STATE OF NEW JERSEY v. ISMAEL MOJICA

NOT FOR PUBLICATION WITHOUT THE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-2411-16T3
STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ISMAEL MOJICA,

     Defendant-Appellant.
_______________________________

              Submitted February 28, 2018 – Decided March 22, 2018

              Before Judges Fuentes and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 16-
              02-0579.

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

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Lauren Bonfiglio, Deputy
              Attorney General, of counsel and on the
              brief).

PER CURIAM

        Defendant Ismael Mojica appeals from the October 25, 2016

Judgment of Conviction, following his guilty plea under Indictment

16-02-0579 to unlawful possession of a weapon (handgun).                           He
alleges the trial court erred by denying his earlier motion to

suppress evidence of a handgun. We conclude the suppression motion

should have been granted. We reverse the order denying suppression

and defendant's conviction under Indictment 16-02-0579.

     In 2016, defendant was indicted for second-degree unlawful

possession of a weapon (handgun), 
N.J.S.A. 2C:39-5(b) (Count One);

and fourth-degree possession of hollow point bullets, 
N.J.S.A.

2C:39-3(f) (Count Two). Following denial of his motion to suppress

the handgun, defendant pled guilty to Count One.                Count Two was

dismissed.1    Defendant    was   sentenced   to   a    five-year      term   of

imprisonment     with   a   forty-two    month         period     of    parole

ineligibility.

     We gather the following facts from the record developed at

the suppression motion.

     On October 15, 2015 at about eight p.m., Detective Adolpho

Furtado of the Newark Police Department received an anonymous

"Crime Stopper" hotline tip that a man near a liquor store at the

intersection of Hartford and Norfolk in Newark was in possession



1
  On the same day, defendant also pled guilty to charges in three
unrelated indictments, 15-10-2280, 15-12-2972 and 16-04-1136. He
was sentenced to three-year terms on each indictment to run
concurrently with the unlawful weapons offense.           Another
indictment, 16-02-0528, was dismissed. Our decision here on the
unlawful weapons offense does not affect his plea on the other
unrelated indictments.

                                    2                                  A-2411-16T3
of a handgun.      The person was described as a black male, "wearing

gray sweat pants with a white and grey hoodie."                Crime Stopper

hotline tips are not recorded.          Detective Furtado relayed the tip

to a sergeant who was on patrol in the area.

        According to the testimony of Detective Turon Hinnant, also

of the Newark Police Department, Detective Villette was conducting

surveillance on the location.          There were between five and eight

males standing in front of a building at Norfolk Street.              A number

of    officers    in   vehicles    approached    the   individuals    who      were

outside.    Those individuals were told to "put their hands out and

lay down on the ground."

       Hinnant testified that Villette observed a person, who fit

the general description, leaving the liquor store, walk over to

and enter a white Buick that was parked outside the Norfolk Street

property.         Along   with    another   detective,    Detective    Hinnant

approached the driver's side window of the white car parked near

the    building    and    observed   defendant   "looking    over    his     right

shoulder towards the sidewalk where the other detectives were

engaging with the five to eight males."            He testified that while

defendant was "fixated on what they were doing, [defendant] put

an object into his right coat pocket."            Hinnant demonstrated this

by making a motion toward his waistband area.               Hinnant "believed

[defendant] was trying to conceal a weapon."              He opened the car

                                        3                                  A-2411-16T3
door, to defendant's surprise, and grabbed "towards the right

pocket."     Hinnant felt a metal object that he believed was a gun.

He held onto the object, and asked defendant to step out of the

car.    Once outside, Hinnant reached inside defendant's pocket and

found   a    handgun    that    was   loaded   with   hollow    point    bullets.

Defendant was arrested.           He was wearing a "[b]lack coat, white

shirt, grey sweat pants."

       Defendant testified that he stopped at a grocery store, not

a liquor store, where he purchased "snacks and soda."                   He parked

on the street.         When he got back into his car, he was speaking

with a friend who was a passenger.             Then "[c]ars surrounded the

area" and he was not able to move out.                He testified an officer

approached the car and told him to "step out."                 Defendant opened

the door and did so.           He denied that the officer reached in the

car.    The officers searched him.

