STATE OF NEW JERSEY v. DEVON GREENE

NOT FOR PUBLICATION WITHOUT THE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-3520-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DEVON GREENE,

     Defendant-Appellant.
_______________________________

              Argued January 8, 2018 – Decided January 29, 2018

              Before Judges Sabatino and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              15-01-0020.

              Rebecca L. Gindi, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Rebecca L. Gindi, of counsel and on the
              briefs).

              Monica do Outeiro, Assistant Prosecutor,
              argued the cause for respondent (Christopher
              J. Gramiccioni, Monmouth County Prosecutor,
              attorney; Monica do Outeiro, of counsel and
              on the brief).

PER CURIAM
    Following a December 2015 jury trial, defendant Devon Greene

was found guilty of a second-degree "certain persons" weapons

offense,    
N.J.S.A.   2C:39-7(b)(1).      The   trial   court    sentenced

defendant to a seven-year custodial sentence, with a five-year

mandatory parole disqualifier.

    On     this   direct   appeal,   defendant   presents   the   following

issues for our consideration:

            POINT I

            THE TRIAL COURT ERRED BY DENYING GREENE'S
            MOTION TO SUPPRESS BECAUSE THE FIELD OF
            INQUIRY ESCALATED INTO AN INVESTIGATORY
            DETENTION    UNSUPPORTED     BY    REASONABLE
            SUSPICION. BECAUSE THE SEIZURE OF THE GUN WAS
            THE FRUIT OF THE ILLEGAL DETENTION, IT MUST
            BE SUPPRESSED.

            A. The Field of Inquiry Escalated Into An
            Investigatory Detention Because A Reasonable
            Person In Greene's Position Would Not Feel
            Free to Leave After The Police Subjected Him
            to   Accusatory   Questions,   Obtained  His
            Identification Card, Attempted To Run A
            Warrant Check, And Called For Back Up.

            B. Because The Investigatory Detention Was Not
            Supported By Reasonable Suspicion, The Gun
            Must Be Suppressed.

            POINT II

            GREENE WAS DENIED A FAIR TRIAL BECAUSE THE
            JURY REPEATEDLY HEARD EVIDENCE THAT HE HAD AN
            OUTSTANDING ARREST WARRANT, HAD A PREVIOUS
            CRIMINAL CONVICTION, AND WAS ARRESTED IN THE
            PRESENCE OF A COMPANION KNOWN TO POLICE FROM
            PAST "POLICE EXPERIENCE." (Not Raised Below)


                                      2                             A-3520-15T4
          POINT III

          THE TRIAL COURT ERRED IN IMPOSING A SEVEN-YEAR
          SENTENCE WITH A FIVE-YEAR PAROLE DISQUALIFIER
          BECAUSE IT FAILED TO AFFORD PROPER WEIGHT TO
          AGGRAVATING AND MITIGATING FACTORS.

          REPLY POINT I

          THE GUN SEIZED WAS THE FRUIT OF AN ILLEGAL
          DETENTION AND MUST BE SUPPRESSED.

          A. This Court Must Decline To Entertain the
          State's Belatedly Raised Argument That The
          Outstanding Warrant Attenuated The Taint Of
          the Illegal Detention Because It Was not
          Preserved For Appellate Review.

          B. The State's Argument that the Outstanding
          Warrant Purged The Taint of the Illegal
          Detention Fails Because The Brown Factors
          Favor Suppression.

Having fully considered these arguments in light of the record and

the applicable law, we affirm defendant's conviction and sentence.

                                I.

     On September 11, 2014, at 9:36 p.m., Officer George Samol, a

veteran of the Long Branch Police Department, was dispatched to a

reported fight between juveniles on Coleman Avenue.   When Officer

Samol arrived, he did not observe a fight but did see a large

crowd of people dispersing from the scene.

     About eighteen minutes later, Officer Samol was five blocks

east of the alleged fight location, driving on Vanderveer Place.

Samol described the location as "[v]ery dark" and a "high-crime


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area."   That night was very warm and humid.      He observed two

African-American males, later identified as Brennan Bland and

defendant, walking side by side on the south side of the street,

away from Coleman Avenue.    Bland was shirtless, holding a white

t-shirt and carrying a blue jacket.     Based on his training and

experience, Samol believed that the shirtless male might have been

in the alleged fight because his clothing may have been ripped in

the altercation.

