NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1207-13T3
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. May 18, 2015
APPELLATE DIVISION JAMES L. LEGETTE, a/k/a JAMES LEGGETTE, JR., a/k/a JAMES LEGETTE,
Defendant-Appellant.
_______________________________________
Argued September 22, 2014 – Decided May 18, 2015
Before Judges Sabatino,1 Guadagno and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 12-04-0932.
A. Harold Kokes argued the cause for appellant.
John J. Santoliquido, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; John Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
1 Judge Sabatino did not participate in oral argument. He joins the opinion with the consent of the parties. R. 2:13-2(b). Defendant James Legette was properly detained by a police
officer conducting an investigatory stop. Defendant sought to
get his identification by entering his apartment, which the
officer permitted on the condition that the officer accompany
him. While in his apartment, defendant attempted to conceal the
sweatshirt he was wearing which contained a firearm, but he was
thwarted by the officer. Defendant appeals the denial of his
motion to suppress the handgun, contending that the officer
should not have been allowed to accompany him to the apartment.
The Fourth Amendment of the United States Constitution, and
Article I, paragraph 7 of the New Jersey Constitution,
"guarantee the right of people to be free of unreasonable
searches and seizures in their homes." State v. Lamb, 218 N.J.
300, 314 (2014). Both the United States Supreme Court and the
New Jersey Supreme Court have found that when individuals under
arrest seek to enter their residence to obtain identification,
clothing, or other items, it is reasonable and permissible for
the police to accompany them to prevent them from escaping or
endangering the police. Washington v. Chrisman, 455 U.S. 1, 102
S. Ct. 812, 70 L. Ed. 2d 778 (1982); State v. Bruzzese, 94 N.J.
210, 234 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295,
79 L. Ed. 2d 695 (1984).
2 A-1207-13T3 We apply those decisions to the situation here. The
officer had valid authorization to detain defendant for an
investigatory stop based on reasonable suspicion, and had a
reasonable belief that defendant was armed and dangerous. We
hold that an officer in that situation may accompany the
detainee who chooses to enter his residence to obtain
identification or other personal items. Accordingly, we affirm.
I.
At the suppression hearing, Officer Richard Dill testified
to the following facts. Dill was a uniformed K-9 officer with
ten years of experience in the Patrol Unit of the Somers Point
Police Department. On the night of January 17, 2012, he was
dispatched to investigate a noise complaint in a high-crime,
high-narcotics apartment complex he patrolled regularly. As he
drove through the complex, Dill saw defendant and another man
standing on a common porch of the apartment building. Entering
the building from another direction using a common hallway, Dill
heard the two men yelling to people in an apartment where there
was loud talking and music. After Dill neared the door to the
common porch, defendant opened the door about twelve inches.
Officer Dill smelled an overpowering odor of burnt marijuana
coming through the open doorway.
3 A-1207-13T3 Suspecting defendant was committing a criminal act
involving marijuana, Officer Dill walked onto the common porch
and identified himself. Defendant immediately turned and
started walking at a fast pace into the parking lot. Dill told
defendant to stop and asked where he was going. Defendant said
he was going to his car. Dill asked if defendant had any
identification. Defendant said his identification was up in his
apartment, immediately volunteered to go into his apartment to
get his ID, and started walking back to the apartment building.
Officer Dill told defendant, "I have to come with you to
get [the ID]." Defendant did not protest and continued to walk
into the building. As defendant was walking, Officer Dill
noticed a bulge in the pocket of the grey hooded sweatshirt
defendant was wearing. Dill was concerned it could be a weapon
or contraband that defendant was attempting to conceal. Dill
went with defendant because "he's a suspect at this point and I
wasn't going to allow him out of my sight where he could
possibly discard evidence of the crime being committed or
possibly get any sort of weapon" that would endanger officer
safety.
Accompanied by Officer Dill, defendant entered the
apartment, went into the bedroom, picked up a wallet, removed
his identification, and handed it to Dill. Neither defendant
4 A-1207-13T3 nor the woman in the apartment protested Dill's accompanying
defendant. Defendant and Dill went into the living room, where
Dill radioed in the information from defendant's identification.
As Officer Dill was radioing, defendant took off his grey
sweatshirt, handed it to the woman, and told her to put it in
the bedroom. His suspicions further aroused, Dill stopped his
radio transmission and told defendant: "we're going to need that
sweatshirt." Defendant and Dill followed the woman back into
the bedroom. Although she put the grey sweatshirt on the floor,
defendant stepped over the grey sweatshirt and grabbed another
sweatshirt from the closet. Dill picked up the grey sweatshirt
from the floor, and said to defendant: "this is the sweatshirt
you were wearing. We need this one." Defendant's attempts to
get rid of the grey sweatshirt further raised Officer Dill's
concern for his safety and the preservation of evidence.
Reentering the living room with defendant, and holding the
grey sweatshirt, Officer Dill resumed calling in defendant's
identification to check for outstanding warrants. Defendant
became extremely nervous, repeatedly looked at the sweatshirt,
and his demeanor became uncooperative.
Increasingly concerned for his safety, Officer Dill asked
defendant to step back outside, where Dill's patrol vehicle, K-9
dog, and backup Officer Mark McElwee were. Once outside, Dill
5 A-1207-13T3 asked defendant to have a seat on the building steps. Defendant
started tying his shoe, causing concern he was preparing to
flee. Dill placed the sweatshirt on the ground. Defendant kept
looking at the sweatshirt and looking around nervously, so Dill
informed him he was handcuffing and detaining him during the
investigation, but was not arresting him.
