NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
After his motion to suppress the evidence was denied, a jury convicted defendant Omar D. Jackson of second-degree unlawful possession of a handgun, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5(b); and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). Defendant was sentenced to an aggregate sentence of ten years in prison with a five-year parole disqualifier. Defendant appeals from his February 27, 2015 convictions, arguing his pre-trial suppression motion should have been granted, the court improperly instructed the jury and his sentence was improper. We affirm, but remand for resentencing.
The trial testimony reveals the following facts. Shortly after 11:15 a.m. on May 28, 2013, a day when President Obama was visiting Asbury Park, Neptune Township Police Officer Kyheem Davis was dispatched with instructions to look for an individual matching a description given by a 911 caller. Davis observed defendant, who matched the description, "walking in the middle of the street." Davis parked his car, approached and spoke to defendant. To guide defendant out of the street, where they were both standing, Davis "grabbed [defendant] by the left arm and moved him out of the middle of the street" and "pulled him over to the [police] car."
Davis observed dried twigs and leaves in defendant's hair. He asked defendant about this, and defendant stated that his friend had been arrested the night before and defendant had been looking for his friend's "money and weed." Davis noticed that, as he was walking with defendant across the street, defendant was not walking normally, but was shifting his body and "almost walking sideways." Davis believed that defendant was trying to conceal something, so he conducted a pat-down search. Davis began by patting down defendant's right rear pants pocket and felt a handgun. Davis reached into defendant's pocket, removed the gun and handcuffed defendant.
Officer Blewitt had arrived on the scene by this time and assisted Davis in conducting a further search incident to the arrest. The officers discovered cocaine in defendant's pocket. At police headquarters, heroin was found during a more thorough search.
Davis testified as the sole witness at the suppression hearing. His testimony at the hearing was substantially the same as his trial testimony, although Davis also testified to the following additional facts, relevant to the legal issues before the court. Davis previously knew of defendant's criminal history and his affiliation with the Grape Street Crips gang. The night before Davis arrested defendant, a shooting took place a block away from where he stopped defendant. No weapons or suspects had been located.
At about 11:15 a.m. on May 28, 911 dispatch received a call from a citizen, who identified herself by name, stating "there was a black male subject wearing a purple jacket [and] black sneakers with red bottoms looking in the bushes." Davis immediately thought this might be the shooter from the night before, perhaps looking for his gun. When Davis arrived at the scene, he saw defendant wearing black sneakers with red bottoms and a purple jacket. Davis testified that purple is "the color normally worn by Grape Street Crip members."
Davis based his decision to conduct an investigatory stop on the shooting the night before, defendant's gang affiliation and prior criminal record, defendant's clothing that matched the caller's description, as well as the leaves and twigs in defendant's hair, which indicated he had been looking in the bushes.
Davis testified, "once we got closer to my car, [defendant] kept leaning.... And as I would shift to get closer to the side that he was on, he would actually shift away also." This behavior added to Davis' suspicions that defendant was hiding a weapon.
Defendant presents the following issues on appeal:
POINT I: THE ITEMS SEIZED FROM DEFENDANT'S PERSON SHOULD HAVE BEEN SUPPRESSED AS FRUITS OF AN ILLEGAL WARRANTLESS SEIZURE AND SEARCH. BECAUSE NO REASONABLE SUSPICION SUFFICIENT TO JUSTIFY A FRISK EXISTED, THE PATDOWN AND SEARCH OF DEFENDANT WERE UNCONSTITUTIONAL.
POINT II: THE TRIAL COURT'S FACTUALLY INCORRECT AND UNWARRANTED INSTRUCTION TO THE JURY ON THE MEANING OF A "FIELD INQUIRY" DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW.
POINT III: DEFENDANT MUST BE RESENTENCED BECAUSE THE SENTENCING JUDGE MISTAKENLY BELIEVED THAT IF HE IMPOSED THE MAXIMUM TERM FOR A SECOND DEGREE GRAVES ACT OFFENSE HE MUST ALSO IMPOSE THE MAXIMUM PAROLE DISQUALIFIER ON THAT TERM.
In reviewing a motion to suppress, we give great deference to a judge's fact and credibility findings. State v. Mosner, 407 N.J.Super. 40, 59 (App. Div. 2009). We reverse only when the interests of justice require it. State v. Gamble, 218 N.J. 412, 425 (2014). "A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference." Ibid.
