STATE OF NEW JERSEY IN THE INTEREST OF A.A.J. (FJ-07-453-15, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 15, 2017
• Docket: A-0387-15T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0387-15T1

STATE OF NEW JERSEY IN THE INTEREST OF A.A.J.,

A Juvenile. __________________________________

Submitted January 25, 2017 – Decided March 15, 2017

Before Judges Accurso and Manahan.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FJ-07-453-15.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Camila Garces, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A.A.J. appeals from an adjudication of delinquency for

conduct which, if committed by an adult, would constitute second-

degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. We

affirm. We derive the following facts from the hearing record. On

the morning of August 22, 2014, the Irvington Police received two

anonymous telephone calls expressing concern over a domestic

disturbance. One of the callers alleged that individuals involved

with the disturbance were in possession of guns. Both callers

requested police be sent to "269 or 271 Ellis Avenue." Detective

Algerome Burnett Crawford and Detective Thomas Turley were

dispatched to the location. While en route, the detectives

received a description of a 5'7" black male with shoulder-length

dreadlocks wearing a black shirt and black pants involved in the

incident.

Upon arriving in the area of 269 Ellis Avenue, the detectives'

attention was drawn to an open door at the adjacent building, 267

Ellis Avenue.1 Crawford witnessed one male standing in the open

doorway, one male on the porch, and approximately three or four

males in the hallway. The detectives approached the group and

entered the building to investigate whether the individuals they

observed had any involvement with the reported incident.

Upon entering the hallway, the detectives saw a stairwell

with three steps leading to an apartment on the left and an

1 The detectives were unable to determine the exact address of the building due to the open door. However, the building was located in the area of 269 Ellis Avenue.

2 A-0387-15T1 apartment on the right. Crawford observed a black male at the top

of the stairs who matched the reported description, by appearance

and clothing, as an individual involved in the incident. This

individual was later identified as A.A.J. According to Crawford,

A.A.J. was acting "very nervous" and "was shaking uncontrollably."

As the detectives approached A.A.J., he attempted to walk into the

apartment on the left. Crawford told A.A.J. to stop so that he

could speak to him. A.A.J. responded that he had just been in a

fight prior to the detectives' arrival.

Based on the information from the phone calls, A.A.J.'s

statement about being in a fight, his nervous behavior, and the

description received by the police, Crawford instructed A.A.J. to

place his hands on his head while he patted him down. When the

pat-down reached his right pocket, A.A.J. moved his hands from his

head toward the pocket. Crawford warned A.A.J. not to do this or

he would be handcuffed. The pat-down resumed and Crawford felt a

bulge he believed to be a handgun. While the detective was feeling

the object, A.A.J. proceeded to move his hands toward the area two

more times.

After feeling the bulge in A.A.J.'s right pants pocket,

Crawford immediately handcuffed him. The detective removed the

object from A.A.J.'s pocket, and confirmed it was a handgun. He

3 A-0387-15T1 then removed the magazine, and made sure the weapon was unloaded.

A.A.J. was taken into custody.

In an Essex County juvenile complaint, A.A.J. was charged

with second-degree unlawful possession of a handgun, N.J.S.A.

2C:39-5b; fourth-degree possession of hollow point bullets,

N.J.S.A. 2C:39-3f; and third-degree receiving stolen property,

N.J.S.A. 2C:20-7. Subsequent to the filing of the complaint,

A.A.J. filed a motion to suppress the handgun.

On April 27 and May 12, 2015, the Family Part judge conducted

a consolidated hearing on both the issue of suppression and the

issue of adjudication. At the conclusion of the hearing, the

judge granted a motion for a judgment of acquittal on the receiving

stolen property charge, N.J.S.A. 2C:20-7 and denied the motion to

suppress. A.A.J. was adjudicated delinquent on the charge of

unlawful possession of a handgun, N.J.S.A. 2C:39-5b, only.

Concerning the motion to suppress, the judge held that A.A.J.'s

temporary detention was "clearly appropriate," especially

considering the calls to the police, the description of the

suspect, the possibility of weapons being present, and A.A.J.'s

"nervous" behavior.

The judge sentenced A.A.J. to an eighteen-month term of

probation, but stayed the sentence pending the filing and

disposition of a motion for reconsideration. On June 22, 2015,

4 A-0387-15T1 the court denied A.A.J.'s motion for reconsideration and ordered

that the eighteen-month term of probation begin. This appeal

followed.

On appeal, A.A.J. raises the following points:

POINT I

THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESSS THE GUN UNLAWFULLY SEIZED BY POLICE. (U.S. CONST. AMENDS. IV AND XIV; N.J. CONST. (1947) ART. I, ¶ 7).

POINT II

THIS MATTER SHOULD BE REMANDED FOR A NEW [ADJUDICATION] HEARING BECAUSE THE COURT BELOW IMPROPERLY, AND OVER THE JUVENILE'S OBJECTION, HELD ONE COMBINED PROCEEDING TO RESOLVE BOTH THE MOTION TO SUPPRESS AND THE ADJUDICATION OF THE UNDERLYING CHARGES.

In reviewing a motion to suppress, we defer to the trial

court's factual and credibility findings, so long as they are

supported by the record. State v. Handy, 206 N.J. 39, 44 (2011).