     Officer Samol turned his vehicle around and passed the two

men twice.   Then, Samol parked his car on the north side of the

street in a well-lit area and waited for the men to get closer.

While waiting, Samol saw the men separate, with Bland moving to

the north side of the street and defendant continuing to walk on

the south side. Both men were still walking in the same direction.

     Officer Samol recognized Bland as someone who has been through

the criminal justice system of Long Branch.   Samol had dealt with

Bland numerous times, but did not recognize defendant.

     Officer Samol got out of his patrol car and asked the men to

come to the north side of the street, so he could speak with them.

The two men complied.

     Officer Samol shined his flashlight on both of men.    He did

not notice any injuries on defendant, but he did notice that Bland

had a swollen lip.   Samol also observed that defendant was wearing

                                 4                          A-3520-15T4
a long-sleeved white shirt, sleeveless jean jacket, red pants, and

grey sneakers.

     Officer Samol asked Bland where he was coming from and how

he got the swollen lip.     Bland responded that he did not know what

Samol was talking about.      Samol told him that there had been a

"fight call" for Coleman Avenue and asked Bland if he was coming

from there.   Bland replied that he was coming from Suburban Plaza,

which was about hundred yards southwest of Coleman Avenue.         Samol

then asked Bland where he was going, and Bland replied that he was

going to some unspecified "people's house."

     Defendant   provided     Officer   Samol   with   his   New   York

identification card, and in response to Samol's question about his

residence, stated that he was still living in New York but was

visiting family in Long Branch.     Samol tried to check for warrants

but his transmission at that point did not go through.         Because

the two men were wearing "a lot of" clothes, which could have been

hiding weapons, before re-transmitting his request for a warrant

check, Samol waited for backup from an Officer Chris Walls, who

arrived a few minutes later.

     Officer Samol noted that while "Bland was a little more

nervous[,]" "[m]oving his hands a lot[,]" "[g]oing from street to

sidewalk[,]" "[a] little anxious," and "putting his hands in his

pockets" despite being told to not do so, defendant was "calm,

                                   5                           A-3520-15T4
quiet[,]" "[o]nly spoke when spoken to[,]" and did nothing but

answer Samol's questions and wait for him to finish.       Minutes

later, police headquarters advised Samol that there was an arrest

warrant from Seaside Heights for a "Devon Greene," but the date

of birth was off one day.    Samol was able to confirm defendant's

residence with his identification card, and confirm that the photo

of Devon Greene from the "New Jersey Master Names Index" matched

defendant.

       Officer Walls at that point placed defendant under arrest,

patted him down briefly, and put him in the rear of Officer Samol's

car.   The whole encounter – from the moment when the police asked

Bland and defendant to come to the north side of the street to the

moment when they arrested defendant – took an estimated ten to

fifteen minutes.

       Officer Samol heard defendant ask Officer Walls to lower the

rear windows, which Walls did for both sides of the car.   The rear

windows have vertical metal bars covering them.    Defendant sat in

rear behind the passenger seat.   Bland did not have any warrants,

so the officers told him that he could go.

       Both officers walked back to the car.    While the officers

were speaking, Officer Samol heard scraping but believed that it

was the handcuffs on the plastic seats. Samol then heard an object

fall onto the other side of the vehicle like a metallic gun hitting

                                  6                         A-3520-15T4
pavement.      Both officers walked around the vehicle and found a

silver chrome revolver with a white handle located two feet from

to the vehicle, directly under the passenger side window.                 The

revolver was seized.

      Defendant thereafter was charged with second-degree unlawful

possession of a weapon and the previously-noted "certain persons"

offense.1     He moved to suppress the seized revolver, and the trial

court conducted an evidentiary hearing on the motion.                Officer

Samol was the sole witness to testify at the hearing.