When Officer Dill's warrant inquiry came back negative, he
asked if he could check the sweatshirt, but defendant declined
to consent. Dill said he would conduct a canine sniff of the
sweatshirt, and to keep him from provoking the K-9 dog, he
placed defendant in the back of the patrol vehicle. Dill got
another sweatshirt and a towel from his police vehicle and
placed them alongside the grey sweatshirt, but the dog put his
nose in the grey sweatshirt, grabbed it in his mouth, and threw
it to the pavement. It landed making a metal "clank" that
sounded like a weapon. Dill picked up the sweatshirt, for the
first time manipulated the pocket, and felt a metal handgun.
The officer seized the loaded handgun.
Defendant was indicted for second-degree unlawful
possession of a handgun without a permit, N.J.S.A. 2C:39-5(b),
and second-degree possession of a weapon by a convicted person,
N.J.S.A. 2C:39-7. He filed a suppression motion. After hearing
the testimony and receiving supplemental briefing and argument,
6 A-1207-13T3 the trial court denied the motion. Defendant pled guilty to
possession of a weapon by a convicted person, and was sentenced
to a negotiated term of five years in prison without eligibility
for parole.2 The trial court denied bail pending appeal.
Defendant appeals the October 11, 2013 judgment of
conviction, raising the following issues:
POINT I. THE COURT ERRED IN DETERMINING DEFENDANT IS LIKELY TO FLEE IF ALLOWED BAIL PENDING APPEAL.
POINT II. DEFENDANT DOES NOT POSE A DANGER TO COMMUNITY.
POINT III. THERE ARE SUBSTANTIAL QUESTIONS OF FACT AND LAW THAT WERE RAISED IN DEFENDANT'S MOTION TO SUPPRESS.
POINT IV. INVALID TERRY STOP.
POINT V. SUBSEQUENT WARRANTLESS HOME INTRUSION AND FOURTH AMENDMENT.
POINT VI. PLAIN VIEW, PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES.
POINT VII. WARRANTLESS UNLAWFUL SEIZURE AND ARREST OF DEFENDANT.
POINT VIII. OFFICER DILL'S TESTIMONY WAS NOT CREDIBLE AND WAS UNRELIABLE.
POINT IX. TRIAL COURT RULED ON FACTS THAT WERE OUTSIDE OF RECORD.
2 Defendant's sentence was concurrent to a three-year sentence for an unrelated drug possession charge, and a one-year sentence for an unrelated obstruction charge.
7 A-1207-13T3 II.
We must hew to our "deferential standard of review." State
v. Rockford, 213 N.J. 424, 440 (2013). "[A]n appellate court
reviewing a motion to suppress must uphold the factual findings
underlying the trial court's decision so long as those findings
are supported by sufficient credible evidence in the record."
Ibid. (internal quotation marks omitted). "Those findings
warrant particular deference when they are substantially
influenced by [the trial judge's] opportunity to hear and see
the witnesses and to have the 'feel' of the case, which a
reviewing court cannot enjoy." Ibid. (alteration in original;
internal quotation marks omitted).
Here, the trial court found Officer Dill's testimony "very
credible and reliable." Defendant argues the court should have
discredited Dill because of differences in wording between his
testimony and report, and a discrepancy between his time
estimate and that of Officer McElwee. However, "[i]t is a
deeply rooted principle of our jurisprudence that '[a]ppellate
courts should defer to trial courts' credibility findings that
are influenced by matters such as observations of the character
and demeanor of witnesses and common human experience that are
not transmitted by the record.'" State v. Segars, 172 N.J. 481,
500-01 (2002) (citation omitted). Defendant has not shown the
8 A-1207-13T3 suppression court's findings were "'so clearly mistaken that the
interests of justice demand intervention and correction.'"
State v. Robinson, 200 N.J. 1, 15 (2009) (citation omitted).
Defendant also notes the trial court's letter opinion
contained certain factual details not reflected in the
suppression hearing testimony. We will base our determinations
solely on the facts in the testimony, and consider the validity
of each stage of Officer Dill's encounter with defendant.
A.
Defendant does not dispute that Officer Dill had the right
to enter the common hallway of the apartment building to
investigate the noise complaint. State v. Walker, 213 N.J. 281,
296 (2013); State v. Smith, 37 N.J. 481, 496 (1962); State v.
Brown, 282 N.J. Super. 538, 547 (App. Div.), certif. denied, 143
N.J. 322 (1995).
When defendant opened the door of the common porch, Officer
Dill detected the overwhelming odor of burnt marijuana. "'New
Jersey courts have recognized that the smell of marijuana itself
constitutes probable cause "that a criminal offense ha[s] been
committed and that additional contraband might be present."'"
Walker, supra, 213 N.J. at 290 (quoting State v. Nishina, 175
N.J. 502, 516-17 (2003) (quoting State v. Vanderveer, 285 N.J.
Super. 475, 479 (App. Div. 1995))).
9 A-1207-13T3 In Vanderveer, a police officer encountered two individuals
on an outdoor porch and detected the odor of burnt marijuana.
Vanderveer, supra, 285 N.J. Super. at 477, 479. We held the
marijuana odor gave rise to probable cause "to conduct a
warrantless search of the persons in the immediate area from
where the smell has emanated." Id. at 481. Thus, Officer Dill
had the right to search defendant.
B.
Officer Dill chose to take a more restrained approach,
simply entering the common porch to speak to defendant. See
State v. Johnson, 171 N.J. 192, 209 (2002). When defendant
tried to hurry away, Dill stopped him. The trial court properly
found reasonable suspicion justifying this investigatory stop of
defendant.
At a suppression hearing, "'the State bears the burden of
proving by a preponderance of the evidence that a warrantless
search or seizure falls within one of the few well-delineated
exceptions to the warrant requirement.'" State v. Mann, 203
N.J. 328, 337-38 (2010) (citation omitted). "One such exception
is denominated an investigatory stop or a Terry stop." Id. at
338 (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.