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.
A warrantless search is presumed invalid unless it falls within a recognized exception. State v. Witt, 223 N.J. 409, 422 (2015). Nonetheless, a balance must be maintained between "individual freedom from police interference and the legitimate and reasonable needs of law enforcement." State v. Coles, 218 N.J. 322, 343 (2014). The State bears the burden, by a preponderance of the evidence, to establish that the warrantless search or seizure of an individual was justified in light of the totality of the circumstances. State v. Mann, 203 N.J. 328, 337-38 (2010).
An investigatory stop, otherwise known as a Terry1 stop, is an exception to the warrant requirement. Mann, supra, 203 N.J. at 338. An investigatory stop "occurs when the police temporarily detain a person" "based on specific articulable facts, which taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity." State v. Diloreto, 180 N.J. 264, 277 (2004); State v. Pineiro, 181 N.J. 13, 20 (2004). "The United States Supreme Court has described the reasonable-suspicion standard as requiring `some minimal level of objective justification for making the stop.'" State v. Nishina, 175 N.J. 502, 511 (2003) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989)). "Although a mere hunch does not create reasonable suspicion, the level of suspicion required is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause." Gamble, supra, 218 N.J. at 428 (internal quotation marks and citations omitted).
Police are also permitted to pat-down or frisk a citizen's outer clothing incident to a Terry stop when the officer perceives a risk to his or her safety and has reason to believe that the individual is armed and dangerous. Diloreto, supra, 180 N.J. at 276. The officer need not be absolutely certain that the individual is armed, "the test under Terry `is whether a reasonably prudent man [or woman] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger.'" Ibid. (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909).
In determining the reasonableness of the police officer's conduct in performing a Terry pat-down, the court applies an objective test and reviews the totality of the circumstances. State v. Privott, 203 N.J. 16, 30 (2010) (reversing a search because the officer's conduct in lifting the defendant's shirt exceeded the reasonable intrusion that is permitted as part of a Terry stop). "[T]he same conduct that justifies an investigatory stop may also present the officer with a specific and particularized reason to believe that the suspect is armed." Ibid. An anonymous tip by itself is not sufficient to establish a reasonable articulable suspicion of criminal activity "additional factors must be considered to generate the requisite level of reasonable articulable suspicion." Privott, supra, 203 N.J. at 26. Likewise, a stop in a high-crime area, the time of the stop or a police officer's knowledge of a suspect's criminal history, each standing alone, is not enough to justify a pat-down of a suspect once stopped. State v. Valentine, 134 N.J. 536, 547 (1994). However, "an officer's knowledge of a suspect's prior criminal activity in combination with other factors may lead to a reasonable suspicion that the suspect is armed and dangerous." Ibid.
Here, in an oral opinion, the court upheld the seizure, finding that Davis conducted a limited protective search consistent with Terry. The court based its decision on the totality of the circumstances, relying on the New Jersey Supreme Court decision in Privott. The court stated:
Here, like in Privott, there was an anonymous2 report of a person with a clothing description who was given to the police. Here, we had [a tip] someone was observed with a specific set of clothing in an area that less than 12 hours before there had been a shooting where no gun was recovered, and [he] appeared to be looking for something.
A clothing description was given. Unlike in Privott, here the clothing description was accurate. In Privott, the clothing description was not 100 percent accurate, but the Court accepted the partial description as being true. In Privott, the officer knew the person he confronted from previous investigations and arrests. Here in our case, Officer Davis knew Mr. Jackson from previous encounters Mr. Jackson had had with the Neptune Police Department. He knew that he had a prior history of at least a robbery and several assaults.
Also, to confirm the reliability of the anonymous tip, the defendant when confronted acknowledge [sic] that he was in fact the person who had been just shortly before in the area of where the shooting had occurred looking for something. He indicated that he was looking for something other than a gun. He was looking for drugs and money. But nonetheless, it was corroboration of the anonymous tip that this is the individual who was seen in the area. An area known to be an area frequented by members of the Crip — the Grape Street Crip gang. And the defendant himself, having acknowledged at some point to the police the he was a member of that gang and wearing their colors.
