State of New Jersey v. Kenneth D. James

• Court: New Jersey Superior Court Appellate Division
• Decided: January 24, 2024
• Docket: A-2468-22/A-3427-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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 NOS. A-2468-22 A-3427-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH D. JAMES,

Defendant-Appellant. _______________________

Argued (A-3427-22) and Submitted (A-2468-22) December 12, 2023 – Decided January 24, 2024

Before Judges Natali and Puglisi.

On appeal from the interlocutory orders of the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 21-06-0480 and 21-06-0481.

Joseph M. Mazraani argued the cause for appellant (Mazraani & Liguori, LLP, attorneys; Jeffrey S. Farmer, of counsel and on the briefs).

Catlin A. Davis, Assistant Prosecutor, argued the cause for respondent (John P. McDonald, Somerset County Prosecutor, attorney; Catlin A. Davis, of counsel and on the briefs). PER CURIAM

In these appeals, calendared back-to-back and consolidated for purposes

of this opinion, defendant Kenneth D. James appeals from the Law Division 's

March 16, 2023 and May 31, 2023 interlocutory orders denying his motions to

suppress evidence. Defendant raises the following issue for our consideration

in both appeals:

THE COURT BELOW ERRED IN DENYING DEFENDANT’S MOTION TO SUPPRESS EVIDENCE SEIZED WITHOUT A WARRANT BECAUSE THERE EXISTED NO REASONABLE AND ARTICULABLE SUSPICION OF CRIMINAL WRONGDOING TO JUSTIFY THE STOP.

Having considered defendant's contentions in light of the record and applicable

law, we affirm both orders.

Around 7:30 p.m. on February 9, 2021, Detective Nicholas Gambino was

conducting roving surveillance in Franklin Township around "Area One," which

is known to law enforcement as a high crime area involving narcotics, firearms

and gang violence. Gambino was a member of the Organized Crime and

Narcotics Task Force/Street Crimes Unit (Task Force) in the Somerset County

Prosecutor's Office. The Task Force is a "pro-active street crimes unit which

focuses on the [interdiction] of the distribution of narcotics, firearms and

weapons possessions, violent crime, robberies, burglaries [and] stolen

A-2468-22 2 vehicles[.]" Gambino, who had knowledge of the area and extensive experience

in narcotics investigations, was working undercover, wearing plain clothes and

driving an unmarked vehicle.

Gambino saw defendant stop his car in the middle of the street in front of

a house on Minetta Road, exit the vehicle and briefly meet with an unknown

woman. In order to avoid recognition, Gambino circled the "small residential

block" and when he returned to the scene, he observed the woman walking back

towards the house and defendant driving away. Although he did not witness any

contraband or money being exchanged, based on his training and experience,

Gambino believed the activity he observed was consistent with a hand-to-hand

narcotics transaction. Gambino was also aware the Task Force had previously

seized narcotics and weapons from the house in front of which defendant had

stopped, although he was not directly involved in that investigation.

Gambino followed defendant and observed him engaging in what

Gambino considered to be countersurveillance measures. During the hearing on

the motion to suppress, Gambino testified defendant attempted to "clean"

himself by "driving his car at fast speeds" and "taking . . . back roads." Gambino

explained "cleaning" was a common term officers used to describe an

A-2468-22 3 individual's attempt to ensure a vehicle is not being followed by police and to

"lose a tail."

Defendant then turned left onto Girard Avenue, quickly pulled over to the

right side of the road and turned off the interior and exterior lights but left the

engine running. Based on his training and experience as a narcotics detective,

Gambino testified defendant was attempting evasive maneuvers by trying to

"blend in . . . as just a vehicle on the side of the road." Defendant then turned

his lights back on and began driving at a "high rate of speed" up the street, over

the posted speed of twenty-five miles per hour.

Defendant then "abruptly" turned into the driveway of his residence and

again turned off the car's interior and exterior lights but left the engine running.

Defendant exited the car and walked toward the rear of the house. Gambino

pulled over to the side of the road in front of the house, exited his vehicle and

yelled, "stop, police," which defendant disregarded. Simultaneously, a detective

in a marked police vehicle arrived at the house and pulled into the driveway

behind defendant's car. When the detective activated his vehicle's overhead

police lights, defendant began running to the rear of the house, again

disregarding Gambino's order to stop. As Gambino rounded the house, he saw

A-2468-22 4 defendant running away from an area near a basement window. At that point,

defendant stopped and put his hands in the air.

When defendant was arrested for hindering apprehension, the detectives

traced the path of his footprints in the snow and recovered a semiautomatic

firearm near the basement window. Gambino subsequently checked defendant's

criminal history, which showed he had two prior weapons convictions in

addition to convictions in 2015 for distribution of CDS and unlawful possession

of a weapon, and was therefore a certain person not to have a weapon. N.J.S.A.

2C:39-7(b).