2d 889 (1968)). An investigatory stop "'is valid if it is based
on specific and articulable facts which, taken together with
10 A-1207-13T3 rational inferences from those facts, give rise to a reasonable
suspicion of criminal activity.'" Ibid. (citation omitted).
As "'the smell of burnt marijuana under the total
circumstances create[s] a heightened and reasonable suspicion
that an offense was being committed,'" Dill was justified in
stopping defendant. Walker, supra, 213 N.J. at 290 (quoting
State v. Judge, 275 N.J. Super. 194, 202 (App. Div. 1994)). In
addition, given the evidence that defendant just committed a
marijuana offense, his hurried departure when the officer
appeared "'reasonably justif[ied] an inference that it was done
with a consciousness of guilt and pursuant to an effort to avoid
an accusation based on that guilt.'" State v. Tucker, 136 N.J.
158, 169 (1994) (citation omitted).
Moreover, Officer Dill appropriately asked defendant to
produce identification. "[I]t is well established that an
officer may ask a suspect to identify himself in the course of a
Terry stop." Hiibel v. Sixth Judicial Dist. Court, 542 U.S.
177, 186, 124 S. Ct. 2451, 2457, 159 L. Ed. 2d 292, 303 (2004);
Michigan v. Summers, 452 U.S. 692, 700 n.12, 101 S. Ct. 2587,
2593, 69 L. Ed. 2d 340, 348 (1981). "[T]he ability to . . .
check identification in the absence of probable cause promotes
the strong government interest in solving crimes and bringing
offenders to justice." United States v. Hensley, 469 U.S. 221,
11 A-1207-13T3 229, 105 S. Ct. 673, 680, 83 L. Ed. 2d 604, 612 (1985); see
State v. Sirianni, 347 N.J. Super. 382, 390-91 (App. Div.),
certif. denied, 172 N.J. 178 (2002).
C.
When Officer Dill asked defendant for his identification,
defendant said his ID was up in his apartment, immediately
volunteered to go get it, and started walking to the apartment.
Dill told defendant he would have to accompany defendant.
Defendant claims the officer violated his rights by accompanying
him into the apartment.3
The facts of this case strongly resemble the facts in
Chrisman. There, a police officer saw a college student with
alcohol and stopped him and asked for identification. Chrisman,
supra, 455 U.S. at 3, 102 S. Ct. at 815, 70 L. Ed. 2d at 783.
The student said that his ID was in his dormitory room and asked
if the officer would wait while he went to retrieve it. Ibid.
The officer answered that, under the circumstances, he would
have to accompany the student. Ibid.
The United States Supreme Court held the officer could
properly accompany the student into his dorm room, and upheld
his plain view seizure of the drugs he saw in the room. Id. at
3 At oral argument on appeal, defendant conceded the officer had not violated his rights prior to that time.
12 A-1207-13T3 7-9, 102 S. Ct. at 817-18, 70 L. Ed. 2d at 785-86. The Court
ruled that "the officer had placed [the student] under lawful
arrest, and therefore was authorized to accompany him to his
room for the purpose of obtaining identification. The officer
had a right to remain literally at [the student's] elbow at all
times; nothing in the Fourth Amendment is to the contrary." Id.
at 6, 102 S. Ct. at 816, 70 L. Ed. 2d at 784 (footnote omitted).
The Court "h[e]ld therefore that it is not 'unreasonable'
under the Fourth Amendment for a police officer, as a matter of
routine, to monitor the movements of an arrested person, as his
judgment dictates, following the arrest." Id. at 7, 102 S. Ct.
at 817, 70 L. Ed. 2d at 785. "The officer's need to ensure his
own safety—as well as the integrity of the arrest—is compelling.
Such surveillance is not an impermissible invasion of the
privacy or personal liberty of an individual who has been
arrested." Ibid.
In Bruzzese, our Supreme Court "adopt[ed] the Chrisman rule
as the law of New Jersey." Bruzzese, supra, 94 N.J. at 234.4
4 The Court noted that "our lower courts also have followed the Chrisman approach." Ibid. (citing, e.g., State v. Brown, 132 N.J. Super. 180, 184 (App. Div. 1975)). The Court disapproved the sole exception, State v. Seiss, 168 N.J. Super. 269 (App. Div. 1979), to the extent it "denies a police officer the unequivocal right to accompany a person he has lawfully arrested," ibid., and reversed the suppression court and panel majority which had relied on Seiss. Id. at 216, rev'g State v. (continued)
13 A-1207-13T3 There, when officers went to the defendant's house to execute an
arrest warrant, the defendant said he wanted to put on shoes and
a jacket before going outside. The officers, "[w]ithout
invitation," followed the defendant upstairs to his bedroom,
saying they had to accompany him. Id. at 215. Our Supreme
Court upheld their actions, "rul[ing] that once a defendant is
placed under lawful arrest, the arresting officer has the right
to remain at his side and to follow him wherever he chooses to
go." Id. at 232.
Our Supreme Court found "the reasons advanced by the
Supreme Court for its holding [in Chrisman] are equally
applicable in New Jersey." Ibid. Both Courts stressed
"'[e]very arrest must be presumed to present a risk of danger to
the arresting officer. . . . Moreover, the possibility that an
arrested person will attempt to escape if not proper[ly]
supervised is obvious.'" Id. at 231 (quoting Chrisman, supra,
455 U.S. at 7, 102 S. Ct. at 817, 70 L. Ed. 2d at 785).
"[T]he concerns [Chrisman found] present in an arrest
situation may also be present in an investigatory detention."
Servis v. Commonwealth, 371 S.E.2d 156, 162 (Va. Ct. App. 1988).
