STATE OF NEW JERSEY v. LEVI N. ADAMS
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2400-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEVI N. ADAMS,
Defendant-Appellant.
____________________________
Submitted March 8, 2018 – Decided May 21, 2018
Before Judges Simonelli and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
Nos. 16-01-0049 and 16-02-0095.
Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel S. Rockoff, Assistant
Deputy Public Defendant, of counsel and on the
brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Adam D. Klein, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Following the denial of his motions to suppress, defendant
Levi N. Adams pled guilty under Indictment No. 16-01-0049 to third-
degree possession of a controlled dangerous substance (CDS),
N.J.S.A. 2C:35-10(a)(1), and under Indictment No. 16-02-0095 to
second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b)
and
N.J.S.A. 2C:58-4. On appeal, defendant raises the following
arguments:
POINT I
THE COURT ERRED BY DENYING [DEFENDANT'S]
MOTIONS TO SUPPRESS. U.S. CONST., AMENDS. IV,
XIV; N.J. CONST., ART. I, [¶] 7.
A. The Trial Court Erred By Denying
[Defendant's] Motion To Suppress Evidence
Related To Indictment [No.] 16-01-[00]49.
B. The Trial Court Erred By Denying
[Defendant's] Motion to Suppress
Evidence Related To Indictment [No.] 16-
02-95.
We reject these arguments and affirm.
I.
The Motion to Suppress Evidence
Related to Indictment No. 16-01-0049
At approximately 2:10 p.m. on August 19, 2015, Sergeant Shawn
Matos and Detective Phillips from the City of Millville Police
Department were patrolling in an unmarked patrol car in the area
of Buck and Green Streets in search of a burglary suspect. The
area is a high-crime, high drug area known for open-air narcotics
transactions. The officers saw defendant straddling a bicycle and
interacting with a Caucasian female. Matos knew defendant from a
2 A-2400-16T3
previous arrest in the same area in 2010 for possession of weapons
(several large kitchen knives and a hatchet). Matos had also
recently received information from a confidential informant (CI),
with whom he was personally familiar, that defendant kept CDS on
his person for the purpose of illegal drug distribution.
As the officer drove by defendant, Matos observed him and the
female exchange what appeared to be small items in a hand-to-hand
transaction. Based on his education, training, and experience,
Matos believed he had observed a narcotics transaction. Defendant
and the female separated when they saw the officers' patrol car
make a U-turn. While driving away on his bicycle, defendant made
a backhand waive to the female to leave the area. Defendant rode
away on Green Street and the female walked in the opposite
direction. The officers decided to follow defendant and
investigate what they had observed.
Defendant rode into a deli parking lot on Green Street,
followed by the officers. As defendant dismounted his bicycle,
Matos exited his vehicle, ordered defendant to stop, and told
defendant what he had observed. Defendant appeared nervous while
speaking to Matos. Based on his prior encounter with defendant
in 2010, Matos decided to pat down defendant for his safety to
make sure defendant had no weapons on him.
3 A-2400-16T3
Matos told defendant he was going to pat him down for safety
reasons and asked him to place his hands on his head. Defendant
complied. Matos then went around to defendant's back and saw a
whitish plastic baggie protruding from defendant's left pocket.
Based on his training and experience, Matos believed the baggie
contained a CDS. When Matos told defendant he saw the baggie,
defendant attempted to place his left hand in his left pocket.
Matos told defendant not to move, and defendant complied. Matos
then secured the baggie, which was later found to contain a CDS.
Matos patted down defendant and found no weapons on him. Matos
then arrested defendant, checked for warrants, and found defendant
had nine outstanding warrants for his arrest.
A grand jury indicted defendant under for third-degree
possession with the intent to distribute a CDS within 1000 feet
of school property,
N.J.S.A. 2C:35-7; third-degree possession with
intent to distribute heroin,
N.J.S.A. 2C:35-5(b)(3); third-degree
possession of heroin, N.J.S.A. 2C:35-10(a)(1); second-degree
possession with intent to distribute heroin while on or within 500
feet of the real property comprising a public housing facility, a
public park, or a public building,
N.J.S.A. 2C:35-7.1(a); and
third-degree possession of a CDS (cocaine),
N.J.S.A. 2C:35-
10(a)(1).
