STATE OF NEW JERSEY v. NIZER LISTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NIZER LISTER a/k/a

NIZEL LISTER, NIZER S.

LISTER, NIZEL S. LISTER,

KEVIN BRANCH, and KEVIN S. BRANCH,

Defendant-Appellant.

January 9, 2017

 

Submitted October 26, 2016 Decided

 
Before Judges Alvarez and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-02-0624.

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

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Maura G. Murphy, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Nizer Lister pled guilty to unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), after his application for reconsideration of an August 2, 2013 decision denying his motion to suppress was also denied. In accordance with the negotiated agreement, he was sentenced on April 11, 2014, to six years imprisonment subject to three years of parole ineligibility. He now appeals. We affirm.

I.

Lindenwold Police Officer Anthony Pizzo testified at the suppression hearing that on November 15, 2012, at approximately 6:44 p.m., he was on patrol in the Arborwood section of Lindenwold in a marked car. He described the area as "one of our more violent[,]" adding that "several shootings, drug investigations, drug lockups, [and] homicides[]" had occurred there. Pizzo was responding to an anonymous call regarding the sound of gunshots, which information he was unable to corroborate and therefore described as "unfounded."

A few minutes later, Pizzo drove slowly past a vehicle backed into a parking spot; the three occupants slouched down as if to make the car appear empty. Pizzo called for backup, driving through back alleyways until it arrived. He explained: "[t]he reason I initially didn't stop the vehicle is due to the nature of the prior -- the incident prior to me seeing this vehicle was a shots fired call. I deemed this vehicle to be suspicious. So I was not going to approach the vehicle by myself."

Once additional patrolmen arrived at the scene, Pizzo pulled alongside the vehicle. Neither he nor the other officers blocked the car in.

As Pizzo approached the front passenger, he observed the rear passenger, later identified as defendant, engage in furtive movements. His attention was drawn from the front passenger to the rear because that passenger was "moving around suspiciously . . . ." Defendant's "body sort of [bladed] towards the door, and both of his hands were concealed down by the right side of his leg and the car door."

Pizzo reported his observations to the officer nearest to him, and asked defendant for basic information such as his name and reason for being in the neighborhood. Pizzo did not want to

draw any suspicions to [defendant]. If I was to immediately yank him out of the car, I wouldn't have had him at ease at that point. I don't want him to suspect that I believe he is possibly concealing a weapon. So initially I didn't take him right out of the vehicle until I felt it was tactically sound to remove him.

Defendant told Pizzo in response to his questions that he could not remember the name of the friend he was visiting, the person's address, or even the section of Arborwood in which he lived. Pizzo concluded that defendant "was hiding something." Additionally, the car was parked in a "drug set," which Pizzo defined as a location where drug dealers were active.

Pizzo asked defendant to step outside of the vehicle, place his hands on top of his head, and move to the rear. When the officer patted down the exterior of defendant's clothing, he felt a large bulge in his right front jacket pocket "consistent with a firearm." Once he looked, he saw a gun protruding from defendant's pocket.

The officer then yelled that defendant had a gun, and he attempted to retrieve it. Simultaneously, defendant turned away and fled. He was stopped within approximately thirty feet. When searched incident to the arrest, twenty-five bags of heroin were found in the front left pocket of his jacket. The handgun was a 44 magnum revolver, fully loaded with hollow-point bullets.1

Defendant testified during the suppression hearing that it was the driver, not he, who wanted to meet with a friend in the area. The driver's girlfriend was the front seat passenger. The car was parked for three or four minutes with the engine running and the interior lights on, when a patrol car drove past and flashed its signals. No more than two minutes later, two police cars came back, the officers approached, and Pizzo asked everyone what they were doing at that location. The driver, Richard O'Brien, said that they were waiting for a friend while defendant just sat in the rear seat looking at his phone.

Contrary to Pizzo, defendant testified that when asked to explain his presence, he responded that they were waiting for a friend of O'Brien named "Twan." When the officer demanded identification, defendant patted his pocket and asked the officer if he wanted to see it. Pizzo did not, but ordered him out of the vehicle. Nothing was said about him making suspicious movements.

Defendant was taken to the back of the car and immediately searched. After he discarded the weapon, Pizzo struck him twice on the head. When another officer asked Pizzo for the reason he hit defendant, Pizzo recited a code, at which point the other officer drew his weapon on the driver and passenger. Defendant also claimed that at some point after the incident he went to the hospital for treatment for his injuries, although no medical records were proffered.

On cross-examination, defendant admitted he ran, but said he did so only after he was struck. He then denied running, explaining he was never told he was under arrest and was just trying to get the officer to stop hitting him.

After the motion to suppress hearing, the judge placed detailed findings of fact on the record, including that Pizzo was a credible witness. She accepted Pizzo's testimony that defendant's conduct at the time of the encounter caused the officer to reasonably fear that defendant was attempting to conceal a weapon, justifying a Terry frisk, which in turn led to the lawful discovery of the handgun. Once defendant was arrested, the officer then had the right to conduct a further search of his person, and the discovery of the drugs was therefore also lawful.