(continued) Bruzzese, 187 N.J. Super. 435, 438-40 (App. Div. 1982); see also id. at 453, 455 (Milmed, P.J.A.D., dissenting) (following Chrisman and Brown and finding the right to accompany "well embedded in the law").
14 A-1207-13T3 Both the United States and New Jersey Supreme Courts have found
the danger of "'an on-the-street or roadside investigatory
encounter'" to be comparable to "'[t]he risk of danger in the
context of an arrest in the home.'" State v. Jones, 179 N.J.
377, 406 (2004) (quoting Maryland v. Buie, 494 U.S. 325, 333,
110 S. Ct. 1093, 1098, 108 L. Ed. 2d 276, 285 (1990)). Our
Supreme Court has likened the public interest in preventing
flight from an attempted arrest and an attempted investigatory
stop because a "defendant's refusal to obey the officer's
command to stop [can] set off a chase along with the attendant
danger of escalating violence no different than if he had
disobeyed a command to submit to an arrest." State v. Crawley,
187 N.J. 440, 457, cert. denied, 549 U.S. 1078, 127 S. Ct. 740,
166 L. Ed. 2d 563 (2006).
Federal Courts of Appeals have recognized that "[a]lthough
the Supreme Court [in Chrisman] refers to the student as having
already been placed under arrest when the officer accompanied
him back to his dorm room to retrieve identification, we do not
think that this characterization makes Chrisman any less
applicable" to a pre-arrest situation. United States v.
Roberts, 612 F.3d 306, 308, 310 n.4 (5th Cir.) (officers waiting
for a defendant to get identification before executing an arrest
warrant could accompany the defendant into his apartment), cert.
15 A-1207-13T3 denied, 562 U.S. 1116, 131 S. Ct. 839, 178 L. Ed. 2d 570 (2010).
Thus, where an officer has probable cause, but no plan to arrest
the detainee unless he is unable to provide identification, "it
is reasonable for police to keep him in view to ensure that
credentials are the only object of the expedition." United
States v. Garcia, 376 F.3d 648, 651-52 (7th Cir. 2004). Indeed,
"several courts have since applied Chrisman's reasoning to allow
a police officer to accompany a suspect into dwellings in
situations in which probable cause existed but formal arrests
had not yet occurred." Hoover v. Dir., N.D. Dep't of Transp.,
748 N.W.2d 730, 737 (N.D. 2008); State v. Diercks, 674 S.W.2d
72, 79 (Mo. Ct. App. 1984).
Other courts have applied Chrisman to Terry stops where the
officer has reasonable suspicion and a reasonable belief a
suspect is "potentially dangerous." Conway v. Commonwealth, 407
S.E.2d 310, 313-15 & n.3 (Va. Ct. App. 1991) (en banc); Johnson
v. State, 662 P.2d 981, 984, 987 (Alaska Ct. App. 1983); Servis,
supra, 371 S.E.2d at 162. Some courts required only reasonable
suspicion. State v. Mayfield, 694 P.2d 915, 917-18 (Kan. Ct.
App. 1985); State v. Lupek, 712 S.E.2d 915, 920-21 (N.C. Ct.
App. 2011); Washington v. Commonwealth, 509 S.E.2d 512, 516-17
(Va. Ct. App. 1999); Commonwealth v. Daniels, 421 A. 2d 721,
724-25 (Pa. Super. Ct. 1980) ("the police had sufficient grounds
16 A-1207-13T3 to enter the bedroom [with the detainee] under the Terry
analysis alone"). All of these cases hold that an officer can
accompany a person detained in an investigatory stop who seeks
to retrieve personal items from his residence. Our research has
found no published case to the contrary.5
We agree an officer who has lawfully detained a suspect in
an investigatory stop, like an officer who has lawfully arrested
a subject, need not let the suspect out of his sight or presence
during the detention. Rather, if the detained person seeks to
obtain identification or other items from his residence, the
officer may accompany the detainee to prevent escape or danger
to the officer and others. Such monitoring is justified by the
normal authority of an officer conducting a lawful Terry stop
"'to take such steps as [are] reasonably necessary to protect
[his and others'] personal safety and to maintain the status quo
during the course of the stop.'" Servis, supra, 371 S.E.2d at
162 (quoting Hensley, supra, 469 U.S. at 235, 105 S. Ct. at 683-
84, 83 L. Ed. 2d at 616).
5 Cf. Commonwealth v. Johnson, 777 S.W.2d 876, 879-80 (Ky. 1989), cert. denied, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952 (1990) (where a person was neither arrested nor detained upon reasonable suspicion, but was simply tagging along with officers executing a warrant to search his car, the court was "not persuaded that the police are authorized, in anticipation of executing a search warrant upon a person's property in another location, to constantly observe him at a time at which he is not under arrest").
17 A-1207-13T3 We recognize there are differences between a detention and
an arrest. "[T]he privacy rights of an individual who is placed
under lawful arrest are diminished." Bruzzese, supra, 94 N.J.
at 232. Moreover, arrestees are more likely to want to retrieve
items such as clothing or footwear because they are being taken
to a police station. On the other hand, investigatory stops,
like arrests, are "encounters with the police in which a
person's freedom of movement is restricted," State v. Elders,
192 N.J. 224, 246 (2007), and the detainee may be subjected to
the "invasion of privacy that occurs in a pat-down of a person's
body," State v. Smith, 134 N.J. 599, 619 (1994). Moreover,
detainees have not yet been searched and may not have been
frisked. Thus, there is a greater risk that detainees,
particularly unfrisked detainees, have on their persons weapons
they could access, or contraband or evidence they could conceal
or destroy, if left unaccompanied. A Terry stop "'involves a
police investigation "at close range" . . . when the officer
remains particularly vulnerable in part because a full custodial
arrest has not been effected.'" State v. Carter, 235 N.J.