All of this, all of the totality of the circumstances, in addition to the way the defendant acted at the time that the officer encountered him, in my view is consistent with the view of the Court in Privott, that it led the police officer to suspect the defendant may at that time be armed and dangerous, and caused him to lead him over to the car in an attempt to pat him down for the officer's safety.
In point of fact, the officer also testified that the defendant appeared to be somewhat evasive. Not combative to the effect of being physical and not evasive to the effect of fleeing, but it was obvious to the officer that he was trying to seal his rear from the officer in hopes that the officer would not notice something apparently.
The officer, when he got him to the car, conducted a reasonable Terry search. Unlike Privott, he did not lift up a jacket or a shirt or pull anything out of the pockets first. He patted him down in the Terry approved manner, and he went right to the area that appeared to be the area that was trying to be concealed. And he felt what he recognized to be a handgun. He then went into the area and retrieved the handgun.
According deference to the factual findings of the trial court, as we must, the evidence demonstrated that a shooting had occurred in the immediate area the night before and no weapon was recovered or suspect apprehended, defendant had been searching in the bushes, and defendant's prior criminal history and gang affiliation were known to the officer. Based on these facts, Davis had a reasonable suspicion of criminal activity, permitting him to conduct an investigatory stop. Subsequent to the stop, defendant's evasive behavior gave Davis a reasonable belief that his safety was imperiled, thus prompting the pat-down. Davis "confined his search strictly to what was minimally necessary to learn whether [defendant was] armed and to disarm [defendant] once he discovered the weapon." Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. at 911.
Defendant also briefly argues that Davis conducted a "full-blown arrest" by walking defendant across the street. Davis conducted an investigatory stop, which "permits law enforcement officers to detain an individual temporarily for questioning." Maryland, supra, 167 N.J. at 486. An investigatory detention involves a "temporary and minimally invasive" seizure where "an objectively reasonable person feels that his or her right to move has been restricted." Ibid.; Nishina, supra, 175 N.J. at 510 (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)). An arrest occurs only when "the officers' conduct is more intrusive than necessary for an investigative stop." Id. at 478 (quoting United States v. Jones, 759 F.2d 633, 636 (8th Cir.), cert. denied, 474 U.S. 837, 106 S.Ct. 113, 88 L. Ed. 2d 92 (1985)).
To safely question defendant, Davis had to ensure that they did not remain in the middle of the road. As the court found, the totality of the circumstances justified both the stop and the pat-down search.
Defendant argues that the jury instruction about a field inquiry was unwarranted and prejudiced defendant. The State responds that the court's instruction ameliorated the unfairness that otherwise would have resulted from defense counsel's unfounded suggestion that the police improperly stopped defendant for no reason.
Defense counsel began his summation by questioning the validity of Officer Davis' stop of defendant, arguing that:
Mr. Jackson is walking down the street. I can't figure out what he did wrong. You can't speculate as to what he did wrong. We know that dispatch called and said there was a man in certain clothes looking in the bushes. Voila, Det. Davis says he had twigs and leaves. Okay. Det. Blewitt said he didn't. But if you are looking in the leaves. I don't know that that violates the criminal code.
So at best, Omar Jackson is walking down the road and he is doing what? Doing what illegality? I don't know. I don't know. The State's going to say that he's possessing a gun. Nobody knows that. The State's going to say he's possessing cocaine. Nobody knows that when they pull up on the scene.
Defense counsel went on to state his theory that defendant did not possess the gun and that "somehow it got there." Defense counsel inferred that Davis planted the gun: "You have the Neptune Police. Why don't they write a report? Officer Blewitt is at the scene. Why doesn't he write a report? Do you think maybe he doesn't want anything to do with what he thinks maybe Officer Davis did? Where is the report?" Defense counsel continued with this narrative by arguing that another detective may have been uncomfortable about Davis' misconduct: "And you got to wonder, does [Detective] Gamble want anything to do with this? Because we all know that there's a wall of blue, and we all know that the police will stick by each other. But there's only a certain limit as to how far each person is going to go."
Defense counsel argued that the officer planted the gun on defendant because Davis wanted to be a hero during President Obama's visit: "What better way for an accommodation or a promotion since you've been a patrolman for 14 years is to be the hero and get a man off the street with a gun that doesn't have a gun when President Obama is coming to town? We're on high alert and here's my chance to do something."
