STATE OF NEW JERSEY v. KAMON J. GOSS

NOT FOR PUBLICATION WITHOUT THE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-3472-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KAMON J. GOSS,

     Defendant-Appellant.
__________________________

              Submitted February 14, 2018 — Decided March 22, 2018

              Before Judges Koblitz and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Indictment No.
              15-02-0180.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Stefan Van Jura, Deputy Public
              Defender, of counsel and on the brief).

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

PER CURIAM

        Defendant Kamon J. Goss appeals from his March 10, 2017

conviction       after    pleading     guilty     to     second-degree   unlawful

possession       of   a   handgun,     N.J.S.A.        2C:39-5(b)   following      an

unsuccessful motion to suppress evidence.                   He was sentenced to
five years in prison with a three and one-half year term of parole

ineligibility.

     On October 25, 2014, after 1:00 a.m., Detective Blair Astbury1

of the New Jersey State Police received a phone call from a

confidential informant (CI) about a black male in possession of a

handgun wearing a black coat, an orange shirt, and a "wave cap"

at a named bar in Trenton. Blair had found the CI "always reliable"

on "probably more than a dozen" prior occasions.2         Blair was off-

duty but knew his cousin, Jason Astbury, a Trenton Police Officer,

was working, so he called Jason to inform him of the tip.

     Jason then relayed the information to the dispatcher.             She

broadcasted   the   information   at   1:23   a.m.   to   Detective   Noel

Santiago, who was less than one minute away from the bar. Santiago

regularly patrolled the area, had previously recovered firearms

from individuals in the area, and testified it was particularly

volatile at that time of the night when bars closed.

     Santiago and his partner pulled up to the bar with the front

of their unmarked police car facing the bar's door.             Santiago

noticed defendant, who matched the description given by the CI.


1
   We will call Detective Blair Astbury and his cousin, Trenton
Police Officer Jason Astbury by their first names for clarity,
intending no disrespect.
2
  After the testimonial portion of the motion, the court reviewed
the confidential informant's files, which confirmed the past
reliability of the informant.
                                   2                             A-3472-16T1
As Santiago, who was dressed in his police tactical uniform, exited

his vehicle, he shouted "Stop.        Police."      He approached defendant,

noticed defendant had an abnormal bulge in the center of his

waistband, and observed defendant turn around to enter the bar

while looking back at Santiago.          Santiago grabbed defendant's coat

and, after a brief struggle, pulled defendant to the ground, at

which   point    defendant    moved   his    hand    toward    his   waistband.

Defendant was arrested and a handgun found in his waistband.

     Defendant testified at the suppression hearing that he was

at the bar that night wearing a pink and blue striped rugby shirt

under his black coat, not an orange shirt.                    The court found

Santiago's      testimony    credible,    and   found   inconsistencies        in

defendant's testimony.         The court concluded that based on the

totality of the circumstances, Santiago had reasonable suspicion

to stop defendant based on the CI's reliable tip coupled with the

surrounding circumstances.

     On appeal, defendant argues:

           POINT I:    THE HANDGUN FOUND ON DEFENDANT
           SHOULD BE SUPPRESSED BECAUSE THE MOTION COURT
           WAS INCORRECT IN FINDING A REASONABLE AND
           ARTICULABLE BASIS FOR SANTIAGO TO STOP
           DEFENDANT BASED ON A CONFIDENTIAL INFORMANT'S
           TIP WHICH WAS PREDICATED UPON AN UNKNOWN BASIS
           OF KNOWLEDGE AND COMMUNICATED THROUGH AT LEAST
           FOUR LEVELS OF HEARSAY.

     We uphold the trial court's factual findings "so long as

those findings are supported by sufficient credible evidence in

                                      3                                A-3472-16T1
the record."    State v. Hinton, 
216 N.J. 211, 228 (2013) (quoting

State v. Handy, 
206 N.J. 39, 44 (2011)).         We owe no deference,

however, to the trial court's legal determinations, which we review

de novo.    State v. Coles, 
218 N.J. 322, 342 (2014); State v.

Buckley, 
216 N.J. 249, 260-61 (2013).

      The Fourth Amendment of the United States Constitution and

Article I, Paragraph 7 of the New Jersey Constitution protect

individuals from unreasonable searches and seizures.       U.S. Const.

amend. IV; N.J. Const. art. I, ¶ 7.         "There is a constitutional

preference for" law enforcement officers to obtain a warrant from

a neutral magistrate before conducting a search or seizure.      State

v. Pineiro, 
181 N.J. 13, 19 (2004).     One of the exceptions to the

warrant requirement is an investigatory stop, known as a Terry

stop.   See State v. Coles, 
218 N.J. 322, 342 (2014).

      Terry v. Ohio, 
392 U.S. 1, 33 (1968), established that police

can stop and question a suspect, without his consent, in the

absence of probable cause for arrest.          "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 has just engaged in, or

was     about      to    engage       in,      criminal     activity."

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




                                  4                           A-3472-16T1
      Here, the tip was not anonymous.      It was provided by a police

informant who had been reliable many times in the past.             The basis

of the informant's knowledge that defendant was carrying a gun,

however, was not known.        "[T]he 'basis of knowledge' underlying

an informant's tip can be established by direct evidence of the

manner in which the informant learned of the criminal activity,

by details that establish that the informant's knowledge has been

derived from a trustworthy source, or by a                prediction of hard-

to-know future events."        State v. Williams, 
364 N.J. Super. 23,

34-35 (App. Div. 2003) (quoting State v. Smith, 
155 N.J. 83, 94-

95 (1998)).

      Those factors are not present here.            Although the informant

was reliable in the past, the basis of his or her knowledge is not

known.   Even in a probable cause determination, however, the basis

of   knowledge   may   be   compensated   for   by    a   strong   showing    of

veracity.   State v Zutic, 
155 N.J. 103, 110-11 (1998).             Here, the

question is not whether the State demonstrated probable cause, but

only reasonable suspicion to stop defendant.

      The hearsay nature of the tip, having been transferred from

the informant to Blair to Jason to the dispatcher to Santiago, is

not overly concerning.        When police convey information to each

other it is presumed to be reliable.        State v. Hathaway, 
222 N.J.
 453, 472 (2015).


                                     5                                A-3472-16T1
     In Santiago's testimony, he stated, "[A]s I approached him,

I did observe an abnormal bulge under his shirt area."   Defendant

elevated suspicion by "blad[ing] his body" away, "target glancing

back" at Santiago, and "appearing startled like he did not want

to be there."    After receiving a tip from a previously reliable

confidential informant that a man loosely fitting defendant's

description was at the bar with a gun, in a high-crime area in the

early morning hour when the bars close, Santiago cried "Stop.

Police." Santiago approached defendant and saw a bulge in his

waistband.   The bulge where a gun might well be carried added

weight to the tip.   Defendant turned away and tried to flee.    The

totality of the circumstances gave rise to a reasonable suspicion

of defendant's possession of a gun, a dangerous situation that

could imperil nearby citizens.

     The police were justified in stopping defendant, grabbing him

when he tried to run, and placing him under arrest after he reached

for the area where the officer subsequently located the gun.

     Affirmed.




                                 6                         A-3472-16T1