Super. 232, 239 n.4 (App. Div. 1989) (citation omitted); Servis,
supra, 371 S.E.2d at 162. By accompanying the detainee, the
officer can better act "at the first indication that he was in
danger, or that evidence might be destroyed," Chrisman, supra,
18 A-1207-13T3 455 U.S. at 9, 102 S. Ct. at 818, 70 L. Ed. 2d at 786, and
better "prevent [the detainee's] escape," Bruzzese, supra, 94
N.J. at 234.
Moreover, as the high courts observed in Chrisman and
Bruzzese, permitting such monitored movement may benefit the
suspects who desire to get identification, clothing, or similar
items. "Indeed, were the rule otherwise, it is doubtful that an
arrested person would ever be permitted to return to his
residence, no matter how legitimate the reason for doing so.
Such a rule would impose far greater restrictions on the
personal liberty of arrested individuals than those occasioned
here." Chrisman, supra, 455 U.S. at 7 n.4, 102 S. Ct. at 817,
70 L. Ed. 2d at 785; see Bruzzese, supra, 94 N.J. at 234
(finding "the Chrisman rule offers a sensible middle ground").
Such monitored movement may benefit detainees even more than
arrestees because it could enable them to dispel police
suspicions. Many detainees would "welcome the opportunity to
find their driver's licenses and thus avoid full custodial
arrest." Garcia, supra, 376 F.3d at 651.
The Supreme Courts in Chrisman and Bruzzese held that
officers can accompany arrestees as a matter of course, without
a special showing. "The absence of an affirmative indication
that an arrested person might have a weapon available or might
19 A-1207-13T3 attempt to escape does not diminish the arresting officer's
authority to maintain custody over the arrested person."
Chrisman, supra, 455 U.S. at 6, 102 S. Ct. at 816-17, 70 L. Ed.
2d at 785. "The officer need not posit any special need for the
accompaniment so long as the arrest is lawful." Bruzzese,
supra, 94 N.J. at 232. "'There is no way for an officer to
predict reliably how a particular subject will react to arrest
or the degree of the potential danger,'" and there is "the
constant risk that the arrested defendant will seek to escape."
Id. at 231, 234 (quoting Chrisman, supra, 455 U.S. at 7, 102 S.
Ct. at 817, 70 L. Ed. 2d at 785). The same could be said about
Terry stops.
Here, the circumstances justified Officer Dill accompanying
defendant. Dill clearly had reasonable suspicion that defendant
engaged in a marijuana offense. Defendant's attempt to evade
Dill by rushing off to his car gave reason to believe defendant
would flee if allowed to head toward his apartment
unaccompanied.
Moreover, after defendant started walking to his apartment,
the officer noticed a bulge in the pocket of defendant's grey
sweatshirt. "The bulge in the [defendant's] jacket permitted
the officer to conclude that [he] was armed and thus posed a
serious and present danger to the safety of the officer."
20 A-1207-13T3 Pennsylvania v. Mimms, 434 U.S. 106, 111-12, 98 S. Ct. 330, 334,
54 L. Ed. 2d 331, 337-38 (1977). "Indeed, a bulge alone has
been held sufficient to validate a protective pat-down." Smith,
supra, 134 N.J. at 621.
Thus, the circumstances here provided not only reasonable
suspicion defendant was involved in crime, but also reasonable
suspicion that he was armed and dangerous. The circumstances
clearly justified Officer Dill in accompanying defendant to
prevent him from escaping, accessing a possible weapon in his
sweatshirt or his residence, or concealing or destroying the
possible contraband in the sweatshirt.
Because both types of reasonable suspicion are present
here, we need not decide whether reasonable suspicion that a
detainee was involved in crime is itself sufficient to justify
accompanying the detainee. However, we do not believe probable
cause is necessary to justify accompanying a detainee in a Terry
stop to prevent attack or escape. "'The Fourth Amendment does
not require a policeman who lacks the precise level of
information necessary for probable cause to arrest to simply
shrug his shoulders and allow a crime to occur or a criminal to
escape.'" State v. Arthur, 149 N.J. 1, 8 (1997) (quoting Adams
v. Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 1923, 32 L. Ed.
2d 612, 616 (1972)). Instead, the officer is permitted to
21 A-1207-13T3 detain the defendant during the Terry stop and prevent his
escape.
Defendant stresses Officer Dill was investigating a noise
complaint and a marijuana offense. However, an "officer's
authority to maintain custody over" a defendant is not "altered
by the nature of the offense." Chrisman, supra, 455 U.S. at 6-7
& n.3, 102 S. Ct. at 816-17, 70 L. Ed. 2d at 784-85. Moreover,
the officer's authority to maintain custody allows him to
accompany the defendant "as a matter of routine"; the Court
rejected defendant's claim that "'exigent circumstances'" are
required. Id. at 6-7, 11, 102 S. Ct. at 816-17, 819, 70 L. Ed.
2d at 785, 788 (citation omitted).
For the reasons above, we apply Chrisman and Bruzzese and
conclude Officer Dill's action of accompanying defendant to his
apartment "was reasonable, and hence, constitutional, under both
the Fourth Amendment of the United States Constitution and
Article I, paragraph 7 of the New Jersey Constitution."
Bruzzese, supra, 94 N.J. at 235. We note that "the police did
not create the scenario that prompted defendant to return to his
[apartment]." Ibid. "It was the defendant himself who decided
to go [there]." Ibid. "The police did not order or even
22 A-1207-13T3 suggest that defendant" do so. Ibid.6 "[T]he policeman's act of
following defendant [to his apartment] was a reasonable
consequence of defendant's own voluntary choice to go" there to
get his identification. Ibid.
We emphasize that a detainee may choose not to enter his
residence once he becomes aware an officer must accompany him.
