STATE IN THE INTEREST OF N.H. (FJ-07-0653-18, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 15, 2020
• Docket: A-4896-17T2
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4896-17T2

STATE IN THE INTEREST OF N.H.,

A Juvenile. ___________________________

Submitted October 7, 2019 – Decided January 15, 2020

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FJ-07-0653-18.

Joseph E. Krakora, Public Defender, attorney for appellant N.H. (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent State of New Jersey (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

N.H. appeals from the family court's order adjudicating him a delinquent.

He argues the court erred when it denied his motion to suppress a handgun found after a detective ordered him to the ground at gunpoint, handcuffed him,

performed a pat-down search and discovered the handgun in N.H.'s left pant leg.

N.H. argues his initial encounter with the police was not, as the motion judge

found, a field inquiry but an investigatory stop that was unsupported by the

required reasonable and articulable suspicion that he was engaged in criminal

activity at the time, and that the subsequent stop and pat-down search was the

fruit of the initial unlawful seizure. Unpersuaded, we affirm.

The motion judge, following an evidentiary hearing at which Officer

Tashawn Bryant and Detective Jermin Spencer testified, found that a telephone

caller to the East Orange Police Department reported a shooting in the vicinity

of a high school. Bryant was dispatched to the area to locate victims, witnesses

or suspects. While en route to the area, Bryant heard a dispatch from a lieutenant

posted to the Real Time Crime Prevention Center (CPC). An audio recording,

played during Bryant's cross-examination at the suppression hearing, contained

the verbatim dispatch: "All will be advised with [sic] two males stepping off

from that area. They were going eastbound of Springdale from Prospect. One

had on orange pants."

Bryant saw two individuals who matched the description given in the

lieutenant's dispatch and transmitted: "All right I have the two males one with

A-4896-17T2 2 the orange pants walking eastbound [on] Springdale"; she requested backup

units and gave a description of the clothing worn by both males. Before Bryant

stopped her police vehicle, a plain-clothes detective in an unmarked vehicle

drove "into a driveway in front of the two individuals blocking their

passageway," and another uniformed officer in a marked vehicle exited his

vehicle. The judge further found the detective exited his vehicle and "flashed a

badge to . . . identify himself," whereupon one of the males, later identified as

N.H., ran. During the evidentiary hearing, N.H.'s counsel told the motion judge

that he wanted Bryant to "admit factually what is occurring on the [video]tape,

which is that [Bryant's] car is still moving and the detective is out in [sic] and

the officer, another marked unit is parked alongside." The judge told counsel

he had "established that"; and that Bryant stopped the car before she got out,

meaning she was still in a moving vehicle when N.H. began to run.

After Bryant exited her vehicle, she saw an object in N.H.'s right hand as

he ran. Although she believed the object was a handgun, she radioed only for

pursuing officers to use caution. She also transmitted the color of N.H.'s

clothing and his direction of travel.

Spencer heard Bryant's transmissions, saw a male wearing orange pants

running in the area described by Bryant, drew his gun and ordered the male,

A-4896-17T2 3 N.H., to the ground. N.H. complied, was handcuffed and frisked; Spencer seized

the gun.

We defer to the trial court's factual findings on a motion to suppress,

"unless they were 'clearly mistaken' or 'so wide of the mark' that the interests of

justice require[] appellate intervention." State v. Elders, 192 N.J. 224, 245

(2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279

(2007)). In State v. S.S., our Supreme Court extended that deferential standard

of review to "factual findings based on a video recording or documentary

evidence" to ensure that New Jersey's trial courts remain "'the finder of the

facts[.]'" 229 N.J. 360, 381 (2017) (quoting Fed. R. Civ. P. 52(a) advisory

committee's note to 1985 amendment). The Court explained that "[p]ermitting

appellate courts to substitute their factual findings for equally plausible trial

court findings is likely to 'undermine the legitimacy of the [trial] courts in the

eyes of litigants, multiply appeals by encouraging appellate retrial of some

factual issues, and needlessly reallocate judicial authority.'" Id. at 380-81

(second alteration in original) (quoting Fed. R. Civ. P. 52(a) advisory

committee's note to 1985 amendment). The trial court's application of its factual

findings to the law, however, is subject to plenary review. State v. Cryan, 320

N.J. Super. 325, 328 (App. Div. 1999). We, therefore, review de novo the

A-4896-17T2 4 motion judge's conclusions that the first encounter the plain-clothes detective

had with N.H. was a field inquiry and that the pat-down search followed a

justifiable investigatory stop.