      After    considering   the    officer's   testimony    and   the   oral

arguments of counsel, the trial judge denied the suppression

motion.     The judge detailed his reasons in a nine-page written

opinion dated July 29, 2015.        In essence, the judge found that the

overall     police   encounter      with    defendant    and     Bland    was

constitutional, and that the officers' actions were justified as

a   legitimate    field   inquiry    that   ripened   into   a   permissible

investigatory stop.       The judge also found that the police acted

properly in arresting defendant after learning that he had an

outstanding arrest warrant.        The judge additionally ruled that the

police had lawfully seized the revolver, once it had been discarded




1
  The State voluntarily dismissed the unlawful possession count
before summations at trial.

                                      7                              A-3520-15T4
from the squad car on defendant's side of the vehicle and found

on the asphalt.

     More specifically, the judge found that Officer Samol had

"approached    defendant    in   a   non-harassing       manner"   and     asked

defendant "basic pedigree questions[.]"             The judge found this

encounter to be "brief and non-intrusive."              The judge also found

that Officer Samol had a "reasonable and articulable suspicion"

to stop defendant based on the officer's experience, observations,

"the nature of the high crime area," and "the lateness of the

hour."     The judge noted that police officers have no discretion

to decline to make arrests of people who have an active warrant

out on them.

     Notably, the judge found that Officer Samol's testimony was

honest, straightforward, and "clear, candid, and convincing."

Based on that key credibility finding, in light of the applicable

principles of law, the judge upheld the warrantless seizure of the

gun and denied the suppression motion.

     At the ensuing trial in December 2015 presided over by the

same judge, the State moved the revolver into evidence.                    As we

have already noted, the jury found defendant guilty of the "certain

persons"    offense.   In   February      2016,   the    court   imposed      the

aforementioned seven-year custodial sentence, subject to a five-

year parole disqualifier.        This appeal ensued.

                                      8                                  A-3520-15T4
                                 II.

     Defendant first argues that the trial court should have

suppressed the revolver which had been tossed out of the squad car

after he was arrested.    We disagree, substantially for the cogent

reasons expressed in the trial court's written opinion.                We only

add a few comments.

     Fundamentally, defendant contends that the police lacked

sufficient grounds to detain him for the approximately ten to

fifteen minute interval that elapsed from the time he was first

approached to the time of his arrest.            He contends that even if

the police were justified in conducting a field inquiry of him and

his companion Bland, the police lacked reasonable suspicion of his

involvement in criminal activity to justify extending that field

inquiry to an investigatory stop.           He maintains that he was not

free to leave the scene, particularly after the back-up police car

arrived, and that his freedom of movement was unconstitutionally

restrained.    The    trial   court       rejected   defendant's   claim      of

illegality, and so do we.

     An   appellate   court's   review      of   a   trial   judge's   factual

findings is "exceedingly narrow."          State v. Locurto, 
157 N.J. 463,

470 (1999).   We must defer to those factual findings "so long as

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



                                      9                                A-3520-15T4
State v. Hubbard, 
222 N.J. 249, 262 (2015) (internal citations

omitted).

     To be sure, defendant has a constitutional right to be free

from indiscriminate searches and seizures by police without a

warrant unless one or more exceptions to the warrant requirement

apply.   State v. Witt, 
223 N.J. 409, 422 (2015) (quoting State v.

Frankel, 
179 N.J. 586, 598, cert. denied, 
543 U.S. 876 (2004)).

Those exceptions include a preliminary field inquiry, and, at the

next level of intrusiveness, an investigatory stop.

     A field inquiry is "the least intrusive encounter," which

occurs when a police officer approaches a person and asks if he

or she is willing to answer some questions.            State v. Pineiro, 
181 N.J. 13, 20 (2004) (citation omitted).                 "A field inquiry is

permissible   so   long     as   the    questions    '[are]      not   harassing,

overbearing or accusatory in nature.'"               Ibid. (quoting State v.

Nishina, 
175 N.J. 502, 510 (2003)) (alteration in the original).