The judge later denied reconsideration of her denial of the motion to suppress. Because defendant did not identify any legal authority or facts which were overlooked in the initial decision, there was no basis upon which to grant relief. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

Defendant on appeal raises the following issues for our consideration

POINT I

THE STOP AND SEARCH IN THIS MATTER VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHT AGAINST UNLAWFUL SEARCH AND SEIZURE. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. [], ART. 1, [ ] 7.

A. The Police Effected an Investigatory Detention Without the Requisite Reasonable Suspicion.

B. The Police Lacked Sufficient Basis for Conducting a Pat-Down Search After Removing the Defendant From the Car.

C. The Illegality of the Police Action Necessitates Suppression.

II.

In reviewing a motion to suppress, this court defers to the trial court's factual and credibility findings, "so long as those findings are supported by sufficient credible evidence in the record." State v. Handy, 206 N.J.39, 44 (2011) (quoting State v. Elders, 192 N.J.224, 243 (2007)).

Deference is afforded "because the 'findings of the trial judge . . . are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Reece, 222 N.J.154, 166 (2015) (quoting State v. Locurto, 157 N.J.463, 471 (1999)). "An appellate court should disregard those findings only when a trial court's findings of fact are clearly mistaken." State v. Hubbard, 222 N.J.249, 262 (2015). The legal conclusions of a trial court are reviewed de novo. Id. at 263.

III.

On appeal, defendant contends that the initial encounter with the officers was an investigatory detention, not a field inquiry, because the police vehicles surrounded the car. He asserts that Pizzo lacked the reasonable, particularized suspicion of criminal activity necessary for an investigatory detention. We agree with the trial court, however, that the initial encounter was a field inquiry, not an investigatory stop.

A field inquiry may be conducted "without grounds for suspicion." See State v. Rodriguez, 172 N.J.117, 126 (2002) (quoting State v. Maryland, 167 N.J.471, 483 (2001)). "A 'field inquiry' is the least intrusive encounter, and occurs when a police officer approaches an individual and asks 'if [the person] is willing to answer some questions.'" State v. Pineiro, 181 N.J.13, 20 (2004) (quoting State v. Nishina, 175 N.J.502, 510 (2003)). The officer must conduct the inquiry in a conversational manner that is not harassing or accusatory in nature. Ibid.(citing Nishina, supra, 175 N.J.at 510).

A request for identification does not escalate a field inquiry into an investigative stop unless the officer asks questions in a confrontational or overbearing manner or tone. See Rodriguez, supra, 172 N.J.at 126. Nor does it amount to detention if the officers do not prevent the person being asked questions from leaving. State v. Sheffield, 62 N.J.441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 37 L. Ed. 2d 121 (1973); see alsoState v. Crawley, 187 N.J. 440, 444-45, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006) (accepting that defendant was seized when police officer rolled down his passenger side window and called out, "Police. Stop. I need to speak with you"); State v. Williams, 410 N.J. Super. 549, 554-55 (App. Div. 2009) ("It is undisputed that defendant was subject to [an investigatory stop] probably when [the officer] ordered him to stop . . . ."), certif. denied, 201 N.J. 440 (2010).

The stop in this case began as a field inquiry. It was reasonable for Pizzo to suspect, as he slowly drove by, that some unlawful activity was afoot if the car's occupants were attempting to hide. But since he knew nothing more, Pizzo initially exercised extreme caution in his approach to the vehicle given that he was responding to a call reporting gunshots in a high crime area.

It was also reasonable for Pizzo to wait for backup, for his own protection, before taking any action. Pizzo initially spoke to the front seat passenger and only turned to defendant when he saw him moving as if to hide something. The initial questions were neither confrontational nor overbearing. Pizzo also testified, contrary to defendant, that the police vehicles were alongside the car and that it could have been driven away.

Moreover, defendant could have refused to answer questions, left the vehicle, and walked away. "[A] police request for identification does not, by itself, constitute a seizure or detention within the meaning of the Fourth Amendment[.]" State v. Sirianni, 347 N.J. Super. 382, 390 (App. Div.), certif. denied, 172 N.J. 178 (2002). That alone "does not escalate a field inquiry into an investigative stop[.]" State v. Daniels, 393 N.J. Super. 476, 484 (App. Div. 2007). It was not until defendant failed to give the officer satisfactory responses, and made furtive movements, that the field inquiry became an investigatory stop.

An investigatory stop, or Terry stop, is valid when based on specific and articulable facts that, in view of the officer's experience and knowledge, and taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity. Nishina, supra, 175 N.J.at 510-11 (citations omitted); see alsoTerry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1878-80, 20 L. Ed. 2d 889, 904-06 (1968). Reasonable suspicion carries a lesser burden of proof than probable cause because it requires less quantitative content and "can arise from information that is less reliable than that required to show probable cause." State v. Zapata, 297 N.J. Super.160, 171-72 (App. Div. 1997), certif. denied, 156 N.J.405 (1998) (quoting Drake v. Cty. of Essex, 275 N.J. Super.585, 589-90 (1994)). The State's burden is by a preponderance of the evidence. Pineiro, supra, 181 N.J.at 19-20.