Later that evening, the State applied for a telephonic search warrant of

defendant's vehicle for evidence of CDS and weapons offenses. Based on

Gambino's sworn testimony, the warrant judge found the State established

probable cause to search defendant's car and issued the warrant. During their

search of defendant's car, officers seized approximately ten ounces of suspected

marijuana, sixty-nine grams of suspected hashish, nine individually sealed packs

of tetrahydrocannabinol (THC) edibles, and suspected packaging materials for

CDS distribution. They also seized $295.64 in cash from defendant's person,

presumably during the search incident to his arrest.

A-2468-22 5 Indictment No. 21-06-00480 charged defendant with second-degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); second-degree

possession of a firearm during a controlled dangerous substance offense,

N.J.S.A. 2C:39-4.1(a); two counts of third-degree possession with intent to

distribute a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and (b)(11);

third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(2);

third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); and fourth-degree

possession of a large capacity magazine, N.J.S.A. 2C:39-3(j). Indictment No.

21-06-00481 charged defendant with second-degree certain persons not to have

weapons, N.J.S.A. 2C:39-7(b).

Defendant filed a "notice of motion to suppress evidence seized without a

warrant," arguing it was discovered after an unlawful investigatory stop.

Although the notice of motion challenged only a warrantless search, defendant's

letter brief in support of the motion addressed both the initial investigatory stop

and the warrant search of the vehicle.

Judge Peter J. Tober heard testimony on defendant's motion to suppress.

During the hearing, Gambino testified to the incident leading up to the arrest but

not to the arrest or search warrant application. On March 16, 2023, Judge Tober

A-2468-22 6 issued his written opinion denying defendant's motion to suppress, finding the

totality of the circumstances justified the investigatory stop:

First, the defendant met with an unknown female in the middle of [Minetta Road]. While such a meeting by itself does not imply that the defendant and unknown female were conducting a drug transaction, it began to arise suspicion to later justify an investigatory stop when the subsequent facts are added to the equation.

When Detective Gambino began following the defendant after meeting with a female on [Minetta Road], the defendant began driving evasively. Here, reasonable suspicion grew not only from the observation of a brief roadside meet in front of . . . Minetta Road, but Detective Gambino's direct observation of defendant's manner of driving as he drove away from the area. [Gambino] indicated that the defendant was driving in an excessive speed in an attempt to evade the officer. More importantly, the defendant, at one point, doused his lights and waited to see if he was being followed.

The defendant then proceeded to turn into the driveway of a residence on Girard Avenue, left his vehicle running, and walked to the rear of the residence instead of the front door. Taking the totality of the circumstances regarding this defendant's conduct in accordance with Lund[1] and Gamble,[2] a reasonable individual could come to the inference that the defendant was about to or might be in the process of committing a crime.

1 State v. Lund, 119 N.J. 35 (1990). 2 State v. Gamble, 218 N.J. 412 (2014). A-2468-22 7 Because the motion was styled as a challenge to the warrantless search,

the court did not address the subsequent warrant search of the vehicle. The next

day, defendant filed a motion to suppress the evidence seized pursuant to the

search warrant, relying on the brief he filed with the first motion. While the

second motion was pending, we granted defendant's motion for leave to appeal

the March 16, 2023 order.

On May 15, 2023, the judge issued an order and opinion denying

defendant's second motion to suppress, apparently under the misunderstanding

that the search of the vehicle occurred without a warrant. On May 31, 2023, the

judge issued a third order and decision clarifying the two prior orders. In it, the

court concluded the totality of relevant circumstances showed the officers'

attempted investigative stop was supported by reasonable, articulable suspicion,

and ample probable cause supported the search warrant for defendant's car. We

granted defendant's motion for leave to appeal the May 31, 2023 order.

On appeal, defendant reiterates the same contention as he did below in

both matters: the police lacked a reasonable articulable suspicion he engaged in

criminal activity, and therefore lacked probable cause for the search warrant.

We disagree.

A-2468-22 8 Our standard of review for a decision on a motion to suppress is limited.

State v. Ahmad, 246 N.J. 592, 609 (2021). We defer to a trial court's factual

findings in a suppression hearing "when 'those findings are supported by

sufficient credible evidence in the record.'" State v. A.M., 237 N.J. 384, 395

(2019) (quoting State v. S.S., 229 N.J. 360, 374 (2017)). This deference is in

recognition of the trial court's "opportunity to hear and see the witnesses and to

have the 'feel' of the case, which a reviewing court cannot enjoy." State v.

Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161

(1964)). Appellate courts "will not disturb the trial court's factual findings

unless they are so clearly mistaken that the interests of justice demand

intervention and correction." State v. Goldsmith, 251 N.J. 384, 398 (2022)

(internal quotation marks and citations omitted). However, legal conclusions to

be drawn from those facts are reviewed de novo. State v. Radel, 249 N.J. 469,

493 (2022); State v. Hubbard, 222 N.J. 249, 263 (2015).