       The   trial     judge   denied   defendant's     motion    to    suppress,

finding the facts were not in dispute. Although the parties agreed

an anonymous tip alone could not support a warrantless search, the

court found the State had "overcome the hurdle in providing

additional information as it relates to the tip, including the

hour of the day, a location, the clothing, the car, and the

activity." The court found defendant's "action" of "making contact

with a pocket" gave the officer "pause for his protection at that

                                         4                                A-2411-16T3
point" and "justifie[d] the officer at least searching that area

. . . . for his protection."

     On appeal, defendant raises the issue that

          LAW ENFORCEMENT CONDUCTED A SEIZURE AND SEARCH
          OF MR. MOJICA WITHOUT REASONABLE SUSPICION
          THAT HE WAS ARMED AND, THEREFORE, THE FRUITS
          OF THE SUBSEQUENT SEARCH MUST BE SUPPRESSED.
          U.S. CONST. AMENDS IV AND XIV; N.J. CONST.
          ART. I, PAR. 7.


     Our review of the denial of a suppression motion is limited.

State v. Handy, 
206 N.J. 39, 44 (2011).    "When reviewing a trial

court's decision to grant or deny a suppression motion, [we] 'must

defer to the factual findings of the trial court so long as those

findings are supported by sufficient evidence in the record.'"

State v. Dunbar, 
229 N.J. 521, 538 (2017) (quoting State v.

Hubbard, 
222 N.J. 249, 262 (2015)).    "We will set aside a trial

court's findings of fact only when such findings 'are clearly

mistaken.'"   Ibid. (quoting Hubbard, 
222 N.J. at 262).    "We accord

no deference, however, to a trial court's interpretation of law,

which we review de novo."   Ibid. (quoting State v. Hathaway, 
222 N.J. 453, 467 (2015)).

     Our legal analysis will be guided by the motion judge's

factual findings.   However, whether the police had a reasonable,

articulable basis to detain and search defendant is a legal

question, not a factual one, to which we owe no deference.

                                 5                            A-2411-16T3
          Both the Federal and State constitutions protect citizens

against unreasonable searches and seizures.                U.S. Const. amend.

IV; N.J. Const. art. I, ¶ 7.              An investigatory stop, sometimes

referred       to     as   a    Terry2   stop,    implicates   constitutional

requirements and must be based on "specific and articulable facts

which, taken together with rational inferences from those facts"

provide a "reasonable suspicion of criminal activity."                State v.

Elders, 
192 N.J. 224, 247 (2007) (quoting State v. Rodriquez, 
172 N.J. 117, 126 (2002)).           "Because an investigative detention is a

temporary seizure that restricts a person's movement, it must be

based on an officer's 'reasonable and particularized suspicion

. . . that an individual has just engaged in, or was about to

engage in, criminal activity.'"               State v. Rosario, 
229 N.J. 263,

272 (2017) (quoting State v. Stovall, 
170 N.J. 346, 356 (2002)).

The officer's "articulable reasons" or "particularized suspicion"

is based on the officer's assessment of the totality of the

circumstances.         State v. Davis, 
104 N.J. 490, 504 (1986).

          Here, the stop was based, in part, on information relayed to

the police by an anonymous tip.               "In determining the reliability

of    a    tip,   a   court    must   consider   an   informant's   'veracity,'

'reliability,' and 'basis of knowledge.'"                Stovall, 
170 N.J. at


 2
    Terry v. Ohio, 
392 U.S. 1 (1968).

                                          6                             A-2411-16T3
362 (quoting Alabama v. White, 
496 U.S. 325, 328-29 (1990)).         To

determine the informant's "basis of knowledge", "the nature and

details revealed in the tip may imply" that the knowledge of the

criminal activity comes from a "trustworthy source."    Stovall, 
170 N.J. at 362.    "In determining whether reasonable suspicion exists,

a court must consider 'the totality of the circumstances- the

whole picture.'"     Id. at 361 (quoting United States v. Cortez, 
449 U.S. 411, 417 (1981)).     The reliability of the tip is part of the

totality of the circumstances analysis. Id. at 361-62. Generally,

an anonymous tip is not sufficient alone to justify a stop because

it lacks, veracity, reliability and a basis of knowledge.       State

v. Matthews, 
398 N.J. Super. 551, 559 (App. Div. 2008).