     By comparison, an investigative or "Terry" stop, which goes

beyond a field inquiry, permits a police officer to detain an

individual for a brief period, and to pat him down for the

officer's    safety,   if    that      stop   is   "based   on   'specific     and

articulable facts which, taken together with rational inferences

from those facts,' give rise to a reasonable suspicion of criminal

activity."    State v. Rodriquez, 
172 N.J. 117, 126 (2002) (quoting

                                        10                                A-3520-15T4
Terry v. Ohio, 
392 U.S. 1, 21 (1968)). Under this well-established

standard, an investigatory stop is valid "if the officer has a

'particularized suspicion' based upon an objective observation

that the person stopped has been [engaged] or is about to engage

in criminal wrongdoing." State v. Davis, 
104 N.J. 490, 504 (1986).

Notably for this case, reasonable suspicion is not necessary to

check   someone's   criminal   history,   so   long   as   it   does   not

unreasonably prolong the stop.        State v. Sloane, 
193 N.J. 423,

436-39 (2006).

     Here, the police rightly conducted an initial field inquiry

after spotting defendant and Bland on the street, following the

report of the recent violent altercation that had occurred only

five blocks away.     The men were dressed in a manner suggesting

that one or both of them may have taken part in the fight, with

Bland exhibiting a swollen lip.        The police approached the men

without using force. They questioned defendant about his residence

and what he was doing in the area, but not in an accusatory manner,

in contrast to the more pointed queries posed to Bland.

     Although defendant was cooperative and duly provided his

identification, the police reasonably checked with headquarters

to ascertain if either man had any outstanding warrants.               That

check took a few minutes longer than it normally would take. Even

so, the delay was not the fault of the officers on the scene, who

                                 11                               A-3520-15T4
understandably wanted to complete the process before potential

combatants from the fight departed.

      By the time the warrant check had been completed, there was

reasonable and articulable suspicion under Terry to believe that

one or both of them had been involved in a crime.               We agree with

the trial court that the overall encounter did not detain defendant

for   an    unreasonable   length   of   time,   given    the    totality    of

circumstances presented.

      Moreover, as the trial judge correctly reasoned, the police

had ample reason to confiscate the revolver once it has been

discarded onto the ground from defendant's side of the squad car.

The   gun    essentially   had   been    abandoned,      as   defendant     had

relinquished any expectation of privacy in it.           State v. Farinich,


179 N.J. Super. 1, 6 (App. Div. 1981) (citing United States v.

Colbert, 
474 F.2d 174, 176 (5th Cir. 1973)) (finding abandonment

where a defendant, after being approached by the police in an

airport, dropped his suitcase and started to run away), aff'd

o.b., 
89 N.J. 378 (1982); see also State v. Hughes, 
296 N.J. Super.
 291, 296 (App. Div. 1997) (in which a defendant on a bicycle held

to have abandoned a container filled with bags of cocaine, because

he threw the container against a curb when he noticed a police car

approaching, and then continued to bicycle another fifty feet

away).

                                    12                                A-3520-15T4
     In addition, the discovery from headquarters of the valid

outstanding warrant for defendant's arrest attenuated any presumed

illegality emanating from the encounter.2         Utah v. Strieff, 579

U.S. ___, 
136 S. Ct. 2056, 2062-63 (2016); State v. Shaw, 
213 N.J.
 398, 418-21 (2012).      The evidence of the discarded revolver, which

was found after defendant's authorized arrest, was not a "product

of 'exploitation'" from an illegal stop.        Shaw, 
213 N.J. at 414.

Any alleged taint from the encounter by that point had dissipated.

     In sum, applying the correct scope of appellate review,

including affording due deference to the trial court's emphatic

credibility findings as to Officer Samol, we uphold the trial

court's suppression ruling.

                                   III.

     Defendant's next point is that he was denied a fair trial due

to prejudice caused by the State's references to his outstanding

arrest   warrant   and   Bland's   past   experience   with   the   police.

Because this argument was not raised below, we consider it under

a plain error standard of review.         State v. Macon, 
57 N.J. 325,

337 (1971).



2
  We recognize the State did not advance an attenuation argument
at the suppression hearing, and is arguing the point for the first
time on appeal. Nevertheless, we consider the argument because
the existing factual record is sufficient to rule on the legal
issue. See State v. Scott, 
229 N.J. 469, 480 (2017).

                                    13                              A-3520-15T4
     As a preliminary matter, defendant concedes the trial court

properly sanitized the stipulation that he committed the predicate

offense for liability under the "certain persons" weapons statute.