We first address the investigatory stop of defendant. "[A] police officer

may conduct an investigatory stop of a person if that officer has 'particularized

suspicion based upon an objective observation that the person stopped has been

or is about to engage in criminal wrongdoing.'" State v. Coles, 218 N.J. 322,

343 (2014) (quoting State v. Davis, 104 N.J. 490, 504 (1986)). "The stop must

A-2468-22 9 be reasonable and justified by articulable facts; it may not be based on arbitrary

police practices, the officer's subjective good faith, or a mere hunch." Ibid. The

standard for an investigatory stop "is less than the probable cause showing

necessary to justify an arrest." State v. Shaw, 213 N.J. 398, 410 (2012).

Here, an experienced detective was conducting roving patrol in an area he

knew to be high-crime, and observed defendant stop in the middle of the street

to have a brief transaction with a woman. This encounter had the indicia of a

hand-to-hand narcotics transaction and occurred in front of a house the detective

knew had been the location of prior criminal activity. Upon following

defendant's car, the detective observed tactics that, based on his training and

experience, appeared to be evasive maneuvers. We find no error in the court's

finding that these facts, when taken in their totality, justified Gambino's

investigatory stop.

In support of his contention the investigatory stop was not supported by

reasonable articulable suspicion, defendant points to State v. Kuhn, 213 N.J.

Super. 275 (App. Div. 1986). In that case, an officer in a high-crime area

observed a car parked diagonally across more than one parking space, with two

people in the car and one individual outside the car. Id. at 277. The officer

A-2468-22 10 testified this arrangement was consistent with a drug transaction and stopped the

vehicle when it left the lot. Ibid. We found the stop unsupported:

Although the officer testified that drug activity often occurs when there is a group of three people, a buyer, seller and lookout, he testified to no furtive movements or unusual actions on the part of the three, except for their leaving when the police van drove into the parking lot. That action cannot be inculpatory, since it could have been attributed either to coincidence or to the fact that the individuals did not wish to be in the proximity of police, not a commendable, but also not an unlawful attitude.

[Id. at 281-82.]

The judge's conclusions here do not collapse under Kuhn because in

addition to defendant's unusual behavior in stopping his vehicle in the middle of

the street to briefly meet with another individual, the detective testified to

defendant's furtive actions in driving his vehicle away from the area. While an

individual may "not wish to be in the proximity of police," defendant here did

not just leave Minetta Road and drive home. He did so at a high rate of speed

in a residential area, then abruptly pulled over and doused the lights on his

vehicle. Although defendant argues there may be many reasons for his actions,

the determinative inquiry is not whether there are other plausible explanations

for defendant's behavior but rather whether the actions, when viewed in their

totality, constitute reasonable articulable suspicion of criminal activity. The

A-2468-22 11 trial judge heard the detective's testimony and found it credible, and we owe

deference to that determination.

We next turn to defendant's challenge of the search warrant, for which the

scope of appellate review is also limited. State v. Chippero, 201 N.J. 14, 32

(2009). "[R]eviewing courts 'should pay substantial deference' to judicial

findings of probable cause in search warrant applications." State v. Andrews,

243 N.J. 447, 464 (2020) (quoting State v. Kasabucki, 52 N.J. 110, 117 (1968)).

"[W]hen the adequacy of the facts offered to show probable cause is challenged

. . . and their adequacy appears to be marginal, the doubt should ordinarily be

resolved by sustaining the search." State v. Jones, 179 N.J. 377, 388-89 (2004)

(quoting Kasabucki, 52 N.J. at 116).

When the detectives attempted to effectuate an investigatory stop,

defendant ignored their orders and instead walked away; then, upon seeing

police lights ran to the back of the residence. Gambino observed defendant

running from a basement window area, in which they recovered a handgun.

Contrary to defendant's recitation of the facts, the application for the search

warrant was supported not only by the events leading up to the investigatory

stop, but also defendant's flight from police and their discovery of the weapon.

A-2468-22 12 Defendant maintains that because the handgun was discovered outside the

vehicle, it could not have justified the search of the vehicle. This contention

fails because the fact that the weapon was found "some distance" from the

vehicle does not attenuate its connection to the vehicle. Gambino saw defendant

run from the car to the back of the house, then run from the window area where

the weapon was found. A reasonable inference is that defendant had the weapon

on his person in the car and, knowing he was a certain person not to have a

weapon, ran to the backyard to dispose of it when he saw the police lights. Thus,

the court correctly determined the search warrant was supported by probable

cause.

To the extent the motion judge and the parties addressed a warrantless

search of the vehicle, we decline to consider that issue because the search of the

vehicle was executed pursuant to a search warrant. We are satisfied that under

the totality of the circumstances, the police had a reasonable and articulable

suspicion to conduct an investigatory stop of defendant and established

sufficient probable cause to justify the issuance of the search warrant.

Affirmed.

A-2468-22 13