As Bruzzese stated, "even after the police told the defendant
they would have to accompany him, he could have declined to go
[into his apartment] or asked [a third party] at that point to
get his [identification]." Ibid. If defendant had elected not
to enter his apartment, "the officers could not have entered
[it] without a search warrant." Ibid.
Thus, a defendant holds the key to whether there is
accompanied entry into the residence, because it is based on his
own entry, and it cannot occur if he decides not to enter
accompanied. Here, defendant turned that key by continuing into
his apartment after learning that the officer would have to
accompany him.
6 Nothing in the record suggests Dill accompanied defendant "to conduct an exploratory search of his [apartment]." Ibid. In any event, "the proper inquiry for determining the constitutionality of a search-and-seizure is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable, without regard to his or her underlying motives or intent." Id. at 219.
23 A-1207-13T3 Given that the defendant holds the key, our Supreme Court
in Bruzzese authorized officers to accompany an arrestee into
his home even though "one of this country's most protected
rights throughout history has been the sanctity and privacy of a
person's home," and that courts have "applied a more stringent
standard . . . to searches of a residential dwelling." Id. at
217. The Court emphasized that "the touchstone of the Fourth
Amendment is reasonableness," and that the officer's action in
following the defendant into his home "was reasonable, and
hence, constitutional, under both the Fourth Amendment of the
United States Constitution and Article I, paragraph 7 of the New
Jersey Constitution." Id. at 217, 235.
We similarly recognize that "'physical entry of the home is
the chief evil against which the wording of the Fourth Amendment
is directed.'" State v. Vargas, 213 N.J. 301, 313 (2013)
(quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313,
92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972)). "The
Fourth Amendment and the New Jersey Constitution assure the
'highest degree of protection to privacy interests within the
home.'" State v. Coles, 218 N.J. 322, 337 (2014) (citation
omitted). "Both protect against unreasonable searches and
regard the warrantless entry into a person's home as
'presumptively unreasonable.'" Ibid. (citation omitted).
24 A-1207-13T3 Nonetheless, like the Supreme Court in Bruzzese, "we
balance, as we must in all search and seizure cases, the
interests of public safety, in this instance the protection of
policemen, against the intrusion." Bruzzese, supra, 94 N.J. at
232. We similarly conclude the "officer is entitled to the
protection he or she would receive under this rule," and that it
is "reasonable to permit policemen to keep [detained] persons in
sight and within reach to prevent their escape." Id. at 232,
234. This is particularly true where, as here, there is a
reasonable belief they may be armed and dangerous.
D.
Once defendant entered his apartment, he provided Officer
Dill further grounds for believing his grey sweatshirt contained
a weapon or other contraband. Defendant removed the grey
sweatshirt and instructed his female companion to put it in the
bedroom while the officer was busy, and then suspiciously
stepped over the grey sweatshirt to grab another sweatshirt from
the closet. Given this indication that defendant was trying to
conceal evidence, Dill "had unrestricted access to the
[apartment]" to prevent it. Chrisman, supra, 455 U.S. at 9, 102
S. Ct. at 818, 70 L. Ed. 2d at 786.
Indeed, Officer Dill would have been justified in seizing
and searching the sweatshirt "under the well-recognized 'plain
25 A-1207-13T3 view' exception to a warrantless seizure of property under the
Fourth Amendment." Bruzzese, supra, 94 N.J. at 235-36, 239
(upholding the plain view seizure and inspection of boots). The
officer was "lawfully in the viewing area." Id. at 236. As set
forth below, he had "'probable cause to associate the
[sweatshirt] with criminal activity'" based on what he
"'reasonably knew at the time of the seizure.'" Johnson, supra,
171 N.J. at 213 (quoting Bruzzese, supra, 94 N.J. at 237).
Finally, Dill "discover[ed] the evidence 'inadvertently,'
'meaning that he did not know in advance where evidence was
located nor intend beforehand to seize it.'" Id. at 206
(quoting Bruzzese, supra, 94 N.J. at 236). Because he "did not
know in advance that evidence would be found in" the grey
sweatshirt before he first encountered defendant, he did not use
"the plain-view doctrine only as a pretense" to avoid getting a
warrant in advance of the encounter. Id. at 211-13; see also
State v. Padilla, 321 N.J. Super. 96, 109 & n.7 (App. Div.
1999), aff'd o.b., 163 N.J. 3 (2000).
Once again, Officer Dill chose a more restrained approach
and simply secured the grey sweatshirt rather than immediately
searching it. Invalidating his actions "would have the perverse
effect of penalizing the officer for exercising more restraint
26 A-1207-13T3 than was required under the circumstances." Chrisman, supra,
455 U.S. at 8, 102 S. Ct. at 817, 70 L. Ed. 2d at 786.
Moreover, Officer Dill's monitoring of defendant's
movements was "conducted in an objectively reasonable fashion."
Bruzzese, supra, 94 N.J. at 234. He did not "'lead the accused
from place to place and attempt to use his presence in each
location to justify a search'" of the apartment. Id. at 234-35
(citation omitted). Instead, he simply insisted that defendant
keep the sweatshirt he had been wearing, and accompanied him to
retrieve it. Dill also did not "direct [defendant] to go to
another area without a legitimate reason grounded in the safety
of the police or the public." Ibid. Instead, when defendant
became extremely nervous, repeatedly looked at the sweatshirt,
and became uncooperative, Dill directed defendant back outside
of the apartment where the stop could be conducted with greater
safety for the officer.7
E.
Defendant's increasing nervousness, uncooperativeness, and
apparent preparation to flee led Officer Dill, whose backup
officer was leaving to investigate another person, to handcuff
7 Officer Dill estimated they had spent only about three minutes in the apartment. Officer McElwee said it "was probably five, ten minutes." Neither time period suggests, and defendant does not contend, that his detention exceeded the permissible duration of a Terry stop.