     The State contends the Crime Stopper's tip was verified

because a person matching the description was found at the location

indicated.     Those facts verified a portion of the information, but

did not verify the assertion of illegality.      For that, the State

contends that it was nighttime, defendant was "fixated" on the

police activity and defendant made a furtive gesture by moving

something to his pocket.

     These combination of factors do not provide a reasonable

articulable basis for the stop and seizure.      In Florida v. J.L.,


529 U.S. 266 (2000), the police received an anonymous tip that a

person at a specific location and dressed in a plaid shirt had a

                                   7                          A-2411-16T3
gun.    The police saw a person matching the description at the

location, but did not "see a firearm, and J.L. made no threatening

or otherwise unusual movements."        Id. at 268.     The police told

J.L. to put up his hands and frisked him, finding a gun.                The

Supreme Court found there were not reasonable grounds to stop and

frisk J.L. because the anonymous tip, without more, was                 not

"reliable in its assertion of illegality."        Id. at 272.

       Our courts have held that an anonymous tip without more "is

rarely sufficient to establish a reasonable articulable suspicion

of criminal activity." Rodriquez, 
172 N.J. at 127 (citing Alabama,


496 U.S.  at 329.).    "To justify action based on an anonymous tip,

the police in the typical case must verify that the tip is reliable

by some independent corroborative effort."          Id. at 127 (citing

Alabama, 
496 U.S. at 329-30).     In Rodriguez, the Court found "that

the officers lacked a sufficient basis to detain defendant" where

the stop was "based solely on information furnished by an anonymous

informant who provided no explanation or basis of knowledge for

that information."    Id. at 132-33.

       In State v. Privott, 
203 N.J. 16, 28-30 (2010), the Court

upheld an investigatory stop and frisk based on an anonymous tip

combined with the officer's knowledge about the defendant from a

prior narcotics arrest.       This included the officer's awareness

that   "defendant   was   associated   with   violent   gangs   that   were

                                   8                               A-2411-16T3
responsible for recent shootings in the area," defendant appeared

to be nervous, tried to walk away and then "made a movement of his

hand to his waistband."   Id. at 28-29.

     By contrast, in State v. Richards, 
351 N.J. Super. 289, 308

(App. Div. 2002), the arrest was made in an area that was not a

high crime or high drug area, the defendant made no furtive

movements, did not act nervously, was using a pay phone, was not

known to the police and when stopped, simply stood "quiet in the

face of police presence."    Id. at 306.   In this light, we held

that the circumstances "did not establish a reasonable suspicion

that defendant was armed and dangerous justifying the Terry stop."

Id. at 308.   See also Matthews, 
398 N.J. Super. at 559 (invaliding

search based solely on unidentified anonymous tip).

     Here, there was nothing unusual about leaving a store at

eight o'clock at night, observing police activity occurring right

outside one's car, and then reaching into one's pocket while seated

in the car. The officers did not testify that they knew defendant,

or that this was a high crime area.    Defendant had not committed

a motor vehicle violation. He did not attempt to flee.   The police

did not testify that he was acting nervously or suspiciously.      He

was at best "fixated" on the nearby police activity and then made

a singular movement of his hand to his pocket.     "[A]n officer's

safety concerns based on [these ostensibly] asserted 'furtive'

                                 9                          A-2411-16T3
movements by defendant cannot provide reasonable and articulable

suspicion to support a detention in the first instance."       Rosario,


229 N.J. at 277. On this record, the totality of the circumstances

lacked   an   objectively   reasonable   articulable   basis   for   the

investigatory stop of defendant and seizure of the weapon.

     We are constrained to reverse the order denying suppression

of the evidence of the handgun under Indictment 16-02-0579.            We

remand the case for further proceeding under that indictment.        Our

decision does not affect defendant's guilty pleas or sentencing

under indictments 15-10-2280, 15-12-2972 or 16-04-1136.

     Reversed and remanded.




                                 10                             A-2411-16T3