrantless search or seizure is justified by a recognized exception to the warrant requirement. Ibid.(citing Pineiro, supra, 181 N.J.at 19-20).

An investigatory stop or detention is one of the recognized exceptions to the warrant requirement. Id.at 246-47 (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). Such a stop is permitted only "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." Id.at 247 (quoting Terry, supra, 392 U.S.at 21, 88 S. Ct.at 1880, 20 L. Ed.2d at 906).

"To determine whether the State has shown a valid investigative detention requires a consideration of the totality of the circumstances." Ibid.

No mathematical formula exists for deciding whether the totality of the circumstances provided the officer with articulable or particularized suspicion that the individual in question was involved in criminal activity. Such a determination can be made only through a sensitive appraisal of the circumstances in each case. In each case, the reasons for such particularized suspicion will be given careful scrutiny by the Court. A seizure cannot . . . be justified merely by a police officer's subjective hunch.

[Ibid. (quoting Pineiro, supra, 181 N.J. at 27).]

An informant's tip may provide justification for an investigative stop. State v. Lakomy, 126 N.J. Super.430, 435-36 (App. Div. 1974). "Usually the reliability of anonymous informers, who are themselves criminals in many instances, must be established." State v. Davis, 104 N.J.490, 506 (1986). However, information provided by a citizen is treated differently. Ibid.

"There is an assumption grounded in common experience that such a person is motivated by factors that are consistent with law enforcement goals." Ibid."Consequently, an individual of this kind may be regarded as trustworthy and information imparted by him to a policeman concerning a criminal event would not especially entail further exploration or verification of his personal credibility or reliability before appropriate police action is undertaken." Lakomy, supra, 126 N.J. Super. at 435.

An appellate court should uphold a trial court's factual findings on a motion to suppress when those findings are "supported by sufficient credible evidence in the record." Elders,supra, 192 N.J.at 243 (citing State v. Locurto, 157 N.J.463, 474 (1999)). We need not, however, defer to a trial court's interpretation of the law. State v. Vargas, 213N.J. 301, 327 (2013).

Defendant argues that Officer Davis did not have sufficient information to warrant the investigatory stop. He contends that the tip which led to the stop was from an anonymous person, and this was insufficient to justify the stop and resulting frisk. We do not agree.

Here, the trial court found that Officer Davis had a reasonable and well-grounded basis to believe that defendant may have committed a crime and was armed with a weapon, based on the dispatch call and information that other officers on the scene imparted to him. Defendant's contention that Davis could not rely upon the tip relayed by the dispatch call is without merit. See State v. Crawley, 187 N.J. 440, 457 (noting that, if the dispatcher has adequate facts from an informant which establish reasonable suspicion that the defendant was armed, the dispatcher could delegate the actual stop to the officers in the field), cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006).

Moreover, the dispatch call upon which Davis relied was based on a report received from a concerned citizen. Such a report "is not 'viewed with the same degree of suspicion that applies to a tip by a confidential informant' or an anonymous informant.'" State v. Amelio, 197 N.J. 207, 212 (2008) (quoting Wildoner v. Borough of Ramsey, 162 N.J. 375, 390 (2000)).

Defendant contends the tip should be treated as an unreliable, anonymous tip. He says that Davis only testified that the tip was from a person in "a woman's lounge." Defendant notes, however, that the name of the person who reported this information appeared in Davis's police report.

Moreover, the record indicates that the report came from a bartender in the lounge, who was later identified by name. We are therefore convinced that the motion judge did not err by considering the tip as having been provided by an ordinary citizen, as to whom no further demonstration of reliability was required, and the tip gave Davis reasonable suspicion of criminal activity.

Indeed, the facts in this case are analogous to those in Lakomy, where we held that a citizen-informant's tip provided justification for the police to conduct a stop and frisk. Lakomy, supra, 126 N.J. Super. at 437. In Lakomy, police officers received a dispatch call indicating a man with a gun was at a local business. Id.at 432.

After arriving at that location, an officer of the company told the police that one of the company's employees had the gun. Ibid. The company's officer led the police to the suspect's location, where the police stopped and frisked the defendant and found a pistol in his possession. Ibid.The trial court granted the defendant's motion to suppress, but we reversed. Id. at 432, 437.

The defendant in Lakomyargued that the informant's tip was not "acceptable as a basis for the police action." Id.at 434. We disagreed noting that the tip had come from a citizen-informer who had "no apparent motive to fabricate." Id. at 436. In fact, the citizen-informer was similar to a victim or complainant because of the risk posed by the defendant carrying a gun. Ibid.

By assisting the police in their effort to apprehend the defendant, the informant had "exposed himself to reprimand or personal accountability." Ibid.We concluded that the informant's tip was sufficiently reliable to warrant the search and seizure that occurred. Id.at 436-37. That reasoning applies here.

Defendant also argues that the tip in this case is the "functional equivalent" of the tip about a "man with a gun" at issue in Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). In J.L., police received an anonymous call that a young black man was at a particular bus stop, wearing certain clothes and carrying a gun. Id.at 268, 120 S. Ct.at 1377, 146 L. Ed. 2d at 258-59. Nothing else was known of the citizen. Id.at 268, 120 S. Ct.at 1377, 146 L. Ed. 2d at 259.

The police responded to the bus stop, spotted the individual with the particular clothing, and conducted a stop and frisk which revealed a gun. Ibid. The Supreme Court ruled that the anonymous tip was not reliable and the resulting stop and frisk were unconstitutional. Id. at 274, 120 S. Ct. at 1380, 146 L. Ed. 2d at 262. The Court explained that, to establish reasonable suspicion of criminal activity, a tip must be "reliable in its assertion of illegality, not just in its tendency to identify a determinate person." Id. at 272, 120 S. Ct. at 1379, 146 L. Ed. 2d at 261.

The facts in J.L. are different from the facts in this case. Here, the officer did not act on the basis of an anonymous tip. The tip came from a citizen, who was available for further questioning when the police arrived at the women's lounge. The citizen provided detailed information regarding the suspect's attire and location. Because of the citizen's availability for additional questioning and her disclosure of information to police officers at the scene, the tip was not anonymous and it was sufficiently reliable to justify the stop and frisk.

Defendant additionally argues that, if the court finds that the stop was constitutional, it should remand the matter to the trial court for a hearing to determine whether the tip was from a citizen or whether it was tantamount to an anonymous tip. Defendant notes that, after the trial court denied his motion, he moved for a rehearing on the ground that the police reports contradicted the court's finding as to the nature of the tip. According to defendant, the police reports indicated that when the tip first was made, the police did not know the source of the tip, and they only learned the source after his arrest and further investigation.

These arguments are unavailing. As we have explained, the tip came from a person at the lounge. Even if the officers did not immediately record the name of the individual who made the report, they reasonably treated the tip as coming from a reliable citizen. The person who provided the police with the information was available for further questioning. Indeed, she later gave the police her name and it appeared in the police report.

We have considered defendant's other arguments and find that they are without sufficient merit to warrant comment. R.2:11-3(e)(2).

Affirmed.

1 We have used a fictitious name for the citizen to protect her privacy.