27 A-1207-13T3 defendant. Dill then conducted a canine sniff of defendant's
sweatshirt, placing him in the police car to prevent him from
triggering any protective efforts by the police dog. The metal
clank resulting from the canine sniff gave further proof that
the sweatshirt contained a weapon, as the subsequent search
confirmed.
The trial court properly found these precautions were
reasonable and not unnecessarily intrusive under the
circumstances. "The touchstone of a court's analysis under the
Fourth Amendment is, as always, '"the reasonableness in all the
circumstances of the particular governmental invasion of a
citizen's personal security."'" Smith, supra, 134 N.J. at 614
(quoting Mimms, supra, 434 U.S. at 109, 98 S. Ct. at 332, 54 L.
Ed. 2d at 335 (quoting Terry, supra, 392 U.S. at 19, 88 S. Ct.
at 1878-79, 20 L. Ed. 2d at 904)). "Authorities must be allowed
'to graduate their response to the demands of any particular
situation.'" United States v. Montoya De Hernandez, 473 U.S.
531, 542, 105 S. Ct. 3304, 3311, 87 L. Ed. 2d 381, 392 (1985)
(citation omitted).
Defendant contends the officer's precautions exceeded the
scope of a Terry stop. "'[A]n investigative stop becomes a de
facto arrest when the officers' conduct is more intrusive than
necessary for an investigative stop.'" State v. Dickey, 152
28 A-1207-13T3 N.J. 468, 478 (1998) (citation and other internal quotation
marks omitted). "'[F]actors that may weigh in favor of an
arrest are subjecting a suspect to unnecessary delays,
handcuffing him, or confining him in a police car.'" Id. at 479
(citation omitted). However, handcuffing does not necessarily
"establish[] the fact of an arrest." Id. at 483. Further, our
Supreme Court has refused "to hamstring the police officers' on-
the-scene determination to keep defendant detained in the patrol
car" during a Terry stop if their investigation requires them to
divert their attention from the defendant. Coles, supra, 218
N.J. at 347.
Moreover, "conducting a dog sniff [does] not change the
character of a [Terry] stop that is lawful at its inception and
otherwise executed in a reasonable manner," because it
"generally does not implicate legitimate privacy interests."
Illinois v. Caballes, 543 U.S. 405, 408-09, 125 S. Ct. 834, 837-
38, 160 L. Ed. 2d 842, 847 (2005); see also State v. Cancel, 256
N.J. Super. 430, 434-37 (App. Div. 1992), certif. denied, 134
N.J. 484 (1993). Officer Dill had reasonable suspicion that
defendant's sweatshirt contained drugs or a weapon, and the K-9
dog trained to detect drugs was immediately available to conduct
a dog sniff for drugs. Indeed, an officer in a lawful
investigatory stop may conduct a dog sniff even if it "prolongs
29 A-1207-13T3 the stop" to a reasonable extent needed to complete the dog
sniff procedure, so long as the officer has "reasonable
suspicion" of drug possession. Rodriguez v. United States, 575
U.S. __ , __ S. Ct. __ , __ L. Ed. 2d __ (2015) (slip op. at 6-
8); State v. Baum, 393 N.J. Super. 275, 290 (App. Div. 2007),
aff'd as modified, 199 N.J. 407 (2009).8
Even if Officer Dill's actions of handcuffing defendant and
placing him in the police vehicle converted the investigatory
stop into a de facto arrest, those actions are valid if
"supported by probable cause." Coles, supra, 218 N.J. at 346.
As set forth above, "the smell of marijuana itself constitutes
probable cause 'that a criminal offense had been committed.'"
Walker, supra, 213 N.J. at 290 (citations omitted).9 Indeed,
8 The resulting clanking noise made by the gun was the product of a legal canine sniff, regardless of whether the dog was trained to search for a gun. 9 "Possession of . . . marijuana" remains an offense. N.J.S.A. 2C:35-10(a)(3)-(4); see N.J.S.A. 2C:35-2, 24:21-5(e)(10) (defining marijuana as a Schedule I controlled dangerous substance). Neither party has invoked the New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. 24:6I-1 to - 16, which seeks "to protect from arrest, prosecution, property forfeiture, and criminal and other penalties, those [registered qualifying] patients who use marijuana to alleviate suffering from debilitating medical conditions." N.J.S.A. 24:6I-2(e). Moreover, there is no claim or evidence here that defendant or anyone using marijuana on the porch was an "authorized holder of an appropriate registration, permit or order form" under that Act, which is an affirmative defense. N.J.S.A. 2C:35-18; see (continued)
30 A-1207-13T3 this probable cause arguably gave the officer the right to
arrest defendant for committing a marijuana offense in his
presence. See id. at 295-96.10
Defendant's hurrying away from the officer suggested
defendant had committed that offense, and arguably "converted
articulable suspicion into probable cause." State v. Ramos, 282
N.J. Super. 19, 22 (App. Div. 1995). The high level of
suspicion was only increased by the bulge in defendant's grey
sweatshirt, his attempt to conceal the grey sweatshirt, and his
suspicious act of stepping over this grey sweatshirt to get
another sweatshirt. Considering "the totality of the
circumstances," there was "'a well grounded suspicion that a
crime has been or is being committed'" before Dill secured the
sweatshirt in the apartment. State v. Basil, 202 N.J. 570, 585,
589 (2010) (citation omitted). Defendant only added further
(continued) N.J.S.A. 24:6I-3, -4, -5, -6(e); N.J.A.C. 8:64-2.5, -3.1. Accordingly, we need not address the effect of that Act. 10 N.J.S.A. 40A:14-152.1 allows "arrest for any crime committed in [an] officer's presence." N.J.S.A. 40A:14-152 allows "arrest [of] any disorderly person or any person committing a breach of the peace" "upon view," ibid., that is, "in the presence of the arresting officer." State v. Dangerfield, 171 N.J. 446, 460 (2002); see Walker, supra, 213 N.J. at 286. "The 'in presence' requirement . . . is satisfied by the [officer's] use of his sense of smell in much the same manner as if he had used his sight or hearing or touch[.]" Judge, supra, 275 N.J. Super. at 203.