The prosecutor objected at sidebar after the summation. He sought a curative instruction, arguing that defense counsel impermissibly implied that the stop was unwarranted.
PROSECUTOR: But [there is an] impermissible inference given to the jury that they are now to consider the illegality and the inappropriateness of the officers' actions. When your Honor ... reviewed the totality of everything that happened and determined that the stop was in fact appropriate, was in fact legal and constitutional, because your Honor got to hear the numerous things that the jury doesn't get to hear about the caller, about the shooting the night before, about Mr. Jackson's gang affiliations. All of this was known to the officers but they aren't allowed to testify to it because it would prejudice the defendant.
The court responded that it would not give an instruction as to the constitutionality of the search, analogizing the situation to the court's duty not to tell the jury about a previous court determination as to the constitutionality of a defendant's statement. N.J.R.E. 104(c); State v. Jordan, 147 N.J. 409, 425 (1997). The court, however, did give a curative instruction over defense counsel's objection.
The court instructed the jury:
Ladies and gentlemen, before I have [the prosecutor] sum up to you and give his closing argument. When he went to sidebar he voiced an objection about something [defense counsel] said in his summation. And I think it's necessary for me just to give you a little instruction on that area.
[Defense counsel], properly left with you I think an impression or an inference that he has a theory of the stop and why the police officer came into contact with Mr. Jackson. And that is not something that was a normal situation. Well, you could accept that, if you accept that's what happened.
But I will point out to you that in any situation the law provides that a police officer can stop any individual at any time to conduct what's known as a field inquiry. And a field inquiry is not considered a seizure of someone's person. It's rather a limited form of police investigation that except for impermissible reasons such as stopping someone for their race, may be conducted without grounds for suspicion.
A field inquiry is considered the least intrusive encounter and occurs when a police officer approaches an individual and asks if the person is willing to answer some questions.
Now, I'm going to leave it to your recollection as to the testimony of why Davis said he went to that area and why he confronted this particular individual. If you accept Davis' explanation, there is a premise that a police officer any time can stop and inquire of anybody what they are doing in a certain area, etcetera.
Okay. So that having been said, we'll now turn over to [the prosecutor]. I am not directing you that that is what you should find; that that was the only purpose for the stop or justifying what Officer Davis did. I'm just telling you there is a premise for an initial inquiry to be made. Okay. Thank you.
This instruction addressed the issue without informing the jury of the court's prior ruling. "The determination of whether the appropriate response is a curative instruction, as well as the language and detail of the instruction, is within the discretion of the trial judge `who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.'" State v. Loftin, 146 N.J. 295, 365-66 (1996) (quoting State v. Winter, 96 N.J. 640, 647 (1984)). A trial judge's decision that a curative instruction was necessary and sufficient to preserve a fair trial is entitled to deference. State v. Kueny, 411 N.J.Super. 392, 403 (App. Div. 2010). "Such a decision is subject to reversal only for abuse of discretion." Ibid.
The court's instruction describing a field inquiry ameliorated defense counsel's unsupported argument that the jury should speculate as to why the police stopped defendant. See Diloreto, supra, 180 N.J. at 275 (defining a field inquiry). By taking advantage of the inadmissibly prejudicial nature of the true reasons for the stop, defense counsel accused the police of planting the gun. Although what occurred here was a Terry stop, the court's description of a field inquiry gave a more benign explanation to the jury, which was favorable to the defense. The instruction was not an abuse of discretion, given the inaccurate inferences urged by defense counsel in summation.
Finally, defendant seeks a remand for re-sentencing, arguing that the court improperly imposed the maximum five-year parole disqualifier permitted on defendant's ten-year sentence for gun possession because of its mistaken belief that it was required to do so.
At the time of defendant's crime, as the State concedes, the Graves Act3 provided: "The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater...." N.J.S.A. 2C:43-6(c). At the start of the sentencing hearing the court commented, regarding defendant's maximum exposure on the gun charge, "[I]f he got the 10 years, the five would be mandatory." Defense counsel responded, "You know what, judge, you are 100 percent right...." Defense counsel's agreement with this misunderstanding does not waive defendant's right to be sentenced by a court fully aware of its legal options in sentencing. Because the court appeared to be misinformed as to its sentencing options, we must remand for a new sentencing hearing.
Affirmed in part and reversed in part and remanded for resentencing only. We do not retain jurisdiction.