Facts that might seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate. It is only necessary for the officer to hold an objectively reasonable belief that the collective circumstances are consistent with criminal conduct. State v. Stovall, 170 N.J.346, 368 (2002) (citing Statev. Citarella, 154 N.J.272, 279-80 (1998)).

Here the circumstances seamlessly flowed from a field inquiry to an investigatory stop. After initially seeing all the occupants in the car act suspiciously, and seeing defendant's later furtive movements and hearing his evasive responses, Pizzo had an objectively reasonable belief that all the circumstances were consistent with criminal conduct. Thus Pizzo had the authority to remove defendant from the car and pat him down for his own safety.

Depending on the totality of the circumstances, if an officer observes a bulge, which upon being further explored during a lawful pat-down appears to be a weapon, the officer may seize the object. State v. Roach, 172 N.J. 19, 29 (2002). This does not mean "every time an officer pats down a [suspect] and cannot ascertain what he is feeling, he is free to seize the item." Ibid. The test is whether based on the totality of the circumstances, retrieving the object from the suspect's person is objectively reasonable. Ibid. Here, having felt the bulge at defendant's pocket, the officer looked and saw the gun, justifying his removal of the weapon and arrest of defendant. The motion to suppress was therefore properly denied. There was no merit to the reconsideration motion.

IV.

Defendant also contends that Pizzo lacked any reasonable suspicion which warranted the pat-down search. He bases this contention on the fact that Pizzo described the initial report of gunshots as "unfounded." But the officer explained he used the term "unfounded" only because he was unable to confirm with anyone on the street that gunshots had actually been fired. He made no personal observations that corroborated the call.

"[A]n officer must have a 'specific and particularized basis for an objectivelyreasonable suspicion that defendant was armed and dangerous.'" Roach, supra, 172 N.J.at 27 (emphasis in original) (citation omitted). "[T]he same conduct that justifies an investigatory stop may also present the officer with a specific and particularized reason to believe that the suspect is armed." State v. Privott, 203 N.J.16, 30 (2010) (citation omitted). The existence of reasonable suspicion to frisk "is based on the totality of the circumstances." Roach, supra, 172 N.J.at 27 (citing Valentine, supra, 134 N.J.at 546).

In assessing the totality of the circumstances, courts consider a number of factors, including an officer's experience and knowledge, Pineiro, supra, 181 N.J.at 22; the area's high-crime status, Valentine, supra, 134 N.J.at 543, 547, 553-54; and a suspect's nervousness and furtive gestures, in conjunction with other objective facts, see, e.g., Elders, supra, 192 N.J.at 250 ("To be sure, nervousness and conflicting statements, along with indicia of wrongdoing, can be cumulative factors in a totality of the circumstances analysis that leads to a finding of reasonable and articulable suspicion of ongoing criminality."); State v. Lund, 119 N.J.35, 48 (1990); Daniels, supra, 264 N.J. Super.at 167 (holding furtive movements of reaching under seat and towards console, plus denial of movements and reasonable belief car was stolen, created an objective concern for safety sufficient to justify protective search).

The totality of the circumstances here leads us to conclude that the Law Division judge's assessment was correct. The context of a call about gunshots heard in a high crime area, the behavior of the vehicle's occupants as a group, and defendant's own furtive movements and unsatisfactory responses, established the particularized basis justifying a Terrypat-down. The officer had reason to be concerned for his safety and did not draw alongside the vehicle until he had backup. Pizzo's cautious approach to removing defendant from the car confirms that he had an objectively reasonable belief that defendant might be armed. That he was unable to corroborate the initial call about gunshots did not make illegitimate his concern about defendant's possession of a weapon. Thus the pat-down was also lawful.

V.

Lastly, defendant contends that the improper conduct of the police warrants suppression of the evidence as there was no basis either for a field inquiry or an investigative stop. We agree with the Law Division judge that the constitutional preference for a warrant has been overcome in this case. SeePineiro, supra, 181 N.J.at 19; State v. Ravotto, 169 N.J.227, 236 (2001). The officer properly attempted to conduct a field inquiry, which in seconds morphed into an investigatory stop. The Terry frisk fell within constitutional boundaries, and therefore the subsequent discovery of the handgun was proper. Once the handgun was seized and defendant arrested, the search leading to the discovery of the drugs was also legally justified.

Affirmed.

1 The indictment charged defendant, in addition to the count to which he entered a guilty plea, with third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1); possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-7; second-degree weapons possession during controlled dangerous substance offenses, N.J.S.A. 2C:39-4.1(a); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a); fourth-degree possession of hollow nosed bullets, N.J.S.A. 2C:39-3(f)(1); and second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b)(1).