31 A-1207-13T3 suspicion by his escalating nervousness and preparation to flee.
Therefore, there was plainly probable cause to arrest defendant
before he was handcuffed or confined, and even before Dill
secured the sweatshirt in the apartment.
It is "'irrelevant'" whether Officer Dill had the
subjective belief he had probable cause to arrest. State v.
O'Neal, 190 N.J. 601, 613-14 (2007) (citation omitted). As
Bruzzese held, "[i]n determining whether a police officer's
actions are constitutional, we do not rely on the officer's own
subjective appraisal, but upon an objective evaluation by a
neutral judicial authority." Bruzzese, supra, 94 N.J. at 219-
20. "Although an officer may testify to his or her subjective
intent, the crucial inquiry is whether the officer's conduct was
objectively reasonable." O'Neal, supra, 190 N.J. at 614. "'An
action is reasonable under the Fourth Amendment, regardless of
the individual officer's state of mind, as long as the
circumstances, viewed objectively, justify [the] action.'" Id.
at 613-14 (quoting Brigham City v. Stuart, 547 U.S. 398, 404,
126 S. Ct. 1943, 1948, 164 L. Ed. 2d 650, 658 (2006) (internal
quotation marks omitted)).
"[T]he fact that the officers did not believe there was
probable cause and proceeded on a consensual or Terry-stop
rationale would not foreclose the State from justifying [a
32 A-1207-13T3 defendant's] custody by proving probable cause." Florida v.
Royer, 460 U.S. 491, 507, 103 S. Ct. 1319, 1329, 75 L. Ed. 2d
229, 242 (1983) (plurality opinion) (citing Sibron v. New York,
392 U.S. 40, 66-67, 88 S. Ct. 1889, 1904, 20 L. Ed. 2d 917, 936-
37 (1968)). Thus, in O'Neal, our Supreme Court upheld a
purported Terry stop because "objectively, [the officers] had
probable cause," and "could have immediately placed him under
arrest, searched him, and seized the bag of drugs as a search
incident to a lawful arrest." O'Neal, supra, 190 N.J. at 607,
611, 613-14. Similarly, even if Officer Dill's precautions made
this a de facto arrest, probable cause justified arrest, the
search of defendant's sweatshirt, and the seizure of the gun.
See id. at 613-14.
F.
At the suppression hearing, the parties cited Chrisman and
Bruzzese, which the State urged authorized Officer Dill to
accompany defendant into his apartment. The trial court agreed
"the police acted within their authority in following the
Defendant into the apartment." However, in its appellate brief,
the State without explanation abandoned that position, and
instead argued that we should uphold the denial of suppression
on the grounds of inevitable discovery.
33 A-1207-13T3 At oral argument, the State clarified it was not confessing
error in the trial court's ruling, but merely offering a new,
alternative basis for affirmance. Regardless, any confession of
error would not be binding on this court. State v. Josey, 290
N.J. Super. 17, 32 (App. Div.), certif. denied, 146 N.J. 497
(1996). "[A] confession of error by the State must be taken
into account by an appellate court but is not a controlling
factor," and "'does not relieve this [c]ourt of the performance
of the judicial function.'" Ibid. (quoting Young v. United
States, 315 U.S. 257, 258, 62 S. Ct. 510, 511, 86 L. Ed. 832,
834-835 (1942)). The trial court has made a ruling, and "'our
judicial obligations compel us to examine independently the
errors confessed.'" Id. at 32 (quoting Young, supra, 315 U.S.
at 258-59, 62 S. Ct. at 511, 86 L. Ed. at 835). Our analysis
finds no error by the trial court.
Thus, we do not consider the State's new inevitable
discovery argument, which was raised for the first time on
appeal, without the necessary facts being developed in the trial
court. State v. Bradley, 291 N.J. Super. 501, 516 (App. Div.
1996); see State v. M.A., 402 N.J. Super. 353, 358 n.1 (App.
Div. 2008); see generally State v. Robinson, 200 N.J. 1, 18-22
(2009).
34 A-1207-13T3 III.
Defendant's appellate brief also challenged the sentencing
court's denial of bail pending appeal. He did not file a motion
in this court seeking bail pending appeal under Rule 2:9-4. A
defendant requesting bail pending appeal should raise that issue
by motion filed promptly after filing the appeal, to bring the
request to our attention earlier. At this point, the appeal is
no longer pending before us and the issue is moot.
In any event, a defendant may only receive bail pending
appeal "if it appears that the case involves a substantial
question that should be determined by the appellate court, that
the safety of any person or of the community will not be
seriously threatened if the defendant remains on bail and that
there is no significant risk of defendant's flight." Ibid. The
sentencing court found that the safety of the community would be
seriously threatened given defendant's firearm conviction and
criminal history, and that there was a significant risk of
flight as he was facing a substantial prison sentence.
"The setting of bail is vested in the sound discretion of
the trial court, and we consequently review the trial court's
decision for an abuse of discretion." State v. Steele, 430 N.J.
Super. 24, 34 (App. Div.), appeal granted, 214 N.J. 233 (2013),
35 A-1207-13T3 appeal dismissed, __ N.J. __ (2014). Even assuming the appeal
presents a substantial question, we find no abuse of discretion.
Affirmed.
36 A-1207-13T3