4 A-2400-16T3
Defendant filed a motion to suppress, arguing the police
lacked a reasonable and articulable suspicion to stop and search
him. In an oral opinion, Judge Cristen P. D'Arrigo made detailed
factual findings and concluded as follows:
The standard is reasonable [and]
articulable suspicion of a crime. In this
particular case, in the totality of the
circumstances, [Matos] had prior information
that [defendant] was involved in the exchange
or sale of narcotics, that he carried the
narcotics on him. [Matos] observed
[defendant] at the corner in a hand[-]to[-]
hand transaction with another individual while
[Matos] was driving in a car that everybody
knows is a police car.
As [Matos] drives by and as he's watching
[defendant and the female], they separate. As
the car goes to turn around [Matos] notices
[defendant] waves the female off, don't come
near. All of these are elements of reasonable
[and] articulable suspicion of a drug
transaction having just occurred. At that
point, an investigative detention is
authorized. There is reasonable [and]
articulable suspicion authorizing the police
officers to approach the [d]efendant.
When [Matos] approaches he announces that
he's going to give a pat down predicated upon
his prior experience [with defendant]. Under
the circumstances here, having arrested an
individual at night with knives and a hatchet
on him, it is reasonable to perform a Terry[1]
pat down for officer safety, but that is a red
herring. That's not what happened here
because before that occurs, [Matos] observes
the white plastic ba[ggie] in [defendant's]
pocket.
1
Terry v. Ohio,
392 U.S. 1, 27 (1968).
5 A-2400-16T3
At that point there exists probable cause
to believe that [the] bag[gie] contains CDS.
The totality of the circumstances, the prior
information, the high crime area, the hand[-
]to[-]hand transaction, the location of a
bag[gie] consistent with how individuals who
sell narcotics store them on their person all
creates probable cause to seize the bag[gie]
from [defendant's] pocket.
At that point when [Matos] pulls the
bag[gie] out and sees what it is, [there was]
probable cause for [defendant's] arrest. No
Terry search occurred. The item was not
recovered as a result of a Terry frisk.
In the alternative, Judge D'Arrigo found that even if Matos
had patted down defendant and found no baggie or weapons, he would
have discovered defendant had active warrants and a search incident
to defendant's arrest for those active warrants would have
inevitably led to the discovery of the plastic baggie.
The Motion to Suppress Evidence
Related to Indictment No. 16-02-0095
At 6:30 p.m. on November 4, 2015, Millville Police Officers
Joshua Smith and Colt Gibson received a dispatch call about a
shoplifting incident at a store located in an area for known for
weapons, CDS, and violent crimes. A store employee described the
suspect as a "large" African-American male wearing red pants and
a black hooded sweatshirt. Gibson testified that when he responded
to the area, he saw an African-American male wearing red pants and
a white T-shirt walking on the street in close proximity to the
6 A-2400-16T3
store. When Gibson, who was in uniform, approached the individual,
he sped up walking and then "took off running."
A passerby told Gibson the individual in the red pants ran
to a residence. When Gibson arrived there, he saw that other
officers had detained the individual, later identified as
defendant, after he emerged from the residence. Defendant was
wearing red pants and a white T-shirt. Gibson knew defendant from
previous arrests, including the arrest in 2010 for possession of
weapons. Another officer conducted a Terry frisk for weapons and
found only a crack pipe. The police arrested defendant and
handcuffed him. Smith then searched defendant before placing him
in a patrol car and found a handgun in his waistband and more CDS
on his person. The police later determined defendant was not the
shoplifter.
A grand jury indicted defendant for second-degree possession
of an handgun without a having a permit to carry,
N.J.S.A. 2C:39-
5(b), and third-degree possession of heroin,
N.J.S.A. 2C:35-
10(a)(1). Defendant filed a motion to dismiss, arguing the stop
was illegal because totality of the circumstances did not amount
to reasonable suspicion for the stop or probable cause for his
arrest and search.
In an oral opinion, Judge D'Arrigo made detailed factual
findings and concluded as follows:
7 A-2400-16T3
Now, the question becomes whether or not
there is a reasonable and articulable
suspicion that would cause Officer Gibson to
approach the individual. Now, at this point
in time much has been made by the [d]efense
of the word "large" in the description of the
perpetrator of the shoplifting. The problem
with the word large is it's not very specific.
Large tall? Large wide? What does large
exactly mean?
The [d]efendant in this case has been
represented to be 5'4". I have no reason the
disbelieve that he's 5'4". I wouldn't
describe him as a tall individual, but in the
midst of an investigation there are
significant indications that would cause
. . . [Gibson] to make an investigative
detention of the individual involved and they
are specifically, [n]umber [o]ne, the location
where the encounter took place. [Gibson's]
. . . interactions not only with the
individual he encountered who he believed to
be the suspect who he was pursuing, but also
the [passerby] her came across who directed
him towards the residence from which emerged
[defendant].