He instead argues that his arrest warrant was irrelevant to an

offense involving the possession of a weapon.              Citing State v.

Alvarez, 
318 N.J. Super. 137, 148 (App. Div. 1999), he suggests

that the mentioning of the warrant to the jurors could have been

avoided by the witnesses and the prosecutor simply stating that

he had been lawfully placed in the police car.           Defendant contends

the jury was prejudiced by the mentions of the warrant.

     As the State correctly notes, the Supreme Court in State v.

Marshall, 
148 N.J. 89, 239-40 (1997), rejected an overly broad

reading of our holding in Alvarez.         In Marshall, the Court found

no authority to support the proposition that a jury must be

shielded from all knowledge of search warrants relating to a

defendant.   Id.     at   239-40.    The   Court   was    unpersuaded   that

disclosure of a prior judicial determination of probable cause to

issue a warrant will inexorably influence a jury to assume a

defendant's guilt.    Id. at 240.    Indeed, the Court recognized that

sometimes the fact that a warrant had been issued might necessarily

be put before a jury, in order to establish that the police had

acted properly.    Ibid.     See State v. Williams, 
404 N.J. Super.
 147, 167 (App. Div. 2008); State v. McDonough, 
337 N.J. Super. 27,

                                    14                              A-3520-15T4
32 (App. Div. 2001).     As the Supreme Court more recently noted in

State v. Cain, 
224 N.J. 410, 435 (2016), "[a] search warrant can

be referenced to show that the police had lawful authority in

carrying out a search to dispel any preconceived notion that the

police   acted   arbitrarily.      A     prosecutor,    however,    may    not

repeatedly mention that a search warrant was issued by a judge if

doing    so   creates   the   likelihood    that   a   jury   may   draw    an

impermissible inference of guilt."

     Here, the prosecutor referred to defendant's arrest warrant

three times in her opening.       In addition, both Officer Samol and

Officer Walls described the process used to determine whether

there was an active arrest warrant for defendant.             However, the

State did not refer to this subject in its summation.

     The trial judge duly provided a stipulation and a limiting

instruction to the jurors regarding the predicate offense for the

certain persons charge.       We must presume the jurors followed that

instruction.     State v. Burns, 
192 N.J. 312, 335 (2007) (citing

State v. Nelson, 
155 N.J. 487, 526 (1998), cert. denied, 
525 U.S. 1114 (1999)).

     Most tellingly, defendant did not object to, or move to

strike, the references to the arrest warrant. This failure to

raise the issue below signifies that defense counsel did not



                                    15                               A-3520-15T4
consider the error, if any, to be significant in the context of

the overall trial.      Macon, 
57 N.J. at 333.

     Further, the arrest warrant was relevant here with respect

to explaining to the jury how the officers came to have defendant

in their custody when they found the gun.                   Part of the State's

theory of the case was that Bland was acting as a distraction

during the police encounter, in an effort to enable defendant, his

companion,   to   get   away   with    the    gun.     This    theory    required

explaining to the jurors why defendant had been taken into custody

but Bland was not.

     The proof was relevant under N.J.R.E. 401, and not unduly

prejudicial under N.J.R.E. 403.             We discern no error, let alone

plain error, concerning this issue.

                                      IV.

     Lastly,   we   reject     defendant's     claim    that    his     seven-year

custodial sentence for this weapons offense was excessive.                      The

judge appropriately found aggravating sentencing factors three,

six, and nine applied, particularly given defendant's multi-state,

multi-offense prior criminal record.           See 
N.J.S.A. 2C:44-1(a)(3),

(6) and (9).      We also concur with the judge's rejection of the

various   mitigating      factors      suggested       by     defense    counsel,

especially   in   light   of   defendant's      gang    affiliation       and   his

commission of the instant offense while on parole.                 See N.J.S.A.

                                      16                                   A-3520-15T4
2C:44-1(b).   We discern no improper double-counting of factors.

Applying the strong deference we accord to a sentencing court's

discretion, see, e.g., State v. Bieniek, 
200 N.J. 601, 607-08

(2010), we readily affirm the sentence that was imposed.

    Affirmed.




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