STATE OF NEW JERSEY v. BRANDON BEVERLY

NOT FOR PUBLICATION WITHOUT THE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.

BRANDON BEVERLY, a/k/a

TERRE STOKE, a/k/a JEROME

BAILEY,

Defendant-Appellant.

______________________________

March 5, 2015

Submitted October 21, 2014 Decided

Before Judges Reisner and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-12-02837.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Brandon Beverly, was indicted by a grand jury and charged with second-degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5b; fourth-degree resisting arrest, in violation of N.J.S.A. 2C:29-2a; and second-degree possession of a firearm by a convicted person, in violation of N.J.S.A. 2C:39-7b. Defendant moved before Judge Michele M. Fox to suppress the handgun in question. The motion was denied on June 15, 2012. Defendant then pled guilty, pursuant to a plea agreement, to second-degree unlawful possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5b. Defendant was sentenced to five years in prison, to serve three years without parole. This appeal followed. Defendant challenges the denial of his motion to suppress the handgun. For the reasons expressed below, we affirm.

Sergeant Jason Pike (Pike) of the Camden Police Department testified at the suppression hearing. On the evening of September 27, 2011,he was on duty patrolling an apartment complex. He was in uniform, but driving an unmarked police car. There had been a series of robberies of taxicabs in the area which followed a similar pattern. Specifically, an African American woman and one or two African American men would use another person's cell phone to call a cab. When the taxicab arrived, they would rob the taxicab driver. Some of these previous robberies had occurred in the apartment complex where Pike was patrolling.

On the night in question, Pike saw a taxicab stop on the road. He also saw the driver honk his horn repeatedly. At first, no one came out to meet the cab. Pike then noticed a woman peering through an apartment window. He parked on the street to observe, and an African American woman emerged from the apartment. The woman walked to the cab, "looking side to side, back and forth." The officer then observed defendant walking out of the apartment and also "looking side to side." Defendant walked with an unusual gait, and appeared to have a bulge in his right front pocket.

In an effort to avoid the attention of defendant and the woman, Pike drove around the block. He called for backup from other police officers and said, "I think [there] could be a robbery getting ready to happen." At that point, Pike had parked in the area of the taxicab with his lights off. As police officers arrived in marked police cars, the woman and defendant walked away from the taxicab. Pike testified that he approached defendant on foot and called out saying, "Camden police, let me talk to you for a minute." As he approached defendant, the officer had his hand on his gun which was still in his holster. At that point, Pike could see the bulge in defendant's pants more clearly and believed it was a weapon. After Pike called out, defendant ran. The officer proceeded to chase defendant yelling for him to stop. Pike had his gun drawn and yelled, "He has a gun. I'm going to shoot him."

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Defendant and a bystander collided and the officer saw defendant had taken out his gun. He heard something fall. When defendant was clear of the bystander, Pike fired his weapon, and defendant threw himself down and surrendered. The gun was found on the ground along the path where defendant had been chased.

On those facts, defendant moved to suppress the gun as evidence, by challenging the constitutionality of the stop and his subsequent arrest. The trial court denied defendant's motion, finding that Pike had a reasonable and particularized suspicion which justified an investigatory stop of defendant, and then the events that followed gave Pike probable cause to arrest him. On appeal, defendant presents the following argument, challenging the stop

POINT I

BECAUSE THE RECOVERY OF THE HANDGUN WAS THE PRODUCT OF DEFENDANT'S ILLEGAL ARREST, IT VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES. U.S. CONST. AMEND. IV, XIV; N.J. CONST. (1947) ART. I, PAR. 7.

"[A]n appellate court reviewing a motion to suppress 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)). However, a reviewing court is neither bound by, nor required to defer to a trial court's legal conclusions. State v. Gandhi, 201 N.J. 161, 176 (2010).

"A police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual had just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). The officer "must be able 'to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant' the intrusion." State v. Thomas, 110 N.J. 673, 678 (1988) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1879, 20 L. Ed. 2d at 906).

We are satisfied that the collective information known to Pike, together with his observations of defendant established reasonable suspicion for a Terrystop. SeeState v. Arthur, 149 N.J.1, 8 (1997) (discussing that when determining whether an officer's actions were reasonable, "consideration must be given to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." (internal quotations omitted)). When defendant fled from the scene and was observed as having drawn a gun, there was a clear legal basis for the stop and arrest.

Here, we find that the motion judge's factual findings are supported by sufficient credible evidence, and that the matter was correctly decided. We agree that Pike had a reasonable suspicion that justified his attempted stop of defendant. Judge Fox explained in detail her reasons for finding the stop and the subsequent arrest lawful. We agree with the reasons set forth in her clear and well-reasoned decision, and therefore affirm the denial of defendant's motion to suppress.

Affirm.