Deference is afforded because the "findings of the trial judge

. . . are substantially influenced by his opportunity to hear and

see the witnesses and to have the 'feel' of the case, which a

reviewing court cannot enjoy." State v. Reece, 222 N.J. 154, 166

(2015) (alteration in original) (quoting State v. Locurto, 157

N.J. 463, 471 (1999)). We disregard a trial court's factual and

credibility findings only if clearly mistaken. State v. Hubbard,

5 A-0387-15T1 222 N.J. 249, 262 (2015). The legal conclusions of the trial

court, however, are reviewed de novo. Id. at 263.

The Fourth Amendment to the United States Constitution and

Article 1, paragraph 7 of the New Jersey Constitution guarantee

the right "of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures[.]"

U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. The Fourth

Amendment and Article 1, paragraph 7 of the New Jersey Constitution

both "require[] the approval of an impartial judicial officer

based on probable cause before most searches may be undertaken."

State v. Patino, 83 N.J. 1, 7 (1980).

Warrantless searches are presumed invalid. State v. Gamble,

218 N.J. 412, 425 (2014); State v. Cooke, 163 N.J. 657, 664 (2000).

"Any warrantless search is prima facie invalid, and the invalidity

may be overcome only if the search falls within one of the specific

exceptions created by the United States Supreme Court." State v.

Hill, 115 N.J. 169, 173 (1989) (citing Patino, supra, 83 N.J. at

7). The State carries the burden of proving the existence of an

exception by a preponderance of the evidence. State v. Amelio,

197 N.J. 207, 211 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct.

2402, 173 L. Ed. 2d 1297 (2009).

6 A-0387-15T1 One exception, based upon Terry,2 is "the right of a police

officer to conduct a brief, investigatory stop . . . ." State v.

Morrison, 322 N.J. Super. 147, 151-52 (1999). "There must be

'some objective manifestation that the suspect was or is involved

in criminal activity'" in order for a Terry stop to be considered

valid. State v. Arthur, 149 N.J. 1, 8 (1997) (quoting State v.

Thomas, 110 N.J. 673, 678 (1988)). In determining whether the

investigative detention was justified under this reasonable

suspicion standard, "a court must consider the 'totality of the

circumstances - the whole picture.'" State v. Stovall, 170 N.J.

346, 361 (2002) (quoting United States v. Cortez, 449 U.S. 411,

417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)).

Once stopped, the "officer may conduct a reasonable search

for weapons if he [or she] is 'justified in believing that the

individual whose suspicious behavior he [or she] is investigating

at close range is armed and presently dangerous to the officer or

to others.'" State v. Richards, 351 N.J. Super. 289, 299 (App.

Div. 2002) (quoting Terry, supra, 392 U.S. at 24, 88 S. Ct. at

1881, 20 L. Ed. 2d at 908).

A Terry stop and frisk are two separate constitutional events.

Thomas, supra, 110 N.J. at 678-79 (explaining that "[u]nder the

2 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

7 A-0387-15T1 Terry rule, whether there is good cause for an officer to make a

protective search incident to an investigatory stop is a question

separate from whether it was permissible to stop the suspect in

the first place."). A Terry search allows an officer "to pat down

a citizen's outer clothing when the officer 'has reason to believe

that he [or she] is dealing with an armed and dangerous individual,

regardless of whether he [or she] has probable cause to arrest the

individual for a crime.'" State v. Nishina, 175 N.J. 502, 514-15

(2003) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883,

20 L. Ed. 2d at 909).

The reasonableness of a Terry search is measured objectively.

Thomas, supra, 110 N.J. at 679. The officer conducting the search

must "point to particular facts from which he [or she] reasonably

inferred that the individual was armed and dangerous." Ibid.

(quoting Sibron v. New York, 392 U.S. 40, 64, 88 S. Ct. 1889,

1903, 20 L. Ed. 2d 917, 935 (1968)). "The officer need not be

absolutely certain that the individual is armed; the issue is

whether a reasonably prudent [person] in the circumstances would

be warranted in the belief that his [or her] safety or that of

others was in danger." Terry, supra, 392 U.S. at 27, 88 S. Ct.

at 1883, 20 L. Ed. 2d at 909. Like reasonable suspicion to stop,

the existence of reasonable suspicion to frisk "is based on the

totality of the circumstances." State v. Roach, 172 N.J. 19, 27

8 A-0387-15T1 (2002); see also State v. Bard, 445 N.J. Super. 145, 156 (App.

Div. 2016) (slip op. at 10). "[D]ue weight must be given" to the

detective's experience. See State v. Valentine, 134 N.J. 536,

543, 547-48 (1994) (quoting Terry, supra, 392 U.S. at 27, 88 S.

Ct. at 1883, 20 L. Ed. 2d at 909).

Predicated upon the calls made to the Irvington Police

detailing that individuals with handguns were arguing at a

specified location, A.A.J.'s statement about previously being in

a fight, and A.A.J.'s appearance matching the description received

by the police, it was objectively reasonable for the detective to

suspect that A.A.J. was armed with a handgun. Given the totality

of the circumstances presented, we conclude the pat-down was

lawful. Roach, supra, 172 N.J. at 27.

Finally, we address A.A.J.'s argument that the court erred

by consolidating the motion to suppress hearing with the

adjudication hearing. Our review of the record reveals that the

judge applied the proper legal standards, evidentiary rules, and

differing burdens of proof when confronted with issues relating

to each hearing. While we do not approve the process of

consolidation employed here, we nonetheless recognize that judges

are "capable of sorting through admissible and inadmissible

evidence without resultant detriment to the decision-making

process. State v. Kern, 325 N.J. Super. 435, 444 (App. Div. 1999).

9 A-0387-15T1 Affirmed.

10 A-0387-15T1