Thisopinion 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 STATE OF NEW JERSEY v.

NOT FOR PUBLICATION WITHOUT THE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.

TYREE J. ROBINSON,

Defendant-Appellant.

January 5, 2017

Submitted November 16, 2016 Decided

 
Before Judges Alvarez and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 14-12-0670.

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

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Thomas A. DeSimone, Assistant Prosecutor, on the brief).

PER CURIAM

Following denial of his motion to suppress evidence, defendant Tyree J. Robinson entered a guilty plea to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). In accordance with his plea agreement, on July 10, 2015, defendant was sentenced to a minimum mandatory five-year term of imprisonment. Defendant now appeals, and we affirm.

At the suppression hearing, the State's principal witness was Richard Ware, a Salem County Prosecutor's Office investigator. On August 11, 2014, Ware was assigned to Salem City "to assist the patrol division in general quality of life, in addition to a real surge there in gun violence." While on patrol in a marked car with other officers, he saw three teenagers walking side-by-side in the northbound lane of a two-lane street. Although the temperature was seventy-five degrees that day, the men were wearing long pants and long-sleeved shirts and jackets. The officers stopped to issue summonses for a violation of N.J.S.A. 39:4-34, which makes it unlawful for a pedestrian to walk along a roadway "[w]here sidewalks are provided[.]" During the stop, Ware noticed that defendant had pulled out his cell phone. Defendant bent at the waist at an awkward angle over it, purportedly calling his mother. Defendant's voice was unusually high-pitched, and his leg was shaking uncontrollably.

Defendant "bladed" his right side away from the officer, who then noticed a bulge at defendant's right front hip in the waistline area. Ware demonstrated this position at defense counsel's direction.

Salem City Police Department Detective Michael Pelura had by then arrived at the scene. Ware told Pelura that he suspected the bulge at defendant's waistband was a weapon. Ware moved from behind defendant to the front "to cover" Pelura while Pelura patted defendant down.

Pelura's testimony mirrored Ware's. Immediately after Ware spoke to him, he told defendant he was going to pat him down for officer safety. Defendant objected, stating that Pelura had no right to search him. Pelura placed his hand on defendant's right side and immediately felt the handle of a gun, which he removed. It was a 40 caliber handgun, loaded with six rounds in the magazine and one in the chamber.

In ruling on the motion, the judge noted that summonses were issued to all the men, including defendant. Although there was nothing unusual about "what the gentlemen were wearing, by how they were walking, [and] by how they responded and interacted with the police officers," the officers had the authority to stop the group and issue summonses for a clear violation of the law, which although very minor, occurred in their presence.

The judge found the officers credible. Therefore, he credited Ware's testimony that because of defendant's unusual body position while he used his cell phone, Ware's attention was drawn to defendant's shaking leg and, eventually, the bulge at defendant's waistband. As the judge observed: "it is not unreasonable for the officers to be vigilant in keeping their eyes on the folks that they're dealing with, for their own safety, and the safety of others." The judge thus concluded that defendant's "posture, his blading, and then, what Officer Ware was able to see in [defendant's] waistband[,]" created reasonable suspicion. Having found that defendant's behavior and appearance gave rise to a reasonable articulable suspicion that justified a Terry1 frisk, Pelura's pat-down was lawful, and once he felt the gun handle, his removal of the weapon was also lawful.

On appeal, defendant raises the following point

POINT I

THE TRIAL JUDGE ERRED IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS THE EVIDENCE BECAUSE THE OFFICERS' DECISION TO STOP ROBINSON WAS NOT OBJECTIVELY REASONABLE AND THERE WAS NO REASONABLE SUSPICION TO JUSTIFY THE PAT-DOWN SEARCH OF [DEFENDANT'S] PERSON.

A. The Stop Was Not Objectively Reasonable.

B. The Officers Did Not Have A Well-Grounded Belief That [Defendant] Was Armed And Dangerous.

C. Conclusion.

Our review of a trial judge's ruling on a suppression motion is deferential. We "must uphold the factual findings underlying the [judge'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) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)).

Generally, in order for a search or seizure to be constitutionally permissible, a warrant must first be obtained, based on probable cause. State v. Maryland, 167 N.J. 471, 482 (2001). This requirement springs from the Fourth Amendment of the United States Constitution, and Article 1, Paragraph 7, of the New Jersey Constitution, which protect citizens against unreasonable searches and seizures. Among the exceptions to the warrant requirement is a protective frisk for officer safety. See State v. Roach, 172 N.J. 19, 27 (2002). In order for such warrantless searches to be lawful, officers must have an "objectively reasonable suspicion that [the suspect] was armed and dangerous." Roach, supra, 172 N.J. at 27 (emphasis in original). The search must be limited to a minimally invasive pat-down of the suspect's outer clothing for the focused purpose of determining whether he or she has a weapon on his or her person. Ibid.

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. Id. at 29. 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.

As we have said, the Law Division judge found the officers' testimony to be credible. We review such credibility findings deferentially, as we do his factual findings on a motion to suppress. State v. Hubbard, 222 N.J. 249, 262-64 (2015).

So long as officers have a particularized basis, which must be objectively reasonable, that a suspect is armed, officers may conduct a protective search. Roach, supra, 172 N.J. at 27. Officer safety is paramount. Id. at 28.

The stop was objectively reasonable the three pedestrians were blocking the roadway. See N.J.S.A. 39:4-34. Knowing there had been a surge in shootings in the city, it was reasonable for Ware to have heightened concern about the bulge he saw in light of defendant's unusual conduct at the stop. The totality of the circumstances gave the officers a reasonable and particularized suspicion to believe that defendant was armed. The bulge was immediately recognized by Pelura as a weapon. Hence, the protective frisk was constitutionally valid. The ensuing seizure of the weapon was also constitutionally permissible.

Affirmed.

1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).