Also, and I think the key factor is [the]
red pants. Now if somebody is wearing blue
jeans and is described wearing blue jeans or
dark shorts or something aspecific like that
might not be sufficient. However, red pants
is not your everyday attire. So the fact that
the individual who exited the building where
the individual with the red pants who [Gibson]
was pursuing had entered was sufficient to
cause [Gibson] to investigatively detain
[defendant].
. . . I find that the initial
investigative detention of [defendant] was
lawful. Under the totality of the
circumstances facing [Gibson] he could not
simply let this individual walk away without
8 A-2400-16T3
at least inquiring of him as part of the
investigation of the shoplifting of whether
or not he was the individual involved. There
was not a sufficient description that could
exclude him. There were certain indications
that he could be included including the fact
of the location, the red pants and . . . the
information [Gibson] received from the
[passerby] on the street.
Judge D'Arrigo next addressed whether or not there was
sufficient cause to believe that defendant might be armed to
conduct a Terry pat down. The judge found Gibson was familiar
with defendant from the prior arrest in 2010 and knew therefrom
that defendant had been in possession of a weapon. The judge also
found Gibson arrested defendant after finding the crack pipe and
did not complete the pat down. Rather, another officer completed
the pat down after defendant's arrest and discovered the handgun
on defendant's person. The judge concluded that Gibson's prior
knowledge of defendant's possession of weapons justified a Terry
pat down, and the search incident to defendant's arrest was
supported by the requisite levels of either articulable suspicion
or probable cause.
II.
On appeal, defendant reiterates that the police lacked a
reasonable and articulable suspicion that he engaged in criminal
activity, and lacked probable cause to seize and search him. We
disagree.
9 A-2400-16T3
Our Supreme Court has established the standard of review
applicable to consideration of a trial judge's ruling on a motion
to suppress:
Appellate review of a motion judge's factual
findings in a suppression hearing is highly
deferential. We are obliged to uphold the
motion judge's factual findings so long as
sufficient credible evidence in the record
supports those findings. Those factual
findings are entitled to deference because the
motion judge, unlike an appellate court, has
the "opportunity to hear and see the witnesses
and to have the 'feel' of the case, which a
reviewing court cannot enjoy."
[State v. Gonzales,
227 N.J. 77, 101 (2016)
(citations omitted).]
We will "reverse only when the trial court's determination is so
clearly mistaken that the interests of justice demand intervention
and correction." State v. Gamble,
218 N.J. 412, 425 (2014)
(citation omitted). Applying these standards, we discern no
reason to disturb Judge D'Arrigo's rulings.
"[A] police officer may conduct an investigatory stop of a
person if that officer has 'particularized suspicion based upon
an objective observation that the person stopped has been or is
about to engage in criminal wrongdoing.'" State v. Coles,
218 N.J. 322, 343 (2014) (quoting State v. Davis,
104 N.J. 490, 504
(1986)). "The stop must be reasonable and justified by articulable
facts; it may not be based on arbitrary police practices, the
10 A-2400-16T3
officer's subjective good faith, or a mere hunch." Ibid. The
standard for an investigatory stop "is less than the probable
cause showing necessary to justify an arrest." State v. Shaw,
213 N.J. 398, 410 (2012).
During an investigatory stop, a police officer is permitted
to conduct a pat down or frisk when the officer "has reason to
believe that he is dealing with an armed and dangerous individual."
State v. Robinson,
228 N.J. 529, 544 (2017) (citing Terry,
392 U.S. at 27). The court applies an objective test in deciding that
issue, and must determine whether "a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or
that of others was in danger. Terry,
392 U.S. at 27. The
determination is fact sensitive and requires an evaluation of the
"totality of the circumstances." State v. Pineiro,
181 N.J. 13,
22 (2004). "An officer's experience and knowledge are factors
courts should consider in applying the totality of the
circumstances test." Ibid. (citation omitted).
We have considered defendant's arguments in light of the
record and applicable legal principles and conclude they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons
Judge D'Arrigo expressed in her comprehensive and cogent oral
opinions. We are satisfied that under the totality of the
11 A-2400-16T3
circumstances in both cases, the police had a reasonable and
articulable suspicion to conduct an investigatory stop and pat
down of defendant and probable cause to arrest and search him.
Affirmed.
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