An officer is not prohibited from approaching a person and engaging in a

voluntary conversation—a field inquiry. State v. Davis, 104 N.J. 490, 497

(1986); State v. Stampone, 341 N.J. Super. 247, 252 (App. Div. 2001). A field

inquiry does not violate Fourth Amendment 1 protections "so long as the officer

does not deny the individual the right to move." State v. Sheffield, 62 N.J. 441,

447 (1973); see also State v. Rosario, 229 N.J. 263, 273-74 (2017) (citing State

v. Egan, 325 N.J. Super. 402, 410-11 (App. Div. 1999)). "A field inquiry is

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

accusatory in nature.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (alteration in

original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). "The officer's

demeanor is relevant to the analysis." State v. Rodriguez, 172 N.J. 117, 126

(2002) (citing Davis, 104 N.J. at 497 n.6). "For example, 'an officer would not

be deemed to have seized another if his questions were put in a conversational

manner, if he did not make demands or issue orders, and if his questions were

1 U.S. Const. amend. IV; see also State v. Handy, 206 N.J. 39, 45-46 (2011) (recognizing that, like the Fourth Amendment, the "parallel language" of N.J. Const. art. I, ¶ 7 protects citizens from unreasonable searches and seizures). A-4896-17T2 5 not overbearing or harassing in nature.'" Ibid. (citation omitted) (quoting Davis,

104 N.J. at 497 n.6).

"An encounter becomes more than a mere field inquiry when an

objectively reasonable person feels that his or her right to move has been

restricted." Ibid. The critical inquiry when determining whether a field inquiry

was converted into an investigative detention is whether a reasonable citizen

under the same circumstances would have felt that the officer restrained his or

her right to move by physical force or a show of authority. State v. Tucker, 136

N.J. 158, 164-66 (1994) (citing U. S. v. Mendenhall, 446 U.S. 544, 553-54

(1980)).

Although the motion judge mentioned that the detective, when he pulled

his unmarked vehicle "into a driveway in front of the two individuals[,]

block[ed] their passageway," the judge concluded that the officer, by so

operating the vehicle, flashing his badge and identifying himself "was [making]

an appropriate field inquiry." We agree.

The judge found the detective "did not have the opportunity to even

approach [N.H.] and the other gentleman . . . [t]o ask if they were willing to

answer some questions." The detective's display of his badge—especially

considering he was not in uniform and his vehicle was not marked—was not the

A-4896-17T2 6 "physical force or . . . show of authority" sufficient to restrain N.H.'s freedom

of movement. Mendenhall, 446 U.S. at 553. It was simply a prudent way to

show the pair he was a police officer and not someone alighting from a car to

accost them.

We are unconvinced by N.H.'s attempt to analogize the facts of this case

to those in Rosario. There a police officer who received an anonymous tip that

the defendant was selling drugs recognized defendant's car while on patrol.

Rosario, 229 N.J. at 267. The officer positioned his car at a perpendicular angle

approximately seven to ten feet in front of the defendant's car, partially

confining the defendant's vehicle to an enclosed area. Id. at 268. He then

activated the rooftop flood light on his patrol car, aimed it at the defendant's car,

and, after noticing that she was still in the car, approached her and asked her to

produce identification. Ibid. Under those circumstances, the Court concluded

the encounter was an investigative detention because someone

sitting in a lawfully parked car outside her home who suddenly finds herself blocked in by a patrol car that shines a flood light into the vehicle, only to have the officer exit his marked car and approach the driver's side of the vehicle, would not reasonably feel free to leave.

[Id. at 273.]

A-4896-17T2 7 The Court also commented that the officer's request for identification,

"[a]lthough not determinative . . . reinforce[d] that this was an inv estigative

detention." Ibid.

Here, N.H. ran before the detective uttered a word. There was no question

posed, nor command given. And, obviously, N.H. was not prevented from

leaving. In short, N.H. fled before the field inquiry could begin. The detective's

mere act of pulling his vehicle in front of N.H. into a driveway is not a show of

authority that, without more, would cause someone to believe he was not free to

leave. This street encounter was the type of legitimate police practice that courts

have not restricted. The Mendenhall Court recognized the United States

Supreme Court's prior acknowledgment of the "need for police questioning as a

tool in the effective enforcement of the criminal laws." 446 U.S. at 554.

"Without such investigation, those who were innocent might be falsely accused,

those who were guilty might wholly escape prosecution, and many crimes would

go unsolved. In short, the security of all would be diminished." Ibid. (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)).

The police pursuit and subsequent seizure of N.H. was justified as an

investigatory stop, familiarly known as a Terry stop. Terry v. Ohio, 392 U.S. 1

(1968). Our analysis of the propriety of an investigatory stop balances the

A-4896-17T2 8 competing interests between "a citizen's privacy and freedom of movement" and

"proper law[]enforcement activities." Davis, 104 N.J. at 504-05. Investigative

stops are justified, even absent probable cause, "if the evidence, when

interpreted in an objectively reasonable manner, shows that the encounter was

preceded by activity that would lead a reasonable police officer to have an

articulable suspicion that criminal activity had occurred or would shortly occur."

Id. at 505. Courts are to determine whether the totality of the circumstances

gives rise to an "articulable [and] particularized" suspicion of criminal activity,

not by use of a strict formula, but "through a sensitive appraisal of the

circumstances in each case." Ibid.

Our Supreme Court recognized the two-step analysis set forth in United

States v. Cortez, 449 U.S. 411, 418 (1981),

for determining whether the totality of circumstances creates a "particularized suspicion." A court must first consider the officer's objective observations. The evidence collected by the officer is "seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." "[A] trained police officer draws inferences and makes deductions . . . that might well elude an untrained person. The process does not deal with hard certainties, but with probabilities." Second, a court must determine whether the evidence "raise[s] a suspicion that the particular individual being stopped is engaged in wrongdoing."

A-4896-17T2 9 [Davis, 104 N.J. at 501 (alterations in original) (citations omitted) (quoting Cortez, 449 U.S. at 418.)]

N.H. argues that, like the defendant in Tucker, his flight did not justify a

Terry stop. See Tucker, 136 N.J. at 169-70. Unlike the defendant in Tucker,

who was observed by police simply sitting on a curb before he fled, was chased

and stopped, id. at 161-62, police pursued N.H. only after Bryant saw the object

in his hand as he ran. The Tucker Court noted our observation that what the

record in that case "does not show is also highly persuasive: no observed

criminal activity; no particularized suspicious conduct . . .; no reports of recent

nearby crimes; [and] no descriptions of recent crime suspects[.]" Id. at 169

(quoting State v. Tucker, 265 N.J. Super. 358, 360 (App. Div. 1993), aff'd, 136

N.J. 158 (1994)). The record here, however, as the motion judge found, does

contain sufficient facts to justify the investigatory stop that resulted in the

seizure of the gun from N.H.

From Bryant's credited testimony, and his review of the body-cam and

dash-cam recordings, the motion judge found that as soon as N.H. began to run,

Bryant broadcast that she saw an object in N.H.'s hand. That fact, together with

the observation of N.H. and his companion leaving the area of the reported

shooting, led the motion judge to conclude police had a reasonable and

articulable suspicion that justified a Terry stop. The judge also determined that

A-4896-17T2 10 Spencer—with full knowledge of Bryant's broadcast about the object in N.H.'s

hand, N.H.'s orange clothing and his direction of travel—was justified in

stopping the male wearing orange pants and patting him down for weapons.

Inasmuch as both the attempted initial inquiry by the detective and

Spencer's investigatory stop and frisk fell within the delineated exceptions to the

warrant requirement, State v. Maryland, 167 N.J. 471, 482 (2001); State v.

Piniero, 181 N.J. 13, 20-21 (2004), the seizure of the gun was constitutionally

permissible, and the motion to suppress was properly denied.

Affirmed.

A-4896-17T2 11